2 $ 560.00 1$ 1.120.00 I
s 50.00 50.00
s 15.00 15.00 I: 1
$ 1,360.00 s 1,360.00
s 200.00 $ 200.00
Door I Window Ajar Alarm Package (on all Egress Windows & Rear Door or Window) s 115.00 $ 115.00 Exit Indicator Light on Dash In Driver's Area s 100.00 $ 100.00 Red Indicator Lights above each Emergency Exit (Total of 4) s 75.00 s 75.00 Back Up Alarm $ 60.00 s 60.00
AUDIO I VISUAL
Rosco Backup Camera with 7" Monitor s 270.00 Is 210.00 I s 120.00 Is 120.00 I
s 315.00 $ 315.00
$ 100.00 $ 100.00
TRANS-AIR A/C SYSTEMS
TRANS-AIR DUAL COMPRESSOR SYSTEMS • SKIRT CONDENSER
75K BTU Total - TA733-SUPER 13 CID - Dual Comp, Skirt Condenser, Ceiling Evap a,000.00 l_$___a_,o_oo_.o_o_..l Pro Air HEATERS
Valeo 70K BTU, 3 Speed-Mounted Under Seat With Shut Off Valves 615.oo l..._1>___a_1_s._oo_.l '--------'----I
SAFETY OPTIONS
1 5 Lb. ABC Fire Extinguisher w/ Bracket s 105.00 $ 105.00 1 Bl-Directional Reflective Triangles $ 55.00 $ 55.00
1 25 Unit First Aid Kit w/ Plastic Waterproof Case, ANSI 2009 s SO.OD $ 50.00
GRAB RAIL/ STANCHION/ PANELS
1 Celling Grab Rail Curbside (ADA requirement) $ 205.00 205.DO I
MISC OPTIONS
SEATING
DRIVER'S SEATING
I I 1 SHIELD FC Recliner, RH Arm, 4 Position Lumbar, Mesh Pocket s 440.0D j 440.00 I
OEM DRIVER SEAT RE-COVERED TO MATCH PASSENGER SEATS
FREEDMAN SHIELD.& LO CAM DRIVER SEAT FABRICS
"EUROPEANOR AMERICAN WOOL QUOTED AT TIME OF ORDER..
I I 1 Driver Seat Cover - Level 4 I color # &name s 145.oo I Is 145.oo I
PASSENGER SEAT FABRICS
..EUROPEAN OR AMERICAN WOOL QUOTED AT TIME OF ORDER..
I I 14 Seat Cover - Level 4 I color# & nc1me s 50.00 I Is 100.00 I
PASSENGER SEATING
FREEDMAN FEATHERWEIGHT STANDARD RIGID SEATS
I I 6 Featherweight Mid-High Double Seat $ 375.oo I Is 2.250.00 I
FREEDMAN FLIP SEATS
I I 2 Econo Flip - Single s 41s.oo I Is gso.oo I
SEAT OPTIONS
AV Grab Handle, Black· Each (PPE Material) on: Aisle Seats s 30.00 I $ 180.00 I I 6 I 6 Flip-Up US Armrest, Black - Eac:11 (PPE Material) on: I Aisle Seats $ 30.00 I $ 180.00 I I
SEATBELTS
I I 12 Seat Belt, USR Freedman Retractable (Per Person) NIA Foldaway or Flip Seals $ 85.0D I $ 1,020.00 2 Seat Ben, USR Retractable (Per Person) For Foldaway & Fllpseat) NIA Handi Flip $ 10.00 I $ 140.00 I I
MOTIV ELECTRIFICATION COMPONENTS
1 EPIC4 Shullle Bus CA 176" Electrification $ 145,000.00 $ 145,000.00 1 Auxiliary Heater for any EPIC4 $ 2,250.00 $ 2,250.00
1 Cab Air Conditioning $ 2,000.00 $ 2,000.00
Confidential: None Created 08/12/2021
Page H-4.45
Endera Quality Control
' AcousUo Vehicle Alert Sy,rtl)!Tl ' 1,200.00 ' 1,200.00 ' lnste.llatlon of Frell\e E!denslon for any EPIC4 ' 1,000,00 ' 1,000.00 ' R<iar AIC ConnactQr Kil for ooy CutaW11Y or F63 ' 500.00 ' 500.00 ' Freight ' 7,6QO.QO $ 7,600.00
' Charg<1 Port: OC Fast Charga ' 7,500.00 ' 7,500.00
' Geol8b Telenurtk:s with 3 year Sub&crlpflM ' 1,480.00 ' 1,480.00 ' 3-year HVIP Reporting ' 1,200.00 ' 1,200.00
PRODUCTION NOTES I INSTRUCTIONS
TOTAL CONVERSION PRICE $ 243,265.00
LESS MANUFACTURER DISCOUNT APPLIED
2025 Surcharge $ 12,163.25
NET CONVERSION PRICE! $ 255,428.25
TOTAL aus PRICE (Includes Chassis) $ 293,608.25
GRAND TOTAL BUS PRICE $ 293,608.25
HVlP 1/oucher Discount $ (60,000.00)
15% HVIP Small Fleet Add•on (ContJnnent on Fleet Size) $ (9 000.00) Taxes, OMV,& Doc Fe&s TBD
NET DUI': $ 224608.25
PLEASE SUBMIT FLOORPLAN WITH ORDER
De!ivary Date Requested: L..__027000d0a0
,..cc•c•ceccRcO=C--~
AUTHORIZED CUSTOMER SIGNATURE
Delivery Date Appro~:
AUTHORIZED ENDERA AUTOMOTIVE SIGNATURE DATE
Confidential: None Created 08/12/2021
Page H-4.46
Endera Quality Control
-.....
-
EN!JERJ\
ENDERA ~ STANDARD FEATURES
One-Piece Seamless Molded Fiberglass White Gel Coated Roof White Exterior Gel Coat Finish
Fully Welded Tubular Steel Roll Cage Framework
Direct Body to Frame Mounllng for Improved Strength
Drive Shafi Loops (1 per Drive Shaft Section)
Full Vision Flush Mount Bonded Windows - Patent Pending Integrated Side Egress Windows
Tongue &Groove 3/4" Marine Grade Plywood Floor
Step Box Battery Storage
Stanchion at Top of Step Box wt Modesty Panel & Hand Rail Parallel to Steps (Left Side) Right Hand Grab Rail Parallel to Steps
High Gloss Fiberglass Exterior Wall Material
Electric Powered 36" Entrance Door with Dash Switch (33" Clear Opening) Weldon High Content Node Power Control Module
Interior LED Lighting Package
Black Interior Sidewalls
While Interior Celling
Gray Padded Vinyl In Drivers Area
Door Activated Interior Lights
Exterior LED Lighting Package
''Endera" Basic Decal Kit
Rear Mud Flaps
Steel Rear Bumper
~ear Wheel Rubber Fender Guard
overhead Storage compartment in Front Bulkhead
Redundant Ground Between Chassis and Power Unit
Fuel Inspection Cover
Rosco Exterior Manual Mirrors
4 Interior Speakers (2 In Front and 2 in Rear)
92-lnch Interior Width for comfortable sealing
78-lneh Center Aisle Ceiling Height
Additional Curbside Letif Spring on Lift Buses
Water Test
Weight Sllp
Floorplan with Elevation
Anything else that is Jn the packet given to drivers
Chassis Daytime Running Lights
OEM 240 Amp HD Alternator
Cruise Control
AM/FM Radio with Clock, Bluetooth, and USB Port with 4 Speakers CNG Engine Prep Package
Page H-4.47
3 Year I 36,000 Mlle Warranty- (OEM Only)
5 Year 1150,000 Mlle Warranty- (Endera Structure Only)
STURRA Tested for 7 years/ 200,000 MIias
FMVSS Certified
Ford QVM Certified
Page H-4.48
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Page H-4.49
ATTACHMENT E
RESOLUTION NO. 6552
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO ADOPTING SUSTAINABLE VEHICLE FLEET POLICY NO. CC-20-011 TO REDUCE GREENHOUSE GAS EMISSIONS BY INCREASING THE NUMBER OF ZEROEMISSION FLEET VEHICLES WHEREAS, on December 10, 2019 the City Council of the City of Menlo Park adopted Resolution No. 6535 declaring a climate emergency to accelerate its actions to address climate change and reduce greenhouse gas (GHG) emissions;
WHEREAS, internal combustion engine (fossil fuel) vehicles are large source of GHG emissions;
WHEREAS, the City currently manages a fleet of vehicles to provide specialized services to the community which are primarily internal combustion engine (fossil fuel gasoline) vehicles; and, WHEREAS, recent advancements in technology, such as increased travel range, regenerative braking, and more spacious interior compartments have expanded the capabilities of zeroemissions vehicles so that more City work applications can be met with these vehicles; and, WHEREAS, this policy defines policies and procedures for the acquisition and management of vehicles in the municipal fleet.
NOW, THEREFORE, IT IS RESOLVED, the City Council of the City of Menlo Park hereby adopts the City of Menlo Park sustainable vehicle fleet policy No. CC-20-011 recommended by staff and presented to the City Council on the twenty sixth day of March, 2020, incorporated herein as Exhibit A.
I, Judi Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the twenty-sixth day of March, 2020, by the following votes:
AYES: Carlton, Combs, Mueller, Nash, Taylor
NOES: None
ABSENT: None
ABSTAIN: None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this twenty-sixth day of March, 2020
Judi A. Herren, City Clerk
Page H-4.50
CITY OF
MENLO PARK
Page H-4.51
Resolution No. 6552
SUSTAINABLE VEHICLE FLEET POLICY Page 2 of 4
City Council Procedure #CC-20-011
Effective 3/26/2020
Resolution No. 6552
EXHIBIT A
Purpose
To accelerate greenhouse gas emissions reduction due to the climate emergency and improve San Francisco Bay Area air quality, through the increased adoption of zero-emission vehicles in municipal fleet.
Authority
This policy will set forth the acquisition process for municipal fleet vehicles and outline practices to reduce greenhouse gas emissions related to fleet operation.
Background
In December 2019, City Council signed Resolution No. 6335 declaring a climate emergency which demands accelerated actions to address climate change. Menlo Park’s climate action plan describes strategies and goals to urgently respond to this climate emergency, such as the acquisition of sustainable products over conventional products. Sustainable products have environmental benefits, such as greenhouse gas emission or waste reduction which do not easily translate to an economic value.
The City recognizes internal combustion engine (fossil fuel) vehicles are a large source of greenhouse gas emissions. The City currently manages a fleet of vehicles to provide specialized services to the community which are primarily internal combustion engine (fossil fuel) vehicles. However, recent advancements in zero-emission vehicles (ZEVs), such as increased market availability, travel range, regenerative braking, and more spacious compartments have expanded the capabilities of ZEVs so that more City work applications can be met with these vehicles. The zero-emission vehicle market is not as large as the internal combustion engine vehicle market, but it is growing rapidly. The ZEV market is predicted to offer products that meet 40 percent of current fleet needs by 2025.
Policies and procedures
The City of Menlo Park is committed to improving the San Francisco Bay Area’s air quality and reducing greenhouse gas emissions by instating the following practices:
A. Reducing vehicle fleet tailpipe emissions through:
1. Establishing a “ZEV First” commitment for fleet vehicles that emit no tailpipe emissions from the onboard source of power.
2. Purchasing zero-emission vehicles (ZEV) as a first option priority for the municipal fleet even if comparable fossil fuel vehicles cost less to purchase.
3. Committing to a minimum of 50 percent of ZEVs for total vehicle purchases by 2025 and 75 percent by 2030.
4. Actively seeking vehicle fleet grants to purchase ZEVs.
5. Requiring the installation of electric vehicle charging infrastructure at the time of vehicle purchase, as appropriate considering economic and resource constraints, to support the annual purchase of ZEV.
6. Commit to test, evaluate, and, where feasible, acquire ZEVs for medium- and heavy-duty vehicle categories.
B. Implement the “ZEV First” commitment using the following process and procedure:
1. ZEV purchases shall be prioritized over comparable vehicles powered by internal combustion engines utilizing fossil fuels, flex-fuel, or bi-fuel vehicles powered by petroleum-based fuels (gasoline) and other alternative fuels, such as ethanol or renewable diesel.
2. Exemptions to purchasing a ZEV include:
i. No viable ZEV option is available in the current vehicle market; OR
2 Resolution No. 6552
SUSTAINABLE FLEET
City Council Policy #CC-20-011
Effective 3/24/2020
ii. The ZEV does not meet performance needs to provide services, including but not limited to, public safety, vehicle capabilities, and emergency response functions; OR iii. No fueling infrastructure is available or planned to be completed within six months of vehicle purchase.
3. If an exemption to a ZEV purchase is pursued, the following priority structure will be used in considering a replacement vehicle:
i. Defer purchasing a vehicle if a ZEV market option will be available and/or infrastructure will be installed in less than three years.
ii. Lease plug-in electric hybrid vehicles if available in the market, or the less preferable option is to purchase.
iii. Lease hybrid-electric fuel vehicles if available in the market, or the less preferable option is to purchase.
iv. Lease an internal combustion engine (fossil fuel, flex-fuel or bi-fuel, ethanol, renewable diesel, etc.) vehicle, or the less preferable option is to purchase.
C. Fuel consumption
1. Reduce fossil fuel (gasoline and diesel) consumption 5 percent annually relative to baseline fuel consumption for fund year 2018-2019, and review at year end to take into account potential growth in fleet size.
2. Reduce miles driven annually by fleet vehicles through route optimization, utilizing GPS (Global Positioning System) devices or route optimization specific software.
D. Vehicle operations
1. Promote reduced idling, trip reduction, routing efficiency, and use of city bicycle fleet and public transportation to City departments.
2. Reduce fleet size by removing under-utilized vehicles, reviewing annually, from the fleet or through reassignment in place of additional units.
E. Cost effectiveness and performance
1. Seek grants, rebates, and other financial incentives and funding opportunities to use in purchasing ZEVs and/or implementing electric charging or refueling infrastructure.
2. Identify opportunities and the financial resources needed to replace older fleet equipment with zeroemission equipment.
F. Monitoring and reporting
1. Each fiscal year through the annual budgeting process, staff shall:
i. Prepare an annual replacement assessment which will include budget estimates for zero-emission vehicles replacement, including the cost of necessary electric charging or refueling infrastructure; ii. Report any other actions taken to support or enhance the City's sustainable fleet policy.
2. Enhance fleet management systems and implement new technology with emphasis on reducing fossil fuel (gasoline and diesel) consumption and reviewing the City fleet annually to ensure each vehicle replacement purchase is necessary.
Legislative history
Page H-4.52
3 Resolution No. 6552
SUSTAINABLE FLEET
City Council Policy #CC-20-011
Effective 3/24/2020
Action Date Notes
Adoption by City Council
Resolution No. 6552 3/26/2020
Page H-4.53
,.
MENLO PARK
AGENDA ITEM H-5
City Manager's Office
STAFF REPORT
City Council
Meeting Date:
Staff Report Number:
9/26/2023
23-223-CC
Consent Calendar: Approve advisory body annual work plans for the Complete Streets Commission, Environmental
Quality Commission, Finance and Audit
Commission, Housing Commission and Library
Commission
Recommendation
Staff recommends that the City Council approve the annual works plans for the following advisory bodies:
Complete Streets Commission, Environmental Quality Commission, Finance and Audit Commission, Housing Commission and Library Commission (Attachments A, B, C, D and E).
Policy Issues
City Council Policy #CC-23-004 (Attachment F) defines the policies and procedures and roles and responsibilities for Menlo Park appointed commissions and committees. Each commission is required to develop an annual work plan in support of the City Council work plan and seek City Council approval no later than Sept. 30 of each year per the policy.
Background
The Complete Streets Commission (CSC) advises the City Council on realizing the City's adopted goals for complete streets, vision zero, climate action plan, and provide input on major land use and development projects as it relates to transportation. The City Council last approved the CSC work plan Oct. 12, 2021.
The Environmental Quality Commission (EQC) is charged primarily with advising the City Council on matters involving climate change, environmental protection and sustainability. The City Council last approved the EQC work plan Feb. 14.
The Finance and Audit Commission (FAC) is charged primarily with supporting delivery of timely, clear and comprehensive reporting of the City’s fiscal status to the community at large. The City Council last approved the FAC work plan Aug. 17, 2021.
The Housing Commission (HC) is charged primarily with advising the City Council on housing matters including housing supply and housing related problems. The City Council last approved the HC work plan Jan. 24.
The Library Commission (LC) is charged primarily with advising the City Council on matters related to the maintenance and operation of the City's libraries and library systems. The City Council last approved the LC work plan Nov. 9, 2021.
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 www.menlopark.gov Page H-5.1
Staff Report #: 23-223-CC
Analysis
Complete Streets Commission (CSC)
The CSC is proposing a 2023-24 work plan with six long-term goals that will result in five actionable short term tasks. The six long-term goals are to advise and provide input to the City Council on:
1. Transportation Master Plan implementation
2. Major developments
3. Citywide transportation policies/programs
4. Downtown access
5. Safe routes to school
6. Regional collaboration
Through the lens of these six goals, the CSC examined prior City Council actions/directions and is proposing five actionable short term tasks: two repurposed tasks under goal No. 1, two new tasks under goal No. 3, and one carry-over task under goal No. 5.
Environmental Quality Commission (EQC)
In July, the EQC recently revised their work plan to include an annual agenda calendar that would essentially serve as their work plan. The agenda calendar was approved by the EQC into a formal work plan in September. The intent is to provide greater transparency and adequate time to prepare for discussions. This fiscal year, the EQC is focusing on providing feedback to staff regarding proposed 2025- 2030 scope of work for each Climate Action Plan (CAP) strategy No. 1-6. A final 2025-2030 scope of work will be presented to the EQC next year (spring/summer) with an opportunity to provide advice to City Council in the summer/fall of 2024. The City Council last approved a scope of work for the CAP in 2021 and have been providing direction through various agenda items and the annual work plan.
Finance and Audit Commission (FAC)
The FAC is proposing a 2023-2024 work plan with 12 items (Attachment C). Six items focus on fulfilling the ongoing responsibilities of the FAC of reviewing financial audits and the Annual Comprehensive Financial Report (ACFR), including a review of how the audit is conducted, quarterly investments reports and the auditor section process, as needed. Additionally, the FAC is proposing to (1) review the City’s pension and other post-employment benefits’ obligations; (2) identify financial benchmarks to be able to compare the City’s fiscal status with other similarly-sized municipalities; (3) identify alternative revenue sources that may be available to the City; and (4) review the OpenGov transparency portal. The final three items focus on increasing public engagement and transparency of the City’s financials and FAC activities.
Housing Commission (HC)
The current work plan was approved earlier this year and the HC did not make significant changes to its plan (Attachment D). However, the HC did want to focus specifically on anti-displacement, which is currently included in its Community Outreach work item. Therefore that has become its own work item. In addition, as a long term goal, the HC wanted to continue their focus on development of affordable housing on public lands. The HC would like to see a greater unit yield than what is projected in the 2023-31 Housing Element Update and would work toward that aim.
Library Commission (LC)
The LC’s 2023-24 proposed work plan’s 10 goals are centered on serving as an inclusive forum for public information, discussion, feedback and advice about library services in Menlo Park. Focus areas include:
library programs and services in the Menlo Park Community Campus (MPCC); departmental strategic plan updates; service adaptations in response to community emergencies; technological innovations and system improvements; library policies and procedures; and periodic presentations and reports on major library City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 www.menlopark.gov Page H-5.2
Staff Report #: 23-223-CC
service areas.
All Commission work plans are subject to City Council approval or modification..
Impact on City Resources
There is no impact on City resources.
Environmental Review
This action is not a project within the meaning of the California Environmental Quality Act (CEQA Guidelines §§15378 and 15061(b)(3) as it will not result in any direct or indirect physical change in the environment.
Public Notice
Public notification was achieved by posting the agenda, with the agenda items being listed, at least 72 hours prior to the meeting.
Attachments
A. Complete Streets Commission work plan
B. Environmental Quality Commission work plan
C. Finance and Audit Commission work plan
D. Housing Commission work plan
E. Library Commission work plan
F. City Council Policy #CC-23-004
Report prepared by:
Kevin Chen, Senior Transportation Engineer
Rebecca Lucky, Sustainability Manager
Rani Singh, Interim Finance and Budget Manager
Tim Wong, Housing Manager
Nick Szegda, Assistant Library and Community Services Director Report reviewed by:
Judi Herren, City Clerk
Sean S. Reinhart, Library and Community Services Director Brittany Mello, Administrative Services Director
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 www.menlopark.gov Page H-5.3
MENLO PARK
Complete Streets Commission
ATTACHMENT A
Public Works Department
701 Laurel Street, Menlo Park CA 94025
Adopted September 26, 2023
Work plan goals
The Complete Streets Commission provides advice and recommendations to the City Council on realizing the City's adopted goals for Complete Streets, Vision Zero, and the Climate Action Plan. It provides transportation-related input on major land use and development projects, to promote safe transportation infrastructure and alternative modes of transportation.
1. Advise the City Council on the implementation of the Transportation Master Plan:
• Evaluate and propose key transportation corridors for project prioritization • Advise and make recommendations on the Middle Avenue Complete Streets Project and the pedestrian and bicycle rail crossing
2. Provide input and recommendations on the City’s major development projects by evaluating them based on impact on public streets, safety, and transportation accessibility, especially bicycle/pedestrian/public transportation accessibility.
3. Advise and provide input to the City Council on citywide transportation policies/programs:
• Evaluate driveway stopping sight distance policy
• Update the transportation impact analysis guidelines to include multimodal study metrics
4. Support the Council’s ongoing initiatives to improve access to Downtown and support downtown businesses.
5. Support the implementation of the Safe Routes to School strategy and advocate for community engagement, program continuity and design implementation:
• Evaluate the current state of the Safe Routes to School program
6. Advise on the City Council’s role as a stakeholder with regard to regional multimodal and transportation demand management programs projects to increase sustainable transportation for Menlo Park.
Work plan history
Action Date Notes
Commission approved August 24, 2023 n/a
Page H-5.4
MENLO PARK
ATTACHMENT B
Environmental Quality Commission
City Manager's Office Department
701 Laurel Street, Menlo Park CA 94025
Adopted TBD
Work plan goals
1. Provide feedback to staff and advise the City Council on 2025-2030 scope of work for Climate Action Plan (CAP) strategies No.1 through No.6 that are anticipated to be presented to the City Council next year.
2. Form 1-2 subcommittees to work with staff on the CAP 2025-2030 scope of work updates.
3. Support the creation of an Urban Forest Master Plan: secure funding, complete canopy audit, support community engagement, and ensure urban forest is equitable across all districts.
4. Maintain an annual commission calendar to provide transparency and allow adequate time to prepare agenda items related to the commission’s work plan; update and post for public review monthly. See attached.
5. Encourage and facilitate robust public comment and participation at Commission meetings.
6. Foster a public meeting environment that is inclusive of all members of the diverse Menlo Park community.
7. Support the filling of openings on the Commission and the effective onboarding of new Commissioners.
Work plan history
Action Date Notes
Work plan recommended September 20, 2023 Commission approved Page H-5.5
Proposed Environmental Quality Commission Agenda Topics Fiscal Year 2023-24 Agenda schedule may change based on City Council, Chair and Vice Chair, and staff requests/direction Month
July 2023
August 2023
September 2023
October 2023
November 2023
December 2023
Early December
meeting to avoid
holiday conflicts
January 2024
February 2024
March 2024
April 2024
May 2024
Topics
2023
Approve fiscal year 2023-24 agenda calendar
Approve building decarbonization and climate outreach ad hoc subcommittees scope, timeline and deliverables
Review and discuss Climate Action Plan strategy No.2 to set citywide goals for increasing electric vehicles to 100% of new vehicles by 2025 and reducing gasoline sales each year by 10% starting in 2018 (moved up from September)
Review and discuss Climate Action Plan strategy No.3 to expand access to electric vehicle charging for multifamily and commercial properties (moved up from September)
Chair report to the City Council
Review and discuss Climate Action Plan strategy No.1 to electrify 95% of existing buildings by 2030
(moved from August)
Approve the commission 2023-2024 work plan
Review and discuss Climate Action Plan strategy goal
No.5 to eliminate fossil fuels from municipal operations No meeting due to holiday
Review and discuss Climate Action Plan strategy No.4 to reduce vehicle miles traveled by 25% or an amount
recommended by the Complete the Streets Commission
2024
Review and discuss Climate Action strategy No.6 to
develop a climate adaptation plan to protect the
community from sea level rise and flooding
2024
Review and discuss CAP strategy goal No.1 2025-2030
scope of work recommendations
Review and discuss subcommittee project deliverables
and disbandment
Receive Climate Action Plan progress report
Review and discuss permit streamlining for existing
building electrification projects
Annual City Arborist Report
Receive update on City operations electric handheld
gardening equipment transition
Elect Chair and Vice Chair
Update on building electrification outreach and education Author/Presenter
Sustainability staff/Chair
and Vice Chair
Sustainability staff/
Ad hoc subcommittees
Sustainability staff
Sustainability staff
Chair
Sustainability staff/ building
decarbonization ad hoc
subcommittee
Chair and staff
Sustainability staff
Sustainability staff
Sustainability staff Climate
Adaptation ad hoc
subcommittee
Sustainability staff/ building
decarbonization ad hoc
subcommittee
Sustainability staff/ad hoc
subcommittees
Sustainability staff
Sustainability staff
Public Works staff
Sustainability and Public
Works staff
Chair
Sustainability staff
EQC role
Action by commission
Action by commission
Feedback to staff on ideas,
policies, and programs
Feedback to staff on ideas,
policies, and programs
Action by commission
Feedback to staff on ideas,
policies, and programs
Action by commission
Feedback to staff on ideas,
policies, and programs
Feedback to staff on ideas,
policies, and programs
Feedback to staff on ideas,
policies, and programs
Feedback to staff on ideas,
processes, or programs to
consider
Action by commission
Informational item/no action
Feedback to staff on ideas,
processes, or programs to
consider
Informational item
Informational, provide
feedback to staff
Action by commission
Provide feedback to staff
Page H-5.6
June 2024
Review and discuss Climate Action Plan proposed scope
of work for 2025-2030
Sustainability staff Provide feedback to staff
Discuss annual agenda calendar/ work plan to submit to
the City Council
Sustainability staff/Chair
and Vice Chair
Action by commission
Approve Climate Action Plan 2025 to 2030 scope of work Sustainability staff Advice to City Council July 2024
Review and discuss subcommittee project deliverables
and disbandment
Sustainability staff/ad hoc
subcommittees
Action by commission
Approve of the fiscal year 2024-2025 agenda calendar Sustainability staff Informational Update on electric gardening equipment rebate program Sustainability staff Informational Active ad hoc subcommittees:
• Building electrification with Commissioners Evans, Kissel and McKenna o Scope: Explore Zoning updates, permit streamlining, flexibility/leniency programs for underserved residents during electrification permit inspections, reach codes or other policies to require electrification at replacement in existing buildings, and methods to cost effectively construct allelectric lab buildings and to convert existing lab buildings to all-electric. o Duration: Four (4) months with an expected report to EQC December 2023 • Climate adaptation with Commissioners Schmidt (as of 8/16/23), Pelegri-Llopart and Lin o Scope: Reviewing current city strategies, policies and programs around climate adaptation and recommending changes and enhancements to current city strategies, policies and programs including specific strategies for different populations o Duration: Six (6) months with an expected report to the EQC in January 2024 • Electric Vehicle Ad Hoc Subcommittee
o Scope: Support CAP goals 2 & 3 by researching grants (workforce, education, and infrastructure) that could be tracked over the long term, and collecting additional ideas on implementation, and identifying partners to support our EV and EV charging infrastructure goals o Duration: Five (5) months with an expected report to the EQC in December 2023/January 2024 o Commissioners: Kissel, Schmidt
Other topics TBD:
• Reach Codes for existing buildings
• Urban Forest Master Plan
• Waste management
• Water conservation
• Stormwater/water quality
• Tesla patrol pilot results
• Update on the $4.5M California Energy
Commission (CEC) grant for the
electrification program
• Environmental Justice Element update
Regular items
• Annual Election of Chair and Vice Chair
(May)
• Chair report to the City Council (at minimum
once per year)
• Set fiscal year commission agenda calendar
(June/July)
• Advise on participation in Peninsula Clean
Energy’s program to install photovoltaic
system on city facilities
• Workforce development discussion
• Discuss forming an ad hoc subcommittee for
Arbor Day and Earth Day in the October
timeframe
• Receive update and discuss the policy
landscape around building electrification
December 2023/January 2024
• Annual informational presentation on existing
building electrification outreach and
education (annual)
• Annual City Arborist Report (Spring)
• Zero Emissions Landscaping Equipment
(ZELE) Policy progress (requires two years
Page H-5.7
of reporting to the commission directed by
the city council)
• Review and discuss ad hoc subcommittee
deliverables and disbandment (every 6
month
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MENLO PARK
Finance and Audit Commission
ATTACHMENT C
Administrative Services Department
701 Laurel St., Menlo Park CA 94025
Adopted September 7, 2023
Work plan goals
1. Conduct annual review of the City’s investment policy
2. Review the scope and process of the audit for fiscal year 2022-23 with the City’s auditor
3. Review quarterly performance of the City’s investment portfolio
4. Review the annual independent auditor’s report
5. Review the Annual Comprehensive Financial Report (ACFR)
6. Review of the City’s pension and post-employment obligations
7. Identify potential financial benchmarks
8. Identify potential alternative revenue sources
9. OpenGov transparency portal improvements and community training
10. Encourage and facilitate robust public comment and participation at Commission meetings
11. Foster a public meeting environment that is inclusive of all members of the diverse Menlo Park community
12. Support the filling of openings on the Commission and the effective onboarding of new Commissioners Work plan history
Action Date Notes
Work plan recommended September 7, 2023 Commission voted to recommend approval by City Council
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MENLO PARK
Housing Commission
ATTACHMENT D
Community Development Department
701 Laurel Street, Menlo Park CA 94025
Adopted September 6, 2023
Work plan goals
1. Community engagement – Provide information and education related to tenant rights and tenant protections efforts and host and cohost local legal resources/presentations via the Housing Commission as part of expanding community engagement. This is to increase diversity of community participation and input. Have two informational events, one every 6 months at Belle Haven location with multi-lingual inclusive events.
2. Anti-Displacement – To work on anti-displacement efforts, especially focused on naturally occurring affordable housing. To provide current residents with displacement and relocation information to prevent evictions and displacement and try to monitor the number of households being displaced and to provide them information about resources. Create a collection of displacement experiences to “personalize” the impacts of displacement.
3. Focus on the development of affordable housing on public lands – this could include the development of affordable housing on downtown parking lots and following the development process including the RFP and making recommendations, with the aim to exceed the unit yields as outlined in Program H4.G of the 2023-2031 Housing Element Update.
Work plan history
Action Date Notes
Commission approved September 6, 2023
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MENLO PARK
LIBRARY COMMISSION WORK PLAN
ATTACHMENT E
Library and Community Services Department
800 Alma St., Menlo Park CA 94025
Adopted August 21, 2023
Work plan goals
1. As an advisory body to the City Council and a forum for public information about library issues, encourage and facilitate robust public comment and participation at Commission meetings. Foster a public meeting environment that is inclusive of all members of the diverse Menlo Park community
2. Support and advise the development and launch of the Menlo Park Community Campus (MPCC), focusing on library programming, service integration, and library policies within the shared space environment in the new facility, as directed by City Council
3. Support and advise staff on the advancement of overall library system improvements, as directed by City Council
4. Periodically review the library’s public-facing policies and recommend updates, as required, with a special focus on policies that may be impacted by shared space operations at the new MPCC
5. Establish an understanding of and advise on the library needs of the community during emergencies. This may include a review of library policies and services related to adaptations made by the library in response to emergencies
6. Monitor any changes in how library users access the library, how library services may be changing, the impact of technology on the provision of library services, and how the Commission might help increase equitable access for community members
7. Periodically receive staff presentations and reports about major library service areas and programs and Commissioner liaison reports about affiliates. Maintain a 12-month schedule of planned Commission agenda items; update and post for public review monthly
8. Support the filling of openings on the Commission and the effective onboarding of new Commissioners
9. Review and advise on updates to the department strategic plan and advise on any strategic plan updates made after the opening of the MPCC.
10. Annually review departmental budget proposal before presentation to City Council, focusing on any potential impacts to library services. Review and advise on potential synergies with or support from other City departments.
Work plan history
Action Date Notes
Work plan recommended August 16, 2021 Commission recommended Work plan adopted November 9, 2021 City Council approved Work plan recommended August 21, 2023 Commission recommended Page H-5.12
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MENLO PARK
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COMMISSIONS/COMMITTEES POLICIES AND
PROCEDURES, ROLES AND RESPONSIBILITIES
ATTACHMENT F
City Council Policy #CC-23-004
Adopted June 27, 2023
Resolution No. 6840
Purpose
To define policies and procedures and roles and responsibilities for Menlo Park appointed commissions and committees.
Authority
Upon its original adoption, this policy replaced the document known as “Organization of Advisory Commissions of the City of Menlo Park.”
Background
The City of Menlo Park currently has seven active Commissions. The active advisory bodies are: Complete Streets Commission, Environmental Quality Commission, Finance and Audit Commission, Housing Commission, Library Commission, Parks and Recreation Commission, and Planning Commission. Those not specified in the City Code are established by City Council ordinance or resolution. Most of these advisory bodies are established in accordance with Resolution No. 2801 and its amendments. Within specific areas of responsibility, each advisory body has a primary role of advising the City Council on policy matters or reviewing specific issues and carrying out assignments as directed by the City Council or prescribed by law.
Six of the seven commissions listed above are advisory in nature. The Planning Commission is both advisory and regulatory and organized according to the City Code (Ch. 2.12) and State statute (Government Code §65100 et seq., §65300-65401).
The City has an adopted Anti-Harassment and Non-Discrimination Policy (CC-21-0022), and a Travel, Meal, and Lodging Policy (CC-19-002), which are also applicable to all advisory bodies.
Policies and Procedures
Relationship to City Council, staff and media
• Upon referral by the City Council, the commission/committee shall study referred matters and return their recommendations and advise to the City Council. With each such referral, the City Council may authorize the City staff to provide certain designated services to aid in the study. • Upon its own initiative, the commission/committee shall identify and raise issues to the City Council’s attention and from time to time explore pertinent matters and make recommendations to the City Council. • At a request of a member of the public, the commission/committee may consider appeals from City actions or inactions in pertinent areas and, if deemed appropriate, report and make recommendations to the City Council. • Each commission/committee is required to develop an annual work plan which will be the foundation for the work performed by the advisory body in support of City Council annual work plan. The plan, once finalized by a majority of the commission/committee, will be formally presented to the City Council for direction and approval no later than September 30 of each year and then reported out on by a representative of the advisory body at a regularly scheduled City Council meeting at least annually, but recommended twice a year. The proposed work plan must align with the City Council’s adopted work plan. When modified, the work plan must be taken to the City Council for approval. The Planning Commission is exempt from this requirement as its functions are governed by the Menlo Park municipal code (Chapter 2.12) and State law (Government Code §65100 et seq, §65300-65401). • Commissions and committees shall not become involved in the administrative or operational matters of City departments. Members may not direct staff to initiate major programs, conduct large studies or establish department policy. City staff assigned to furnish staff services shall be available to provide general staff assistance, such as preparation of agenda/notice materials and minutes, general review of department programs and activities, and to perform limited studies, program reviews, and other services of a general staff nature.
Commissions/Committees may not establish department work programs or determine department program priorities. The responsibility for setting policy and allocating scarce City resources rests with the City’s duly elected representatives, the City Council.
• Additional or other staff support may be provided upon a formal request to the City Council. • The staff liaison shall act as the commission/committee’s lead representative to the media concerning matters before the commission/committee. Commission/Committee members should refer all media inquiries to their respective liaisons for response. Personal opinions and comments may be expressed so long as the commission/committee member clarifies that their statements do not represent the position of the City Council. • Commission/Committee members will have mandatory training every two years regarding the Brown Act and
2 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
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Resolution No. 6840
parliamentary procedures, anti-harassment training, ethics training, and other training required by the City Council or State Law. The commission/committee members may have the opportunity for additional training, such as training for chair and vice chair. Failure to comply with the mandatory training will be reported to the City Council and may result in replacement of the member by the City Council. • Requests from commission/committee member(s) determined by the staff liaison to take one hour or more of staff time to complete, must be directed by the City Council.
Role of City Council commission/committee liaison
City Councilmembers are assigned to serve in a liaison capacity with one or more city commission/committee. The purpose of the liaison assignment is to facilitate communication between the City Council and the advisory body.
The liaison also helps to increase the City Council's familiarity with the membership, programs and issues of the advisory body. In fulfilling their liaison assignment, City Councilmembers may elect to attend commission/committee meetings periodically to observe the activities of the advisory body or simply maintain communication with the commission/committee chair on a regular basis.
City Councilmembers should be sensitive to the fact that they are not participating members of the commission/committee, but are there rather to create a linkage between the City Council and commission/committee. In interacting with commissions/committee, City Councilmembers are to reflect the views of the City Council as a body. Being a commission/committee liaison bestows no special right with respect to commission/committee business.
Typically, assignments to commission/committee liaison positons are made at the beginning of a City Council term in December. The Mayor will ask City Councilmembers which liaison assignments they desire and will submit recommendations to the full City Council regarding the various committees, boards, and commissions which City Councilmembers will represent as a liaison. In the rare instance where more than one City Councilmember wishes to be the appointed liaison to a particular commission, a vote of the City Council will be taken to confirm appointments.
City Staff Liaison
The City has designated staff to act as a liaison between the commission/committee and the City Council. The City shall provide staff services to the commission/committee which will include:
• Developing a rapport with the Chair and commission/committee members • Providing a schedule of meetings to the city clerk’s office and commission/committee members, arranging meeting locations, maintaining the minutes and other public records of the meeting, and preparing and distributing appropriate information related to the meeting agenda. • Advising the commission/committee on directions and priorities of the City Council. • Informing the commission/committee of events, activities, policies, programs, etc. occurring within the scope of the commission/committee’s function.
• Ensuring the city clerk is informed of all vacancies, expired terms, changes in offices, or any other changes to the commission/committee.
• Providing information to the appropriate appointed official including reports, actions, and recommendations of the committee/commission and notifying them of noncompliance by the commission/committee or chair with City policies.
• Ensuring that agenda items approved by the commission/committee are brought forth in a timely manner taking into consideration staff capacity, City Council priorities, the commission/committee work plan, and other practical matters such as the expense to conduct research or prepare studies, provided appropriate public notification, and otherwise properly prepare the item for commission/committee consideration. • Take action minutes; upon agreement of the commission, this task may be performed by one of the members (staff is still responsible for the accuracy and formatting of the minutes) • Maintain a minute book with signed minutes
Recommendations, requests and reports
As needed, near the beginning of City Council meetings, there will be an item called “Advisory Body Reports.” At this time, commissions/committees may present recommendations or status reports and may request direction and support from the City Council. Such requests shall be communicated to the staff liaison in advance, including any written materials, so that they may be listed on the agenda and distributed with the agenda packet. The materials being Page H-5.14
3 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
Adopted June 27, 2023
Resolution No. 6840
provided to the City Council must be approved by a majority of the commission/committee at a commission/committee meeting before submittal to the City Council. The City Council will receive such reports and recommendations and, after suitable study and discussion, respond or give direction.
City Council referrals
The city clerk shall transmit to the designated staff liaison all referrals and requests from the City Council for advice and recommendations. The commissions/committees shall expeditiously consider and act on all referrals and requests made by the City Council and shall submit reports and recommendations to the City Council on these assignments.
Public appearance of commission/committee members
When a commission/committee member appears in a non-official, non-representative capacity before the public, for example, at a City Council meeting, the member shall indicate that they are speaking only as an individual. This also applies when interacting with the media and on social media. If the commission/committee member appears as the representative of an applicant or a member of the public, the Political Reform Act may govern this appearance. In addition, in certain circumstances, due process considerations might apply to make a commission/committee member’s appearance inappropriate. Conversely, when a member who is present at a City Council meeting is asked to address the City Council on a matter, the member should represent the viewpoint of the particular commission/committee as a whole (not a personal opinion).
Disbanding of advisory body
Upon recommendation by the Chair or appropriate staff, any standing or special advisory body, established by the City Council and whose members were appointed by the City Council, may be declared disbanded due to lack of business, by majority vote of the City Council.
Meetings and officers
1. Agendas/notices/minutes
• All meetings shall be open and public and shall conduct business through published agendas, public notices and minutes and follow all of the Brown Act provisions governing public meetings. Special, canceled and adjourned meetings may be called when needed, subject to the Brown Act provisions. • Support staff for each commission/committee shall be responsible for properly noticing and posting all regular, special, canceled and adjourned meetings. Copies of all meeting agendas, notices and minutes shall be provided to the City Council, city manager, city attorney, city clerk and other appropriate staff, as requested. • Original agendas and minutes shall be filed and maintained by support staff in accordance with the City’s adopted records retention schedule.
• The official record of the commissions/committees will be preserved by preparation of action minutes.
2. Conduct and parliamentary procedures
• Unless otherwise specified by State law or City regulations, conduct of all meetings shall generally follow Robert’s Rules of Order.
• A majority of commission/committee members shall constitute a quorum and a quorum must be seated before official action is taken.
• The chair of each commission/committee shall preside at all meetings and the vice chair shall assume the duties of the chair when the chair is absent.
• The role of the commission/committee chair (according to Roberts Rules of Order): To open the session at the time at which the assembly is to meet, by taking the chair and calling the members to order; to announce the business before the assembly in the order in which it is to be acted upon; to recognize members entitled to the floor; to state and put to vote all questions which are regularly moved, or necessarily arise in the course of the proceedings, and to announce the result of the vote; to protect the assembly from annoyance from evidently frivolous or dilatory motions by refusing to recognize them; to assist in the expediting of business in every compatible with the rights of the members, as by allowing brief remarks when undebatable motions are pending, if they think it advisable; to restrain the members when engaged in debate, within the rules of order, to enforce on all occasions the observance of order and decorum among the members, deciding all questions of order (subject to an appeal to the assembly by any two members) unless when in doubt he prefers to submit the question for the decision of the assembly; to inform the assembly when necessary, or when referred to for the purpose, on a point of order to practice pertinent to pending business; to authenticate by their signature, when necessary, all the acts, orders, and proceedings of the assembly declaring it will and in all things obeying its commands.
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4 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
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Resolution No. 6840
3. Lack of a quorum
• When a lack of a quorum exists at the start time of a meeting, those present will wait 15 minutes for additional members to arrive. If after 15 minutes a quorum is still not present, the meeting will be adjourned by the staff liaison due to lack of a quorum. Once the meeting is adjourned it cannot be reconvened. • The public is not allowed to address those commissioners present during the 15 minutes the commission/committee is waiting for additional members to arrive. • Staff can make announcements to the members during this time but must follow up with an email to all members of the body conveying the same information.
• All other items shall not be discussed with the members present as it is best to make the report when there is a quorum present.
4. Meeting locations and dates
• Meetings shall be held in designated City facilities, as noticed. • All commissions/committees with the exception of the Planning Commission, and Finance and Audit Commission shall conduct regular meetings once a month. Special meetings may also be scheduled as required by the commission/committee. The Planning Commission shall hold regular meetings twice a month and the Finance and Audit Commission shall hold quarterly meetings. • Monthly regular meetings shall have a fixed date and time established by the commission/committee. Changes to the established regular dates and times are subject to the approval of the City Council. An exception to this rule would include any changes necessitated to fill a temporary need in order for the commission/committee to conduct its meeting in a most efficient and effective way as long as proper and adequate notification is provided to the City Council and made available to the public.
The schedule of Commission meetings is as follows:
• Complete Streets Commission – Every second Wednesday at 6:30 p.m. • Environmental Quality Commission – Every third Wednesday at 6 p.m. • Finance and Audit Commission – Third Thursday of every quarter at 5:30 p.m., • Housing Commission – Every first Wednesday at 6:30 p.m. • Library Commission – Every third Monday at 6:30 p.m.
• Parks and Recreation Commission – Every fourth Wednesday at 6:30 p.m. • Planning Commission – Twice a month on a Monday at 7 p.m.
Each commission/committee may establish other operational policies subject to the approval of the City Council.
Any changes to the established policies and procedures shall be subject to the approval of the City Council.
5. Off-premises meeting participation
While technology allows commission/committee members to participate in meetings from a location other than the meeting location (referred to as “off-premises”), off-premises participation is discouraged given the logistics required to ensure compliance with the Brown Act and experience with technological failures disrupting the meeting. In the event that a commission/committee member believes that their participation is essential to a meeting, the following shall apply:
• Any commission/committee member intending to participate from an off-premise location shall inform the staff liaison at least two weeks in advance of the meeting.
• The off-premise location must be identified in the notice and agenda of the meeting. • Agendas must be posted at the off-premise location.
• The off-premise location must be accessible to the public and be ADA compliant. • The commission/committee member participating at a duly noticed off-premises location does not count toward the quorum necessary to convene a meeting of the commission/committee. • For any one meeting, no more than one commission/committee member may participate from an off-premise location.
• All votes must be by roll call.
6. Selection of chair and vice chair
• The chair and vice chair shall be selected in May of each year by a majority of the members and shall serve for one year or until their successors are selected.
• Each commission/committee shall annually rotate its chair and vice chair.
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5 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
Adopted June 27, 2023
Resolution No. 6840
G. Memberships
Appointments/Oaths
• The City Council is the appointing body for all commissions/committees. All members serve at the pleasure of the City Council for designated terms.
• All appointments and reappointments shall be made at a regularly scheduled City Council meeting, and require an affirmative vote of not less than a majority of the City Council present. • Before taking office, all members must complete an Oath of Allegiance required by Article XX, §3, of the Constitution of the State of California. All oaths are administered by the city clerk or their designee. • Appointments made during the middle of the term are for the unexpired portion of that term.
Application and selection process
• The application process begins when a vacancy occurs due to term expiration, resignation, removal or death of a member.
• The application period will normally run for a period of four weeks from the date the vacancy occurs. If there is more than one concurrent vacancy in a Commission, the application period may be extended. Applications are available from the city clerk’s office and on the City’s website. • The city clerk shall notify members whose terms are about to expire whether or not they would be eligible for reappointment. If reappointment is sought, an updated application will be required. • Applicants are required to complete and return the application form for each commission/committee they desire to serve on, along with any additional information they would like to transmit, by the established deadline.
Applications sent by email are accepted.
• After the deadline of receipt of applications, the city clerk shall schedule the matter at the next available regular City Council meeting. All applications received will be submitted and made a part of the City Council agenda packet for their review and consideration. If there are no applications received by the deadline, the city clerk will extend the application period for an indefinite period of time until sufficient applications are received. • Upon review of the applications received, the City Council reserves the right to schedule or waive interviews, or to extend the application process in the event insufficient applications are received. In either case, the city clerk will provide notification to the applicants of the decision of the City Council. • If an interview is requested, the date and time will be designated by the City Council. Interviews are open to the public.
• The selection/appointment process by the City Council shall be conducted at a City Council meeting. The city clerk will ask each City Councilmember for their nominations; the number of nominations is limited to the number of vacancies. The candidate that receives a majority of nominations will be appointed. If there is a tie, multiple rounds of voting will occur.
• Following a City Council appointment, the city clerk shall notify successful and unsuccessful applicants accordingly, in writing. Appointees will receive copies of the City’s Non-Discrimination and Sexual Harassment policies, and disclosure statements for those members who are required to file under State law as designated in the City’s Conflict of Interest Code. Copies of the notification will also be distributed to support staff and the commission/committee chair.
• An orientation will be scheduled by the city clerk following an appointment (but before taking office) and a copy of this policy document will be provided at that time.
Attendance
• A compilation of attendance will be submitted to the City Council at least annually listing absences for all commissions/committee members.
• Absences, which result in attendance at less than two-thirds of their meetings during the calendar year, will be reported to the City Council and may result in replacement of the member by the City Council. • Any member who feels that unique circumstances have led to numerous absences can appeal directly to the City Council for a waiver of this policy or to obtain a leave of absence. • While it is expected that members be present at all meetings, the chair and staff liaison should be notified if a member knows in advance that they will be absent.
• When reviewing commissioners for reappointment, overall attendance at full commission meetings will be given significant consideration.
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6 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
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Resolution No. 6840
Compensation
• Members shall serve without compensation (unless specifically provided) for their services, provided, however, members shall receive reimbursement for necessary travel expenses and other expenses incurred on official duty when such expenditures have been authorized by the City Council (See Policy CC-19-002).
Conflict of interest and disclosure requirements
• A Conflict of Interest Code has been updated and adopted by the City pursuant to Government Code §87300 et seq. Copies of the conflict of interest code are filed with the city clerk. Pursuant to the adopted Conflict of Interest Code, members serving on the Complete Streets Commission, Housing Commission, and Planning Commission are required to file a Statement of Economic Interest with the city clerk to disclose personal interest in investments, real property and income. This is done within 30 days of appointment and annually thereafter. A statement is also required within 30 days after leaving office. • If a public official has a conflict of interest, the Political Reform Act may require the official to disqualify themselves from making or participating in a governmental decision, or using their official position to influence a governmental decision. Questions in this regard may be directed to the city attorney.
Qualifications, compositions, number
• In most cases, members shall be residents of the City of Menlo Park and at least 18 years of age. • Current members of any other City commission/committee are disqualified for membership, unless the regulations for that advisory body permit concurrent membership. Commission/Committee members are strongly advised to serve out the entirety of the term of their current appointment before seeking appointment on another commission/committee.
• Commission/Committee members shall be permitted to retain membership while seeking any elective office.
However, members shall not use the meetings, functions or activities of such bodies for purposes of campaigning for elective office.
• There shall be seven (7) members on each commission/committee.
Reappointments, resignations, removals
• Incumbents seeking a reappointment are required to complete and file an application with the city clerk by the application deadline. No person shall be reappointed to a commission/committee who has served on that same body for two consecutive terms; unless a period of one year has lapsed since the returning member last served on that commission/committee (the one-year period is flexible subject to City Council’s discretion). • Resignations must be submitted in writing to the city clerk, who will distribute copies to City Council and appropriate staff.
• The City Council may remove a member by a majority vote of the City Council without cause, notice or hearing.
Term of office
• Unless specified otherwise, the term of office for all commission/committees shall be four (4) years unless a resignation or a removal has taken place.
• If a person is appointed to fill an unexpired term and serves less than two years, that time will not be considered a full term. However, if a person is appointed to fill an unexpired term and serves two years or more, that time will be considered a full term.
• Terms are staggered to be overlapping four-year terms, so that all terms do not expire in any one year. • If a member resigns before the end of their term, a replacement serves out the remainder of that term.
Vacancies
• Vacancies are created due to term expirations, resignations, removals or death. • Vacancies are posted by the city clerk in the City Council Chambers bulletin board and on the city website. • Whenever an unscheduled vacancy occurs in any commission/committee, a special vacancy notice shall be posted within 20 days after the vacancy occurs. Appointment shall not be made for at least 10 working days after posting of the notice (Government Code §54974).
• On or before December 31 of each year, an appointment list of all regular advisory commissions/committees of the City Council shall be prepared by the city clerk and posted in the City Council Chambers bulletin board and on the City’s website. This list is also available to the public. (Government Code §54972, Maddy Act).
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7 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
Adopted June 27, 2023
Resolution No. 6840
Roles and Responsibilities
Complete Streets Commission
The Complete Streets Commission is charged primarily with advising the City Council on realizing the City's adopted goals for complete streets, vision zero, climate action plan, and provide input on major land use and development projects as it relates to transportation. The Complete Streets Commission's responsibilities include:
• To advance the goals of the city’s newly adopted climate action plan by making alternatives to driving safer and more attractive
• Advise City Council on the implementation of the transportation master plan. • Continue to advocate for and advise the City Council on planning and installing pedestrian and bicycle rail crossing and safe cycling/pedestrian infrastructure.
• Continue to support City Council in ongoing initiatives to improve access to Downtown and support downtown businesses.
• Continue to support the implementation of the Safe Routes to School strategy and advocate for community engagement, program continuity and engineering implementation. • Continue to support City Council’s role as a stakeholder with regard to regional multi-modal and transportation demand management programs projects to increase
Environmental Quality Commission
The Environmental Quality Commission is committed to helping the City of Menlo Park to be a leading sustainable city that inspires institutions and individuals and that is well positioned to manage present and future environmental impacts, including the grave threat of climate change. The Environmental Quality Commission is charged primarily with advising the City Council on matters involving climate change, environmental protection, and sustainability.. Specific focus areas include:
• Climate Action Plan - Advise and recommend on the implementation of the climate action plan. • Climate Resilience and Adaptation - Ensure that our most vulnerable communities have a voice in policies and programs to protect their communities from environmental impacts. • Urban Canopy - Leverage best practices to advise/recommend on the preservation of heritage trees, city trees and expansion of the urban canopy; and make determinations on appeals of heritage tree removal permits. • Green and Sustainable Initiatives – Support sustainability initiatives, as needs arise, which may include city-led events, habitat protection, healthy ecology, environmental health protection, healthy air, surface water runoff quality, water conservation and waste reduction.
Finance and Audit Commission
The Finance and Audit Commission is charged primarily to support delivery of timely, clear and comprehensive reporting of the City’s fiscal status to the community at large. Specific focus areas include:
• Review the process for periodic financial reporting to the City Council and the public, as needed • Review financial audit and annual financial report with the City’s external auditors • Review of the resolution of prior year audit findings • Review of the auditor selection process and scope, as needed Housing Commission
The Housing Commission is charged primarily with advising the City Council on housing matters including housing supply and housing related problems. Specific focus areas include:
• Community attitudes about housing (range, distribution, racial, social-economic problems) • Programs for evaluating, maintaining, and upgrading the distribution and quality of housing stock in the City • Planning, implementing and evaluating City programs under the Housing and Community Development Act of 1974
• Review and recommend to the City Council regarding the Below Market Rate (BMR) program • Initiate, review and recommend on housing policies and programs for the City • Review and recommend on housing related impacts for environmental impact reports • Review and recommend on State and regional housing issues • Review and recommend on the Housing Element of the General Plan
8 COMMISSIONS/COMMITTEES POLICIES AND PROCEDURES, ROLES AND RESPONSIBILITIES City Council Policy #CC-23-004
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Resolution No. 6840
Library Commission
The Library Commission is charged primarily with advising the City Council on matters related to the maintenance and operation of the City’s libraries and library systems. Specific focus areas include:
• The scope and degree of library activities
• Maintenance and protection of City libraries
• Evaluation and improvement of library service
• Acquisition of library materials
• Coordination with other library systems and long range planning • Literacy and ESL programs
Parks and Recreation Commission
The Parks and Recreation Commission is charged primarily with advising the City Council on matters related to City programs and facilities dedicated to recreation. Specific focus areas include:
• Those programs and facilities established primarily for the participation of and/or use by residents of the City, including adequacy and maintenance of such facilities as parks and playgrounds, recreation buildings, facilities and equipment
• Adequacy, operation and staffing of recreation programs • Modification of existing programs and facilities to meet developing community needs • Long range planning and regional coordination concerning park and recreational facilities Planning Commission
The Planning Commission is organized according to State Statute. • The Planning Commission reviews development proposals on public and private lands for compliance with the General Plan and Zoning Ordinance.
• The Commission reviews all development proposals requiring a use permit, architectural control, variance, minor subdivision and environmental review associated with these projects. The Commission is the final decision-making body for these applications, unless appealed to the City Council. • The Commission serves as a recommending body to the City Council for major subdivisions, rezoning’s, conditional development permits, Zoning Ordinance amendments, General Plan amendments and the environmental reviews and Below Market Rate (BMR) Housing Agreements associated with those projects. • The Commission works on special projects as assigned by the City Council.
Special Advisory Bodies
The City Council has the authority to create standing committees, task forces or subcommittees for the City, and from time to time, the City Council may appoint members to these groups. The number of persons and the individual appointee serving on each group may be changed at any time by the City Council. There are no designated terms for members of these groups; members are appointed by and serve at the pleasure of the City Council.
Any requests of city commissions or committees to create such ad hoc advisory bodies shall be submitted in writing to the city clerk for City Council consideration and approval.
Procedure history
Action Date Notes
Procedure adoption 1991 Resolution No. 3261
Procedure adoption 2001
Procedure adoption 2011
Procedure adoption 2013 Resolution No. 6169
Procedure adoption 2017 Resolution No. 6377
Procedure adoption 6/8/2021 Resolution No. 6631
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Resolution No. 6840
Procedure adoption 3/1/2022 Resolution No. 6706
Procedure adoption 3/8/2022 Resolution No. 6718
Procedure adoption 9/20/2022 Resolution No. 6776
Procedure adoption 1/10/2023 Resolution No. 6803
Procedure adoption 6/27/2023 Resolution No. 6840
Page H-5.21
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MENLO PARK
AGENDA ITEM H-6
City Manager's Office
STAFF REPORT
City Council
Meeting Date: 9/26/2023
Staff Report Number: 23-221-CC
Consent Calendar: Authorize the city manager to execute a revised agreement with Tripepi Smith for communications
support services
Recommendation
Staff recommends the City Council authorize the city manager to execute a revised agreement with Tripepi Smith for ongoing communications support services for up to an additional $139,000 through the remainder of fiscal year 2023-24.
Policy Issues
The amendment to the existing agreement with Tripepi Smith would exceed the city manager’s signing authority of $93,000 for fiscal year 2023-24 and requires City Council approval. The proposed revised agreement totals an amount not to exceed $225,000.
Background
The city first engaged Tripepi Smith to design the fiscal year 2022-23 budget book. After subsequent turnover of the public engagement team in the city manager’s office in April 2023, the city expanded the scope of Tripepi Smith to include critical communications support.
Tripepi Smith ensured a smooth transition and has helped the city provide uninterrupted public engagement through a variety of communication channels, including newsletters, social media and more. Tripepi Smith has also provided graphic design services for both digital and print communications materials based on city branding guidelines that are used across city departments to engage residents on opportunities to share input and participate in a variety of city programs.
Analysis
The city will need ongoing, top-tier communications services from Tripepi Smith to ensure successful public engagement for city programs and provide communications support to all city departments. The contract amendment extends the end date of the current agreement through the end of June 2024, and provides flexibility to scale services based on future public engagement staffing levels within the city manager’s office.
Tripepi Smith will continue to provide:
• project management and strategy calls with staff to identify ongoing communications needs; • social media management including planning, creating, and producing content in coordination with staff, and social media account monitoring;
• newsletter support including compiling, publishing and distributing weekly communications including the City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov Page H-6.1
Staff Report #: 23-221-CC
citywide Digest, the library and community services newsletter, and the construction news update; • graphic design support and brand design needs for all city departments; and • a wide variety of public engagement and communications support, as requested.
Impact on City Resources
The amendment to the current agreement will cost up to $139,000 based on current monthly spending rates and adequate buffer to accommodate as-need crisis communications and other general communications requests. Adequate funding is available in the city manager’s office budget for fiscal year 2023-24.
Environmental Review
This action is not a project within the meaning of the California Environmental Quality Act (CEQA) Guidelines §§15378 and 15061(b)(3) as it will not result in any direct or indirect physical change in the environment.
Public Notice
Public notification was achieved by posting the agenda, with the agenda items being listed, at least 72 hours prior to the meeting.
Attachments
A. Agreement amendment
Report prepared by:
Stephen Stolte, Assistant City Manager
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov Page H-6.2
MENLO PARK
AGREEMENT AMENDMENT
ATTACHMENT A
City Manager’s Office
701 Laurel St., Menlo Park, CA 94025
tel 650-330-6620
Amendment #: 4003.2
AGREEMENT FOR SERVICES BETWEEN
THE CITY OF MENLO PARK AND TRIPEPI SMITH
THIS SECOND AMENDMENT is made and entered into this __________________________, by and between the CITY OF MENLO PARK, a Municipal Corporation, hereinafter referred to as “CITY,” and TRIPEPI SMITH, hereinafter referred to as “FIRST PARTY.”
1. Section 0. WITNESSETH of Agreement No. 4003, (“Agreement”), Section 0. WITNESSETH [amendment to section] is hereby amended to read as follows:
“WHEREAS, CITY desires to retain FIRST PARTY to provide certain professional services for CITY in connection with that certain project called: public engagement and communications support.”
2. Section 4. COMPENSATION AND PAYMENT of Agreement No. 4003, (“Agreement”), Section 4.
COMPENSATION AND PAYMENT [amendment to section] is hereby amended to read as follows:
“CITY shall pay FIRST PARTY an all-inclusive fee that shall not exceed $225,000 (an amendment of $139,000 [15,000 + 71,000 + 139,000]) as described in Exhibit “A”, “A-1”, and “A-2” Scope of Services. All payments shall be inclusive of all indirect and direct charges to the Project incurred by FIRST PARTY. The CITY reserves the right to withhold payment if the City determines that the quantity or quality of the work performed is unacceptable.”
3. Section 24. TERM OF AGREEMENT of Agreement No. 4003, (“Agreement”), Section 24. TERM OF AGREEMENT [amendment to section] is hereby amended to read as follows:
“This agreement shall remain in effect for the period of January 27, 2023 through June 30, 2024 unless extended, amended, or terminated in writing by CITY.” Except as modified by this Amendment, all other terms and conditions of Agreement No. 4003 remain the same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
SIGNATURE PAGE TO FOLLOW
Page H-6.3
CC Rev 20210301
2 FOR FIRST PARTY:
Signature Date
Printed name Title
Tax ID#
APPROVED AS TO FORM:
Nira F. Doherty, City Attorney
FOR CITY OF MENLO PARK:
Date
Justin I. C. Murphy, City Manager
ATTEST:
Date
Judi A. Herren, City Clerk Date
Page H-6.4
CC Rev 20200301
EXHIBIT A
Proposed Scope of Work for Ongoing Public Engagement and Communications Support
Project Management and Strategy Calls
Tripepi Smith will schedule recurring meetings with City-designated Staff to discuss ongoing communications and identify major themes or ideas to address in outreach support in the coming weeks.
Social Media Management
Tripepi Smith will plan, create, and produce social media content for the City’s general social media platforms based on coordination with staff.
Tripepi Smith will also monitor social media platforms for comments and questions and provide recommended responses when appropriate. Additionally, Tripepi Smith will provide general online monitoring of regional partner pages and community pages to track community needs, priorities, and issues and reshare timely content when applicable.
Newsletter Support
Tripepi Smith will assist in compiling and distributing one-a-week newsletters, including but not limited to the City’s “Weekly Digest,” “Library and Community Service Update,” and “Construction News Update,” as requested by the City. Assistance includes, as needed, content creation and content sourcing, grammar and fact-checking of shared content, posting of articles to the City’s website, and coordination with City staff.
Graphic Design Support
Tripepi Smith will assist with graphic and brand design needs upon request from the City. As part of Tripepi Smith’s graphic design services, Tripepi Smith will host regular meetings with City Departments to discuss ongoing graphic design support.
Additional General Public Engagement and Communications Support Tripepi Smith will be on standby to provide additional public engagement and communications support upon request from the City. Examples include but are not limited to in-person communication meetings, asneeded crisis-communications support, social media metrics reporting, City Council Strategic planning, video production, photography services, virtual meetings/events, and website updates. 1 Page H-6.5
Time & Materials (Ad Hoc) Work
Tripepi Smith’s hourly rates (listed below) will be available to the City for any services provided.
Hourly Standard
Title - Hourly - Retainer
Principal
Director
Art Director
Senior Business Analyst
Business Analyst
Junior Business Analyst
Senior Videographer/Animator
Senior Photographer
Senior Graphic Designer
Graphic Designer
Junior Graphic Designer
Web Developer
Drone Operator
Photographer
$330 $290
$220 $185
$220 $185
$175 $150
$120 $100
$95 $85
$175 $150
$160 $135
$160 $135
$120 $100
$95 $85
$175 $150
$175 $150
$95 $85
Time and Materials Billing
Any requested ad hoc work will be invoiced at the end of the month in which the work was done. Terms are net 30 days.
Fixed price project work will be invoiced per the above noted payment schedule. This will also be net 30 days.
Time & Materials Billing Increments
For ad hoc work, time at Tripepi Smith is billed in 15-minute increments – i.e. we invoice our time in the following examples: 1.25, 0.75, 4.0 or 6.5 hours.
2 Page H-6.6
Annual Increase
Tripepi Smith will increase the hourly rates and retainer fees for all resources by five percent (5%) or the national CPI index–whichever is higher-each year on the anniversary of the contract, starting on the first anniversary of any contract when the contract duration is longer than one year. Otherwise, new rates will be negotiated with each new contract renewal period.
Retainer Discounted Time and Materials Rates
When client monthly retainers exceed six-thousand-five-hundred dollars ($6,750) a month, they have access to our reduced Hourly – Retainer rates noted below. Otherwise, any ad hoc work done outside the scope of the Retainer would be at the Hourly – Standard rates.
Other Costs
Because Tripepi Smith offers a broad set of services, including extensive content production, we have some other content production-related fees that may come up during our engagement that we want to tell you about.
Travel Costs
Travel costs must be pre-authorized and then will be reimbursed by the City for any requested travel. Travel costs to be covered are for airfare, lodging and car rental. If Tripepi Smith is requested to be onsite, we will invoice for travel time at half rate of the resource’s applicable Hourly Rate.
Equipment Costs
Tripepi Smith offers some services that require equipment, such as drone operations and video production. As such, in those cases, the following rates apply:
Half Day Full Day
Video Equipment $350 $550
Drone Equipment N/A $500
Title
• Five-hundred-fifty dollars ($550) for a full day of video equipment use (includes full set of video equipment). Full day is defined as a shoot lasting four (4) or more hours. • Three-hundred-fifty dollars ($350) for a half day of video equipment use. Half day is defined as anything under four (4) hours of video production. All such expenses will be authorized by the Town prior to fee being assessed.
• Five-hundred dollars ($500) per day drone fee applies and is not inclusive of the drone operator time (Drone Operator rate).
3 Page H-6.7
Service Fees
Typically, Tripepi Smith prefers to have service providers bill the client directly to avoid additional administrative costs and because we have no economic interest in the service provider selection. If Tripepi Smith is asked to pay the bill for the client, we will apply a ten percent (10%) agency fee to the reimbursement expense. Typical services include, but are not limited to:
Print Costs: Tripepi Smith is happy to use a printer of the client’s choosing for print production work, or to recommend a printer with whom we have experience.
Digital Advertising: Tripepi Smith is a Google Partner and Constant Contact Solution Provider and has Facebook Certified staff. We consider digital platforms to be a cornerstone element of any outreach strategy; often this comes with digital advertising fees.
Media Placement: Tripepi Smith can help liaise on behalf of the Town for advertising space within various mediums, such as newspapers, magazines or websites.
Voiceover, Translation and Closed Caption Fees: Tripepi Smith occasionally uses third-party resources to record voiceovers for videos, generate closed captions for videos, and for non-English language translations.
Tripepi Smith Partnership Discounts
Tripepi Smith has financial interest in certain related entities. These partnerships allow Tripepi Smith to offer clients extra media reach or additional services at partner pricing. Partnerships include:
PublicCEO
– digital news about public affairs, reaching over 10,000 California government executives https://www.publicceo.com
Civic Business Journal
– digital interest stories about the people in local government https://www.civicbusinessjournal.com
FlashVote
– planning, implementing, measuring civic surveys
https://www.flashvote.com
TS Talent Solutions
– talent search services for local government and related agencies https://www.tstalentsolutions.com/
4 Page H-6.8
Community Development
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov
STAFF REPORT
City Council
Meeting Date: 9/26/2023
Staff Report Number: 23-219-CC
Public Hearing: Consider and adopt resolutions approving 1) the below market rate housing agreements, and 2) a
vesting tentative map for a major subdivision to
create 116 for-sale townhome units for the 123
Independence Dr. housing development project,
with a total of 432 dwelling units and 2,000 square
feet of commercial space, located at 119
Independence Dr., 123-125 Independence Dr., 127
Independence Dr., 1205 Chrysler Dr., and 130
Constitution Dr. (commonly referred to as 123
Independence Dr.) and determine that the requested
actions are consistent with the certified projectlevel environmental impact report prepared for the proposed project
Recommendation
Staff recommends that the City Council adopt resolutions approving the following actions associated with the project at 123 Independence Dr.:
• Three below market rate (BMR) housing agreements for the provision of 56 BMR rental apartment units and 18 for-sale BMR townhome units, affordable to low-income households (Attachment A, Exhibits C, D and E); and
• Vesting tentative map for a major subdivision to modify the parcel configuration and to create 116 forsale townhome units (Attachment B).
Policy Issues
The City Council should consider the BMR housing agreements, which would require modifications to the BMR Housing Program Guidelines. Pursuant to §13 (Equivalent Alternatives) of the Guidelines, any modifications require the City Council’s review and approval and shall contain findings that the alternative is commensurate with the applicable requirements in the BMR Guidelines and is consistent with the goals of the BMR Guidelines. The City Council should also consider the proposed phased vesting tentative map in relation to compliance with the Subdivision Map Act and Title 15 of the Menlo Park Municipal Code (MPMC).
Note that under the MPMC, the Planning Commission is charged with taking actions necessary to comply with California Environmental Quality Act (CEQA), including reviewing and certifying the project’s environmental impact report (EIR), and it is also the decision-making body for the project’s use permit and architectural control permit. The Planning Commission approved these project components, which include concessions to reduce affordable housing costs and waivers to any development standard that would physically preclude the proposed density that the applicant is entitled to under the State Density Bonus Law AGENDA ITEM I-1 Page I-1.1
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov (SDBL). The policy issues relating to these actions are discussed in detail in this staff report.
Background
Project overview
The project site consists of five parcels zoned R-MU-B (Residential Mixed Use-Bonus) with a total of approximately 8.15 acres. The parcels to the north and south of the project site are located in the commercial business park (M-3-X) zoning district and are part of the Menlo Gateway project. The parcels to the west are also in the R-MU-B zoning district and are being redeveloped with residential and office uses as part of the approved Menlo Portal project. The project location map is included in Attachment C. The project would comprehensively redevelop the project site with a 316-unit, four-story multifamily rental apartment building including an approximately 2,000 square foot commercial space located on the ground floor and 116 for-sale condominium townhome units. The proposed project would include 23 separate residential buildings along with associated parking, open spaces and landscaping. The project plans are included in Attachment A, Exhibit A. Table 1 summarizes the existing development, proposed project, and zoning ordinance maximums.
Table 1: Proposed project data
Existing
development Proposed project
Zoning Ordinance
bonus level
(maximums)*
Residential dwelling units 0 432 units 815 units
Residential square footage 0 473,171 sq.ft. 798,782 sq.ft.
Residential floor area ratio 0 134% 225%
Office square footage 103,900 sq.ft. 2,000 sq.ft. 88,754 sq.ft.
Office floor area ratio 29.3% 0.005% 25%
Total square footage 103,900 sq.ft. 475,171 sq.ft. 887,535 sq.ft.
Total floor area ratio 29.3% 134% 250%
Height (maximum) 25 feet 67 feet 95 feet
Height (average) 19.7 feet 58.2 feet 62.5 feet
*This maximum is based on a density of 100 dwelling units per acre The proposed project would be developed utilizing the City’s bonus level development allowance for increases in density, intensity (square footage), and height, in exchange for community amenities. The City determined that the required community amenity value for the project is $3.35 million. To satisfy its community amenity requirement, the project includes eight additional BMR units for low-income households at a value of approximately $4.17 million. These eight BMR units would be in addition to the project’s minimum BMR requirement. The project would include a publicly accessible paseo that would connect Independence Drive and Constitution Drive and a publicly accessible park in the middle of the project site.
Attachment D includes the proposed site plan for context. The apartment building would include a ground floor commercial space adjacent to the publicly accessible park and the space could be used for any permitted use in the R-MU-B zoning district (e.g., office, bank/financial institution, retail/restaurant, personal services, recreational facilities or education/training center). The applicant is proposing to partner with Habitat for Humanity Greater San Francisco (HGSF) to deliver the for-sale BMR townhomes. A more detailed summary and analysis of the proposed project is included in the Planning Commission Aug. 28 Page I-1.2
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov staff report (Attachment E).
Entitlement review process
Pursuant to MPMC Chapter 16.82 (Permits), Chapter 16.45 (R-MU Residential Mixed Use District), and §16.43.070 (Community Amenities), the Planning Commission is charged with reviewing and determining whether to certify the Final EIR, making the CEQA findings, adopting a mitigation monitoring and reporting program, and approving the use permit and architectural control permit. When an applicant invokes SDBL, the Planning Commission reviews and acts on any requested concessions and waivers through its review of the use permit and architectural control permit. The Planning Commission’s actions on these items are final unless they are timely appealed to the City Council.
Pursuant to Title 15 (Subdivisions) of the MPMC, the Planning Commission is a recommending body to the City Council on major subdivisions (five or more lots) and may recommend conditions to the approval of the map. Likewise, pursuant to §13 (Equivalent Alternatives) of BMR Housing Program Guidelines (BMR Guidelines), the City Council shall be the decision-making body for proposed alternatives and modifications to the BMR guidelines, and both the Housing Commission and the Planning Commission are charged with reviewing and making recommendations regarding an applicant’s proposed BMR plan, including any proposed Equivalent Alternatives.
To facilitate the partnership with HGSF to provide BMR for sale units affordable to lower income households, the applicant proposed concessions and waivers pursuant to the SDBL and Equivalent Alternatives pursuant to §13 of the BMR Guidelines. The SDBL concessions and waivers relate to physical development standards and municipal code requirements that affect the cost of providing affordable housing, and are distinct from the modifications to the BMR Guidelines for Equivalent Alternatives. The proposed Equivalent Alternatives pursuant to the BMR Guidelines would affect the parameters for BMR programming and administration (e.g., eligibility, term of affordability, timing for first time homebuyer education, etc.). Both the SDBL concessions and waivers approved by the Planning Commission and the proposed Equivalent Alternatives before the City Council are necessary to enable HGSF to implement its affordable housing program.
As discussed in more detail below, with the inclusion of the eight BMR units as its community amenity in addition to the BMR units required by the City’s general affordable housing requirements, the proposed project would provide approximately 17% of its housing as BMR units. Further, the proposed for-sale BMR units would be affordable to low-income households through the partnership with HGSF, resulting in deeper affordability than required by the City’s BMR Guidelines. The proposed percentage of BMR units and affordability level entitle the project to SDBL concessions and waivers and allow the applicant to propose Equivalent Alternatives under the BMR Guidelines.
Planning Commission review and action
At its regular meeting Aug. 28, the Planning Commission reviewed the proposed project and considered the requested entitlements and actions. The Planning Commission received five public comments in support of the proposed project, including three testimonials from homeowners of BMR units developed in partnership with Habitat for Humanity in the surrounding communities, a representative from the Bay Area Council, and a representative from the Housing Action Coalition. Commission comments and discussion included:
• support for home ownership opportunities and the affordable home partnership; • positive comments on the project layout and connectivity with the public space park and paseo; • the architectural design;
• support for the community amenity of additional BMR units; • the benefits of the proximity of the project to the new Menlo Park Community Center and Bayfront Park; Page I-1.3
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov and
• recognition of extensive community outreach.
The Planning Commission voted unanimously, with Commissioners Harris and Schindler absent, to adopt the three resolutions. The Commission certified the Final EIR, adopted CEQA findings, and approved the mitigation monitoring and reporting program. The Planning Commission also approved the use permit and architectural control for the proposed project to allow the bonus level development in exchange for community amenities (additional rental BMR units), modifications to the bird friendly design requirements, and the architectural design and site plan. The Planning Commission’s resolution approving the use permit and architectural control permit includes the project’s concessions and waivers, requested through SDBL.
Where appropriate the project conditions memorialize the concessions and waivers (e.g., timing for delivery of the for-sale townhome units). At the same meeting, the Commission reviewed the modifications to the BMR Guidelines and the vesting tentative map for the project and recommended approval of the City Council. The Planning Commission resolutions are included in Attachment F. Staff did not receive any appeal to the Planning Commission’s actions on the project, therefore, those actions are considered final.
Analysis
BMR Ordinance and BMR Guidelines
The City’s BMR Housing Program requires residential developments of 20 or more units to provide not less than 15% of the proposed dwelling units in a project at BMRs to very low-, low- and moderate households.
The mix of dwelling units should be roughly equivalent to the provision of all of the affordable units at the low-income level.
The proposed project is required to provide 15% of the total number of proposed units as BMR units, which for a project of 432 units equates to 65 units. Per the BMR Guidelines, in addition to roughly equivalent unit sizes/bedroom counts, the for-sale BMR units and rental BMR units should be roughly proportionate to each component of the project. The applicant proposes to provide a total of 66 BMR housing units, which allows for a minimum of 15% of both the rental apartment and for-sale townhomes units to be BMR units by rounding up the partial units in each housing type. All proposed BMR housing units would be affordable to low-income households. The City’s BMR Guidelines require rental BMR units to be affordable to low-income households or a mix of incomes that are equivalent to all low-income units. For-sale BMR units are not required to be affordable to low-income households and could be made available to moderate-income households. The applicant’s proposal, through its partnership with HGSF, would increase the affordability of the for-sale units. Out of 66 total inclusionary units, 48 units would be rental apartment units and the remaining 18 units would be for-sale townhome units.
The eight community amenity BMR units would be rental units, resulting in a total of 56 BMR rental units. As stated previously, the applicant is proposing to collaborate with Habitat for Humanity San Francisco (HGSF) for the development of the 18 for-sale inclusionary townhomes. The project would include 74 BMR units, inclusive of the rental and for-sale components.
The applicant’s BMR proposal is available as Attachment A, Exhibit B and the three corresponding agreements are included in Exhibits C, D and E. The three agreements cover the rental BMR component, the HGSF BMR component for the for-sale townhomes, and a third agreement for the applicant to deliver the for-sale townhome units if HGSF is unable to proceed. Table 2 provides the total breakdown of unit type and size of the inclusionary units for both apartment and townhome components of the project.
Page I-1.4
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov Table 2 Proposed inclusionary units breakdown by unit types Type Unit type Average size Total number of BMR
units proposed
Rental* Studio 542 sq.ft. 16
Rental* One bedroom 720 sq.ft. 33
Rental Two bedrooms 1,006 sq.ft. 7
For-sale Two bedrooms 958 sq.ft. 3
For-sale Three bedrooms 1,480 sq. ft. 6
For-sale** Four bedrooms 1,165 sq.ft. 9
Total proposed BMR
units 74
*Includes additional inclusionary units to fulfill the community amenities requirements **Includes three four-bedroom units that are mobility compliant On June 7 the Housing Commission reviewed the BMR proposal and recommended approval of the applicant’s BMR proposal with the income limits, distribution, and unit sizes outlined in Table 2. The Housing Commission staff report is included in Attachment G.
Inclusionary rental BMR agreement
The rental apartment building would include 316 rental units and the applicant would provide 48 low-income BMR units to meet its minimum 15% inclusionary requirement. Additionally, the eight low-income BMR units provided as the community amenity are included in the rental BMR agreement for 56 rental units available for low-income households. The inclusionary rental BMR agreement is included in Attachment A, Exhibit C.
For-sale townhome BMR agreements
As part of the partnership, the applicant is proposing to donate parcel within the project site to HGSF, to facilitate development of the 18 inclusionary townhomes pursuant to HGSF’s program. The proposed BMR agreement with HGSF is included in Attachment A, Exhibit D. In addition to the Planning Commission approved concessions and waivers, the applicant and HGSF are requesting that the City Council authorize modifications to the BMR Guidelines so that HGSF can develop and sell units pursuant to their business model. The modifications are included in the proposed BMR agreement and analyzed below.
Requested modifications to the City’s BMR Guidelines
Section 13 of the BMR Guidelines allows the City Council to approve reasonably equivalent alternatives to the characteristics of the proposed BMR units. Any modifications to these Guidelines shall be approved by the City Council and shall contain findings that the alternative is commensurate with the applicable requirement(s) in the BMR Guidelines and is consistent with the goals of the BMR Guidelines. As part of the review of the project on the Aug. 28 Planning Commission meeting, the Commission reviewed the requested modifications to the BMR Guidelines discussed below and recommended approval of the modifications to the City Council. The requested modifications are as follows:
• Section 5.5: requires that affordable units have a right of first refusal in favor of the City. HGSF requests a right of first refusal, with the City in second position to allow HGSF to resell properties to secondgeneration homeowners who are income-qualified and maintain a 99-year deed restriction on all homes sold.
Page I-1.5
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov The request is an appropriate alternative because allowing this change would allow HGSF to ensure that the affordable units continue to be part of the City’s affordable housing stock for a longer-term, as units that would typically be available for 55 years would now be available for 99 years. • Section 7.1: requires all members of the applicant household to be first time homebuyers. HGSF requests that the City allow only those on the title to be required to be first time homebuyers, allowing multigenerational households to become eligible.
This requested modification would result in the same outcome as prescribed by §7.1 of the City’s BMR Guidelines. This modification would allow members of a multigenerational household who are first time homebuyers to become homeowners.
• Section 7.1.1: makes an exception to the first-time homebuyer preference for households that already own BMR units. HGSF requests that the City waive this exception to provide ownership opportunities to buyers who do not already own homes.
This requested modification would allow eligible households that income qualify and do not currently own a BMR unit to participate in the process with less competition from existing BMR owners. Allowing this modification would focus the City’s efforts in providing affordable housing to those who are in need.
The applicant is not requesting an exception to the Guideline 7.1.1 bullet point 2, which accepts applicants whose names are placed on the BMR Purchase Waiting List before March 2, 2010, otherwise known as the “Legacy List.” HGSF has provided an outline of their proposed marketing, outreach and lottery process (Attachment H).
• Section 7.2: requires only households that have completed the education requirements such as workshops, classes, or counseling sessions be invited to apply when units become available and outlines detailed requirements about the education provider and content of such programs. HGSF’s program requires homeownership education during the “sweat equity” phase of its homebuyer process, which follows the application period and the initial selection of homebuyer candidates. Under the HGSF model, the homebuyer education occurs as part of the 500-hour sweat equity requirement that occurs during unit construction. HGSF notes that this programmatic need requires HGSF to identify households for its units before the units are available. HGSF is proposing to work with the City to establish a requirement that interested applicants attend a 90-minute information session before applying, where information on homeownership and program requirements are thoroughly reviewed and then attend education training during the sweat equity phase of construction.
This modification would make the future property owners more familiar with the construction and maintenance of the unit they are purchasing which could potentially allow them to maintain the unit by themselves rather than having to depend on outside assistance. • Section 7.4: provides a list of assets and how they count towards income limits for the purchasers of affordable units. HGSF requests to qualify only those households that have non-retirement assets that do not exceed the purchase price of the BMR unit. HGSF notes that its model asset tests require liquid assets over $60,000 to be assessed at 10% of their value and added to annual income. HGSF states that modification of the guideline as proposed would allow access to the BMR units only to those households that truly need them, by allowing households with lower incomes to count a small percent of other assets to show that they qualify for an affordable unit.
This modification would allow more households to income qualify and become eligible. Given the current Page I-1.6
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov market conditions, expanding income eligibility in the manner proposed by HGSF would allow more households to qualify.
• Section 10.2: outlines refinancing options. HGSF notes that their model does not allow homeowners to refinance homes or assume second loans. To ensure affordability, HGSF notes that the company offers mortgages to first-time homebuyers with 0% down payment and 0% interest loans and caps homeowner’s total housing payment at 30% of their gross household income at the time of sale.
This modification would allow HGSF to implement their mortgage program and provide 0% loans to the buyers allowing them to purchase property without being impacted by changing market conditions. • Section 11: outlines detailed process for resale of affordable units, including how the sale price will be set and that the City will retain the realtor for the sale. The City establishes the resale price, based on the original selling price of the unit, depreciated value of substantial improvements made by the seller and 1/3 of the increase in the cost of living index for the Bay Area. The price is established for the unit at the appraised market value or the calculated price whichever is lower. HGSF requests that the City allow use of its standard process for calculating the resale price, which is based on the original price plus appreciation at the lower of consumer price index (CPI) or 3%. HGSF notes that they require new buyers to perform sweat equity of 250 hours. HGSF notes that their model requires repetition of all the steps performed during the initial sale including marketing, outreach, performing a lottery and determining eligibility. HGSF also notes that their model allows sharing of the property value between the homeowner, who receives their principle plus CPI adjustment at the time of resale, and HGSF would use any realized capital appreciation towards construction of new affordable projects.
This modification would implement HGSF’s unique model where HGSF is able to provide 0% interest loans and 0% down payment opportunities to the prospective buyers of the property making purchasing a home feasible even in uncertain market conditions.
• Lastly, the City’s BMR Guidelines stipulates that City staff would administer the various aspects of the BMR Guidelines. HGSF requests that the City elect HGSF to be the City’s designee or program provider to undertake orientation and other educational meetings, marketing, applicant selection and title requirements.
Since HGSF is an industry expert and non-profit organization that provides affordable housing at 0% interest mortgage rates, 0% down payment, and caps the cost of homeownership at 30% of household income, the proposed alternative is reasonable.
Through the proposed modifications of the BMR Guidelines HGSF would implement a unique program that would allow households to provide sweat equity and take advantage of 0% down payment and 0% interest mortgage, while having their housing expenses capped at 30% of their household income.
For-sale BMR units phasing/timing
Although the City staff and Planning Commission support flexibility to accommodate HGSF’s participation in the project, safeguards are required to ensure that the project will provide sufficient affordable housing in a timely manner. The use permit includes conditions of approval that provide that if HGSF fails to pull building permits within six months of issuance of the permit for the first market rate townhome, the applicant would convert a portion of the BMR townhomes to market-rate units and provide inclusionary units in proportion to the market-rate townhomes across the entire townhome development. Under this scenario, the BMR townhomes would be available to moderate income households rather than the lower income households that would be served by HGSF. The proposed agreement with the applicant for delivery of the for-sale BMR units is included in Attachment A, Exhibit E
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Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov The Planning Commission approved the schedule for delivery of BMR townhome units as part of the approval of the concessions and waivers for the project, which is included in the project conditions. During the phased development there may be times when the on-site BMR units are below the minimum requirements; however, upon completion of the stand-alone, for-sale inclusionary townhome located on lot C and the apartment building, the proposed project would comply with the minimum BMR requirements.
Moreover, there are no requirements that the market rate townhome units be delivered on a specific schedule; accordingly, it is possible that HGSF could deliver the BMR townhomes units ahead of some or all of the market rate units.
BMR agreements summary
The inclusionary BMR agreement complies with the City’s BMR Guidelines. The requested modifications for the for-sale BMR agreement would accommodate HGSF‘s specific program requirements while meeting the City‘s policy goals of increasing and maintaining affordable housing ownership opportunities for lower income households in the City. Additionally, staff and the applicant have developed an alternate for-sale BMR agreement in the event that HGSF is unable to proceed. Staff and the Planning Commission find the proposed alternatives to the City’s BMR Guidelines appropriate and recommend that the City Council approve the BMR agreement with HGSF and the rental inclusionary BMR agreement, as well as the alternative for-sale BMR agreement in the event that HGSF is unable to proceed.
The Planning Commission reviewed the BMR proposal, inclusive of the requested modifications to the City’s BMR Guidelines, and recommended the City Council approve the BMR Housing Agreements for the proposed project. The BMR agreements include an agreement for the rental BMR units (Attachment A, Exhibit C), an agreement with HGSF for delivery of the for-sale BMR units (Attachment A, Exhibit D), and an agreement for the for-sale townhome units with The Sobrato Organization in the event that HGSF cannot meet its obligations (Attachment A, Exhibit E).
BMR agreement updates
Since the Aug. 28 Planning Commission meeting, staff has revised the inclusionary BMR agreement to correct minor errors and include more reporting on vacancies to help City collect data and identify whether there are issues in marketing and/or leasing processes. The minor modifications do not change the original intent and/or terms of the agreement, or the number of BMR units.
Vesting tentative map
The phased vesting tentative map for the proposed project would merge and resubdivide the existing parcels to create residential and open space parcels. The applicant is proposing to develop the project in two phases. The phasing of the vesting tentative map is available in Attachment B, Exhibit C. The first phase would consist of modifying the existing parcels to create four lots consisting of one lot (lot A) to receive the apartment building fronting Constitution Drive, a lot for the public paseo/park lot (lot 1) and third and fourth lots (lot B and lot C) would be used to receive the townhomes. The second phase would further subdivide lots B and C to create lots B, C, and D and each the townhome would be mapped as condominiums to allow for individual ownership. The two final maps are anticipated to match the proposed phasing.
The townhome component of the proposed project would allow development of 116 condominium units to be purchased and sold independently. Title 15 of the City’s Municipal Code, the Subdivision Ordinance, lists certain required data and statements that must be made as part of a major subdivision map to be reviewed by the City Council. The required data includes defined boundaries of the subdivision; the width, approximate location, and purpose of existing and proposed easements; widths, proposed names, and grade of all streets and other rights-of-way within the subdivision proposed for dedication or not; locations of buildings and structures within the subdivision; locations of trees over 6 inches in diameter; and other Page I-1.8
Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov similar requirements. The proposed subdivision includes the required data and statements listed in the Subdivision Ordinance, and all information is complete and accurate.
The project phasing narrative and vesting tentative map are included in Attachment B, Exhibits B and C.
The recommended map conditions are included in Attachment B, Exhibit D.
Correspondence
On Aug. 28, after the start of the Planning Commission meeting, staff received one comment from the California Housing Defense Fund urging the City to approve the proposed project. The City received a second comment, since the Planning Commission meeting, from a community member discussing a need for neighborhood serving retail in the area. Each letter is included in Attachment I.
Conclusion
The Planning Commission reviewed and recommended approval of the proposed BMR agreements, including the modifications, as the proposed BMR agreements would provide generally equivalent alternatives to the City’s BMR Guidelines and would allow HGSF to implement its unique model for affordable housing. The Planning Commission reviewed and determined that the vesting tentative map is compliant with the City’s Subdivision Ordinance and the Subdivision Map Act.
Impact on City Resources
The project sponsor is required to pay planning, building and public works permit fees, based on the City’s Master Fee Schedule, to fully cover the cost of staff time spent on the review of the proposed project. The project sponsor is also required to fully cover the cost of work by consultants performing environmental review and additional analyses to evaluate potential impacts of the project.
Environmental Review
At the Aug. 28 Planning Commission meeting, the Commission certified the Final Project EIR, made findings required by CEQA, and adopted the Mitigation Monitoring and Reporting Program, and approved the project. Since the certified EIR prepared for the proposed project included an evaluation of the project BMR proposal, including the requested modifications to the BMR Guidelines, and the requested vesting tentative map, the requested actions are consistent with the certified EIR for the proposed project.
Public Notice
Public notification was achieved by posting the agenda, with the agenda items being listed, at least 72 hours prior to the meeting. Public notification also consisted a publishing a notice in the local newspaper and notification by mail of owners and occupants within a quarter-mile radius of the subject property.
Attachments
A. City Council resolution approving the BMR housing agreements Exhibits to Attachment A
A. Hyperlink – Project Plans including materials and color board:
menlopark.gov/files/sharedassets/public/community-development/documents/projects/underreview/123-independence-drive/july-2023-development-plans-with-material-and-color-board.pdf B. Hyperlink – Project BMR proposal including requested concession, waivers, and modifications to the BMR Guidelines: menlopark.gov/files/sharedassets/public/communityPage I-1.9 Staff Report #: 23-219-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov development/documents/projects/under-review/123-independence-drive/below-market-rate-housingproposal.pdf C. Draft BMR housing agreement and declaration of restrictive covenants with The Sobrato Organization
D. Draft BMR housing agreement and declaration of restrictive covenants with Habitat for HGSF E. Draft BMR for-sale housing agreement and declaration of restrictive covenants with The Sobrato Organization
B. City Council resolution approving vesting tentative map Exhibits to Attachment B
A. Hyperlink – Project Plans including materials and color board and vesting tentative map:
menlopark.gov/files/sharedassets/public/community-development/documents/projects/underreview/123-independence-drive/july-2023-development-plans-with-material-and-color-board.pdf B. Hyperlink – Vesting tentative map phasing narrative:
menlopark.gov/files/sharedassets/public/community-development/documents/projects/underreview/123-independence-drive/vesting-tenative-map-phasing-letter.pdf C. Hyperlink – Vesting tentative map: menlopark.gov/files/sharedassets/public/communitydevelopment/documents/projects/under-review/123-independence-drive/123-independence-drivevesting-tentative-map-july-2023.pdf D. Vesting tentative map conditions of approval
C. Project location map
D. Project site plans
E. Hyperlink – Aug. 28 Planning Commission staff report:
menlopark.gov/files/sharedassets/public/v/1/agendas-and-minutes/planning-commission/2023- meetings/agendas/20230828-planning-commission-agenda-packet.pdf F. Planning Commission resolutions from Aug. 28 meeting G. Hyperlink – June 7 Housing Commission staff report:
menlopark.gov/files/sharedassets/public/v/2/agendas-and-minutes/housing-commission/2023- meetings/agendas/20230606-housing-commission-agenda-packet.pdf H. HGSF marketing outline
I. Correspondence
Report prepared by:
Payal Bhagat, Contract Principal Planner
Report reviewed by:
Kyle Perata, Planning Manager
Eric Phillips, Legal Counsel
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RESOLUTION NO. XXXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO PARK
APPROVING BELOW MARKET RATE HOUSING AGREEMENTS FOR THE
PROPOSED 123 INDEPENDENCE DRIVE PROJECT CONSISTING OF A 316
UNIT MULTI-FAMILY RESIDENTIAL APARTMENT BUILDING WITH AN APPROXIMATELY 2,000 SQUARE FEET COMMERCIAL SPACE AND 116 TOWNHOME CONDOMINIUM UNITS AT 119 INDEPENDENCE DRIVE, 123-125 INDEPENDENCE DRIVE, 127 INDEPENDENCE DRIVE, 1205 CHRYSLER DRIVE, AND 130 CONSTITUTION DRIVE (APNS: 055-236-140, 055-236-180, 055-236-240, 055-236-300, and 055-236-280), AND ASSOCIATED OPEN
SPACE AND INFRASTRUCTURE
WHEREAS, the City of Menlo Park (“City”) received an application requesting environmental review, use permit, architectural control, below market rate (BMR) housing agreement, major subdivision, and heritage tree removal permits from The Sobrato Organization (“Applicant”), to redevelop the properties located at 119 Independence Drive, 123-125 Independence Drive, 127 Independence Drive, 1205 Chrysler Drive, and 130 Constitution Drive (APNs 055-236-140, 055- 236-180, 055-236-240, 055-236-300, and 055-236-280) (“Property”), with a bonus level development project consisting of an up to 316 unit multifamily rental apartment building with approximately 2,000 square feet of commercial space and 116 for-sale townhome condominium units, which development is more particularly described in the Environmental Impact Report to the Project which was prepared pursuant to the California Environmental Quality Act (hereinafter the “Project”). The Project is depicted in and subject to the development plans which are attached hereto as Exhibit A (“Project Plans including colors and materials board”) and incorporated herein by this reference; and
WHEREAS, the proposed Project is located in the R-MU-B (Residential Mixed Use-Bonus) zoning district. The R-MU-B zoning district allows a mixture of land uses with the purposes of providing high density housing to complement nearby employment, encouraging mixed use development with a quality living environment and neighborhood-serving retail and services on the ground floor that are oriented to the public, promoting a live/work/play environment with pedestrian activity, and blending with and complementing existing neighborhoods through site regulations and design standards that minimize impacts to adjacent uses; and WHEREAS, the bonus level provisions identified in the City’s Zoning Ordinance allow a development to seek an increase in floor area ratio (FAR), density (dwelling units per acre), and/or height subject to approval of a use permit and the provision of community amenities equal to a minimum of 50 percent of the fair market value of the increased development potential and the applicant has submitted a community amenities proposal in compliance with the required minimum value; and
WHEREAS, on December 6, 2022, the applicant submitted the community amenities proposal that provides eight rental units affordable to low-income households valued at approximately $4,200,299 as part of the Project’s community amenities proposal; and WHEREAS, the City commissioned BAE urban economics to evaluate the community amenities proposal and subsequently determined that the value of the proposed eight low-income rental units, at $4,196,795 or $819,795 greater than the community amenities obligation and is therefore consistent with the Zoning Ordinance requirements; and Page I-1.11 ATTACHMENT A
WHEREAS, pursuant to the requirements of Sections 16.45.060 and 16.96.020 of the City of Menlo Park Municipal Code and the City’s Below Market Rate (“BMR”) Housing Program, the applicant submitted a BMR proposal, attached hereto as Exhibit B which is incorporated herein by this reference, that would provide 48 inclusionary rental units (15 percent of total proposed 316 multi-family apartment units), 18 inclusionary for-sale units (15 percent of total proposed 116 for-sale townhome units), and eight additional inclusionary rental units to fulfill the community amenities obligation for the proposed project; and WHEREAS, the Applicant proposes to donate newly created Lot C to Habitat for Humanity Greater San Francisco (HGSF) so that HGSF may develop and sell proposed 18 inclusionary for-sale units; and
WHEREAS, the applicant requests the first concession to allow the use of volunteer labor as sweat equity towards purchase of affordable units and to allow leveraging of certain financial opportunities that would otherwise be unavailable and the second concession to allow a delay in the development of affordable units to allow HGSF to rely on volunteer labor and sweat equity model and use donated goods and materials for construction of the affordable for-sale units; and
WHEREAS, as allowed by the State Density Bonus Law and the City’s Below Market Rate (BMR) Ordinance, the proposed Project requests three waivers: first from City’s Municipal Code Section 16.97.100 and BMR Guideline Section 5.2 to allow the for-sale affordable units to differ in the following design aspects: smaller size, interior layout, fewer bathrooms, increased number of bedrooms, smaller living area, less parking, smaller windows, different exterior finishes and massing, fewer balconies, and different interior finishes, lighting, and appliances, second from City’s Municipal Code Section 16.45.120(4)(c)(iii) to allow common open space required as part of the development of the for-sale affordable units of 400 square feet that does not meet the minimum 20 feet by 20 feet dimension requirement pursuant to the code and third from City’s Municipal Code Section 16.45.080 allowing no designated vehicular parking spaces for the proposed commercial space within the proposed apartment building that includes rental affordable units; and
WHEREAS, the applicant is requesting the first waiver to allow the construction of for-sale affordable units using volunteer labor and donated materials, the second waiver to allow for the for-townhomes as programmed and designed at the allowed density without losing any affordable units, and the third waiver to allow development of the commercial space without having to expand the garage area to accommodate dedicated commercial space parking requiring reduction in the residential density and for-rent affordable units; and WHEREAS, at a duly noticed public hearing on August 28, 2023, the Planning Commission held a public hearing where the Commission reviewed and approved all requested project related concessions and waiver, pursuant to the State Density Bonus Law requirements as part of its review and action on the requested use permit and architectural control permit for the Project; and
WHEREAS, as allowed by Section 13 of the City’s BMR Guidelines, the applicant requests approval of Project specific alternate guidelines in order to allow the development of for-sale BMR units consistent with HGSF model, of the City Council; and WHEREAS, HGSF proposes reasonable alternatives to the specific BMR Guidelines proposed to be modified such that implementation of these alternatives would allow HGSF to develop the Resolution No. XXXX
18 for-sale affordable units according to their unique program which would allow eligible households to incur sweat equity in their property, get education in topics such as HOA management, maintenance and repair, take advantage of zero percent down payment and zero percent interest mortgages, and having their housing expenses capped at 30 percent of their household income; and
WHEREAS, at a duly noticed public meeting on June 7, 2023, the Housing Commission considered the applicant’s BMR proposal including the proposed modifications to the BMR Guidelines, and draft BMR Housing Agreements, inclusive of the 74 inclusionary BMR units, and forwarded a recommendation of approval to City Council of the proposed BMR Housing Agreements; and
WHEREAS, after notice having been lawfully given, a duly noticed public hearing was held before the City Planning Commission on August 28, 2023 at which all persons interested had the opportunity to appear and comment; and
WHEREAS, after closing the public hearing, the Planning Commission considered all public and written comments, pertinent information, documents and plans and all other evidence in the public record on the Project; and
WHEREAS, the Planning Commission has read and considered those certain Below Market Rate Housing Agreements (“BMR Agreements”) between the City and The Sobrato Organization, incorporated herein as Exhibits C and D, and their affordable housing partner HGSF, incorporated herein as Exhibit E, and finds that those satisfy the requirements of Chapter 16.96 of the City’s Municipal Code and in the BMR Housing Program Guidelines, except as modified, and would result in affordable housing that meets the City’s affordable housing goals and results in a BMR program for the Project with characteristics that are a reasonable equivalent alternative to a program that strictly complied with the BMR Housing Program Guidelines; and
WHEREAS, on August 28, 2023, the Planning Commission fully reviewed, considered, evaluated the whole of the record including all public and written comments, pertinent information, document and plans, and by Resolution No. 2023-40 certifying the Final EIR, adopting findings of fact in accordance with the CEQA, and adopting a Mitigation Monitoring and Reporting Program, prior to adopting Resolution No. 2023-41 approving the requested use permit and architectural control including all the requested concessions and waivers, and adopted Resolution No. 2023-42 recommending of approval to City Council on the proposed BMR Agreements for the 123 Independence Drive Project; and WHEREAS, all required public notices and public hearings were duly given and help according to law; and
WHEREAS, after notice having been lawfully given, a duly noticed public hearing was held before the City Council on September 26, 2023 at which all persons interested had the opportunity to appear and comment; and
WHEREAS, after closing the public hearing, the City Council considered all public and written comments, pertinent information, documents and plans and all other evidence in the public record on the Project; and
Resolution No. XXXX
WHEREAS, on September 26, 2023, the City Council fully review, considered, evaluated the whole of the record including all public and written comments, pertinent information, documents, and approve the BMR Housing Agreements, attached herein as Exhibits C, D, and E for the 123 Independence Drive Project.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Menlo Park finds that the above recitals together with the staff report and the application materials, including without limitation, the previously certified EIR, and all other documents, reports, studies, maps, oral and written testimony, and materials in the City’s file for the applications and the Project, and all adopted and applicable City planning documents related to the Project and the Project Site and all associated evidentiary basis for the approval set forth in this resolution.
BE IT FURTHER RESOLVED that the City Council make the following findings:
1. CEQA Finding. The City, as lead agency, prepared an Environmental Impact Report (“EIR”) (SCH: 2021010076) pursuant to the California Environmental Quality Act (“CEQA”) that examined the environmental impacts of the redevelopment of the Project site consisting of an up to 316 unit multifamily rental apartment building with approximately 2,000 square feet of commercial space and 116 for-sale townhome condominium units (hereinafter the “Project”). On August 28, 2023, by Resolution No 2023-40, the Planning Commission certified the EIR, made certain findings, and adopted a Mitigation Monitoring and Reporting Program, which Resolution together with the EIR are incorporated herein by reference. The City Council finds that the BMR Agreements are within the scope of the EIR.
2. BMR Agreements. The BMR Agreements satisfy the requirements of Chapter 16.96 of the City’s Municipal Code and the applicable BMR Housing Guidelines, as amended by the Use Permit. The request to modify BMR Housing Guidelines under Section 13 to allow first right of refusal in favor of Habitat for Humanity Greater San Francisco (HGSF) first and the City second, amending the definition of first-time homebuyer, modify the timing of when the educational requirements are completed and include other educational requirements such as sweat equity, modify what constitutes towards income limits for the purchasers, prohibit refinancing of affordable units after sale, modify the process of resale of the affordable units, and request that the City appoint HGSF as its designee or program provider and coordinator undertaking orientation, education, marketing, applicant selection, and title requirements to provide 18 for-sale low-income affordable units and 56 rental apartment units (includes eight low-income affordable rental units provided as part of the Project community amenities) affordable to low-income households as part of the proposed Project. The City Council finds that the deviations from the BMR Housing Program Guidelines Sections 5.5, 7.1, 7.1.1, 7.2, 7.4, 10.2, and 11 meet the requirement of the BMR Housing Program Guidelines Section 13, which allows the BMR proposal and ensuring Agreement(s) that is not consistent with every section of the BMR Guidelines where the deviation results in the proposal providing a reasonable equivalent alternative that is commensurate with the goals of the BMR Housing Program Guidelines. The City Council waives the BMR Housing Program Guidelines Sections 5.5, 7.1, 7.1.1, 7.2, 7.4,
10.2, 11, and designate HGSF to be the City’s designee or program provider to undertake orientation, marketing, and other activities around sale of the affordable townhome units, to promote development of for-sale units affordable to low-income households, and approves applicant’s BMR proposal and BMR regulatory Agreements, including an agreement for the for-rent affordable units and for-sale affordable units in a form substantially consistent with the Agreements attached hereto as Exhibits C, D, and E of this resolution, and direct the City Manager to execute the BMR Agreements on behalf of the City.
Resolution No. XXXX
BE IT FURTHER RESOLVED that the City Council approves the applicant’s BMR proposal, including the requested concession, waivers, and modifications to the BMR Guidelines, and approves the BMR Housing Agreements substantially in the form attached to this Resolution.
The City Manager or their designee is directed to execute the BMR Housing Agreements and to take other actions as may be necessary and appropriate to implementing this Resolution.
SEVERABILITY
If any term, provision, or portion of these findings or the application of these findings to a particular situation is held by a court to be invalid, void or unenforceable, the remaining provisions of these findings, or their application to other actions related to the Project, shall continue in full force and effect unless amended or modified by the City.
I, Judi A. Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the twenty-sixth day of September, 2023, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this __ day of September, 2023.
Judi A. Herren, City Clerk
Exhibits
A. Project Plans including materials and color board
B. Project Below Market Rate proposal including requested concession, waivers, and modifications to the BMR Guidelines
C. Draft Below Market Rate Housing Agreement and Declaration of Restrictive Covenants with The Sobrato Organization
D. Draft Below Market Rate Housing Agreement and Declaration of Restrictive Covenants with Habitat for Humanity Greater San Francisco (HGSF)
E. Draft Below Market Rate For-Sale Housing Agreement and Declaration of Restrictive Covenants with The Sobrato Organization
Resolution No. XXXX
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EXHIBIT B Resolution No. XXXX
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www.coxcastle.com Los Angeles | Orange County | San Francisco Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, California 94111-4710
P: 415.262.5100 F: 415.262.5199
Linda C. Klein
415.262.5130
[email protected]
File No. 087389
July 20, 2023
VIA E-MAIL
Ms. Payal Bhagat
City of Menlo Park
Planning Division
701 Laurel Street
Menlo Park, CA 94025
Re: Density Bonus Law Request for 123 Independence Drive Project Dear Payal:
This letter provides the applicable State Density Bonus Law (“SDBL”) requests related to the 123 Independence Drive housing development application (“Project”) proposed by The Sobrato Organization (“TSO”), and supersedes the requests submitted to the City of Menlo Park (“City”) on May 23, 2022, October 28, 2022, June 13, 2023, and July 5, 2023. There are only two changes in this letter compared to prior letters: TSO renews its request to waive the commercial automobile parking requirement and retracts its request to waive commercial bicycle parking requirement.
In sum, TSO’s SDBL’s requests for incentives/concessions and waivers are as follows:
Incentives/Concessions
Incentive 1: Clustering the Affordable Townhomes. Municipal Code section 16.97.100 requires that affordable units be “integrated into the project.” The City’s Below Market-Rate Guidelines (“BMR Guidelines”) further state that “[t]he BMR units should be distributed throughout the development.” (BMR Guidelines, § 5.1.) These requirements would preclude a market-rate developer from partnering with an affordable housing developer to provide the affordable component of a project. Affordable housing developers require their own parcel on which they can construct a one hundred percent affordable housing development to be able to leverage lower cost financing that results in actual and identifiable cost savings. Similarly, organizing the affordable units on their own parcel allows the affordable housing developer to easily oversee construction, reducing complexity and resulting in actual and identifiable cost savings.
For the affordable townhomes, TSO wishes to partner with an affordable housing developer, namely Habitat for Humanity Greater San Francisco (“HGSF”), due to HGSF’s Resolution No. XXXX
greater expertise in providing for-sale affordable housing. While the affordable townhomes (“HGSF Project”) would be integrated into the overall site plan, they would not be integrated and dispersed in each townhome building block. Instead, the HGSF Project would be located on their own parcel, labeled Lot C on the Project drawings. Accordingly, TSO and HGSF request a concession from Municipal Code section 16.97.100 and BMR Guidelines section 5.1 to allow the HGSF Project to be developed on one parcel and not distributed throughout the townhome portion of the Project.
Incentive 2: Timing of the Affordable Townhome Units. Municipal Code section
16.97.100 requires that affordable units be “constructed concurrently with market rate units.” Similarly, the BMR Guidelines require that the affordable units be ready for final inspection at approximately the same time as the market rate units. TSO requests a concession to this Municipal Code and BMR Guideline requirement because the affordable townhome units may not be constructed concurrently with the market rate townhomes due to TSO’s partnership with HGSF. TSO and HGSF have different construction practices that lead to potentially different delivery timelines. Specifically, HGSF relies on (i) a volunteer labor and “sweat equity” model whereby the future owners of homes provide some labor and (ii) donated goods and materials.
Both volunteer labor and donated materials result in cost savings for affordable housing but lead to a less predictable timeline than traditional construction methods and procurement practices.
This past spring, the City asked TSO to provide a connection between the construction of the market-rate townhomes and the HGSF Project and a guarantee that HGSF will complete its project. In response, TSO provided the following timeline and assurances for the HGSF Project:
HGSF is required to submit a building permit application(s) for the 18 affordable townhomes within 6 months of the building permit submittal for the first market rate townhome.
o If HGSF fails to pull building permits within 6 months after the City issues the first building permit for the market-rate townhomes then some of the proposed 18 affordable townhomes would become market rate townhomes and some of the market rate townhome units would convert to affordable units, such that a total of 15 percent of the townhomes would be affordable (i.e., a door-by-door approach).
Under this approach, the Project would require only one waiver for the minimum common open space dimension. Specifically, City Municipal Code section
16.45.120(4)(C)(iii) requires a parcel with 10 to 50 units to provide a minimum of 400 square feet of common open space, with minimum dimension of 20 feet. Lot C includes 400 square feet of common open space, but its dimensions are 10 feet by 40 feet rather than 20 feet by 20 feet. A waiver is required because the Project cannot fit the units as designed at the density allowed and provide a common open space on Lot C that is 20 feet wide. To provide another 10 feet of open space, the Project would need to have fewer units.
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HGSF will have 24 months after the issuance of the building permit for the HGSF Project to complete the 18 affordable townhomes.
o HGSF will provide a milestone schedule at the start of construction that is consistent with completion within 24 months of pulling their building permit.
HGSF will have regular check-ins with housing staff throughout the construction process, and larger bi-annual meetings that would include all stakeholders as determined by the City staff to discuss their progress. HGSF will provide construction schedule updates in the bi-annual meetings with City stakeholders.
If HGSF starts construction and does not complete it within 24 months, City staff has two options: (1) allow HGSF to complete construction and require a bond to cover the costs to complete the construction, including additional project management and administrative costs, or (2) allow HGSF to complete the construction without requiring a bond.
Waivers1
The waivers requested below are needed to either allow the Project to physically fit on the Property as designed and at the density allowed or to facilitate the “different timing” incentive that allows the HGSF Project to be constructed by HGSF with volunteer labor and donated goods.
Waiver 1: Equal Design. Municipal Code section 16.97.100 requires that the affordable units to “be of equal design and quality as the market rate units.” Section 5.2 of the BMR Guidelines clarifies that the “design and materials used in construction of BMR units shall be of a quality comparable to other new units constructed in the development but need not be of luxury quality.”
TSO and HGSF request a waiver to Municipal Code 16.97.100 and BMR Guidelines section 5.2 to allow the affordable townhomes to differ from the market-rate townhomes. The differences are that compared with the market-rate units, the affordable townhomes will have:
(i) smaller average unit size, resulting in different interior layouts with fewer bathrooms, smaller living rooms, and more bedrooms than a similar sized market-rate townhome; (ii) less parking; (iii) smaller windows; (iv) different exterior finishes and massing, including different roof lines, (v) fewer balconies and balconies located in different locations; and (vi) different interior finishes, lighting, and appliances.
Regarding the differences in overall size, layout, bathrooms, living rooms, bedrooms, and parking spaces, these differences allow the Project to fit on the Property as designed and at the density allowed. Making the townhomes larger would allow more bathrooms, larger living 1 TSO reserves its right to request future waivers at any time if needed.
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rooms, fewer bedrooms per square foot, and more parking, but doing so would decrease open space or necessitate another change, such as a loss of a unit.
Regarding the differences in window size, massing inclusive of rooflines, and balconies, these differences result in a product that is easier to construct than the market-rate townhomes.
Providing an easy to construct product supports the concession above for separate timing, which is predicated in part by HGSF’s use of volunteer labor.
Regarding the differences in exterior and interior finishes, including appliances, these differences allow HGSF to use donated materials, thereby supporting the concession above for separate timing, which is predicated in part by HGSF’s use of donated materials.
Waiver 2: Common Open Space. Municipal Code section 16.45.120(4)(C)(iii) requires a parcel with 10 to 50 units to provide a minimum of 400 square feet of common open space, with minimum dimension of 20 feet. The Lot C includes 400 square feet of common open space, but its dimensions are 10 feet by 40 feet rather than 20 feet by 20 feet. Accordingly, TSO and HGSF request a waiver to reduce the 20-foot minimum dimension to 10 feet on this lot. The Project cannot fit the affordable townhome units as designed at the density allowed and provide a common open space on Lot C that is 20 feet wide. To provide another 10 feet of open space, the Project would need to have fewer units and different parcel lines.
Waiver 3: Commercial Parking. The Federal Emergency Management Agency (“FEMA”) will suspend processing two types of flood map revision requests in 38 California counties starting July 1, 2023, making it impossible to obtain Letters of Map Revision Based on Fill (LOMR-F) and Conditional Letters of Map Revision Based on Fill (CLOMR-F) in the City. (FEMA Press Release (May 24, 2023).) FEMA’s decision would have made it difficult to proceed with the Project as originally designed. Accordingly, TSO modified the Project to include 2,000 square feet of commercial space on the ground floor of the apartment building.
Municipal Code section 16.45.080 requires at least four or five automobile parking spaces and two bicycle parking space for a 2,000 square-foot commercial space. TSO requests a waiver to provide zero dedicated automobile parking spaces for the commercial space. While there are six parking spaces available to patrons of the commercial space, those spaces are designed to be shared with visitors to the apartments. Absent the commercial parking waiver, the Project would need a larger parking garage, which could be created only by reducing the proposed residential density.
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Please let me know if you have questions about the Project. We look forward to our City hearings and bringing much needed housing to the region.
Sincerely,
Cox, Castle & Nicholson LLP
Linda C. Klein
Cc: Eric Phillips, City Attorney
Maureen Sedonaen, Habitat for Humanity Greater San Francisco Constanza Asfura-Heim, Habitat for Humanity Greater San Francisco Peter Tsai, The Sobrato Organization
Christina Burke, The Sobrato Organization
087389\16888933v5
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1 This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025
BELOW MARKET RATE HOUSING AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(123 Independence Drive Project)
This BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 2023 (“Effective Date”), by and between the City of Menlo Park, a California municipal corporation (“City”), and SI 60, LLC, a California limited liability company (“Owner”). City and Owner may be referred to individually as a “Party” or collectively as the “Parties” in this Agreement.
RECITALS
A. Owner is the owner of that certain real property located at 119, 123, 125, and 127 Independence Drive (APNs 055-236-180, 055-236-140, and 055-236-240), 1205 Chrysler Drive (APN 055-236-300), and 130 Constitution Drive (APN 055-236-280), in the City of Menlo Park, California (“Project Site”). A parcel to be created at the approximate location commonly known as 130 Constitution Drive (“Property”) as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference, is the parcel subject to the Agreement.
B. Owner applied to demolish existing office and industrial buildings, totaling approximately 103,983 square feet, and to redevelop the site with a new multifamily residential project with 316 rental units (“Apartment Project”), 116 for sale townhome units, and associated open space, circulation, parking and infrastructure improvements (collectively, the “Project”).
C. Menlo Park Municipal Code Chapter 16.96, the Below Market Rate Housing Program (“BMR Ordinance”), and the Below Market Rate Housing Program Guidelines (“Guidelines”) require the Owner to provide fifteen percent (15%) of the total number of units in the Project as affordable to below market rate (“BMR”) households. To satisfy the requirements of the BMR Ordinance and Guidelines, Owner has proposed (the “BMR Proposal”) to provide BMR units as follows: fifty-six (56) rental units to BMR households (“BMR Rental Units” or “BMR Units”) (the BMR Rental Units are comprised of 48 units provided to satisfy the BMR Ordinance requirements and eight (8) units provided as a community amenity in exchange for increased density on the Property) and eighteen (18) for-sale units to BMR households (“BMR EXHIBIT C Resolution No. XXXX
2 For-Sale Units”) for a total of seventy-four (74) BMR Units. The Agreement addresses only the BMR Rental Units. The BMR For-Sale Units are addressed in a separate agreement.
D. On _________ __, 2023, after a duly noticed public hearing, the Housing Commission recommended approval the BMR Proposal with seventy-four (74) low income units (“Low Income Units”). The initial allocation of BMR Rental Units across the Apartment Project is more particularly described on Exhibit B, attached hereto and incorporated herein by this reference.
E. On _________, 2023, after a duly noticed public hearing, and on the recommendation of the Housing Commission, the Planning Commission certified the environmental impact report approved a conditional use permit, architectural control, form affordable housing agreements, and incentives/concessions and waivers in accordance with State Density Bonus Law (Government Code section 65915) and recommended that the City Council approve a Vesting Tentative Map and the BMR Proposal for the Project. On _______________, 2023, after a duly noticed public hearing, and on the recommendation of the Housing Commission and the Planning Commission, the City Council approved a Vesting Tentative Map and the BMR Proposal for the Project. The Planning Commission and City Council actions are collectively the “Project Approvals.”
F. The Project Approvals require the Owner to provide BMR Rental Units in accordance the BMR Proposal. In accordance with the BMR Ordinance and Guidelines and State Density Bonus Law (Government Code section 65915), Owner is required to execute and record an approved BMR Housing Agreement for the BMR Rental Units as a condition precedent to the issuance of a building permit for the Apartment Project. This Agreement is intended to satisfy that requirement.
NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.
1. CONSTRUCTION OF THE APARTMENT PROJECT.
1.1 Construction of the Apartment Project. Owner agrees to construct the Apartment Project in accordance with the Menlo Park Municipal Code and all other applicable state and local building codes, development standards, ordinances and zoning ordinances.
1.2 City and Other Governmental Permits. Before commencement of the Apartment Project, Owner shall secure or cause its contractor to secure any and all permits which may be required by the City or any other governmental agency affected by such construction, including without limitation building permits. Owner shall pay all necessary fees and timely submit to the City final drawings with final corrections to obtain such permits; City staff will, without incurring liability or expense therefore, process applications in the ordinary course of business for the issuance of building permits and certificates of occupancy for construction that meets the requirements of the Menlo Park Municipal Code, and all other applicable laws and regulations.
1.3 Compliance with Laws. Owner shall carry out the design, construction and operation of the Apartment Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and Resolution No. XXXX
3 electrical codes, and all other provisions of the Menlo Park Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
2. OPERATION OF THE BMR UNITS
2.1 Affordability Period. The Property, provided that the Apartment Project remains on the Property, shall be subject to the requirements of this Agreement from the date that the City issues a final certificate occupancy for the Apartment Project until the 55th anniversary of such date. The duration of this requirement shall be known as the “Affordability Period.”
2.2 Maintenance. Owner shall comply with every condition of the Project Approvals applicable to the Project and shall, at all times, maintain the Apartment Project and the Property in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals, and replacements to keep the Apartment Project and the Property in a good, clean, safe, and sanitary condition.
2.3 Monitoring and Recordkeeping. Throughout the Affordability Period, Owner shall comply with all applicable recordkeeping and monitoring requirements set forth in the Guidelines, attached as Exhibit [_], or, at the Owner’s election, applicable recordkeeping and monitoring requirements in updated Guidelines. City shall have the right to inspect the books and records of Owner and its rental agent or bookkeeper upon reasonable notice during normal business hours. Representatives of the City shall be entitled to enter the Property, upon at least 48- hour prior written notice, which can be provided via email, to monitor compliance with this Agreement, to inspect the records of the Project with respect to the BMR Rental Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Owner agrees to cooperate with the City in making the Property available for such inspection or audit.
Owner agrees to maintain records in businesslike manner, and to maintain such records for Affordability Period.
2.4 Non-Discrimination Covenants. Owner covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. a. In deeds, the following language shall appear:
(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no Resolution No. XXXX
4 discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
b. In leases, the following language shall appear:
(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
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5 c. In contracts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
2.5 Subordination. This Agreement shall be recorded in the Official Records of the County of San Mateo and shall run with the land. The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement for the benefit of lenders providing financing for the Apartment Project, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.
3. AFFORDABILITY REQUIREMENTS.
3.1 BMR Rental Units. Owner agrees to make available, restrict occupancy to, and lease not less than fifty-six (56) BMR Rental Units, all of which will be Low Income Units, to Qualifying Households, as hereinafter defined, at an affordable rent, pursuant to the terms set forth below. The BMR Rental Units shall be of a quality comparable to all of the other rental units in the Project. The BMR Rental Units shall be initially distributed as set forth in Exhibit C, attached hereto and incorporated herein by this reference. Thereafter, the location of the individual BMR Rental Units may float to account for the next available unit requirement set forth below and as otherwise necessary for the professional maintenance and operation of the Project provided that the distribution of BMR Rental Units are equitably disbursed throughout the Project and the City’s Director of Community Development (“Director”) or the Director’s designee shall be notified of any change or relocation of BMR Rental Units by Owner.
3.2 Qualifying Households. For purposes of this Agreement, “Qualifying Households” shall mean those households with incomes as follows:
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6 a. “Low Income Unit”: means units restricted to households with incomes of not more than eighty percent (80%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision. Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Low Income Unit. the Owner shall notify the Tenant that the Tenant is no longer eligible for the Low Income Unit and the Tenant’s rent will be increased to a market rate rent upon the later of sixty (90) days’ notice or the renewal of the Tenant’s lease. The City may grant an extension of the date to vacate if the City or its designee makes a finding there are unique circumstances and the ninety (90) day notice to vacate creates a substantial hardship for the household. The Owner shall either make the next available unit, which is comparable in terms of size, features and number of bedrooms, a Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Low Income Units are rented to Qualifying Households. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Low Income Units pursuant to this paragraph.
3.3 Income Verification and Annual Report. On or before July 1 of each year, commencing with the calendar year that the first residential unit in the Project is rented to a tenant, and annually thereafter, Owner shall obtain from each household occupying a BMR Rental Unit and submit to the City an income computation and certification form, completed by a tenant of such unit, which shall certify that the income of each Qualifying Household is truthfully set forth in the income certification form, in the form proposed by the Owner and approved by the Director or the Director’s designee (“Annual Report”). Owner shall make a good faith effort to verify that each household leasing a BMR Rental Unit meets the income and eligibility restrictions for the BMR Rental Unit by taking by taking the following steps as a part of the verification process: (a) obtain a minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain the three (3) most current savings and checking account bank statements; (e) obtain an income verification form from the applicant's current employer; (f) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (g) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon request.
The Annual Report shall, at a minimum, include the following information for each BMR Rental Unit: unit number, number of bedrooms, current rent and other charges, number of people residing in the unit, total household Gross Income, and lease commencement and termination dates. The Report shall also provide a statement of the owner’s management policies, communications with the tenants and maintenance of the BMR Rental Unit, including a statement of planned repairs to be made and the dates for the repairs. Finally, the Annual Report shall include a list of any BMR Resolution No. XXXX
7 Rental Units that were vacant at any point during the reporting period, the date that the BMR Rental Unit was vacated, and the date that the BMR Rental Unit was occupied by a new Qualifying Tenant.
3.4 Affordable Rent. The maximum Monthly Rent, defined below, chargeable for the BMR Rental Units and paid shall be as follows:
a. “Low Income Household”: shall be 1/12th of 30 percent of not to exceed 80 percent of the AMI. The Monthly Rent for a Low Income Unit rented to a Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 2 persons for a one-bedroom unit, 3 persons for a two-bedroom unit and 4 persons for a three-bedroom unit, unless otherwise approved by the Director or the Director’s designee for an unusually large unit with a maximum of two persons per bedroom, plus one.
For purposes of this Agreement, “Monthly Rent” means the total of monthly payments actually made by the household for (a) use and occupancy of each BMR Rental Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, and which are not paid directly by Owner, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or internet service, which reasonable allowance for utilities is set forth in the County of San Mateo’s Utility Allowance Schedule for detached homes, apartments, condominiums and duplexes, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Owner. Pursuant to the Guidelines, in no case shall the Monthly Rent for a BMR Rental Unit exceed 75 percent of comparable market rate rents. The City may request data regarding the three most recent market rate rentals within the Project to verify comparable market rate rents.
3.5 Agreement to Limitation on Rents. As described in Recital E above, Owner is developing at the bonus level of development and receiving assistance under State Density Bonus Law, as authorized by Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. Owner hereby agrees to limit Monthly Rent as provided in this Agreement in consideration of Owner’s receipt of the assistance and further agrees that any limitations on Monthly Rents imposed on the BMR Rental Units are in conformance with the Costa- Hawkins Act. Owner further warrants and covenants that the terms of this Agreement are fully enforceable.
3.6 Lease Requirements. No later than 180 days prior to the initial lease up of the BMR Rental Units, Owner shall submit a standard lease form to the City for approval by the Director or the Director’s designee. The City shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement and contains all of the provisions required pursuant to the Guidelines. The City's failure to respond to Owner's request for approval of the standard lease form within thirty (30) business days of City's receipt of such lease, shall be Resolution No. XXXX
8 deemed City's approval of such lease form. Owner shall enter into a written lease, in the form approved by the City, with each new tenant of a BMR Rental Unit prior to a tenant or tenant household’s occupancy of a BMR Rental Unit. Each lease shall be for an initial term of not less than one year which may be renewed pursuant to applicable local and State laws, and shall not contain any of the provisions which are prohibited pursuant to the Guidelines, local, state and Federal laws.
3.7 Selection of Tenants. Each BMR Rental Unit shall be leased to tenant(s) selected by Owner who meet all of the requirements provided herein, and, to the extent permitted by law, with priority given to those eligible households who either live or work in the City of Menlo Park, or meet at least one of the other preferences identified in the most recently adopted Guidelines.
The City’s BMR Administrator, on behalf of the City will provide to Owner the names of persons who have expressed interest in renting BMR Rental Units for the purposes of adding such interested persons to Owner’s waiting list, to be processed in accordance with Owner’s customary policies. Owner shall not refuse to lease to a holder of a certificate or a rental voucher under the Section 8 program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria.
3.8 BMR Proposal and Density Bonus Law Approval. The Project Approvals include approved incentives/concessions and waivers under the State Density Bonus Law, attached hereto as Exhibit [_]. This Agreement shall be subject to and interpreted to be consistent with the approved incentives/concessions and waivers granted pursuant to the State Density Bonus Law.
4. DEFAULT AND REMEDIES
4.1 Events of Default. The following shall constitute an “Event of Default” by Owner under this Agreement: there shall be a material breach of any condition, covenant, warranty, promise or representation contained in this Agreement and such breach shall continue for a period of thirty (30) days after written notice thereof to the Owner without the Owner curing such breach, or if such breach cannot reasonably be cured within such 30 day period, commencing the cure of such breach within such 30 day period and thereafter diligently proceeding to cure such breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of Section 4 of this Agreement, the specific provision shall control.
4.2 Remedies. The occurrence of any Event of Default under Section 4.1 shall give the City the right to proceed with an action in equity to require the Owner to specifically perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement.
4.3 Obligations Personal to Owner. The liability of Owner under this Agreement to any person or entity is limited to Owner’s interest in the Project, and the City and any other such persons and entities shall look exclusively thereto for the satisfaction of obligations arising out of this Agreement or any other agreement securing the obligations of Owner under this Agreement.
From and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement, any agreement pertaining to any Project or any other agreement securing Owner’s obligations under this Resolution No. XXXX
9 Agreement), shall be rendered against Owner, the assets of Owner (other than Owner’s interest in the Project), its partners, members, successors, transferees or assigns and each of their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Agreement or any agreement securing the obligations of Owner under this Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. No subsequent Owner of the Project shall be liable or obligated for the breach or default of any obligations of Owner under this Agreement on the part of any prior Owner. Such obligations are personal to the person who was the Owner at the time the default or breach was alleged to have occurred and such person shall remain liable for any and all damages occasioned thereby even after such person ceases to be the Owner. Each Owner shall comply with and be fully liable for all obligations the Owner hereunder during its period of ownership of the Project.
4.4 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control and without the fault of the party claiming an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, or acts or failures to act of any public or governmental entity (except that the City’s acts or failure to act shall not excuse performance of the City hereunder). An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within 30 days of the commencement of the cause.
4.5 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorneys' fees. This Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.
4.6 Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise.
4.7 Waiver of Terms and Conditions. The City may, in its sole discretion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.
4.8 Non-Liability of City Officials and Employees. No member, official, employee or agent of the City shall be personally liable to Owner or any occupant of any BMR Unit, or any successor in interest, in the event of any default or breach by the City or for any amount which Resolution No. XXXX
10 may become due to the Owner or its successors, or on any obligations under the terms of this Agreement.
4.9 Cure Rights. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Owner’s mortgage lender, shall be deemed to be a cure by Owner and shall be accepted or rejected on the same basis as if made or tendered by Owner.
5. GENERAL PROVISIONS
5.1 Below Market Rate Guidelines (“Guidelines”). This Agreement incorporates by reference the Guidelines as of the date of the Owner submitted a complete Preliminary Application pursuant to Government Code section 65941.1 and, at the election of the Owner, any successor sections as the Guidelines may be amended from time to time. In the event of any conflict or ambiguity between this Agreement, the requirements of state and federal fair housing laws and the Guidelines, the terms and conditions of this Agreement and the requirements of state and federal fair housing laws shall control.
5.2 Time. Time is of the essence in this Agreement.
5.3 Notices. Unless otherwise indicated in this Agreement, any notice requirement set forth herein shall be deemed to be satisfied three days after mailing of the notice first-class United States certified mail, postage prepaid, or by personal delivery, addressed to the appropriate party as follows:
Owner: The Sobrato Organization
599 Castro Street, Suite 400
Mountain View, CA 94041
Attention: Peter Tsai
Email: [email protected]
City : City of Menlo Park
701 Laurel Street
Menlo Park, California 94025-3483
Attention: City Manager
Such addresses may be changed by notice to the other party given in the same manner as provided above.
5.4 Successors and Assigns. This Agreement constitutes a covenant and legal restriction on the Property and shall run with the land, provided the Project remains on the Property, and all of the terms, covenants and conditions of this Agreement shall be binding upon Owner and the permitted successors and assigns of Owner.
5.5 Intended Beneficiaries. The City is the intended beneficiary of this Agreement and shall have the sole and exclusive power to enforce this Agreement. It is intended that the City may enforce this Agreement in order to, satisfy its obligations to improve, increase and preserve affordable housing within the City, as required by the Guidelines, and to provide that a certain Resolution No. XXXX
11 percentage of new housing is made available at affordable housing cost to persons and families of very low, low and moderate incomes as required by the Guidelines. No other person or persons, other than the City and Owner and their assigns and successors, shall have any right of action hereon.
5.6 Partial Invalidity. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
5.7 Governing Law. This Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. The venue for any action shall be the County of San Mateo.
5.8 Amendment. This Agreement may not be changed orally, but only by agreement in writing signed by Owner and the City.
5.9 Approvals. Where an approval or submission is required under this Agreement, such approval or submission shall be valid for purposes of this Agreement only if made in writing.
Where this Agreement requires an approval or consent of the City, such approval shall not be unreasonably withheld may be given on behalf of the City by the City Manager or his or her designee. The City Manager or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Agreement, and amendments which do not substantially change the uses or restrictions hereunder, or substantially add to the costs of the City hereunder.
5.10 Indemnification. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel reasonably approved by City) and hold the City, its heirs, successors and assigns (the “Indemnitees”) harmless from and against any and all demands. losses, claims, costs and expenses, and any other liability whatsoever, including without limitation, reasonable accountants’ and attorneys’ fees, charges and expense (collectively, “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s construction, management, or operation of the Property and the Project or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section
6.10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 6.10 shall survive the expiration or earlier termination of this Agreement, but only as to claims arising from events occurring during the Affordability Period.
5.11 Insurance Coverage. Throughout the Affordability Period, Owner shall comply with the insurance requirements set forth in Exhibit D, attached hereto and incorporated herein by this reference, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit D.
5.12 Transfer and Encumbrance.
5.12.1 Restrictions on Transfer and Encumbrance. During the term of this Resolution No. XXXX
12 Agreement, except as permitted pursuant to this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (other than a lease of a BMR Rental Unit on an approved form under Section 3.6 hereof to a qualified tenant as described in Section 3.7 hereof) (collectively, “Transfer”) of the whole or any part of any BMR Rental Unit, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City, which shall not be unreasonably withheld. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by the investor limited partner to subsequent limited partners shall be restricted by this provision.
5.12.2 Permitted Transfers. The prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of easements or permits to facilitate development of the Property; (ii) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project or the Property, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; or (iii) transfers between entities owned or controlled by the Sobrato Organization.
5.12.3 Requirements for Proposed Transfers. The City may, in the exercise of its discretion, not to be unreasonably withheld, consent to a proposed Transfer of this Agreement and/or a BMR Rental Unit if all of the following requirements are met (provided however, the requirements of this Section 5.12.3 shall not apply to Transfers described in clauses (i), (ii), or (iii) of Section 5.12.2.
(i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the BMR Rental Unit or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Owner’s obligations pursuant to conditions, and restrictions set forth in this Agreement. (iv) The Transfer shall be effectuated pursuant to a written instrument Resolution No. XXXX
13 satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the Deputy Director unless the Deputy Director, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.
5.13 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer of any BMR Rental Unit shall be deemed to relieve the Owner or any other party from any obligation under this Agreement. This Section 5.12 shall not apply to Transfers described in clauses (i) and (ii) of Section 5.12.2.
5.14 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effectuate a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten (10) days following City’s delivery to Owner of an invoice detailing such costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set forth above.
SIGNATURES ON FOLLOWING PAGE(S).
Resolution No. XXXX
14 OWNER:
[Sobrato SPE], a California limited liability
company
By:
Its:
CITY:
CITY OF MENLO PARK, a California municipal
corporation
By:
City Manager
ATTEST:
By:
City Clerk
List of Exhibits:
Exhibit A: Property Description
Exhibit B: Allocation of the BMR Units
Exhibit C: BMR Unit Locations
Exhibit D: Insurance Requirements
Exhibit E: State Density Bonus Law Request Approval
Resolution No. XXXX
Exhibit A
Property Description
Resolution No. XXXX
Exhibit B
Allocation of BMR Units in the Project
BMR Rental Units Low
Studio apartment 16
1 bedroom apartment 33
2 bedroom apartment 7
Total - BMR Rental
Units
56 Resolution No. XXXX
Exhibit C
BMR Unit Locations
Resolution No. XXXX
Exhibit D
Insurance Requirements
Prior to initiating work on the Project and continuing throughout the Affordability Period, Owner shall obtain and maintain the following policies of insurance and shall comply with all provisions set forth in this Exhibit.
1. General Requirements. Owner shall procure and maintain the following insurance providing coverage against claims for injuries to persons or damages to property that may arise from or in connection with the Project, construction, management, or operation of the Property by the Owner or the Owner’s agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain a commercial general liability policy in an occurrence policy for protection against all claims arising from injury to person or persons not in the employ of the Owner and against all claims resulting from damage to any property due to any act or omission of the Owner, its agents, or employees in the conduct or operation of the work or the execution of this Agreement. Such insurance shall include products and completed operations liability, blanket contractual liability, personal injury liability, and broad form property damage coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain insurance for protection against all claims arising from the use of vehicles, owned, hired, non-owned, or any other vehicle in connection with the Project, construction, operation or management of the Property. Such insurance shall cover the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non-owned and hired auto.
(c) Workers' Compensation Insurance: The Owner (and the general partners thereof) shall furnish or cause to be furnished to City evidence satisfactory to City that Owner (and the general partners thereof), and any contractor with whom Owner has contracted for the performance of work on the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation Insurance as required by the State of California and Employer’s Liability Insurance. (d) Builder’s Risk: Upon commencement of any construction work on the Property, Owner and all contractors working on behalf of Owner shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee as its interests may appear. (e) Professional Liability/Errors and Omissions: Owner shall require any architects, engineers, and general contractors working on the Property to maintain Professional Liability/Errors and Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates evidencing this coverage must reference both the Owner and the Indemnitees. If the professional liability/errors and omissions insurance is written on a Resolution No. XXXX
55 #84613392_v2
claims made form: (i) the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of Project construction, and (iii) if coverage is cancelled or non-renewed and not replaced with another claims made policy form with a retroactive date prior to the Effective Date, Owner must purchase, or require the provision of, extended period coverage for a minimum of three (3) years after completion of construction.
(f) Property: Owner shall maintain property insurance covering all risks of loss, including earthquake and flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to City, and as commercially available.
2. Minimum Limits; Adjustments. Insurance shall be maintained with limits no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided however, with City’s advance written approval, subcontractors may maintain liability coverage with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate. (b) Products and Completed Operations: $3,000,000 per occurrence/aggregate.
Subcontractors may maintain Products and Completed Operations with limits not less than $1,000,000 per occurrence and $1,000,000 aggregate.
(c) Commercial Automobile Liability: $2,000,000 combined single limit. (d) Employer’s Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim.
If the policy provides coverage on a claims-made basis, the retroactive date must be shown and must be before the date of the Agreement or the beginning of the contract work. Subcontractors are required to carry coverage if their scope of work includes design services to the Project.
Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably adjusted from time to time (not less than every five (5) years after the Effective Date nor more than once in every three (3) year period) to address changes in circumstance, including, but not limited to, changes in inflation and the litigation climate in California. City shall give written notice to Owner of any such adjustments, and Owner shall provide City with amended or new insurance certificates or endorsements evidencing compliance with such adjustments within thirty (30) days following receipt of such notice.
3. Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be Resolution No. XXXX
56 #84613392_v2
declared to, and approved by, the City. Payment of all deductibles and self-insured retentions will be the responsibility of Owner. If the City determines that such deductibles or retentions are unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-insurance retentions as respects the Indemnitees or Owner shall procure a bond guaranteeing payment of losses and related investigations, claims administration and defense.
4. Additional Requirements. The required general liability and automobile policies shall contain, or be endorsed to contain, the following provisions:
(a) The Indemnitees are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Owner; products and completed operations of the Owner; premises owned, occupied or used by the Owner; or automobiles owned, leased, hired or borrowed by the Owner. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. Additional insured endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
(b) All insurance shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of the Owner’s/contractor’s insurance and shall not contribute with it. (c) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Indemnitees. (d) The Owner’s insurance shall apply separately to each insured against whom claim is made or suit is brought except, with respect to the limits of the insurer’s liability. (e) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
(f) If any insurance policy or coverage required hereunder is canceled or reduced, Owner shall, within five (5) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Owner’s expense, and Owner shall promptly reimburse City for such expense upon receipt of billing from City. (g) Owner agrees to waive subrogation rights for commercial general liability, automobile liability and worker’s compensation against Indemnitees regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with any construction on the Property to do likewise. Each insurance policy shall contain a waiver of subrogation for the benefit of City. If any required insurance is provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal Resolution No. XXXX
57 #84613392_v2
defense costs are included in such annual aggregate limit, such annual aggregate limit shall be three times the applicable occurrence limits specified above. (h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirement and/or limits shall be available to the additional insured. Furthermore, the requirement for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. For all liability insurance required by this Agreement, Owner (and Owner’s contractors, as applicable) shall obtain endorsements that name the Indemnitees as additional insured in the full amount of all applicable policies, notwithstanding any lesser minimum limits specified in this Agreement. This Agreement requires Owner (and Owner’s contractors, as applicable) to obtain and provide for the benefit of the Indemnitees, additional insured coverage in the same amount of insurance carried by Owner (or Owner’s contractors, as applicable), but in no event less than the minimum amounts specified in this Agreement. In the event that Owner (or Owner’s contractors as applicable) obtains insurance policies that provide liability coverage in excess of the amounts specified in this Agreement, the actual limits provided by such policies shall be deemed to be the amounts required under this Agreement. Without limiting the foregoing, the limits of liability coverage specified in this Agreement are not intended, nor shall they operate, to limit City’s ability to recover amounts in excess of the minimum amounts specified in this Agreement. (i) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. Acceptability of Insurers. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII.
6. Verification of Coverage. Prior to the Effective Date of this Agreement, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (a), (b), (c), and (e) of Section 1 above, duly executed endorsements evidencing the Indemnitees’ status as additional insured, and all other endorsements and coverage required hereunder pertaining to such coverage. Prior to commencement of any construction work on the Property, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (d) and (g) of Section 1 above. Prior to City’s issuance of a final certificate of occupancy or equivalent for the Project, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraph (f) of Section 1 above. Owner shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.
7. Insurance Certificates and Endorsements. Owner shall submit to the City all of the Resolution No. XXXX
58 #84613392_v2
necessary insurance documents, including the applicable amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of required Owner policies listing all required policy endorsements to the City. Insurance Certificates and Endorsements are to be received and approved by the City within the time periods specified in Section 6 above. Should Owner cease to have insurance as required at any time, all work by Owner pursuant to this Agreement shall cease until insurance acceptable to the City is provided. Upon City’s request, Owner shall, within thirty (30) days of the request, provide or arrange for the insurer to provide to City, complete certified copies of all insurance policies required under this Agreement. City’s failure to make such request shall not constitute a waiver of the right to require delivery of the policies in the future.
087389\16454280v5
Resolution No. XXXX
1 This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025
BELOW MARKET RATE HOUSING AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(123 Independence Drive Project - Ownership)
This BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 2023 (“Effective Date”), by and between the City of Menlo Park, a California municipal corporation (“City”) and Habitat for Humanity Greater San Francisco Inc., a California nonprofit public benefit corporation (“Developer”). The City and the Developer are collectively referred to herein as the “Parties.”
RECITALS
A. Developer is the owner of that certain real property at the approximate location commonly known as [need to describe] in the City of Menlo Park, California and as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference, is the parcel subject to the Agreement (the “Property”).
B. Developer intends to construct a residential condominium project on the Property that will consist of 18 for-sale dwelling units together with parking and related improvements (collectively, the “Project”). The Project is part of a larger, mixed-income housing development project commonly known as the 123 Independence Drive Project (“123 Independence Project”) C. Menlo Park Municipal Code Chapter 16.96, the Below Market Rate Housing Program (“BMR Ordinance”), and the Below Market Rate Housing Program Guidelines (“Guidelines”) require a developer to provide fifteen percent (15%) of the total number of units in a project as affordable to below market rate (“BMR”) households. To satisfy the requirements of the BMR Ordinance and Guidelines, the project sponsor of the 123 Independence Project has proposed (the “BMR Proposal”) to provide BMR units as follows: fifty-six (56) rental units to BMR households (“BMR Rental Units”) and eighteen (18) for-sale units to BMR households (“BMR For-Sale Units” and together with BMR Rental Units, “BMR Units”) for a total of seventy-four (74) BMR Units. The Agreement addresses only the BMR For-Sale Units. The BMR Rental Units are addressed in a separate agreement.
EXHIBIT D Resolution No. XXXX
2 D. On _________ __, 2023, after a duly noticed public hearing, the Housing Commission recommended approval the BMR Proposal, including eighteen (18) low-income for-sale units, the BMR For-Sale Units.
E. On _________, 2023, after a duly noticed public hearing, and on the recommendation of the Housing Commission, the Planning Commission certified the environmental impact report approved a conditional use permit, architectural control, form affordable housing agreements, and incentives/concessions and waivers in accordance with State Density Bonus Law (Government Code section 65915) and recommended that the City Council approve a Vesting Tentative Map and the BMR Proposal for the Project. On _______________, 2023, after a duly noticed public hearing, and on the recommendation of the Housing Commission and the Planning Commission, the City Council approved a Vesting Tentative Map and the BMR Proposal for the Project. The Planning Commission and City Council actions are collectively the “Project Approvals.”
F. The Project Approvals require the Developer to provide the BMR For-Sale Units in accordance the BMR Proposal. In accordance with the BMR Ordinance and Guidelines and State Density Bonus Law (Government Code section 65915), Developer is required to execute and record an approved BMR Housing Agreement for the BMR For-Sale Units as a condition precedent to the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.
NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.
1. Definitions. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits.
“Actual Household Size" means the actual number of persons in the applicable household.
“Affordable Housing Cost” means a monthly obligation to pay mortgage payments (principal and interest), property taxes, property insurance, mortgage insurance (if required by mortgage lender), utilities, and homeowners’ association dues (if applicable) in an aggregate amount not greater than one-twelfth of thirty percent (30%) of household Gross Income. For the purpose of calculating Affordable Housing Cost, mortgage payments that the homeowner is required to pay on a current basis are included, but “silent” mortgages that do not require payment of principal and interest are excluded.
“Affordable Sales Price” means the maximum sales price for a BMR For-Sale Unit as determined pursuant to Section 2.4 below that will result in an Affordable Housing Cost for the homebuyer.
“Applicable Rules and Regulations” means the City, State of California, and federal rules and regulations applicable to the Project, including, but not limited to local, State of California, and federal fair housing laws and regulations.
Resolution No. XXXX
3 "Area Median Income" or "AMI" means the median income for San Mateo County, California, adjusted for Actual Household Size as determined by the U.S. Department of Housing and Urban Development (HUD) pursuant to Section 8 of the United States Housing Act of 1937 and as published from time to time by the State of California Department of Housing and Community Development (HCD) in Section 6932 of Title 25 of the California Code of Regulations or successor provision.
“BMR For-Sale Units” is defined in Recital C.
“City” means the City of Menlo Park, a California municipal corporation. “Claims” means liabilities, losses, costs, expenses (including without limitation reasonable attorneys’ fees and costs of litigation), claims, demands, actions, suits, judicial or administrative proceedings, penalties, deficiencies, fines, orders, and damages. “Developer” is defined in the preamble to this Agreement. “Eligible Household” means a Low Income Household.
"Event of Default" is defined in Section 10.1.
“Gross Income” shall have the meaning set forth in Section 6914 of Title 25 of the California Code of Regulations as such section may be revised from time to time. “HUD” means the U.S. Department of Housing and Urban Development. “Indemnitees” means the City and its elected and appointed officers, officials, employees, agents, and representatives.
“Low-Income Household” means a household whose Gross Income does not exceed the qualifying limit for lower income households as established and amended from time to time by the U.S. Department of Housing and Urban Development (“HUD”) pursuant to Section 8 of the United States Housing Act of 1937 and published by the California Department of Housing and Community Development (“HCD”) pursuant to Section 50079.5 of the California Health and Safety Code, adjusted for Actual Household Size.
“Official Records” means the Official Records of the San Mateo County ClerkRecorder. “Third-Party Lender” is defined in Section 9.6.
2. Use and Affordability Restrictions. Developer hereby covenants and agrees, for itself and its successors and assigns, that throughout the term of this Agreement (as defined in Section
4.1), the BMR For-Sale Units shall be used solely for sale at Affordable Sales Prices to Eligible Households as set forth in this Agreement. Developer represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Developer covenants that Resolution No. XXXX
4 it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.
2.1 BMR For-Sale Units. For the ninety-nine (99)-year period commencing upon the date of City’s issuance of a final certificate of occupancy following completion of construction of each BMR For Sale Unit (“Affordability Period”), the BMR For-Sale Units shall be subject to the affordability and occupancy requirements of this Agreement. Notwithstanding anything to the contrary in the City’s BMR Guidelines or this Agreement, the BMR For-Sale Units shall be operated in accordance with the Project’s approved BMR Proposal, including the approved reasonably equivalent alternatives to the BMR Guidelines under Section 13, attached hereto as Exhibit D.
2.2 Occupancy as Principal Residence; No Short-term Rentals. The BMR For-Sale Units must be occupied as the principal residence of the homeowner. The homeowner disclosures must provide that the prospective purchaser acknowledges and agrees that the BMR-For Sale Unit must be occupied as the household’s principal residence, and that the unit may not be subleased or made available as a short-term rental.
2.3 Non-Discrimination; Compliance with Fair Housing Laws.
2.3.1 Fair Housing. Developer shall comply with state and federal fair housing laws in the marketing and sale of the BMR For-Sale Units in the Project.
2.3.2 Non-Discrimination Covenants. Developer covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, or vendees in the Property. Developer shall include such provision in all deeds, leases, contracts and other instruments executed by Developer, and shall enforce the same diligently and in good faith.
a. In deeds, the following language shall appear:
(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, Resolution No. XXXX
5 sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3,
51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
b. In contracts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land. (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
2.4 Sale of BMR For-Sale Units; Determination of Affordable Sales Price.
2.4.1 The BMR For-Sale Units may be sold only to Eligible Households and must be sold at a sales price that will result in Affordable Housing Cost to the homebuyer based on the homebuyer’s household Gross Income.
2.4.2 The sale price of each BMR For-Sale Unit may not exceed the lesser of the Affordable Sales Price and the fair market value. The Affordable Sales Price calculation shall take into consideration the interest rate and down payment requirements of all financing for the applicable unit included in the Affordable Housing Cost. City and Developer agree to meet and confer in good faith if City disagrees with Developer’s calculation of the Affordable Sales Price.
Resolution No. XXXX
6 2.4.3 No less than 90 days prior to offering a BMR For-Sale Unit for sale, Developer shall provide the City with written notice of its calculation of the Affordable Sales Price, calculated in accordance with this Agreement, for such BMR For-Sale Unit for the City’s review and approval. Within 20 days of City’s receipt of Developer’s calculation of Affordable Sales Price accompanied by all applicable financing information for such units, including without limitation, all financing provided by Developer and all “silent” mortgages that require no debt service payments, City shall provide Developer with its approval or rejection of the Affordable Sales Price.
3. Reporting Requirements; Records; Inspections. Throughout the Affordability Period, Developer shall comply with all applicable recordkeeping and monitoring requirements set forth in the Guidelines, attached as Exhibit [_], or, at the Developer’s election, applicable recordkeeping and monitoring requirements in updated Guidelines related to the initial sale of each BMR For-Sale Unit. City shall have the right to inspect the books and records of Developer and its sales agent(s) or bookkeeper upon reasonable notice during normal business hours.
Representatives of the City shall be entitled, upon at least 48-hour prior written notice, which can be provided via email, to inspect the records of the Project with respect to the BMR For-Sale Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Developer agrees to maintain records in businesslike manner, and to maintain such records for Affordability Period.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect until the earlier of the ninety-ninth (99th) anniversary of the Effective Date or the initial sale of all BMR For-Sale Units in accordance with the provisions of this Agreement.
4.2 Effectiveness Succeeds Conveyance of Property. This Agreement shall remain effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest therein; provided however, that upon initial sale of each BMR For-Sale Unit and recordation of a fully executed Resale Restriction Agreement (a form of which is attached as Exhibit C hereto), such BMR ForSale Unit shall be released from this Agreement (a form of which is attached as Exhibit D hereto), and the Developer’s obligations under this Agreement with respect to each such BMR For-Sale Unit shall terminate unless otherwise provided for herein.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement upon the expiration of the term.
5. Binding Upon Successors; Covenants to Run with the Land.
5.1 Requirements Run with the Land. Developer hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this Agreement. The City and Developer hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to Resolution No. XXXX
7 the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Developer and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Developer, including without limitation any purchaser, transferee or lessee of the Property or the Project shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Developer hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby.
5.2 Equitable Servitudes. Developer agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City.
5.3 Recordation of Resale Restriction Agreement. In connection with the sale of each BMR For-Sale Unit, the homebuyer shall be required to execute a Resale Restriction Agreement, substantially in the form attached hereto as Exhibit C. The Resale Restriction Agreement must be recorded against the BMR For-Sale Units in the Project at the closing for the sale of such unit.
6. Buyer Selection; Marketing.
6.1 Use of City List of Prospective Purchasers. The City may maintain a list of potential Eligible Households. Developer agrees to include any such list in marketing the BMR For-Sale Units, and agrees to honor any priorities established by such list or otherwise specified in this Agreement to the extent consistent with State and federal laws; provided however, Developer shall retain responsibility to verify prospective purchasers’ income, qualifications, and eligibility to purchase a BMR For-Sale Unit.
6.2 Preferences. Through the review and approval of the Marketing Plan, Developer shall work with City to develop a methodology that will provide a preference in the sale of BMR For-Sale Units to Income Level Eligible Households that is consistent with the Guidelines, using the approach that is set forth in Exhibit G. Notwithstanding the foregoing, in the event of a conflict between this provision and Applicable Rules and Regulations, the provisions of such Applicable Rules and Regulations shall control.
6.3 Income Verification. Prior to entering into a contractual commitment to sell each BMR For-Sale Unit, Developer shall provide a certification to City attesting to the prospective buyer’s Gross Income and status as an Eligible Household. In connection with such certification, prospective purchasers shall be required to provide written certification of household income, Resolution No. XXXX
8 including without limitation such documents as income tax returns for the previous calendar year, W-2 statements, and pay stubs.
6.4 Use of Qualified Brokers and Lenders. If Developer uses a third-party broker or lender in marketing the BMR For-Sale Units, Developer agrees to use a realtor or broker that has experience in marketing below market-rate units that require homebuyers to meet income qualifications and that require recordation of resale restriction agreements limiting appreciation on future sales, and agrees to use a realtor or broker that is on the City’s approved list of realtors/brokers with such experience, if City maintains such a list. In addition, Developer agrees that the purchase of BMR For-Sale Units will be financed by lenders that are familiar with affordable housing programs that impose resale price restrictions, and agrees to work with lenders listed on the City’s approved list of lenders with such experience if City maintains such a list.
6.5 Marketing Plan. Not fewer than 120 days before Developer begins offering BMR For-Sale Units for sale, Developer shall provide to the City, for its review and approval, the Developer's written marketing plan which shall address Developer’s plan for marketing the BMR For-Sale Units for sale to Eligible Households, which plan shall incorporate the requirements set forth in this Section 6. Upon receipt of the marketing plan, the City shall promptly review the marketing plan and shall approve or disapprove it within thirty (30) days after submission. If the marketing plan is not approved, the Developer shall submit a revised marketing plan within thirty (30) days.
7. Maintenance and Insurance.
7.1 Maintenance. Developer shall maintain, or shall cause the homeowners’ association for the Property (“Homeowners’ Association”) to maintain the Property in good physical condition, in good repair, ordinary wear and tear excepted, and in decent, safe, sanitary, habitable and tenantable living conditions. Without limiting the foregoing, Developer agrees to maintain or cause the Homeowners’ Association to maintain the Property (including without limitation, landscaping, driveways, parking areas, and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property. Developer shall prevent and/or rectify, or shall cause the Homeowners’ Association to prevent and/or rectify, any physical deterioration of the Improvements and shall make all repairs, renewals and replacements necessary to keep the Property in good condition and repair, ordinary wear and tear excepted.
7.2 Insurance Coverage. Throughout the term of this Agreement, Developer shall comply, or cause the Homeowners’ Association to comply, with the insurance requirements set forth in Exhibit B, and shall, at Developer’s or Homeowners’ Association expense, as applicable, maintain in full force and effect insurance coverage as specified in Exhibit B.
8. Recordation. This Agreement shall be recorded in the Official Records. Developer hereby represents, warrants and covenants that with the exception of easements of record, absent the written consent of City which City may grant or deny in the exercise in its reasonable discretion, this Agreement shall not be subordinated in priority to any lien pertaining to taxes or assessments, encumbrance, or other interest in the Property or the Project. If (other than those at the time this Resolution No. XXXX
9 Agreement is recorded), any interest, lien, or encumbrance has been recorded against the Project in position superior to this Agreement, upon the request of City, Developer hereby covenants and agrees to promptly undertake all action necessary to clear such matter from title or to subordinate such interest to this Agreement consistent with the intent of and in accordance with this Section 8, and to provide such evidence thereof as City may reasonably request.
9. Transfer and Encumbrance.
9.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to this Agreement, Developer shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, “Transfer”) of the whole or any part of the Property, the Project, or the improvements located on the Property, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement, Developer shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Developer, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor/non-managing member, nor the transfer by such party’s interest to subsequent non-managing members shall be restricted by this provision.
9.2 Permitted Transfers. Subject to Section 9.3 below, the prohibitions set forth in this Article shall not be deemed to prevent: (i) the granting of temporary easements or permits to facilitate development of the Property; (ii) dedication of any property required pursuant to this Agreement; (iii) the sale of individual residences to homebuyers for occupancy as their principal residence in accordance with this Agreement; (iv) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project in accordance with the approved Financing Plan as it may be updated with City’s reasonable approval, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; (v) a Transfer to an entity under the direct control of or under common control with Developer of an affiliate of Developer, or (vi) a Transfer to an entity owned or controlled by The Sobrato Organization.
9.3 Requirements for Proposed Transfers. The City may, in the exercise of its sole discretion, consent to a proposed Transfer of this Agreement, the Property, or part thereof if all of the following requirements are met (provided however, the requirements of this Section 9.9 shall not apply to Transfers described in clauses (i), (ii), (iii), or (iv) of Section 9.2:
(i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Developer under this Agreement.
Resolution No. XXXX
10 (ii) The Developer and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the Property, the Project or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Developer under this Agreement arising after the effective date of the Transfer and all obligations of Developer arising prior to the effective date of the Transfer (unless Developer expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Developer’s obligations pursuant to the Project Approvals and all other conditions, and restrictions set forth in this Agreement. The assumption of such obligations shall be documented in an assignment and assumption agreement in form approved by City. (iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records. (v) As applicable, the final form of the Partnership Agreement, operating agreement, and other applicable governing documents of the transferee and any subsequent amendments that affect the City’s economic interests under this Agreement shall be subject to City’s review and approval.
Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Developer, the proposed Transfer shall be deemed approved.
Nothing in this Section 9.3 is intended to limit or modify the obligation of Developer to comply with all requirements set forth in this Agreement with respect to the Transfer of individual BMR For Sale Units to homebuyers.
9.4 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer by Developer shall be deemed to relieve the Developer or any other party from any obligation under this Agreement. It shall be an Event of Developer Default hereunder entitling City to pursue all available remedies at law or in equity, including without limitation, termination of this Agreement, if without the prior written approval of the City, Developer assigns or Transfers this Agreement, the Project , or the Property, or any part thereof of interest therein, or undergoes any other Transfer (including without limitation, any assignment for security or encumbrance of the Property, or the Project, or part thereof) in violation of Section 9. This Section 9.4 shall not apply to Transfers described in clauses (i), (ii), (iii), and (vi) of Section 9.2.
9.5 Recovery of City Costs. Within ten (10) days following City’s delivery to Developer of an invoice detailing such costs, Developer shall reimburse City for all reasonable City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a Transfer of this Agreement, the Resolution No. XXXX
11 Property, or the Project, or part thereof, and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee.
9.6 Encumbrances. Developer agrees to use best efforts to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property, the Project or part thereof for the benefit of a lender (“Third-Party Lender”) shall contain each of the following provisions: (i) Third-Party Lender shall use its best efforts to provide to City a copy of any notice of default issued to Developer concurrently with provision of such notice to Developer; and (ii) City shall have the reasonable right, but not the obligation, to cure any default by Developer within the same period of time provided to Developer for such cure extended by an additional ninety (90) days. Developer agrees to provide to City a copy of any notice of default Developer receives from any Third-Party Lender within three (3) business days following Developer’s receipt thereof.
9.7 Mortgagee Protection. No violation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the Project or the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred.
10. Default and Remedies.
10.1 Events of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"):
(a) The occurrence of a Transfer in violation of Section 9 hereof; (b) Developer’s failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Developer to cure such default within five (5) days; (c) Subject to Developer’s right to contest the following charges, Developer’s failure to pay taxes or assessments due on the Property or the Project or failure to pay any other charge that may result in a lien on the Property or the Project, and Developer’s failure to cure such default within twenty (20) days of delinquency, but in all events prior to the date upon which the holder of any such tax or other lien has the right to foreclose thereon; (d) A default arises under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan; and
(e) Developer’s default in the performance of any term, provision or covenant under this Agreement (other than an obligation enumerated in this Section 10.1), and unless such Resolution No. XXXX
12 provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non-monetary default following the date upon which City shall have given written notice specifying the nature of the default to Developer, or if the nature of any such non-monetary default is such that it cannot be cured within thirty (30) days, Developer’s failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default to completion with due diligence and in good faith, but in no event later than ninety (90) days from receipt of the notice of default.
10.2 Remedies. Upon the occurrence of an Event of Default and its continuation beyond any applicable cure period, City may proceed with any of the following remedies:
A. Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; B. For violations of obligations with respect to Affordable Sales Prices chargeable to Eligible Households for the BMR For Sale Units, impose a charge in an amount equal to the actual amount collected in excess of the permitted Affordable Sales Price;
C. Pursue any other remedy allowed at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement.
11. Indemnity. To the greatest extent permitted by law, Developer shall indemnify, defend (with counsel approved by City) and hold the Indemnitees harmless from and against all Claims arising directly or indirectly, in whole or in part, as a result of or in connection with Developer’s or Developer’s employees’, agents’, contractors’, or subcontractors’ (all of the foregoing, collectively, “Developer’s Parties”) rehabilitation, construction, management, or operation of the Property and the Project, failure to comply with applicable law, including without limitation, state and federal fair housing laws, or any failure to perform any obligation as and when required by this Agreement. Developer’s indemnification obligations under this Section 11 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 11 shall survive the expiration or earlier termination of this Agreement. It is further agreed that City does not and shall not waive any rights against Developer that it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement.
12. Miscellaneous.
Resolution No. XXXX
13 12.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties and recorded in the Official Records.
12.2 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Developer of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.
12.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service.
CITY: City of Menlo Park
701 Laurel Street
Menlo Park, California 94025-3483
Attention: City Manager
DEVELOPER: Habitat for Humanity Greater San Francisco, Inc. 300 Montgomery Street, Suite 450
San Francisco, CA 94104
Attention: Maureen Sedonaen
12.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement.
12.5 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.
Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Developer and City shall not be construed as a joint venture, equity venture, partnership or any other relationship. City neither undertakes nor assumes any responsibility or duty to Developer (except as expressly provided in this Agreement) or to any third party with respect to the Project. Developer and its employees are not employees of City but rather are, and shall always be considered independent contractors.
Furthermore, Developer and its employees shall at no time pretend to be or hold themselves out Resolution No. XXXX
14 as employees or agents of City. Except as City may specify in writing, Developer shall not have any authority to act as an agent of City or to bind City to any obligation.
12.6 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City’s City Manager or by any person who shall have been designated by the City Manager, without further approval by the City Council.
12.7 Non-Liability of City and City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Developer or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Developer or its successor or for any obligation of City under this Agreement.
12.8 Headings; Construction; Statutory References. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. All references in this Agreement to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Menlo Park shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.
12.9 Time is of the Essence. Time is of the essence in the performance of this Agreement.
12.10 Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of San Mateo County, California or in the Federal District Court for the Northern District of California.
12.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.
12.12 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.
12.13 Entire Agreement; Exhibits. This Agreement contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. Exhibits A through E, attached hereto are incorporated herein by this reference.
Resolution No. XXXX
15 12.14 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
13.15 Local Land Use Controls. The Project Approvals include approved incentives/concessions and waivers under the State Density Bonus Law, attached hereto as Exhibit [_]. This Agreement shall be subject to and interpreted to be consistent with the approved incentives/concessions and waivers granted pursuant to the State Density Bonus Law.
SIGNATURES ON FOLLOWING PAGES.
Resolution No. XXXX
16 IN WITNESS WHEREOF, the Parties have entered into this Affordable Housing Regulatory Agreement effective as of the date first written above.
CITY:
City of Menlo Park, a municipal corporation
By: _______________________________
Justin Murphy, City Manager
DEVELOPER:
Habitat for Humanity Greater San Francisco, Inc.,
a California nonprofit public benefit corporation
By: __________________________________
Maureen Sedonaen, Chief Executive Officer
SIGNATURES MUST BE NOTARIZED.
Resolution No. XXXX
17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF _____________________
On ______________ before me, _______________________ (here insert name and title of the officer), personally appeared _________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
Resolution No. XXXX
18 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF _____________________
On ______________ before me, _______________________ (here insert name and title of the officer), personally appeared _________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
Resolution No. XXXX
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Exhibit A
PROPERTY
Resolution No. XXXX
B-1
Exhibit B
INSURANCE REQUIREMENTS
Prior to initiating work on the Project and continuing throughout the Affordability Period, Developer (or the Homeowner’s Association, as applicable and consistent with Section 7 of this Agreement) shall obtain and maintain the following policies of insurance and shall comply with all provisions set forth in this Exhibit.
1. General Requirements. Developer shall procure and maintain the following insurance providing coverage against claims for injuries to persons or damages to property that may arise from or in connection with the Project, construction, management, or operation of the Property by the Developer or the Developer’s agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liability: The Developer and all contractors working on behalf of Developer on the Property shall maintain a commercial general liability policy in an occurrence policy for protection against all claims arising from injury to person or persons not in the employ of the Developer and against all claims resulting from damage to any property due to any act or omission of the Developer, its agents, or employees in the conduct or operation of the work or the execution of this Agreement. Such insurance shall include products and completed operations liability, blanket contractual liability, personal injury liability, and broad form property damage coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liability: The Developer and all contractors working on behalf of Developer on the Property shall maintain insurance for protection against all claims arising from the use of vehicles, owned, hired, non-owned, or any other vehicle in connection with the Project, construction, operation or management of the Property. Such insurance shall cover the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non-owned and hired auto.
(c) Workers' Compensation Insurance: The Developer (and the general partners thereof) shall furnish or cause to be furnished to City evidence satisfactory to City that Developer (and the general partners thereof), and any contractor with whom Developer has contracted for the performance of work on the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation Insurance as required by the State of California and Employer’s Liability Insurance.
(d) Builder’s Risk: Upon commencement of any construction work on the Property, Developer and all contractors working on behalf of Developer shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee as its interests may appear. (e) Professional Liability/Errors and Omissions: Developer shall require any Resolution No. XXXX
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architects, engineers, and general contractors working on the Property to maintain Professional Liability/Errors and Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates evidencing this coverage must reference both the Developer and the Indemnitees. If the professional liability/errors and omissions insurance is written on a claims made form: (i) the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of Project construction, and (iii) if coverage is cancelled or non-renewed and not replaced with another claims made policy form with a retroactive date prior to the Effective Date, Developer must purchase, or require the provision of, extended period coverage for a minimum of three (3) years after completion of construction. (f) Property: Developer shall maintain property insurance covering all risks of loss, including earthquake and flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to City, and as commercially available.
2. Minimum Limits; Adjustments. Insurance shall be maintained with limits no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided however, with City’s advance written approval, subcontractors may maintain liability coverage with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate. (b) Products and Completed Operations: $3,000,000 per occurrence/aggregate.
Subcontractors may maintain Products and Completed Operations with limits not less than $1,000,000 per occurrence and $1,000,000 aggregate.
(c) Commercial Automobile Liability: $2,000,000 combined single limit. (d) Employer’s Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim.
If the policy provides coverage on a claims-made basis, the retroactive date must be shown and must be before the date of the Agreement or the beginning of the contract work. Subcontractors are required to carry coverage if their scope of work includes design services to the Project.
Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably adjusted from time to time (not less than every five (5) years after the Effective Date nor more than once in every three (3) year period) to address changes in circumstance, including, but not limited to, changes in inflation and the litigation climate in California. City shall give written notice to Developer of any such adjustments, and Developer shall provide City with amended or new insurance certificates or endorsements evidencing compliance with such adjustments within Resolution No. XXXX
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thirty (30) days following receipt of such notice.
3. Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be declared to, and approved by, the City. Payment of all deductibles and self-insured retentions will be the responsibility of Developer. If the City determines that such deductibles or retentions are unreasonably high, either the insurer shall reduce or eliminate such deductibles or selfinsurance retentions as respects the Indemnitees or Developer shall procure a bond guaranteeing payment of losses and related investigations, claims administration and defense.
4. Additional Requirements. The required general liability and automobile policies shall contain, or be endorsed to contain, the following provisions:
(a) The Indemnitees are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Developer; products and completed operations of the Developer; premises owned, occupied or used by the Developer; or automobiles owned, leased, hired or borrowed by the Developer. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. Additional insured endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94. (b) All insurance shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of the Developer’s/contractor’s insurance and shall not contribute with it. (c) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Indemnitees. (d) The Developer’s insurance shall apply separately to each insured against whom claim is made or suit is brought except, with respect to the limits of the insurer’s liability. (e) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
(f) If any insurance policy or coverage required hereunder is canceled or reduced, Developer shall, within five (5) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Developer’s expense, and Developer shall promptly reimburse City for such expense upon receipt of billing from City. (g) Developer agrees to waive subrogation rights for commercial general liability, automobile liability and worker’s compensation against Indemnitees regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with any construction on the Property to do likewise. Each insurance policy Resolution No. XXXX
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shall contain a waiver of subrogation for the benefit of City. If any required insurance is provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs are included in such annual aggregate limit, such annual aggregate limit shall be three times the applicable occurrence limits specified above. (h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirement and/or limits shall be available to the additional insured. Furthermore, the requirement for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. For all liability insurance required by this Agreement, Developer (and Developer’s contractors, as applicable) shall obtain endorsements that name the Indemnitees as additional insured in the full amount of all applicable policies, notwithstanding any lesser minimum limits specified in this Agreement. This Agreement requires Developer (and Developer’s contractors, as applicable) to obtain and provide for the benefit of the Indemnitees, additional insured coverage in the same amount of insurance carried by Developer (or Developer’s contractors, as applicable), but in no event less than the minimum amounts specified in this Agreement. In the event that Developer (or Developer’s contractors as applicable) obtains insurance policies that provide liability coverage in excess of the amounts specified in this Agreement, the actual limits provided by such policies shall be deemed to be the amounts required under this Agreement. Without limiting the foregoing, the limits of liability coverage specified in this Agreement are not intended, nor shall they operate, to limit City’s ability to recover amounts in excess of the minimum amounts specified in this Agreement. (i) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City’s own insurance or selfinsurance shall be called upon to protect it as a named insured.
5. Acceptability of Insurers. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII.
6. Verification of Coverage. Prior to the Effective Date of this Agreement, Developer shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (a), (b), (c), and (e) of Section 1 above, duly executed endorsements evidencing the Indemnitees’ status as additional insured, and all other endorsements and coverage required hereunder pertaining to such coverage. Prior to commencement of any construction work on the Property, Developer shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (d) and (g) of Section 1 above. Prior to City’s issuance of a final certificate of occupancy or equivalent for the Project, Developer shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraph (f) of Section 1 above. Developer shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.
Resolution No. XXXX
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7. Insurance Certificates and Endorsements. Developer shall submit to the City all of the necessary insurance documents, including the applicable amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of required Developer policies listing all required policy endorsements to the City. Insurance Certificates and Endorsements are to be received and approved by the City within the time periods specified in Section 6 above. Should Developer cease to have insurance as required at any time, all work by Developer pursuant to this Agreement shall cease until insurance acceptable to the City is provided. Upon City’s request, Developer shall, within thirty (30) days of the request, provide or arrange for the insurer to provide to City, complete certified copies of all insurance policies required under this Agreement.
City’s failure to make such request shall not constitute a waiver of the right to require delivery of the policies in the future.
Resolution No. XXXX
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Resolution No. XXXX
C-1
Exhibit C
FORM OF RESALE RESTRICTION AGREEMENT
Resolution No. XXXX
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Exhibit D
APPROVED BMR PROPOSAL AND REASONABLY ALTERNATIVE EQUIVALENTS
TO THE BMR GUIDELINES
Resolution No. XXXX
Resolution No. XXXX
EXHIBIT E
FORM OF RELEASE OF BMR FOR SALE UNITS FROM REGULATORY
AGREEMENT
Resolution No. XXXX
EXHIBIT F
HGSF’S MARKETING, OUTREACH, AND LOTTERY PROCESS
Resolution No. XXXX
1 This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025
BELOW MARKET RATE HOUSING AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(123 Independence Drive Project)
THIS BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 202[_] (“Effective Date”), by and between the City of Menlo Park, a California municipal corporation (“City”), and SI 60, LLC, a California limited liability company (“Owner”). City and Owner may be referred to individually as a “Party” or collectively as the “Parties” in this Agreement.
RECITALS
A. Owner is the owner of that certain real property located at the approximate location commonly known as [need to describe] in the City of Menlo Park, California and as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference, is the parcel subject to the Agreement (the “Property”).
B. Owner applied to construct a residential condominium project on the Property that will consist of 116 for-sale townhomes together with parking and related improvements (collectively, the “Project” or “Townhome Project”). The Project is part of a larger, mixedincome housing development project commonly known as the 123 Independence Drive Project (“123 Independence Project”).
C. Menlo Park Municipal Code Chapter 16.96, the Below Market Rate Housing Program (“BMR Ordinance”), and the Below Market Rate Housing Program Guidelines (“Guidelines”) require a developer to provide fifteen percent (15%) of the total number of units in a project as affordable to below market rate (“BMR”) households. To satisfy the requirements of the BMR Ordinance and Guidelines, the project sponsor of the 123 Independence Project has proposed (the “BMR Proposal”) to provide BMR units as follows: fifty-six (56) rental units to BMR households (“BMR Rental Units”) and eighteen (18) for-sale units to BMR households (“BMR For-Sale Units” and together with BMR Rental Units, “BMR Units”) for a total of seventy-four (74) BMR Units. The Agreement addresses only the BMR For-Sale Units. The BMR Rental Units are addressed in a separate agreement.
EXHIBIT E Resolution No. XXXX
2 D. On _________ __, 2023, after a duly noticed public hearing, the Housing Commission recommended approval the BMR Proposal, including eighteen (18) below market rate for-sale units, the BMR For-Sale Units.
E. On _________, 2023, after a duly noticed public hearing, and on the recommendation of the Housing Commission, the Planning Commission certified the environmental impact report approved a conditional use permit, architectural control, and form affordable housing agreements and recommended that the City Council approve a Vesting Tentative Map and the BMR Proposal for the Project.
F. On _______________, 2023, after a duly noticed public hearing, and on the recommendation of the Housing Commission and the Planning Commission, the City Council approved a Vesting Tentative Map and the BMR Proposal for the Project. The Planning Commission and City Council actions are collectively the “Project Approvals.” G. The Project Approvals require the Owner to provide the BMR For-Sale Units in accordance the BMR Proposal. In accordance with the BMR Ordinance, Guidelines, and State Density Bonus Law (Gov. Code Sec. 65915) Owner is required to execute and record an approved BMR Housing Agreement for the BMR For-Sale Units as a condition precedent to the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.
NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.
1. CONSTRUCTION OF THE IMPROVEMENTS.
1.1 Construction of the Project. Owner agrees to construct the Project in accordance with the Menlo Park Municipal Code and all other applicable state and local building codes, development standards, ordinances and zoning ordinances.
1.2 City and Other Governmental Permits. Before commencement of the portion of the Project with ownership housing units, Owner shall secure or cause its contractor to secure any and all permits which may be required by the City or any other governmental agency affected by such construction, including without limitation building permits. Owner shall pay all necessary fees and timely submit to the City final drawings with final corrections to obtain such permits; City staff will, without incurring liability or expense therefore, process applications in the ordinary course of business for the issuance of building permits and certificates of occupancy for construction that meets the requirements of the Menlo Park Municipal Code, and all other applicable laws and regulations.
1.3 Compliance with Laws. Owner shall carry out the design, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Menlo Park Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
Resolution No. XXXX
3 2. OPERATION OF THE BMR UNITS
2.1 Affordability Period. The Property, provided that the Project remains on the Property, shall be subject to the requirements of this Agreement from the Effective Date until the 55th anniversary of such date. The duration of this requirement shall be known as the “Affordability Period.”
2.2 Maintenance. Prior to the formation of a homeowners’ association or sale to a townhome resident, whichever occurs later, the Owner shall comply with every condition of the Project Approvals applicable to the Project and shall, at all times, maintain the Project and the Property in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals, and replacements to keep the Project and the Property in a good, clean, safe, and sanitary condition.
2.3 Monitoring and Recordkeeping. Until the first sale of each BMR For-Sale Unit, Owner shall comply with all applicable recordkeeping and monitoring requirements set forth in the Guidelines, attached as Exhibit [_], or, at the Owner’s election, applicable recordkeeping and monitoring requirements in updated Guidelines. City shall have the right to inspect the books and records of Owner and its rental agent or bookkeeper upon reasonable notice during normal business hours. Representatives of the City shall be entitled to enter the Property, upon at least 48- hour prior written notice, which can be provided via email, to monitor compliance with this Agreement, to inspect the records of the Project with respect to the BMR Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Owner agrees to cooperate with the City in making the Property available for such inspection or audit. Owner agrees to maintain records in businesslike manner, and to maintain such records for five years after the first sale of a BMR For-Sale Unit.
2.4 Non-Discrimination Covenants. Owner covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall any occupant of any BMR For-Sale Unit or any person claiming under or through such occupant, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. a. In deeds, the following language shall appear:
(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, Resolution No. XXXX
4 sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
b. In leases, to the extent applicable, the following language shall appear:
(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
c. In contracts pertaining to management of the Project, to the extent applicable, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) Resolution No. XXXX