San Carlos City Council
June 26, 2023

10.b
June 26, 2023

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5 affecting the Property or requiring any alterations or improvements to be made thereon. Trustor shall not commit or permit waste thereof, and shall not commit or permit any act upon the Property in violation of applicable laws. Trustor will comply with all applicable laws, ordinances and governmental regulations affecting the Property or requiring any alteration or improvement thereof, and will not suffer or permit any violations of any such law, ordinance or governmental regulation, nor of any covenant, condition or restriction affecting the Property. If there arises a condition in contravention of this Section, and if the Trustor has not cured such condition within thirty (30) days after receiving a notice from City of such a condition, then in addition to any other rights available to City, City shall have the right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property to recover its cost of cure. 9. Transfer. Trustor shall not transfer, lease, sell, assign, refinance, encumber or convey any interest in the Property without complying with all requirements of the Regulatory Agreement. The residential units constructed on the Property may only be rented in accordance with the Regulatory Agreement. 10. Assignment of Rents. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to City the rents, issues, revenue and profits of the Property. This is an absolute assignment and not an assignment for security only. Subject to the limitations on lease or rental of the Property as set forth herein and in the Regulatory Agreement, City hereby confers upon Trustor a license to collect and retain such rents, issues, revenue and profits, as they become due and payable prior to any Default hereunder. Upon the occurrence of any such Default, City may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including upon whether or not City takes possession of the Property. The entering upon and taking possession of the Property, the collection of such rents, issues, revenue and profits, and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If a Default occurs while City is in possession of all or part of the Property and/or is collecting and applying rents as permitted under this Deed of Trust, City, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder. Regardless of whether or not City, in person or by agent, takes actual possession of the Property, City shall not be deemed to be a under any lease, shall not be liable in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of it , and unless due solely to the willful misconduct or gross negligence of City, shall not be responsible for any dangerous or defective condition of the Property or any negligence in the management, repair or control of the Property.

10.b
June 26, 2023

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6 11. Default. An event of default (shall arise hereunder upon the occurrence of any one or more of the following and the expiration of any applicable cure period: (a) Trustor fails to complete construction of the Project as defined in, and in accordance with the Loan Agreement; (b) The sale, conveyance, encumbrance, refinance, assignment or other transfer of the Property or part thereof, including without limitation, the sale, lease, or rental of the Property or part thereof in violation of the Regulatory Agreement; (c) An event of default arises under the Loan Agreement, the Note, or the Regulatory Agreement and such default remains uncured following the expiration of any applicable cure period; (d) Trustor fails to pay when due any sum payable pursuant to the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust; (e) The Property is refinanced or encumbered in violation of the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust; (f) Trustor fails to maintain insurance on the Property as required by the Loan Agreement, the Note, the Regulatory Agreement, and this Deed of Trust, (g) pay prior to delinquency taxes or assessments due on the Property or fails to pay when due any other charge that may result in a lien on the Property, and Trustor fails to cure such default within twenty (20) days of date of delinquency, but in all events upon the imposition of any such tax or other lien; (h) Trustor declares bankruptcy or makes an assignment of assets for the benefit of creditors, or an order for relief is entered under federal bankruptcy laws as to Trustor, or Trustor is adjudicated as insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy, or Trustor consents to, acquiesces in, or attempts to secure the appointment of, any receiver for all or any substantial part of the Property; (i) The occurrence of an event of default under any loan secured by the Property and the continuance of such default beyond the expiration of all applicable cure periods such that the holder of such loan has the right to accelerate such loan.

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7 (j) Trustor fails to observe or perform any other covenant, condition, or agreement to be observed or performed by Trustor pursuant to the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust. 12. Remedies. Upon the occurrence of a Default, the giving of notice thereof and the expiration of any applicable cure period, City may, at its option, exercise any one or more of the following remedies: a. Declare all of the sums payable under the Loan Agreement, the Note, and the Regulatory Agreement to be immediately due and payable without further demand. b. Pursue the exercise of the power of sale provided under this Deed of Trust. c. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, enter upon, take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom, or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the City shall be entitled to exercise every right and remedy provided under the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust, or by law upon the occurrence of any uncured breach. d. Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof. e. Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby. f. Exercise any other remedy provided by law or in equity. 13. Acceleration and Sale. (a) Notice of Default. Trustor under the Loan Agreement, the Note, the Regulatory Agreement or this Deed of Trust, City shall mail notice to Trustor as provided in Section 22 hereof specifying: (i) the nature of the breach; (ii) the action required to cure such breach; (iii) a date no less than thirty (30) days from the date the notice is mailed to Trustor by which such breach must be cured or such shorter cure period as may be provided in the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust; and (iv) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the Loan and the sale of the Property. The notice shall further inform the nonexistence of a default or any other defense of Trustor to acceleration and sale. If the breach is not cured on or may declare all of

10.b
June 26, 2023

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8 the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and/or pursue any other remedy provided herein or available under law. City shall be entitled to collect from the Trustor, or from the proceeds of the sale of the Property, all reasonable costs and expenses incurred in pursuing the remedies provided hereunder, including, but not limited to, reasonab If a non-monetary default is not reasonably capable of being cured within thirty (30) days, the City, in its sole and absolute discretion, may grant the Trustor such additional time as is reasonably necessary to cure the default provided that the Trustor (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible. Notwithstanding the cure periods established in this Section, in no event shall the City be precluded from sooner exercising any remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the first notice of default or delinquency is given. (b) . sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of the judgment enforcing this Deed of Trust if: (a) Trustor pays City all sums which would be then due under this Deed of Trust, the Loan Agreement, the Note, and the Regulatory Agreement had no acceleration occurred; (b) Trustor pays all reasonable expenses incurred by City and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, including, or agreements of Trustor set forth in the Loan Agreement, the Note, the Regulatory Agreement, and this Deed of Trust; and (d) Trustor takes such action as City may reasonably require to assure the sums and perform the obligations secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. (c) Sale. After delivery to Trustee of a Notice of Default and Demand for Sale and after the expiration of such time and the giving of such notice of default and sale as may then be required by law, and without demand on Trustor, Trustee shall sell the Property at the time and place of sale fixed by it in said notice of sale, at public auction to the highest bidder for cash in lawful money of the United States of America, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Any person, including Trustor, Trustee or the City, may purchase at such sale. Upon such sale by Trustee it shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty expressed or implied. The recitals in such deed of any matters or facts shall be conclusive proof of their truthfulness. Upon sale by Trustee and after deducting all costs, expenses and fees of Trustee, Trustee shall apply the proceeds of sale to the payment of the indebtedness hereby secured, any advances made or costs

10.b
June 26, 2023

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9 or expenses paid or incurred by City under this Deed of Trust, any indebtedness evidenced by any other instrument hereby secured, and all other sums then secured hereby, including without limitation, interest as provided in the Loan Agreement, the Note, and the Regulatory Agreement, in such order as the City shall direct; and then the remainder, if any, shall be paid to the person or persons legally entitled thereto. 14. Remedies Cumulative; No Waiver. No exercise of any right or remedy by the City or Trustee hereunder shall constitute a waiver of any other right or remedy herein contained or provided by law, and no delay or forbearance by the City or Trustee in exercising any such right or remedy hereunder shall operate as a waiver thereof or preclude the exercise thereof in any continued or subsequent default hereunder. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. No sale of the Property, forbearance on the part of City, or extension of the time for payment of the indebtedness hereby secured shall operate to release, discharge, waive, modify, change or affect the liability of Trustor either in whole or in part. 15. Indemnity. Trustor agrees to defend, indemnify, and hold the City and its elected and appointed, officers, officials, employees, agents, contractors and consultants harmless from obligations as and when required by the Loan Agreement, the Note, the Regulatory Agreement, warranties herein or in the Loan Agreement, the Note, or the Regulatory Agreement to be true and correct. 16. Due on Transfer of the Property. If the Trustor sells, conveys, assigns, transfers, alienates, or otherwise disposes of its interest in the Property, either voluntarily or involuntarily or by operation of law, in part or in full, in violation of the Loan Agreement, the Note, or the Regulatory Agreement, the City may, at its option, require immediate payment in full of all sums due under the Loan Agreement and the Note. 17. Reconveyance. Upon the termination or expiration of the Regulatory Agreement and repayment of all sums due and owing under the Note, and in accordance with the terms therein, City shall record a release and reconveyance of this Deed of Trust. 18. Trustee Substitution. The City, at its option and without prior notice, may from time to time, by written instrument, remove the Trustee and appoint a successor trustee pursuant to a written instrument executed by City and duly acknowledged and recorded in the Official Records of San Mateo County. Such instrument shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the predecessor Trustee, succeed to all the title, estate, power and duties conferred upon the Trustee herein and by applicable law. Such instrument shall set forth the name of the Trustor, the original Trustee and the Beneficiary hereunder, the book and page where this Deed of Trust is recorded, and the name and address of the new Trustee.

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10 19. Without affecting the liability of any person for payment of any indebtedness hereby secured (other than any person released pursuant hereto), including without limitation any one or more endorsers or guarantors, and without affecting the lien hereof upon any of the Property not released pursuant hereto, at any time and from time to time without notice: (a) City may in its sole discretion: (i) release any person now or hereafter liable for payment of any or all such indebtedness, (ii) extend the time for or agree to alter the terms of payment of any or all of such indebtedness, and (iii) release or accept additional security for such indebtedness, or subordinate the lien or charge hereof; and (b) Trustee, acting pursuant to the written request of the City, may reconvey all or any part of the Property, consent to the making of any map or plot of the Land, join in granting any easement thereon, or join in any extension agreement of any agreement subordinating the lien or charge hereof. 20. Subordination. The City agrees that it will not withhold consent to reasonable requests for subordination of this Deed of Trust to deeds of trust provided for the benefit of third-party lenders providing construction and/or permanent financing for the Project approved by City in accordance with the Loan Agreement, 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. 21. Request for Notice. City requests that copies of any notice of default and notice of sale affecting the Property be sent to City at its address set forth herein. City shall record a Request for Notice of Default and Sale. 22. Notices. All notices, requests, demands, reports or other communications regarding this Deed of Trust shall be in writing and delivered: (i) personally; or (ii) by independent, reputable, overnight commercial courier; or (iii) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested, and addressed as follows, or to such other address as specified in written notice delivered to the parties pursuant to this Section: To Trustor: Cherry Street Commons L.P. c/o Eden Housing Inc. 22645 Grand Street Hayward, California 94541 Copy to: HIP Housing Development Corporation, Inc. 800 South Claremont Street, Suite 210 San Mateo, California 94402 To City: City of San Carlos 600 Elm Street San Carlos, CA 94070 Attention: City Manager

10.b
June 26, 2023

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11 Any notice that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of delivery thereof. 23. Successors Bound. The terms of this Deed of Trust shall be binding upon the assigns. 24. . If any legal action is filed to enforce or interpret this Deed of Trust, or the interpretation or enforcement thereof, the prevailing party shall be entitled to 25. No Waiver. Any waiver of any term or provision of this Deed of Trust 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 Deed of Trust or applicable law. No failure or delay by City at any time to require strict performance of any provision of this Deed of Trust 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. 26. No Third-Party Beneficiaries. This Deed of Trust shall not benefit or be enforceable by any person or entity except the City, the Trustee, and the Trustor and their respective successors and assigns. 27. Entire Agreement. This Deed of Trust, together with the Loan Agreement, the Note, and the Regulatory Agreement, sets forth the entire understanding between Trustor and the City with respect to the subject matter hereof. 28. Amendments. This Deed of Trust shall not be amended except by a written instrument duly executed by Trustor and Beneficiary and recorded in the Official Records of San Mateo County. 29. Severability. If any provision of this Deed of Trust shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Deed of Trust shall not be affected or impaired thereby. 30. Controlling Law and Venue. The terms of this Deed of Trust shall be interpreted under the laws of the State of California without regard to principles of conflicts of law. This Deed of Trust was entered into and is to be performed in the County of San Mateo, which is the exclusive venue for any action or dispute arising out of this Deed of Trust. 31. Captions and Gender. All captions and headings in this Deed of Trust are for the purposes of reference and convenience and shall be disregarded for all other purposes, including the construction or enforcement of any of provisions thereof. Whenever the context so requires,

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June 26, 2023

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12 the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 32. Joint and Several. The obligations of each signatory to this Deed of Trust shall be joint and several. 33. Time of the Essence. Time is of the essence with regard to all matters contained in this Deed of Trust. SIGNATURES ON FOLLOWING PAGE.

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June 26, 2023

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13 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. TRUSTOR: Cherry Street Commons, L.P. a California limited partnership By: Eden Cherry Street LLC a California limited liability company, its co-general partner By: Eden Investments, Inc. a California nonprofit public benefit corporation, its sole member/manager By: ____________________________ Andrea Osgood, VP of Real Estate Development By: HIP Housing Development Corporation, Inc., a California nonprofit public benefit corporation, its co-general partner By: ____________________________ Name: Kate Comfort Harr Its: Executive Director SIGNATURES MUST BE NOTARIZED.

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June 26, 2023

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14 ACKNOWLEDGMENT State of California ) County of San Mateo ) On , 20__, before me, ___________________________________, (Name of Notary Public) 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 of Notary Public 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.

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15 ACKNOWLEDGMENT State of California ) County of San Mateo ) On , 20__, before me, ___________________________________, (Name of Notary Public) 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 of Notary Public 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.

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June 26, 2023

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16 Exhibit A PROPERTY DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN CARLOS, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

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A-1SF #4822-8008-3923 v3
PREDEVELOPMENT LOAN AGREEMENTTHIS PREDEVELOPMENT LOAN AGREEMENT (this “Agreement” or “Predevelopment Loan Agreement”) is entered into effective as of ______________, 2021 (“Effective Date”) by and between the City of San Carlos, a California municipal corporation(“City”) and Cherry Street Commons, L.P., a California limited partnership (“Borrower”). The City and the Borrower are collectively referred to herein as the “Parties.” RECITALS A. The City has initiated condemnation proceedings for, and will be the owner of,the real property located at 1232 Cherry Street in San Carlos, San Mateo County, California, which is more particularly described in Exhibit A-1 to this Agreement; the City also owns real property northwest of 1244 Cherry Street, which is more particularly described in Exhibit A-2 to this Agreement (collectively, the “City Property”). B. HIP Housing Development Corporation, a California nonprofit public benefitcorporation (“HIP”), a co-general partner of the Borrower, is the owner of, the real property located at 1244 Cherry Street in San Carlos, San Mateo County, California, which is more particularly described in Exhibit B to this Agreement (the “HIP Property”). C. The City selected the Borrower to construct a residential project on the Propertythat will consist of at least 25 dwelling units together with parking and related improvements (collectively, the “Project”). D. The Parties negotiated and executed a Letter of Intent dated January 26, 2021 (asmay be amended from time to time, the “LOI”). The LOI defines the framework under which the Parties will negotiate the terms for the potential transfer of the City Property to the Borrower to enable development of the Project, subject to the terms and conditions of a Development and Disposition Agreement (“DDA”) and the outcome of the City’s land use entitlement process. E. Until such time at the Borrower has submitted a formal application forentitlements and received City approval for such entitlements and associated environmental review as required by the California Environmental Quality Act (“CEQA”), which approvals may be granted or denied in the City’s sole discretion, the City will not have committed to approving the Project or disposing of the City Property. F. The Borrower will incur a number of predevelopment expenses(“Predevelopment Costs”) in connection with assessing the Project’s feasibility, designing the Project, and applying for governmental approvals necessary to construct the Project. G. Borrower has requested funding from the City to pay for a portion of thePredevelopment Costs, and upon satisfaction of the conditions precedent set forth in this Agreement and evidenced by a Note and an Assignment Agreement (as each are defined below), the City has agreed to provide a loan to Borrower with a total principal amount not to exceed One Million Dollars ($1,000,000.00) (the “Predevelopment Loan”).

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2SF #4822-8008-3923 v3
H. City and Borrower acknowledge that this Agreement addresses funding for predevelopment due diligence, architectural and design services, and related work, and is one of the types of early-stage agreements often entered into before a lead agency decides on the specifics of a project. The Parties further acknowledge that: (1) viewed in light of all the surrounding circumstances, the preliminary nature of this Agreement does not commit City as a practical matter to approve the proposed Project; and (2) the specific parameters of the Project are unknown at this stage, and therefore, it is premature to conduct a meaningful analysis and environmental review of the Project under CEQA. The Parties agree that once Borrower submits the proposed Project to City with a formal application, the CEQA environmental review will be performed.NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. ARTICLE 1 LOAN PROVISIONS. 1.1 Incorporation of Recitals. The Parties acknowledge the truth of the foregoing recitals which are hereby incorporated into this Agreement by this reference. 1.2 Predevelopment Loan. The City agrees to loan Borrower, and Borrower agrees to borrow from and repay to the City, funds in the maximum principal amount of One Million Dollars ($1,000,000.00), according to the terms and conditions set forth in this Agreement:1.2.1 Loan Proceeds. The proceeds of the Predevelopment Loan (the “Loan Proceeds”) shall not be disbursed unless and until Borrower has supplied the City with such documentation as the City deems necessary to substantiate the payment of some or all of the Predevelopment Loan for eligible uses, as set forth in Section 1.2.2, below.1.2.2 Funding Disbursement. After Borrower's satisfaction of the conditions set forth in Section 3.4 below, the Predevelopment Loan shall be funded in accordance with the following requirements:(a) Following satisfaction of the conditions set forth herein, the City shall disburse funds to Borrower up to the loan amount, for the sole purpose of paying for those Predevelopment Costs set forth in Exhibit C. (b) The funds will be disbursed to Borrower only upon a request for disbursement by Borrower and upon the City's approval of invoices submitted by Borrower delineating work satisfactorily performed. Borrower shall submit to the City a written request for disbursement of a specific dollar amount. The City shall review such request and the supporting documentation and, within ten (10) business days from receipt thereof, shall either (i) approve such request and make the requested disbursement, or (ii) disapprove all or a portion of such request, and notify Borrower in writing of the reason for such disapproval, in which case Borrower shall modify its request to correct the stated deficiency and repeat the process outlined above.

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3SF #4822-8008-3923 v3
(c) Borrower's request(s) for disbursement under this Predevelopment Loan Agreement and actual disbursement by the City shall be completed no later than the expiration or termination of this Agreement. (d) Nothing herein shall be deemed to require disbursement of the full amount of the Predevelopment Loan if the requirements above are not satisfied. 1.3 Term and Termination; Loan Forgiveness.1.3.1 Term. The term of this Agreement shall begin on the Effective Date, and shall expire on the earlier of (i) March 31, 2022; and (ii) the date upon which the City and the Borrower execute a DDA that incorporates the obligation to repay the Predevelopment Loan subject to Section 1.3.3 hereunder. In accordance with Section 1.5 herein, it is contemplated that the Predevelopment Loan will be converted to long term permanent financing if the Project and DDA are approved, and that in accordance therewith, the term of the Predevelopment Loan would be extended to 55 years from Project permanent financing conversion. 1.3.2 Termination. City shall have the right to terminate this Agreement upon Borrower’s default under this Agreement and failure to cure within the applicable cure period specified in Section 5.1. If City terminates this Agreement pursuant to this Section, or if this Agreement expires without the Parties having executed a DDA, City shall be entitled to exercise its rights under the Assignment Agreement, and Borrower shall promptly convey to City all agreements, plans, specifications, reports and studies financed by the Loan Proceeds pursuant to this Agreement. 1.3.3 No Fault Termination. If: (i) the City Council does not approve the DDA or the Project for any reason, (ii) Borrower determines, at any time prior to the date acquisition of the Property and/or the date Project construction financing is required to close under the DDA, that the Project is not feasible for any reason despite its good faith efforts; or (iii) if this Agreement or, if applicable, the DDA is otherwise terminated without an uncured Borrower default, City shall forgive the balance of the Predevelopment Loan, and Borrower shall not be obligated to repay the funds disbursed pursuant to this Agreement; provided however, City shall be entitled to exercise its rights under the Assignment Agreement.1.4 Interest. From the date of initial disbursement of the Predevelopment Loan proceeds to Borrower, the unpaid principal balance on the Predevelopment Loan shall accrue simple interest at the rate of three percent (3%) per annum. Principal and accrued interest, if any, shall be due and payable following termination of this Agreement unless forgiven in accordance with Section 1.3.3 or rolled over and assumed in accordance with Section 1.5. Principal and interest may be prepaid in whole or in part at any time, and from time to time, without notice or penalty. 1.5 Amended and Restated Loan Agreement. If, at the conclusion of the development and design review process, the City Council approves a DDA and the Project, then in connection with the DDA the City and Borrower will enter into loan and regulatory agreements addressing disbursement and use of the balance of City funds reserved for the construction phase of the Project. The Borrower will execute an Amended and Restated Loan Agreement in form

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approved by City pursuant to which the amounts disbursed under this Agreement will be included as components of the total amount of the construction/permanent loan for the Project. If the Project and DDA are approved, the terms for repayment of the funds disbursed pursuant to this Agreement and the balance of the construction/permanent loan will be determined during the development and design review process and will be stated in the loan documents to be executed in connection with City’s construction/permanent loan for the Project. ARTICLE 2LOAN SECURITY.2.1 Promissory Note. The Predevelopment Loan shall be evidenced by a promissory note (the "Note") executed by Borrower, in favor of the City in the form attached as Exhibit D, which Note shall be executed and delivered by Borrower to the City concurrently herewith. The Note shall evidence the repayment obligations by Borrower of the Predevelopment Loan. 2.2 Assignment Agreement. The Predevelopment Note shall be secured by the assignment to City of Borrower’s interests in and rights to any and all architectural agreements, contracts, plans, specifications, reports, and studies relating to the Property or the Project that will be financed with Loan Proceeds pursuant to an assignment agreement substantially in the form attached to this Agreement as Exhibit E that Borrower shall execute and deliver to City concurrently with the execution of this Agreement. In accordance with Section 1.5 herein, it is contemplated that the Predevelopment Loan will be converted to long term permanent financing if the Project and DDA are approved, and that in accordance therewith, upon acquisition of the Property, the Predevelopment Loan will be secured by a deed of trust against the Property. 2.3 Non-Recourse Provisions. The City agrees that it will not seek to obtain payment from or a personal judgment against Borrower for the payment of any amounts due under the Predevelopment Note or under this Agreement following uncured Borrower default or Borrower’s inability to develop the Project. The City’s sole recourse for payment of any amounts due under the Note or this Agreement will be limited to the exercise of the City’s rights under the Assignment Agreement, regardless of the then-current value of such rights; provided, however, that this Section does not limit in any way the City’s right to recover losses incurred by the City as a result of Borrower’s fraud, willful misrepresentation or misapplication of funds. ARTICLE 3 USE AND DISBURSEMENT OF LOAN PROCEEDS. 3.1 Use Requirements. The Loan Proceeds shall be used solely and exclusively for predevelopment costs for the Project as set forth in Exhibit C and such other costs related to the Project as the City may approve in writing in its sole discretion. As more particularly described in Exhibit C, Borrower's predevelopment activities shall include the preparation of environmental studies, engineering reports, architectural plans, and financial analyses necessary to apply for construction and permanent financing for the Project. 3.2 Change in Predevelopment Costs. Borrower shall notify the City in a timely manner of any changes to the Predevelopment Costs to be performed under this Predevelopment Loan Agreement. A written authorization by the City Manager must be

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obtained to make any changes to the Predevelopment Costs to be reimbursed under this Predevelopment Loan Agreement.3.3 Schedule. Borrower agrees to work diligently and provide services, material, and information as needed to keep the Project on schedule in accordance with the Project Schedule attached as Exhibit C, as such may be periodically updated by City in consultation with Borrower. Borrower agrees to abide by the Project Schedule as such may be revised, subject to force majeure delays. Notwithstanding the foregoing, and for the avoidance of doubt, if Borrower is unable to comply with the Project Schedule despite its good faith best efforts, such failure shall not be a default hereunder.3.4 Conditions Precedent to Disbursement of Funds. City’s obligation to disburse the Loan Proceeds is conditioned upon satisfaction of all of the following conditions:3.4.1 Borrower’s execution and delivery to the City of this Agreement, the Note and the Assignment Agreement; 3.4.2 Borrower’s delivery to the City of consents to the assignment of agreements, plans, specifications, studies, reports and other work product prepared for the Project, executed by the Project architect and the other parties preparing such plans, specifications, studies, reports and other work product in the form attached as an exhibit to the Assignment Agreement;3.4.3 Borrower’s delivery to the City of evidence of insurance coverage in the form and in such amounts as set forth in Article 4; and3.4.4 Borrower’s delivery to the City of certified copies of Borrower’s articles of incorporation and bylaws. 3.5 No Obligation to Disburse Proceeds Upon Default. Notwithstanding any other provision of this Agreement, the City shall have no obligation to disburse any portion of the Loan Proceeds to Borrower following: 3.5.1 the failure of any of Borrower’s representations and warranties set forth in this Agreement to be true and correct in all material respects; 3.5.2 termination of this Agreement by mutual agreement of the Parties; or3.5.3 the uncured occurrence of an Event of Default under this Agreement, the Predevelopment Note, or the Assignment Agreement. 3.6 Borrower's Representations and Warranties. Borrower represents and warrants to the City that: 3.6.1 All approvals have been obtained in connection with Borrower's execution of this Agreement, and the Note, and, all related agreements and documents, to the effect that no breach of or acceleration of performance under any agreement or document to which Borrower is a party will result from such execution;

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3.6.2 Funds advanced by the City pursuant to this Predevelopment Loan Agreement are advanced wholly for the benefit of Borrower; 3.6.3 Borrower is a duly organized limited partnership, validly existing and in good standing under the laws of the State of California. Borrower has all requisite power and authority to acquire the Property, to develop, own and operate the Project, to carry on its business as now conducted, and to execute, deliver and perform its obligations under this Agreement, the Note, and the Assignment Agreement; 3.6.4 The execution, delivery and performance of this Agreement, the Note, and the Assignment Agreement have been duly authorized by Borrower, and this Agreement, the Note, and the Assignment Agreement, when duly executed and delivered, will constitute the valid and binding obligations of Borrower enforceable in accordance with their respective terms. Borrower’s execution of this Agreement, the Note, and the Assignment Agreement and performance thereunder will not result in a breach of or constitute a default under any agreement, indenture or other instrument to which Borrower is a party or by which Borrower may be bound. The persons executing the Note, this Agreement, and the Assignment Agreement on behalf of Borrower have been duly authorized to do so; 3.6.5 There are no pending or, to the best of Borrower’s knowledge, threatened actions or proceedings before any court or administrative agency which may adversely affect the financial condition or operation of Borrower or any of its members or managers or Borrower’s ability to carry out the obligations of Borrower under this Agreement. Borrower is not the subject of any action under federal or state Bankruptcy Law; 3.6.6 Borrower agrees to use said funds solely to pay for the Predevelopment Costs; and 3.6.7 Borrower is responsible for all obligations created by this Agreement and the Predevelopment Loan, including, without limitation, the repayment of all principal and interest, if any, which may become due and payable under this Agreement, the Note, and any other instruments provided for herein. No creditor or other person shall have any right or action against City on account of any debts, obligations, or liabilities of Borrower.3.7 No Partnership or Joint Venture. The relationship between the City and Borrower created by this Predevelopment Loan Agreement shall not be one of partnership or joint venture, but rather shall be one of lender and borrower. 3.8 Usury. If a court of competent jurisdiction determines, by way of final, unappealable order or judgment, that the interest rate charged under the Note is usurious, then such rate shall automatically and retroactively be reduced to the maximum rate allowed under applicable law.3.9 Conflict of Interest Prohibited. Neither Borrower nor an employee, officer, director, partner or member of Borrower, or immediate family member of any preceding, shall have served as an elected officer, an employee, or a City or City board, committee or commission member, who has directly or indirectly influenced the making of this Agreement.

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In accordance with Government Code Section 1090 and the Political Reform Act, Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of the Borrower, or immediate family member of any of the preceding, shall make or participate in a decision, made by the City, the City or a City or City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Borrower. Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section 87100 et seq., its implementing regulations manual and codes. 3.10 Audit. The City may conduct an audit of Borrower's financial, performance and compliance records maintained in connection with Borrower's obligations under this Agreement and the Note. In the event of such audit, Borrower's employees shall make all such financial, performance and compliance records available to the City. City agrees to provide Borrower an opportunity to discuss and respond to any findings before a final audit report is filed. 3.11 Non-Discrimination. Borrower hereby agrees to take steps to ensure that the Borrower, as well as any person who contracts with the Borrower, shall not, on the basis of race, color, religion, ancestry, national origin, age, sex, pregnancy, marital status, disability, sexual orientation, or AIDS be excluded from participation in the development, leasing and/or sale of the Property or the Project. ARTICLE 4INSURANCE PROVISIONS.4.1 Insurance Coverage. The Borrower shall maintain the following insurance coverage throughout the Term and provide evidence satisfactory to the City of such coverage: 4.1.1 Worker's Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident. 4.1.2 Comprehensive General Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverage for Contractual Liability, Person Injury, Broad form Property Damage, Products and Completed Operations to cover any claims arising out of Borrower's performance under this Agreement. 4.1.3 Comprehensive Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combines single limit for Bodily Injury and Property Damage, including coverage for owned, non-owned and hired vehicles, as applicable.4.1.4 If in connection with the use of the Predevelopment Loan funds, death, serious personal injury, or substantial property damage occurs, Borrower shall immediately notify the City. Borrower shall promptly submit to the City a written report, in such form as may

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be required by the City, of all accidents which occur in connection with this Agreement. This report shall include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Borrower's contractor or subcontractor, if any; (3) name and address of Borrower's liability insurance carrier; and (4) a detailed description of the accident and whether any of the City's equipment, tools or material were involved.4.1.5 All insurance policies shall name the City as an additional insured and loss payee, and shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said policy except upon thirty (30) days prior written notice to the City. All insurance shall be evidenced by a Certificate of Insurance and shall be approved by the City Manager or appropriate designee. If Borrower employs any person, it shall carry workers compensation insurance and shall provide a certificate of insurance to the City. Said insurance shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the City. Borrower shall forward acceptable Certificates of Insurance to the City Manager, or appropriate designee, prior to the first disbursement of Predevelopment Loan proceeds. ARTICLE 5 DEFAULT AND REMEDIES. 5.1 Borrower Default. The occurrence of one or more of the following events shall constitute a default under this Agreement, and City shall thereupon be entitled, at its option, to declare all indebtedness referred to in this Agreement immediately due and payable and City shall be entitled to all legal recourse against Borrower and to pursue and enforce, either successively or concurrently, all rights and remedies set forth in this Agreement or any collateral instrument held by City or accruing to City by law, and such other rights and remedies as a lender may have, default being:5.1.1 Failure of Borrower to perform any of the covenants or agreements on its part contained in this Agreement or in any collateral instrument made by Borrower in favor of City with respect to the loan evidenced by this Agreement; or the intentional or unintentional misrepresentation of any statement or warranty made by this Predevelopment Loan Agreement; or 5.1.2 The filing of a complaint for receivership against Borrower, or the filing of a voluntary or involuntary petition for bankruptcy or for re-organization by the Borrower (unless such complaint or petition be released, discharged or stayed within forty five (45) days of such filing); or if Borrower shall become insolvent or make a general assignment for the benefit of creditors or consent to the appointment of a receiver of all or any of its assets, or voluntarily suspends its usual business. City shall advise Borrower in writing of any default under this Section and may deliver notices of default to Borrower personally, by certified mail or by registered mail. Borrower shall have thirty (30) days from the date of the receipt of the notice to cure such default, except in a case where a default is not susceptible to cure within thirty (30) days, and the Borrower initiates cure within the thirty (30) day period and diligently pursues the cure proceedings. In this event,

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Borrower shall have such additional time as the City determines is reasonably necessary to complete cure of the default. 5.2 Default by City. 5.2.1 The failure of City to perform any of its obligations under this Agreement shall entitle Borrower to all legal recourse against the City and to pursue and enforce either successively or concurrently, all rights and remedies to which it may have.5.2.2 Borrower shall advise the City in writing of any default under this Section and the Borrower may deliver notices of default to the City personally or by certified or registered mail. The City shall have thirty (30) days from the date of receipt of the notice to cure the default, except in a case where a default is not susceptible to cure within thirty (30) days, and the City initiates cure within the thirty (30) day period and diligently pursues the cure proceedings. In this event, the City shall have such additional time as Borrower determines is reasonably necessary to complete cure of the default. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Conformity with Law and Safety. 6.1.1 Borrower shall comply with applicable laws, ordinances, codes and regulations of governmental agencies, including federal, state, municipal and local governing bodies, having jurisdiction over this Agreement or any part hereof, and all applicable federal, state, municipal and local safety regulations. 6.1.2 Borrower agrees to indemnify and save City harmless from any and all liability, fines, penalties and consequences arising out of any non-compliance with, or violations of, such laws, ordinances, codes, and regulations by Borrower. 6.2 Assignment. Borrower shall not assign its rights nor delegate its duties under this Agreement without the prior written consent of the City. Any attempt at assignment or delegation in violation of this Section shall be void. The City shall have the full right and authority to assign all or part of its rights and delegate all or part of its duties under this Agreement.6.3 Prevailing Wage Requirements. If required by applicable federal or state law, Borrower and its contractors, subcontractors and agents shall comply with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto (and if required by applicable federal law, the Davis Bacon Act and implementing regulations) (all of the foregoing, “Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. If applicable, Borrower shall submit to City a plan for monitoring payment of prevailing wages and at Borrower’s expense shall implement such plan and comply with all applicable reporting and recordkeeping requirements. 6.4 Indemnity. To the greatest extent allowed by law, Borrower shall indemnify, defend (with counsel approved by City) and hold the City and its elected and appointed officers,

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officials, employees, agents, consultants, and contractors (all of the foregoing, collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation reasonable attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781) or the requirement of competitive bidding in connection with the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Borrower related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. Borrower’s indemnification obligations set forth in this Section shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees. 6.5 Notices. Except as otherwise specified in this Agreement, 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 on 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 San Carlos 600 Elm Street San Carlos, CA 94070 Attention: City Manager BORROWER: Cherry Street Commons L.P. c/o Eden Housing Inc. 22645 Grand Street Hayward, California 94541 With a copy to: HIP Housing Development Corporation, Inc. 800 South Claremont Street, Suite 210 San Mateo, California 94402 6.6 Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time

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for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties. 6.7 Survival. All representations made by Borrower hereunder and Borrower’s obligations specifically identified to survive shall survive the expiration or termination of this Agreement. 6.8 Headings; Interpretation; Statutory References. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.6.9 Action or Approval. Whenever action and/or approval by City is required under this Agreement, the City’s Authorized Representative or his or her designee may act on and/or approve such matter unless specifically provided otherwise, or unless the City’s Authorized Representative determines in his or her discretion that such action or approval requires referral to City Council for consideration. 6.10 Entire Agreement. This Agreement, including Exhibits A through D attached hereto and incorporated herein by this reference, together with the Note contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter hereof. If the Exhibits to this Agreement are inconsistent with this Agreement, the more restrictive requirements shall control, as determined by the City Manager. In the event of a conflict between this Agreement and the Note, the more restrictive requirements shall control, as determined by the City Manager.6.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto having additional signature pages executed by the other Party. Any executed counterpart of this Agreement may be delivered to the other Party by facsimile and shall be deemed as binding as if an originally signed counterpart was delivered. 6.12 Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability.

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6.13 No Third Party Beneficiaries. Except as expressly set forth herein, nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder. 6.14 Time of the Essence; Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a “business day” means a day that is not a Saturday, Sunday, a federal holiday or a state holiday under the laws of the State of California. 6.15 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 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. 6.16 Exhibits. The following Exhibits are attached to this Agreement and incorporated by this reference: A Legal Description of the City Property B Legal Description of the HIP PropertyC Approved Predevelopment Activities, Budget and Schedule D Form of Promissory NoteE Form of Assignment Agreement SIGNATURES ON FOLLOWING PAGE(S).

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IN WITNESS WHEREOF, the Parties have entered into this Predevelopment Loan Agreement effective as of the date first written above. CITY: CITY OF SAN CARLOS, a California municipal corporation By: _______________________________ Jeff Maltbie, City ManagerAttest: _______________________________ Crystal Mui, City Clerk Approved as to Form: _______________________________ Greg Rubens, City AttorneyBORROWER: Cherry Street Commons, L.P. a California limited partnership By: Eden Cherry Street LLCa California limited liability company, its co-general partnerBy: Eden Investments, Inc.a California nonprofit public benefit corporation, its sole member/manager By: ____________________________ By: HIP Housing Development Corporation, Inc., a California nonprofit public benefit corporation, its co-general partnerBy: ____________________________

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A-1 SF #4822-8008-3923 v3
Exhibit A LEGAL DESCRIPTION OF THE CITY PROPERTY The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:

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ORDER NO. : 1117022123EXHIBIT AThe land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:Portion of Lot 6, Block 17, as delineated upon that certain Map entitled "SAN CARLOS, SANMATEO CO., CAL.", filed for record in the Office of the Recorder of the County of San Mateo, State of California, on September 4th, 1888 in Book "E" of Maps, at Page 19 and copied into Book 1 of Maps at Page 76, more particularly described as follows: Commencing at the most Southerly corner of said Lot 6, as same appears on the Map above mentioned; thence Northwesterly on and along the Southwesterly line of said Lot, 100 feet to the most Westerly corner thereof; thence Northeasterly on and along the Northwesterly line of said Lot, 50 feet; thence at a right angle Southeasterly 100 feet to the Northwesterly line of Cherry Street; thence Southwesterly on and along the Northwesterly line of Cherry Street, 50 feet to the point of commencement. Excepting therefrom a 10 foot strip of land described as follows: Commencing at the most Southerly corner of said Lot 6, as said appears on the Map above mentioned; thence Northwesterly on and along the Southwesterly line of said Lot, 100 feet to the most Westerly corner thereof; thence Northeasterly on and along the Northwesterly line of said Lot, 10 feet; thence at a right angle Southeasterly 100 feet to the Northwesterly line of Cherry Street; thence Southwesterly on and along the Northwesterly line of Cherry Street, 10 feet to the point of commencement.A.P.N. 050-132-100

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EXHIBIT “A” All that real property situated in the City of San Carlos, County of San Mateo, State of California, being a portion of LOT 4 as shown on that certain Map entitled “FINAL MAP NO. 2016-01”, filed June 23, 2016 in Book 140 of Maps, at Pages 87 to 93 inclusive, in the Office of the County Recorder of San Mateo County, more particularly described as follows: COMMENCING at the most Southerly corner of that parcel of land as described in that certain Grant Deed recorded November 13, 2002 as Document Number 2002-233661, Official Records of San Mateo County; thence along the Northwesterly line of Cherry Street as shown on said Map, North 47°27’14” East, 106.99 feet; thence parallel with the Northeasterly line of that parcel of land as described in that certain Grant Deed recorded September 3, 1993 as Document Number 93149944, Official Records of San Mateo County, North 42°32’54” West, 100.02 feet to a point on the Northwesterly line of said parcel of land (Document Number 93149944), said point being the POINT OF BEGINNING; thence continuing North 42°32’54” West, 44.59 feet to the exterior boundary of said LOT 4; thence along said exterior boundary the following three (3) courses: 1) South 47°26’56” West, 72.00 feet, 2) South 42°33’00” East, 44.59 feet, and 3) North 47°27’06” East, 35.00 feet to the most Northerly corner of said parcel of land (Document Number 2002-233661); thence continuing North 47°26’56” East, 19.99 feet to the most Westerly corner of said parcel of land (Document Number 93149944); thence along the Northwesterly line of last said parcel of land, continuing North 47°26’56” East, 17.01 feet to the POINT OF BEGINNING. CONTAINING 3,211 square feet, more or less. This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act. Prepared by Luk and Associates Jacqueline Luk, PLS 8934 Date: June 11, 2021 This real property description has been prepared by me or under my direction in conformance with the Professional Land Surveyors Act.

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B-1 SF #4822-8008-3923 v3
Exhibit B LEGAL DESCRIPTION OF THE HIP PROPERTY The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:

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EXHIBITThe land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:The Southwesterly 40 feet, front and rear measurements of LOT 7-A, and the Northeasterly 30 feet, front and rear measurements of LOT 7-B, BLOCK 17, as delineated upon that certain Map entitled "AMENDED MAP OF THE TOWN OF SAN CARLOS, SAN MATEO COUNTY, CAL.", filed for record in the Office of the Recorder of the County of San Mateo, State of California, on October 7th, 1912 inBook 8 of Maps, at Pages 25 and 26.APN: 050-132-110JPN: 050-013-132-11

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C-1 SF #4822-8008-3923 v3
Exhibit C Approved Predevelopment Activities, Budget, and Schedule

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San Carlos Cherry Street Affordable HousingPredevelopment Estimated Costs6/15/2021Phase 1 Phase 2 Phase 3Building DesignTotalEntitlement &FeasibilityPermit & FinanceApplicationsFinance Closing &Building PermitArchitect 598,000$ 218,000$ 150,000$ 230,000$Civil/Survey 84,000$ 50,000$ 20,000$ 14,000$Soils Report 10,000$ 10,000$$$Architect Sub Contracts 392,800$ 184,450$ 139,100$ 69,250$Joint Trench & Utilites relocation 87,050$ 53,000$ 28,050$ 6,000$Permit Fees 530,000$$ 430,000$ 100,000$Other Reports, Noise, Parking, etc. 25,000$ 20,000$$ 5,000$Contingency 30,000$ 10,000$ 10,000$ 10,000$Sub Total $1,756,850 $545,450 $777,150 $434,250Financing & Due DiligencePhase I 3,000$ 3,000$$$Appraisal 8,000$ 8,000$$$Legal: Goldfarb & Lipman 25,000$ 10,000$ 10,000$ 5,000$Energy Modeling and Compliance 15,000$ 5,000$ 10,000$$Market Study 7,000$ 7,000$$$Performance Deposit to CDLAC 100,000$$$ 100,000$TCAC/CDLAC/CMFA Fees 4,700$$ 4,700$$Construction Lender Costs 18,000$$$ 18,000$Permanent Lender Fees 15,000$$$ 15,000$GC Preconstruction 25,000$ 10,000$ 10,000$ 5,000$Relocation Consulting 50,000$ 10,000$ 30,000$ 10,000$Relocation Expenses 550,000$$$ 550,000$Project Management 140,000$ 50,000$ 50,000$ 40,000$Construction Management 35,000$ 10,000$ 10,000$ 15,000$Contingency 60,000$ 20,000$ 20,000$ 20,000$Sub Total 1,055,700$ 133,000$ 144,700$ 778,000$Totals $2,812,550 $678,450 $921,850 $1,212,250 Development Stage

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D-1 SF #4822-8008-3923 v3
Exhibit D FORM OF PROMISSORY NOTE $1,000,000.00 San Carlos, California [insert execution date] FOR VALUE RECEIVED, the undersigned Cherry Street Commons, L.P., a California limited partnership Borrower hereby promises to pay to the order of the City of San Carlos, a California municipal corporation (the "City") One Million Dollars ($1,000,000.00) (or so much as has been advanced), plus interest thereon as set forth below. 1. Borrower's Obligation. This promissory note (the "Note") evidences Borrower's obligation to pay City the principal sum of One Million Dollars ($1,000,000.00) plus interest thereon for the funds loaned to Borrower by City to finance certain predevelopment costs associated with the development of the Project pursuant to the Predevelopment Loan Agreement between Borrower and City of approximately even date herewith (the "Predevelopment Loan Agreement"). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Predevelopment Loan Agreement. 2. Interest. The Predevelopment Loan shall bear simple interest at the rate of three percent (3%) simple interest per annum from the date of initial disbursement. 3. Term and Repayment Requirements. The term of this Note (the "Term"), shall commence with the date of this Note and shall expire as set forth in the Predevelopment Loan Agreement. This Note may be prepaid in whole or in part at any time, and from time to time, without notice or penalty. This Note shall be due and payable as set forth in the Predevelopment Loan Agreement. 4. No Assumption. This Note shall not be assumable by the successors and assigns of Borrower without the prior written consent of City. 5. Terms of Payment. (a) All payments due under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts. (b) All payments on this Note shall be paid to City at 600 Elm Street, San Carlos, CA 94070 or to such other place as City of this Note may from time to time designate.

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(c) All payments on this Note shall be without expense to City, and Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of City, incurred in connection with the payment of this Note and the release of any security hereof. (d) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest which would exceed the amount that City may legally charge under the laws of the State of California, then the amount by which payments exceeds the lawful interest rate shall automatically be deducted from the principal balance owing on this Note, so that in no event shall Borrower be obligated under the terms of this Note to pay any interest which would exceed the lawful rate. (e) This Note shall be nonrecourse against Borrower, as further set forth in Section 2.3 of the Predevelopment Loan Agreement. 6. Default. (a) Any of the following shall constitute an event of default under this Note: (i) Any failure to pay, in full, any payment required under this Note within ten (10) calendar days of written notice that such payment is due; (ii) Any failure in the performance by Borrower of any term, condition, provision or covenant set forth in this Note subject to the notice and cure period set forth in the Predevelopment Loan Agreement; (iii) The occurrence of any event of default under the Predevelopment Loan Agreement or any other instrument securing the obligations of Borrower under this Note or under any other promissory notes hereafter issued by Borrower to City pursuant to the Predevelopment Loan Agreement, subject to notice and cure periods, if any, set forth therein. (b) Upon the occurrence of such an event of default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note shall at the option of City become immediately due and payable upon written notice by City to Borrower without further demand. (c) The failure to exercise the remedy set forth in Subsection 6(b) above or any other remedy provided by law upon the occurrence of one or more of the foregoing events of default shall not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other default. The acceptance by City hereof of any payment which is less than the total of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior

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exercise of any such remedy or option, without the express consent of City, except as and to the extent otherwise provided by law. 7. Waivers. (a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that City may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower. (b) No extension of time for payment of this Note or any installment hereof made by agreement by City with any person now or hereafter liable for payment of this note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part. (c) The obligations of Borrower under this Note shall be absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever. 8. Miscellaneous Provisions. (a) All notices to City or Borrower shall be given in the manner and at the addresses set forth in the Predevelopment Loan Agreement, or to such addresses as City and Borrower may hereinafter designate. (b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by City in the enforcement of the provision of this Note, regardless of whether suit is filed to seek enforcement. (c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. (d) This Note shall be governed by and construed in accordance with the laws of the State of California. (e) The times for the performance of any obligations hereunder shall be strictly construed, time being of the essence. SIGNATURES ON FOLLOWING PAGE(S).

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This document, together with the Predevelopment Loan Agreement, contains the entire agreement between the parties as to the Predevelopment Loan. It may not be modified except upon written consent of the parties. BORROWER: Cherry Street Commons, L.P. a California limited partnership By: Eden Cherry Street LLC a California limited liability company, its co-general partner By: Eden Investments, Inc. a California nonprofit public benefit corporation, its sole member/manager By: ____________________________ Tatiana Blank, Chief Financial Officer By: HIP Housing Development Corporation, Inc., a California nonprofit public benefit corporation, its co-general partner By: ____________________________ Name: __________________________ Its: ____________________________

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Exhibit E Form of Assignment Agreement ASSIGNMENT OF WORK PRODUCT This ASSIGNMENT OF WORK PRODUCT (the "Assignment") is entered into as of ___________, 2021 (the "Effective Date") by and between the City of San Carlos, a California City and Cherry Street Commons, L.P., a California limited partnership (AssignorAssignor are collectively referred to herein as the RECITALS A. Pursuant to the terms of that certain Predevelopment Loan Agreement dated the same date as the Effective Date of this Assignment, by and between the Assignor and the City (the "Loan Agreement"), the Assignor desires to assign to the City, and the City desires to accept from the Assignor, the assignment of the Assignor's right, title, and interest in and under those agreements, contracts and other work product described below and incurred by the Assignor in connection with the Project, as defined in the Loan Agreement. B. The consent to such assignments by various third parties may be required substantially in the form shown in Schedule 1 or otherwise reasonably approved by the City (the "Consent"). NOW, THEREFORE, in consideration of the foregoing, of the mutual promises of the Parties and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties mutually agree as follows: TERMS 1. Assignment by Assignor. The Assignor assigns and delegates to the City, and the City accepts from the Assignor, all of the Assignor's right, title, and interest in and obligations under the following: (a) all architectural designs, construction, engineering and consulting contracts, including any and all amendments, modifications, supplements, addenda and general conditions (collectively, the "Project Agreements") previously or later entered into by the Assignor and any Contractor (as defined below) pertaining to the development of the Project; (b) all plans and specifications, shop drawings, working drawings, reports, studies, amendments, modifications, changes, supplements, general conditions, addenda and work product (collectively, the "Reports. Plans and Specifications") previously or later prepared by the Assignor or any Contractor pertaining to the development of the Project; (c) all land use approvals, conditional use permits, building permits and other governmental entitlements and approvals of any nature obtained for the Project (collectively, the "Government Approvals"); and

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(d) all financing or other applications and all other tangible documents, except those of a proprietary or confidential nature pertaining to the development of the Project ("General Documents"). For purposes of this Assignment, the term "Contractor" means any architect, contractor, engineer, consultant or other person or entity entering into Project Agreements with the Assignor (other than attorney agreements for the provision of legal services) and/or preparing Reports, Plans and Specifications or other documents for the Assignor with respect to the Project. Such Project Agreements, Reports, Plans and Specifications, Government Approvals, and General Documents, will be collectively referred to in this Assignment as the "Collateral Documents". It is intended that all Collateral Documents, whenever produced, be assigned through this Assignment to the City as security for the Predevelopment Loan, and the applicable Consent executed. The Assignor will periodically provide the City a list of all Collateral Documents. 2. Consent. The Assignor agrees to obtain and deliver to the City, such consents to the assignment of Collateral Documents as may be required by the terms of the Collateral Documents or as otherwise requested by the City substantially in the form shown in Schedule 1 or otherwise reasonably approved by the City. This Assignment and any consents to this Assignment will not relieve the Assignor of the Assignor's obligations under the Collateral Documents. 3. Purpose. This Assignment is made to secure: (i) payment to the City of all sums owing under the Predevelopment Note, dated the same date as the Effective Date of this Assignment and made by the Assignor to the order of the City, and any and all additional advances, modifications, extensions, renewals, and amendments of the Predevelopment Note; and (ii) payment and performance by the Assignor of all the Assignor's obligations under the Predevelopment Loan Agreement. 4. No Assumption of Obligations. The Assignor agrees that the City does not assume any of the Assignor's obligations or duties under any Collateral Documents, including, but not limited to, the obligation to pay for the preparation of any Collateral Documents. The City will not be responsible for any default, liability or obligation of the Assignor under the Collateral Document occurring prior to the time the City exercises the City's rights under this Assignment. For purposes of clarity, Assignor shall at all times remain liable for the payment of the preparation of any Collateral Documents assigned to City hereunder. Notwithstanding the foregoing, if, following assignment of the Collateral Documents to the City, City requires or request additional scope of work, studies or actions by the Contractors on the Collateral Documents, the costs of said additional scope of work shall be a City obligation. 5. Attorney-In-Fact. The Assignor irrevocably appoints the City as the Assignor's attorney-in-fact, which power is coupled with an interest, so that the City will have the right to demand, receive, and enforce any and all of the Assignor's rights with respect to the Collateral Documents, and to perform any and all acts in the name of the Assignor or in the name of the City with the same force and effect as if performed by the Assignor in the absence of this Assignment, upon the occurrence of: (i) an Event of Default under the Loan Agreement by the

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Assignor (after notice and opportunity to cure) or an event which, with notice or the passage of time or both, would constitute an Event of Default under the Loan Agreement, or (ii) any termination of the Loan Agreement. Until such occurrences, the Assignor will be entitled to exercise all rights pertaining to the Collateral Documents. 6. Representations and Warranties. The Assignor represents and warrants to the City that: (i) no previous assignment(s) of the Assignor's right or interest in or to the Collateral Documents has or have been made; (ii) the Assignor has done no act nor omitted to do any act that might prevent the City from exercising any of the rights, powers and privileges conferred by the Collateral Documents; and (iii) the copy of each Collateral Document provided by the Assignor to the City is the complete and entire agreement between the parties to those Collateral Documents in all material respects. 7. Governing Law. This Assignment is governed by the laws of the State of California, except to the extent that federal law preempts the laws of the State of California. The Assignor consents to the jurisdiction of any federal or state court within the State of California having proper venue for the filing and maintenance of any action arising under this Assignment and agrees that the prevailing party in any such action will be entitled, in addition to any other recovery, to reasonable attorneys' fees and costs. 8. Binding Upon Successors and Assigns. This Assignment is binding upon and will inure to the benefit of the heirs, legal representatives, successors-in-interest, and assigns of the Assignor and the City; provided, however, this Section 8 may not be construed and is not intended to waive the restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation, or encumbrance by the Assignor contained in the Predevelopment Loan Agreement. 9. Remedies. In the event of the Assignor's default under this Assignment, the City may exercise all or any one or more of the City's rights and remedies available under this Assignment, at law or in equity. Such rights and remedies will be cumulative and concurrent, and may be enforced separately, successively or together, and the exercise of any particular right or remedy will not in any way prevent the City from exercising any other right or remedy available to the City. 10. Capitalized Terms. Capitalized terms used but not defined in this Assignment have the meanings set forth in the Predevelopment Loan Agreement. 11. Headings. Section headings contained in this Assignment are inserted as a matter of convenience and for ease of reference only and will be disregarded for all other purposes, including the construction or enforcement of this Assignment or any of the provisions of this Assignment. 12. No Agency or Partnership. Nothing contained in this Assignment will constitute the City as a joint venturer, partner or agent of the Assignor, or render the City liable for any debts, obligations, acts, omissions, representations or contracts of the Assignor. 13. Further Assurances. The Assignor will at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further action that may be

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reasonably necessary or desirable, or that the City may reasonably request, in order to protect any right or interest granted by this Assignment or to enable the City to exercise and enforce the City's rights and remedies under this Assignment. 14. Termination. This Assignment will terminate, and the security of the City under this Assignment will be released upon the earlier of the Assignor's repayment in full of the Predevelopment Loan or after termination of the Predevelopment Loan Agreement. 15. Counterparts. This Assignment may be executed in counterparts by the Parties, each of which will be deemed to be an original, and all such counterparts will constitute one and the same instrument. SIGNATURES ON FOLLOWING PAGE(S).

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IN WITNESS WHEREOF, the Parties have entered into this Assignment Agreement effective as of the date first written above. CITY: CITY OF SAN CARLOS, a California municipal corporation By: _[FORM DO NOT SIGN]_________________________________ [name and tite] BORROWER: Cherry Street Commons, L.P. a California limited partnership By: Eden Cherry Street LLC a California limited liability company, its co-general partner By: Eden Investments, Inc. a California nonprofit public benefit corporation, its sole member/manager By: ____________________________ Tatiana Blank, Chief Financial Officer By: HIP Housing Development Corporation, Inc., a California nonprofit public benefit corporation, its co-general partner By: ____________________________ Name: __________________________ Its: ____________________________

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Schedule 1 [to Exhibit E] FORM OF CONSENT _____________________, a _________________ (the "Contractor") consents to the foregoing Assignment, of which this Consent is a part, and acknowledges that at present there exist no unpaid claims presently due to the Contractor, except as disclosed to the City, arising out of the preparation and delivery to the Assignor of the Collateral Documents for which the Contractor is responsible and/or the performance of the Contractor's obligations under any Project Agreement. The Contractor agrees that if, at any time, the City, pursuant to the City's rights under the Predevelopment Loan Agreement, elects to undertake or cause the completion of any of the Predevelopment activities for the Project, and gives the Contractor written notice of such election; then, so long as the Contractor has received, receives, or continues to receive the compensation called for under the applicable Project Agreement, the City may, at the City's option, use and rely on the Collateral Documents for the purposes for which the Collateral Documents were prepared, and the Contractor will continue to perform the Contractor's obligations under the applicable Project Agreement for the benefit and account of the City in the same manner as if performed for the benefit or account of the Assignor in the absence of this Assignment. The Contractor further agrees that, in the event of a breach by the Assignor of the applicable Project Agreement, or any agreement entered into with the Contractor in connection with the Collateral Documents, so long as the Assignor's interest in the applicable Project Agreement and Collateral Documents is assigned to the City, the Contractor will give written notice to the City. The City will have thirty (30) days from the receipt of such written notice of default to remedy or cure said default; provided, however, nothing in this Consent will require the City to cure said default or to undertake completion of the Predevelopment activities. The Contractor warrants and represents that the Contractor has no knowledge of any prior assignment(s) of any interest in either the applicable Project Agreement or the Collateral Documents. Except as otherwise defined in this Consent, the terms used in this Consent will have the meanings given them in the foregoing Assignment or the Loan Agreement, as applicable. Execution Date: ______________________ By: ______________________ Name: ______________________ Title: ______________________ Title of Contract: ______________________ Date of Contract: ______________________

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SF #4822-8008-3923 v3
ROMISSORY NOTE$1,000,000.00 San Carlos, CaliforniaFOR VALUE RECEIVED, the undersigned Cherry Street Commons, L.P., a California limited partnershipBorrowerhereby promises to pay to the order of the City of San Carlos,a California municipal corporation (the "City") One Million Dollars ($1,000,000.00) (or so much as has been advanced), plus interest thereon as set forth below.1. Borrower's Obligation. This promissory note (the "Note") evidences Borrower'sobligation to pay City the principal sum of One Million Dollars ($1,000,000.00) plus interest thereon for the funds loaned to Borrower by City to finance certain predevelopment costs associated with the development of the Project pursuant to the Predevelopment Loan Agreement between Borrower and City of approximately even date herewith (the "Predevelopment Loan Agreement"). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Predevelopment Loan Agreement.2. Interest. The Predevelopment Loan shall bear simple interest at the rate of threepercent (3%) simple interest per annum from the date of initial disbursement.3. Term and Repayment Requirements. The term of this Note (the "Term"), shallcommence with the date of this Note and shall expire as set forth in the Predevelopment Loan Agreement. This Note may be prepaid in whole or in part at any time, and from time to time, without notice or penalty. This Note shall be due and payable as set forth in the Predevelopment Loan Agreement.4. No Assumption. This Note shall not be assumable by the successors and assignsof Borrower without the prior written consent of City.5. Terms of Payment.(a) All payments due under this Note shall be paid in currency of the UnitedStates of America, which at the time of payment is lawful for the payment of public and private debts.(b) All payments on this Note shall be paid to City at 600 Elm Street, SanCarlos, CA 94070 or to such other place as City of this Note may from time to time designate.

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(c) All payments on this Note shall be without expense to City, and Borroweragrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of City, incurred in connection with the payment of this Note and the release of any security hereof.(d) Notwithstanding any other provision of this Note, or any instrumentsecuring the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest which would exceed the amount that City may legally charge under the laws of the State of California, then the amount by which payments exceeds the lawful interest rate shall automatically be deducted from the principal balance owing on this Note, so that in no event shall Borrower be obligated under the terms of this Note to pay any interest which would exceed the lawful rate.(e) This Note shall be nonrecourse against Borrower, as further set forth inSection 2.3 of the Predevelopment Loan Agreement.6. Default.(a) Any of the following shall constitute an event of default under this Note:(i) Any failure to pay, in full, any payment required under this Notewithin ten (10) calendar days of written notice that such payment is due;(ii) Any failure in the performance by Borrower of any term,condition, provision or covenant set forth in this Note subject to the notice and cure period set forth in the Predevelopment Loan Agreement;(iii) The occurrence of any event of default under the PredevelopmentLoan Agreement or any other instrument securing the obligations of Borrower under this Note or under any other promissory notes hereafter issued by Borrower to City pursuant to the Predevelopment Loan Agreement, subject to notice and cure periods, if any, set forth therein.(b) Upon the occurrence of such an event of default, the entire unpaidprincipal balance, together with all interest thereon, and together with all other sums then payable under this Note shall at the option of City become immediately due and payable upon written notice by City to Borrower without further demand.(c) The failure to exercise the remedy set forth in Subsection 6(b) above orany other remedy provided by law upon the occurrence of one or more of the foregoing events of default shall not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other default. The acceptance by City hereof of any payment which is less than the total of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior

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exercise of any such remedy or option, without the express consent of City, except as and to the extent otherwise provided by law.7. Waivers.(a) Borrower hereby waives diligence, presentment, protest and demand, andnotice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that City may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower.(b) No extension of time for payment of this Note or any installment hereofmade by agreement by City with any person now or hereafter liable for payment of this note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part.(c) The obligations of Borrower under this Note shall be absolute andBorrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.8. Miscellaneous Provisions.(a) All notices to City or Borrower shall be given in the manner and at theaddresses set forth in the Predevelopment Loan Agreement, or to such addresses as City and Borrower may hereinafter designate.(b) Borrower promises to pay all costs and expenses, including reasonableattorney's fees, incurred by City in the enforcement of the provision of this Note, regardless of whether suit is filed to seek enforcement.(c) This Note may not be changed orally, but only by an agreement in writingsigned by the party against whom enforcement of any waiver, change, modification or discharge is sought.(d) This Note shall be governed by and construed in accordance with the lawsof the State of California.(e) The times for the performance of any obligations hereunder shall bestrictly construed, time being of the essence.SIGNATURES ON FOLLOWING PAGE(S).

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This document, together with the Predevelopment Loan Agreement, contains the entire agreement between the parties as to the Predevelopment Loan. It may not be modified except upon written consent of the parties.BORROWER:Cherry Street Commons, L.P.a California limited partnershipBy: Eden Cherry Street LLCa California limited liability company,its co-general partnerBy: Eden Investments, Inc.a California nonprofit public benefit corporation, itssole member/managerBy: ____________________________By: HIP Housing Development Corporation, Inc.,a California nonprofit public benefit corporation,its co-general partnerBy: ____________________________

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Housing-in-Lieu Fund - 0029 Cherry Street between Walnut and Laurel Community Development Yes
Adam Aronson
Housing 1
Appropriations
Total Approved
Budget Total Spent
Proposed
2023-24
Proposed
2024-25
Requested
2025-26
Requested
2026-27
Requested
2027-28
Total Project
Funding
Expenses 12,125,000$ 3,462,124$ -$ 0 -$ -$ -$ -$ 12,125,000$ New request - - 1,000,000 - - - - 1,000,000 Total 12,125,000$ 3,462,124$ 1,000,000$ -$ -$ -$ -$ 13,125,000$ Fund Financing Sources
-$ -$ -$ -$ -$ -$ -$ -$ Total -$ -$ -$ -$ -$ -$ -$ -$ Total Capital Project
12,125,000$ 3,462,124$ 1,000,000$ -$ -$ -$ -$ 13,125,000$ Child Care
Climate Change Mitigation, Adaptation & Resilience
Downtown
X Housing
Mobility, Traffic & Transportation Infrastructure
Northeast Area Specific Plan
Recreation Services
Capitalized Project Non-Capitalized ProjectX
Current Strategic Plan Objective
Future Impact on Operating Budget
$12,125,000 has previously been allocated for the project. $3,462,124 has so far been spent which includes the City's purchase of the property at 1232 Cherry Street and predevelopment expenses made towards the project. The City has also entered into a Disposition, Development, and Loan Agreement (DDLA) with Cherry Street Commons to redevelop the site and provide additional affordable housing units. The project is requesting an additional $1,000,000 in order to provide a total of $9,600,000 in gap financing to Cherry Street Commons. This will be reflected in the form of a loan from the City, the total value of which will be $12,860,000. This amount includes the $9,600,000 as well as the most recent appraised value of the City's land contribution to the project of $3,260,000.

Duration
Status
Programmed Funding
July 2011 to June 2027.

In 2022 the City acquired the property at 1232 Cherry Street. The property adjacent to 1232 Cherry Street is owned by affordable housing developer HIP Housing. The City has entered into a partnership with HIP Housing to redevelop the site into a higher density project. In February of 2023, the City Council approved a Disposition, Development, and Loan Agreement for the project. In May of 2023, the project's entitlements were approved by the Planning and Transportation Commission. In June the project is being brought back to the City Council along with a request for gap financing to assist with development of the project.

C9754: Cherry Street Below Market Rate Housing Acquisition - AMENDED Description
This project will fund the redevelopment of a site on Cherry Street to create a new affordable housing project. The project includes acquisition of the property at 1232 Cherry Street for assemblage with the adjacent property to create a viable site that can be used for a new, higher-density project.

Additionally, the project allocates a sum for financial contribution to the project.

Justification
This project will add severely needed affordable housing downtown, which is accessible to both transit and employment hubs. The redevelopment of this site would increase the number of affordable housing units by at least 30 units. An additional $1,000,000 is being requested from Fund 29 to cover the City's full financing contribution towards the project.

Category:

Location:

Strategic Plan:

Priorities:

Priority Rating:

Department:

Fund Number:

Project Manager:

Housing, Previously Funded, Own Funding
Source

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22645 Grand Street | Hayward, CA 94541 | Tel: 510-582-1460 | edenhousing.org Broker License No. 872400 Date: May 23, 2023 To: Adam Aronson Economic Development & Housing Manager City of San Carlos From: Cherry Street Commons, LP Re: Gap Financing Request for the Cherry Street affordable housing project Additional Predevelopment Request HIP Housing, in partnership with Eden Housing, Inc., is excited to be entering the final predevelopment phase for the 33 units family affordable housing project to be located at 1232-1244 Cherry Street. The partnership will be applying for State Infill Development Grant (IIG) funding this summer and 9% Tax Credits in early 2024 with start of construction anticipated towards the end of 2024 if those applications are successful. As part of the overall project financing, Eden Housing, Inc. and HIP Housing write to request gap financing in the amount of $9,600,000 to effectively compete for both State Infill Infrastructure Program (IIG) and Nine Percent (9%) federal low-income housing tax credits (TCAC). As well, we would also request an increase of $2 million in the amount of funding available now for predevelopment to a total amount of $3,000,000 ($2 million in addition to the previously awarded $1M). The additional predevelopment funding will allow us to complete the construction documents, underground the utilities prior to the start of construction, and consolidate the parcels. Attached please find the project’s most recent proforma as prepared by California Housing Partnership Corp (CHPC). This proforma has been reviewed and updated to match current conditions. Below please find a summary budget. The total gap financing requested from the City of San Carlos at this time is $9,600,000. This also assumes that we secure $2.4M in IIG funds and the City donates the value of the City parcel as determined in the appraisal ($3,260,000). There remains a financing gap of $3.7M that the team will strive to reduce or eliminate over the next six months. Sources of Funds 33 Units Source Status Amount Per Unit Permanent Loan $4,876,000 $ 147,758 Seller Carryback Committed $870,000 $ 26,364 City of San Carlos Pending $9,600,000 $ 290,909 IIG from State Pending $2,438,004 $ 73,879 Donated Land Pending $3,260,000 $ 98,788 Gap/Cost Savings $3,700,000 $ 112,121 LP Equity - Federal Pending $21,376,324 $ 647,767 GP Equity Pending $100 $ 3 Deferred Developer Fee Pending $0 $ - Total $46,120,428 $ 1,397,589 Uses of Funds

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Use Amount Per Unit Acquisition $5,030,000 $152,424 Hard Costs $29,896,867 $905,966 Soft Costs Includes Utility Undergrouding $5,911,058 $179,123 Financing Costs $2,808,317 $85,101 Reserves $163,641 $4,959 Developer Fee $2,200,000 $66,667 Syndication Costs $110,545 $3,350 Total $46,120,428 $1,397,589 This level of financing will both ensure the project’s feasibility and also enable to project to submit a TCAC 9% application with a very good tie breaker of 69.89%. The TCAC tie breaker determines which projects secure funding. The lowest scoring tie breaker in the last 4 TCAC rounds (in order) are: 36,034% in First Round 2021, 36.088% in Second Round 2021, 37.231% in First Round 2022, and 56.681% in Second round 2022. It is our goal to explore all avenues to reduce the project’s overall cost. For reasons familiar to staff, the project faces several cost disadvantages when compared with larger developments. These reasons include: 1) assembling a site through a lengthy eminent domain process combined with an existing six unit building, 2) the design represents the City’s desire to enhance and celebrate the downtown revitalization, 3) the planning and implementation of the ungrounding utilities is an unusual and significant cost, 4) temp and possible permanent relocation of 6 existing households (an unusual cost for new construction project), and 5) major line item costs such as architecture, builder’s risk insurance, lot merger, and the overall construction budget are spread over very few units giving the impression that the project is costly from a per unit perspective. In short, we are building a beautiful building on a complicated site with a modest number of units. Prior to applying for credits in Spring 2024, the Eden/HIP development team will work to reduce costs by refining and exploring cost containment approaches. For example, we have already received an alternate construction estimate which would eliminate our current financing gap of $3.7M. We are in the midst of confirming this estimate and will be asking this general contractor to provide sub estimates in order to confirm the validity of the estimate. We will also continue to price the scope as the drawings are more fully developed in order to increase our confidence in the estimates. Over the next six months we will also investigate savings in other line items such as revisiting the design and construction approach, confirm Builder’s Risk pricing, seek more competitive financing terms (construction and perm loan) and lastly we will thoroughly reexamine the line items to determine if other costs may be reduced. Thank you for your consideration and please let us know if you have any questions about our request. We are very much looking forward to completing this long anticipated project in downtown San Carlos.

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Cherry Street Commons
San Carlos, CA 94070

RELOCATION PLAN

Prepared for

EDEN Housing
22645 Grand Street
Hayward, CA 94541

by

Autotemp
275 Reflections Drive #26
San Ramon, CA 94583

June 2023

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INTRODUCTION

Eden Housing, Inc. (Eden) is one of northern California’s premiere, non-profit developers of affordable housing, as well as one of its oldest. Founded in May of 1968 by six community activists who were concerned about the lack of non- discriminatory, affordable housing in Alameda County, over the years Eden has created over 10,600 affordable housing units that have provided homes for literally thousands of people. Eden has been creating a variety of high-quality, affordable housing opportunities for lower income families, seniors and, people with disabilities; their housing includes: multi-family rental housing, co-operatives, supportive housing and, first-time homeownership housing.

HIP Housing (HIP) is a leader in providing creative affordable housing solutions for people in San Mateo County. For more than 40 years, HIP has demonstrated its strong commitment to helping people in San Mateo County to live better, more independent lives. HIP purchased and developed their first property in 1989 as a way to provide affordable housing opportunities to lower income families, seniors and, people with disabilities; their portfolio now includes 239 units in 14 properties throughout San Mateo County. In addition, HIP oversees the management of Below Market Rate (BMR) property for the cities of San Mateo, Foster City and San Carlos.

With their available housing resources, HIP is able to provide affordable housing to approximately 450 individuals each year.

HIP and Eden Housing – through a limited partnership, Cherry Street Commons, LP (LP or Developer) proposes to acquire, and undertake the redevelopment of the Cherry Street Commons site.

The Project

The existing project, 1244 Cherry Street consists of six units, one one-bedroom and five two-bedroom units that are currently occupied.

The Developer proposes the demolition of the existing residential units and construction of 33 rental apartments, 15 one-bedrooms; nine two-bedrooms and nine three-bedroom apartments. The apartments will be affordable to individuals and households earning 60% or less of the Area Median Income (AMI). The Apartments are planned around a podium courtyard providing an outdoor gathering space and a small tot lot play area. A large community room with community kitchen and media

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area will support a variety of activities. Laundry facilities will be provided on site along with several offices and meeting rooms.

Sustainability is important factor in the new construction. The building will be all- electric with individual heat pump water heaters, heating/cooling for individual units and a highly energy efficient exterior. A full photovoltaic array on the roof will generate energy on site. 21 car parking spaces and 2 accessible parking spaces will be EV Ready and to support micro mobility, there will also be 20 long-term bicycle spaces; eight scooter spaces and a shared “fix-it” stand.

The dwelling units which are the subject of this Relocation Program are located in the City of San Carlos and the County of San Mateo. The subject property is located on San Cherry Street, just west of El Camino. The area is generally comprised of multifamily residential, institutional, and commercial uses. For the regional and site-specific locations, the subject property is shown at ‘Project Site Maps’ (Attachment 1).

The project will comply with all General Plan guidelines, housing element and zoning requirements of the City and be compatible with adjacent land uses. There is no foreseen negative impact on the surrounding neighborhood.

Prospective funding sources are 9% low-income housing tax credits (LIHTC); City of San Carlos funds; State of California, Department of Housing and Community Development Infill Infrastructure Grant (IIG) funds.

As a result of the Project, based upon available information, all six of the existing households may be permanently displaced.

Autotemp, an experienced acquisition and relocation firm, has been selected to prepare this Relocation Plan (‘Plan’), and will provide all subsequently required relocation assistance. In compliance with statutory requirements, the Plan has been prepared to evaluate the present circumstances and replacement housing requirements of the current Project occupants. The Developer will provide all subsequently required relocation assistance to the households which will be permanently and temporarily displaced.

This Plan sets forth policies and procedures which would be necessary to conform to statutes and regulations established by the Federal, Uniform Relocation Act (46

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U.S.C. § 4600 et seq.), its implementing regulations (49 C.F.R.) Part 24); and, the California Relocation Assistance Law, California Government Code Section 7260 et seq (the “CRAL”) and the California Relocation Assistance and Real Property Acquisition Guidelines, Title 25, California Code of Regulations, Chapter 6, Section 6000 et seq. (the "Guidelines") for residential displacements and the funding agencies’ own rules and regulations. This Plan meets or exceeds the requirements of a “Model Plan” per the Guidelines.

It should be noted that, with certain narrow exceptions, Federal funds cannot be used for any “displaced person” who is an alien not lawfully present in the United States. All households will receive relocation benefits.

No mandatory displacement activities will take place prior to the required reviews and approval of this Plan.

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RELOCATION PLAN

This Relocation Plan has been prepared in accordance with the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (the ‘Uniform Act’); ); and the California Relocation Assistance Law, California Government Code Section 7260 et seq (the “CRAL”) and the California Relocation Assistance and Real Property Acquisition Guidelines, Title 25, California Code of Regulations, Chapter 6, Section 6000 et seq. (the "Guidelines") for residential displacements.

No displacement activities will take place prior to the required reviews and approval of this Plan. In order to attain its overall development goals for the Project, it is the Developer’s intention to provide a fair and equitable relocation program for all eligible Project displacees.

A. General Demographic and Housing Characteristics

To obtain information necessary for the implementation of the Plan, interviews ll be conducted with the current tenants on the Project site. Inquiries made of the occupants will include household size and composition, ages of occupants, rental and income information, length and type of occupancy, ethnicity, primary language in the home, disabilities and health problems, and preferences related to replacement housing and location. Comprised of families and individuals, there are currently 14 residents occupying the six households. There are two minors living on site, none of which are school age. One of the households is occupied by a HIP employee and will be moving to another HIP property.

All information of a statistical nature supplied by property management and the households was purely anecdotal in nature and not validated by documentary evidence such as will otherwise be required to comply with relocation qualifying criteria.

The standard housing density utilized provides for two (2) persons per bedroom and one person in a common living area for tenant occupied units although, this can be adjusted to include two persons in the common living area. If a family’s size is above or below these standards, then those families would be referred to appropriately sized housing. There appears to be no overcrowding in households being displaced permanently.

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The following table represents the replacement housing needs to properly house the potential four permanently displaced households.

Residential Relocation Resources (For Rent) - Units Required vs. Current Units

Units by Bedroom Count Current Units Required Units
One-bedroom Apartment 1 1
Two-bedroom Apartment 5 5
All Units 6 6

Relocation activities will consider individual household needs to be close to public transportation, employment, schools, public/social services and agencies, recreational services, parks, community centers, or shopping.

Relocation Assistance information and assistance will be provided in the primary language of the displaced occupants, in order to assure that all displaced occupants obtain a complete understanding of the relocation plan and eligible benefits. All of the households understand and speak English.

There is one senior household with no special needs, although the household is classified as disabled. All households requested to remain in the San Carlos area or nearby communities.

Two of the households are classified as “Extremely Low Income”; three are classified as “Very Low Income”; the remaining household is classified as “Median” income or above based on the income limits established by HCD. When State income limits are to be used for a program, the limits in the Table are applied in determining the household’s income category in qualifying the household for one program, or another.

The ‘Extremely Low’ income category represents “thirty percent (30%)” of median income, by household size; the ‘Very Low’ income category represents “fifty percent (50%)” of median income, by household size; and, the ‘Lower’ income category represents “eighty percent (80%)” of median income by household size.

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Current rents range from $294 for a subsidized rent in the one-bedroom apartment and $1,000 to $2,050 for the two-bedroom units.

B. RELOCATION HOUSING RESOURCES AND NEEDS

At this time, based upon available information, there may be up to six residential households that may be permanently displaced from the Project site. The households that may be permanently displaced will be interviewed, and queried regarding household size and composition, income and rental information, disabilities/health problems, and preferences related to replacement housing and location.

The interview process will be used to determine housing preferences or reported need to be close to public transportation, employment, schools, public/social services and agencies, recreational services, parks, community centers, or shopping. In addition, health needs, which will require special consideration for accessibility, and perhaps proximity to medical facilities, will be identified. The interviews will be performed by relocation staff and confidentiality will be maintained.

C. REPLACEMENT HOUSING RESOURCES

A resource survey will be conducted prior to any mandatory displacement to identify available comparable, decent, safe and sanitary units, which are adequate in size, and contain the required number of bedrooms for each household, in the San Carlos area. Referrals will be made to “open-market” housing. For the purposes of this Plan, a survey of the nearby area found availability of sufficient housing to accommodate prospectively displaced households, with prices ranging from $2100 to $2500 for a one-bedroom unit and $2500 to $3600 for a two-bedroom unit.

Because of their location, nearby amenities, and accessibility of the off-site units, they meet both the location and accessibility needs of the permanently displaced households.

D. CONCURRENT RESIDENTIAL DISPLACEMENT

Based on the needs of the Project, there is no concurrent displacement, either by Eden or others, which may impact upon the ability to relocate the Project occupants, based upon the findings of the housing resource study.

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E. TEMPORARY HOUSING

There is no anticipated need for temporary housing for those households being permanently displaced. Should such a need arise, the Developer will respond appropriately, and in conformance with all applicable laws and requirements.

F. PROGRAM ASSURANCES AND STANDARDS

There shall be adequate funds budgeted to relocate all households; permanent or, temporary. All displacement and re-housing services will be provided to ensure that displacement does not result in different, or separate treatment of households based on race, nationality, color, religion, national origin, sex, marital status, familial status, disability or any other basis protected by the federal Fair Housing Amendments Act, the Americans with Disabilities Act, Title VI of the Civil Rights Act of 1964, Title VII of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, the California Fair Employment & Housing Act, and the Unruh Act, as well as any otherwise arbitrary, or unlawful discrimination.

No household will be permanently displaced without a minimum Ninety (90)-days’ notice and unless “comparable” replacement housing can be located. “Comparable” housing includes standards such as: decent, safe, and sanitary (as defined in the Guidelines); comparable as to the number of bedrooms, living space, and type and quality of construction of the acquired unit to be vacated, but not lesser in rooms or living space than necessary to accommodate the displaced household; in an area that does not have unreasonable environmental conditions; and, not generally less desirable than the acquired unit with respect to location to schools, employment, health and medical facilities, and other public and commercial facilities and services.

All households will receive a General Information Notice (see Attachment 2), and will receive a minimum of a 90-day notice prior to their need to move. No household will be economically displaced, as they will be provided benefits pursuant to the Guidelines.

Any eligible household will be offered a leasing preference to return to the newly constructed apartments.

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G. RELOCATION ASSISTANCE PROGRAM

Autotemp staff is available to assist the permanently displaced tenants with questions regarding relocation and/or assistance in relocating. Relocation staff can be contacted Toll-free at 888.202.9195 from 8:30 a.m. to 6:00 p.m., Monday through Friday and also available on-site by appointment. The Relocation Office is located at 275 Reflections Drive, #26, San Ramon, CA 94583.

A comprehensive relocation assistance program, with technical and advisory assistance, will be provided to the households being displaced. Close contact will be maintained with each household. Specific activities will:

1. Fully inform eligible project occupants of the nature of, and procedures for, obtaining relocation assistance and benefits along with the Distribution of an informational statement. Attachment 3 contains a sample of the informational notice that will be given to the permanently displaced households.

2. Determine the needs of each residential displacee eligible for assistance;

3. Provide assistance that does not result in different or separate treatment due to race, color, religion, national origin, sex, sexual orientation, marital status or other arbitrary circumstances;

4. Assist each eligible person to complete applications for benefits;

5. Make relocation benefit payments in accordance with the Guidelines, where applicable;

6. Inform all persons subject to displacement of Eden’s policies with regard to eviction and property management; and,

7. Establish and maintain a formal grievance procedure for use by displaced persons seeking administrative review of Eden’s decisions with respect to relocation assistance.

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Because of the nature of a permanent displacement, the following services will be provided to these households, in addition to those outlined above:

1. Timely referrals to at least three comparable replacement units as defined above and, if necessary, transportation will be provided to inspect potential replacement units.

2. Provision of current and continuously-updated information concerning replacement housing opportunities.

H. CITIZEN PARTICIPATION

Upon funding approval and prior to any mandatory displacement, a Plan meeting all of the requirements of Section 6038 of the Guidelines will be prepared and provided to the residents to promote review, and participation.

Eden will ensure the following:

1. Full and timely access to documents relevant to the relocation program;

2. Provision of technical assistance necessary to interpret elements of the relocation program and other pertinent materials;

3. In lieu of a Relocation Committee, resident meetings will be held with the residents to promote education and understanding of the relocation program;

4. A general notice and a copy of the Plan will be provided to all displacees impacted by proposed project. This Plan will be made available for circulation for information and review by interested citizen groups, state and county agencies, and all persons affected by the project.

5. The Plan will be reviewed to ensure that it is feasible; and complies with locally-adopted rules and regulations governing relocation.

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I. RELOCATION BENEFIT CATEGORIES

Benefits will be provided in accordance with URA, the CRAL, the Guidelines, and all other applicable regulations and requirements. Benefits will be paid upon submission of required claim forms and documentation in accordance with approved procedures. Eden will provide appropriate benefits for any eligible household as required by the above laws and requirements.

Specific eligibility requirements and benefit plans will be detailed on an individual basis with all displaced households. In the course of personal interviews and follow- up visits, each displaced household will be counseled as to available options and the consequences of any choice with respect to financial assistance.

Residential Moving Expense Payments

Any, and all eligible displaced households will be eligible to receive a payment for moving expenses. The payment will be made based upon either a fixed room-count schedule; or, an invoice for actual reasonable moving expenses from a licensed professional mover.

Moving expenses will be based on one of the following options:

Fixed Payment – A fixed payment for moving expenses based on the number of rooms containing furniture or other personal property to be moved. The fixed moving payment will be based upon the most recent Federal Highway Administration (FHA) schedule maintained by the California Department of Transportation, as indicated in Attachment 3.

- Or -

Actual Reasonable Moving Expense Payments – The displaced tenants may elect to have a licensed, professional mover perform the move; if so, the Developer will pay for the actual cost of the move as follows. The payment will be made directly to the mover or as reimbursement to the displaced tenant, and may include:

(a) Transportation of the displaced person and personal property.

Transportation costs for a distance beyond 50 miles are not

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eligible, unless the Developer determines that relocation beyond 50 miles is justified.

(b) Packing, crating, unpacking, and uncrating of the personal property.

(c) Disconnecting, dismantling, removing, reassembling, and reinstalling relocated household appliances and other personal property.

(d) Storage of the personal property for a period not to exceed 12 months, unless the Developer determines that a longer period is necessary.

(e) Insurance for the replacement value of the property in connection with the move and necessary storage.

(f) The replacement value of property lost, stolen, or damaged in the process of moving (not through the fault or negligence of the displaced person, his or her agent, or employee) where
insurance covering such loss, theft, or damage is not
reasonably available.
(g) Other moving-related expenses that are not listed as ineligible under § 24.301(h), as the Developer determines to be
reasonable and necessary.

Rental Assistance/Down Payment Assistance

For permanent residential displacee households – except in the case of ‘Last Resort Housing’ situations, as defined below – a Rental Assistance Payment (RAP) will be limited to a maximum of five thousand two hundred fifty dollars ($5,250.00), based upon the households monthly housing need over a forty-two (42) month period. In addition, such tenants may opt to apply the amount to which they are entitled toward the purchase of a replacement unit.

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Last Resort Housing

Based on a housing resource survey which was conducted concurrent with the preparation of this Plan, it would appear that an adequate number of “comparable replacement housing” units would be available – if the time of displacement were imminent – to meet the needs of any displaced tenants however, a combination of factors – including the income level of the particular project occupant; the project rent; and, the prospectively higher cost of replacement units – may create the need for a ‘Last Resort Housing Payment’.

“Last Resort Housing” payments are authorized by statute if affordable “comparable replacement housing” cannot be located for the displaced tenant household (i.e., housing renting for not more than 30% of the household’s gross monthly income). In such an instance, payments may be made beyond the $5,250.00 statutory cap, up to forty-two (42) months’ worth of rental assistance. Any supplemental increment beyond $5,250.00 may be paid in installments or, a lump sum, at the Developer’s discretion.

Down-payment Assistance Payment to Tenants who Purchase

Residential tenants who are otherwise eligible to receive the Rental Assistance Payment described above may choose to receive a lump sum payment equal to forty-two (42) months of rental subsidy (including Last Resort Housing benefits) to purchase a new home.

SECTION 8 HOUSING CHOICE VOUCHERS

One household is currently participating in the Section 8 program and will be provided on-going rental assistance pursuant to the provisions of the Section 8 program. The Section 8 program provides for a household to pay thirty percent (30%) of the household’s adjusted income – with some program-specific exceptions – for their monthly housing rental costs.

Section 8 program Payment Standards are set by the San Mateo County Housing Authority (Housing Authority), based on the Fair Market Rents issued by HUD.

They're updated annually. A Payment Standard is the maximum allowable monthly assistance payment in the Housing Authority’s jurisdiction for an assisted family's (1)

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contract rent and (2) those essential utilities for which the tenant is responsible, including a stove or refrigerator provided by the family.

Payment Standards are used to determine how much of the rent is paid by the Housing Authority and how much is paid by the family. Payment Standards do NOT determine or limit the rent a landlord may charge.

If comparable rentals are not available within the Housing Authority’s Payment Standard for specific replacement housing needs, and there is a difference between the current rent and the new rent at the replacement dwelling, the household may be eligible to receive a gap differential, called a rental assistance payment, based upon a 42-month period.

A household may receive this rental assistance only if, without such assistance and, in the displacing Agency’s (the Developer’s) determination, they (the household) cannot lease a comparable home or apartment at a lesser cost. If the household does not need such a rent, they will not be eligible to receive such. If a household qualifies for such a rental assistance payment, the household’s share of monthly rent, plus utilities, must not exceed forty percent (40%) of adjusted monthly income (per HUD standards), with the Developer paying the difference between 30% and 40% for a period of 42 months.

In order to alleviate hardships for the household in paying “move-in costs” (such as credit report fees and security deposits), the Developer will provide up to seventy- five dollars ($75.00) for credit checks and a maximum of two months’ security deposit based upon the maximum monthly rent Payment Standards as approved by the Housing Authority in the appropriate jurisdiction.

Right to Return

Any eligible household will be offered a leasing preference to return to the newly constructed apartments. A Household will need to accept an offer of a unit within 30 days of its mailing and complete the return move within 30 days of its acceptance. It is the Household’s responsibility to notify the Developer of any change of address.

No assistance will be provided associated with the return move.

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J. PAYMENT OF RELOCATION BENEFITS

Claims and supporting documentation for relocation benefits must be filed with Eden within eighteen (18) months from:

 The date the claimant moves from the acquired property; or,

 The date on which final payment for the acquisition of real property is made, whichever is later.

The procedure for the preparation and filing of claims and the processing and delivery of payments will be as follows:

1. Claimant(s) will provide all necessary documentation to substantiate eligibility for assistance.

2. Assistance amounts will be determined in accordance
with the provisions of Relocation Law and guidelines, as may be applicable.

3. Required claim forms will be prepared by relocation
personnel in conjunction with claimant(s). Signed claims and supporting documentation will be submitted by relocation personnel to the Developer.

4. The Developer will review, and approve claims for
payment, or request additional information.

5. The Developer will issue benefit checks which will be delivered to the household, unless circumstances dictate otherwise.

7. Final payments will be issued after confirmation that the Project area premises have been completely vacated, and actual residency at the replacement unit is verified.

8. Receipts of payment will be obtained and maintained in the relocation case file.

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No household will be displaced until “comparable” housing is located as defined above. Relocation staff will inspect any replacement units to which referrals are made to verify that they meet all the standards of decent, safe, and sanitary as defined in Section 24.2 (a) (8) of the Uniform Act.

No household will be entitled to a rental assistance or replacement housing payment if it chooses to move to a replacement unit which does not meet the standards of decent, safe, and sanitary housing.

K. RELOCATION TAX CONSEQUENCES

In general, relocation payments are not considered income for the purpose of the Internal Revenue Code of 1986, or the Personal Income Tax Law, Part 10, of the Revenue and Taxation Code. The above statement on tax consequences is not intended to be provision of tax advice by Eden, HIP, the Developer, their Agents, Consultants or, Assigns. Displacees are encouraged to consult with their own, independent tax advisors concerning the tax consequences of relocation payments.

L. APPEALS POLICY

The appeals policy and grievance procedure will follow the standards described in Attachment 4. Briefly stated, the displaced tenants will have the right to ask for review when there is a complaint regarding any of their rights to relocation and relocation assistance, such as a determination as to eligibility, the amount of payment, or the failure to provide a comparable replacement housing referral. The hearing officer, Kasey Archey, an employee of Eden who is outside the decision process. Ms. Archey can be contacted at Eden Housing Management, Inc., 22645 Grand Street Hayward, CA 94541 or 510.582.1460. Any displaced person has the right to contact HCD for the purpose of an appeal or grievance and that further details are found in attachment 4.

The appellant does not have to exhaust administrative remedies first; the appeal/grievance can either go directly to the city, directly to HCD or directly to the Court.

Any person and/or organization directly affected by the relocation plan may petition the Department of Housing and Community Development (HCD), located at 2020

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West El Camino Ave., Sacramento, CA 95833 to review the relocation plan or 916.263.7469.

M. EVICTION POLICY

Eviction by the Developer is permissible only as a last alternative. With the exception of persons considered to be in unlawful occupancy, a displaced person’s eviction does not affect eligibility for relocation assistance and benefits. Relocation records must be documented to reflect the specific circumstances surrounding the eviction.

Eviction may be undertaken only for one or more of the following reasons:

1. Failure to pay rent, except in those cases where the failure to pay is due to the Lessor’s failure to keep the premises in habitable condition; is the result of harassment or retaliatory action; or, is the result of discontinuation or substantial interruption of services;

2. Performance of a dangerous, and/or illegal act in the unit by tenant, tenant’s guest(s) and/or invitee(s) or any combination thereof;

3. A material breach of the rental agreement and failure to correct breach within 30 days of notice;

4. Maintenance of a nuisance, and failure to abate within a reasonable time following notice;

5. Refusal to accept one of a reasonable number of offers of replacement dwellings;

6. A requirement under State, or local law or emergency circumstances that cannot be prevented by reasonable efforts on the part of the public entity.

N. PROJECTED DATES OF DISPLACEMENT

Displaced households will receive a minimum of a Ninety (90)-day Notice-to-Vacate.

Demolition is anticipated to begin in November of 2024. This notice will be issued on or about July 01, 2024 for those households being permanently displaced.

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O. ESTIMATED RELOCATION COSTS

The Developer pledges to appropriate the necessary funds, on a timely basis, to ensure the successful completion of the project. Any and all required financial assistance will be provided. The anticipated budget for relocation benefits including implementation services and oversight will be funded by LIHTC’s, City of San Carlos and HCD funding and is as follows:

Permanent Relocation -6 Households
Rental Assistance $ 509,000.00
Moving Assistance $ 12,000.00
Credit Check Fees/Security Deposits $ 7,500.00
Relocation Services $ 36,000.00
Contingency $ 35,500.00
Total $ 600,000.00

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TABLE OF ATTACHMENTS

Attachment 1: Project Site Maps

Attachment 2: Notices

Attachment 3: Sample Informational Statement – Residential Occupants

Attachment 4: Grievance Procedure

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ATTACHMENT 1:

PROJECT SITE MAPS

Figure 1. Regional Site Location

Figure 2. Site-specific Location

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Figure 3. overhead view

Figure 4. street view

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ATTACHMENT 2
General Information Notice

February 23, 2021

<<Name>> and All Other Occupants
1244 Cherry Street, #<<Unit>>
San Carlos, CA 94070

HIP Housing is a non-profit organization whose mission is to improve people’s lives and housing. We own and operate affordable housing throughout San Mateo County including the property where you currently reside located at 1244 Cherry Street in San Carlos.

As a landlord, we work hard to provide a comfortable and safe living environment for our residents. To that end, HIP Housing is conducting an assessment of the property’s condition, which may result in a reconstruction. We are in the preliminary stages of our assessment and a definitive timeframe for construction has not yet been determined.

You do not have to move at his time. This is not a notice to vacate the premises or a notice of relocation eligibility.

Please continue to pay your monthly rent and meet your other tenant obligations. Failure to do so could result in eviction and loss of any future relocation assistance. You are urged not to move or sign any agreement to purchase or lease a unit before receiving formal notice of your eligibility for relocation assistance. If you move or are evicted before receiving such notice, you will not be eligible to receive relocation assistance. Please contact us before you making any plans to move.

If the construction project proceeds, you will be protected by State and Federal law; Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA), as amended and California Relocation Assistance Law (Sec 7260 et. seq. of the CA Government Code.

Again, this letter is intended to be informational. It is not a notice to vacate nor does it establish eligibility for relocation payments or assistance. If HIP Housing decides not to proceed with construction, you will be notified in writing. If you have questions, please contact me at the phone number below.

Sincerely,
HIP Housing Affordable Ventures, Inc., AMO®

Steven McDonald, CPM®
Vice President - Property Management
(650) 348-6820

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________________________________ Delivered on/by: ____________/_____________ Received by

X_______________________________ Posted on/by: ____________/________________ Recipient’s Signature

________________________________ Mailed/receipt received on: _________/_________ Date

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ATTACHMENT 3:

Informational Statement for Families and Individuals

1. GENERAL INFORMATION

HIP Housing (“HIP”) intends to demolish the dwelling in which you now live in order to build an affordable housing development. If and when the project proceeds, and it is necessary for you to move from your dwelling, you may be eligible for certain benefits. You will be notified in a timely manner as to the date by which you must move. Please read this information, as it will be helpful to you in determining your eligibility and the amount of the relocation benefits you may receive under the state law. You will need to provide adequate and timely information to determine your relocation benefits. The information is voluntary, but if you don’t provide it, you may not receive the benefits or it may take longer to pay you. We suggest you save this informational statement for reference.

HIP has retained the professional firm of Autotemp to provide relocation assistance to you. The firm is available to explain the program and benefits. Their address and telephone number is:

Autotemp
373 4th Street Suite 2A
Oakland, CA 94607
Telephone: 888.202.9195

PLEASE DO NOT MOVE PREMATURELY. THIS IS NOT A NOTICE TO VACATE YOUR DWELLING. However, if you desire to move sooner than required, you must contact your representative with Autotemp so you will not jeopardize any benefits. This is a general informational brochure only, and is not intended to give a detailed description of either the law or regulations pertaining to HIP’s relocation assistance program.

Please continue to pay your rent to your current landlord, otherwise you may be evicted and jeopardize the relocation benefits to which you may be entitled to receive.

2. ASSISTANCE IN LOCATING A REPLACEMENT DWELLING

HIP, through its representatives, will assist you in locating a comparable replacement dwelling by providing referrals to appropriate and available housing units. You are encouraged to actively seek such housing yourself.

When a suitable replacement dwelling unit has been found, your relocation consultant will carry out an inspection and advise you as to whether the dwelling unit meets decent, safe and sanitary

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housing requirements. A decent, safe and sanitary housing unit provides adequate space for its occupants, proper weatherproofing and sound heating, electrical and plumbing systems. Your new dwelling must pass inspection before relocation assistance payments can be authorized.

3. MOVING BENEFITS

If you must move as a result of displacement by HIP, you will receive a payment to assist in moving your personal property. The actual, reasonable and necessary expenses for moving your household belongings may be determined based on the following methods:
 A Fixed Moving Payment based on the number of rooms you occupy (see below); or  A payment for your Actual Reasonable Moving and Related Expenses based on at least two written estimates and receipted bills; or
 A combination of both (in some cases).

For example, you may choose a Self Move, receiving a payment based on the Fixed Residential Moving Cost Schedule shown below, plus contract with a professional mover to transport your grand piano and /or other items that require special handling. In this case, there may be an adjustment in the number of rooms which qualify under
the Fixed Residential Moving Cost Schedule.

A. Fixed Moving Payment
A Fixed Moving Payment is based upon the
number of rooms you occupy and whether or not
you own your own furniture. The payment is
based upon a schedule approved by HIP, and
ranges, for example, from $510.00 for one
furnished room to $2,690.00 for eight rooms in an
unfurnished dwelling. (For details see the table).

Your relocation representative will inform you of
the amount you are eligible to receive, if you
choose this type of payment.

If you select a fixed payment, you will be responsible for arranging for your own move, and HIP will assume no liability for any loss or damage of your personal property. A fixed payment also includes utility hook-up, credit check and other related moving fees.

B. Actual Moving Expense (Professional Move)
If you wish to engage the services of a licensed commercial mover and have HIP pay the bill, you may claim the ACTUAL cost of moving your personal property up to 50 miles.

Your relocation representative will inform you of the number of competitive moving bids (if any) which may be required, and assist you in developing a “mover” scope of services for HIP’s approval.

Fixed Moving Schedule
CALIFORNIA (Effective 2021)
Occupant owns furniture:
1 room $780
2 rooms $1,000
3 rooms $1,250
4 rooms $1,475
5 rooms $1,790
6 rooms $2,065
7 rooms $2,380
8 rooms $2,690
Each additional room $285
Occupant does NOT own furniture:
1 room $510
Each additional room $100

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4. REPLACEMENT HOUSING PAYMENT - TENANTS AND CERTAIN OTHERS

You may be eligible for a payment of up to $5,250.00 to assist you in renting or purchasing a comparable replacement dwelling. In order to qualify, you must either be a tenant who has occupied the present dwelling for at least 90 days prior to the initiation of negotiations or an owner who has occupied the present dwelling between 90 and 180 days prior to the initiation of negotiations.

A. Rental Assistance. If you qualify, and wish to rent your replacement dwelling, your maximum rental assistance benefits will be based upon the difference over a forty-two (42) month period between the rent you must pay for a comparable replacement dwelling and the lesser of your current rent and estimated utilities or thirty percent (30%) of your gross monthly household income. You will be required to provide your relocation representative with monthly rent and household income verification prior to the determination of your eligibility for this payment.
- OR -

B. Down-payment Assistance. If you qualify, and wish to purchase a home as a replacement dwelling, you can apply up to the total amount of your rental assistance payment towards the down-payment and non-recurring incidental expenses. Your relocation representative will clarify procedures necessary to apply for this payment.

Where a tenant is sharing a dwelling with an owner-occupant and paying the owner-occupant rent for the privilege, the tenant shall not be entitled to more than one-half of the rental assistance otherwise payable.

5. SECTION 8 TENANTS

When you do move, you may be eligible to transfer your Section 8 eligibility to a replacement site. In such cases, a comparable replacement dwelling will be determined based on your family composition at the time of displacement and the current housing program criteria. This may not be the size of the unit you currently occupy. Your relocation representative will provide counseling and other advisory services along with moving benefits.

6. QUALIFICATION FOR, AND FILING OF, RELOCATION CLAIMS

To qualify for a Replacement Housing Payment, you must rent or purchase and occupy a comparable replacement unit within one year from the following:

 For a tenant, the date you move from the displacement dwelling.  For an owner-occupant, the latter of:
a. The date you receive final payment for the displacement dwelling, or, in the case of condemnation, the date the full amount of estimated just compensation is deposited in court,: or

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b. The date you move from the displacement dwelling.

All claims for relocation benefits must be filed with HIP within eighteen (18) months from the date on which you receive final payment for your property, or the date on which you move, whichever is later.

7. LAST RESORT HOUSING ASSISTANCE

If comparable replacement dwellings are not available when you are required to move, or if replacement housing is not available within the monetary limits described above, HIP will provide Last Resort Housing assistance to enable you to rent or purchase a replacement dwelling on a timely basis. Last Resort Housing assistance is based on the individual circumstances of the displaced person. Your relocation representative will explain the process for determining whether or not you qualify for Last Resort assistance.

If you are a tenant, and you choose to purchase rather than rent a comparable replacement dwelling, the entire amount of your rental assistance and Last Resort eligibility must be applied toward the down-payment and eligible incidental expenses of the home you intend to purchase.

8. EVICTIONS

Any person, who occupies the real property and is not in unlawful occupancy, is presumed to be entitled to relocation benefits. Except for the causes of eviction set forth below, no person lawfully occupying property will be required to move without having been provided with at least 90 days written notice from HIP. Eviction will be undertaken only in the event of one or more of the following reasons:

 Failure to pay rent; except in those cases where the failure to pay is due to the lessor's failure to keep the premises in habitable condition, is the result of harassment or retaliatory action or is the result of discontinuation or substantial interruption of services;
 Performance of dangerous illegal act in the unit;
 Material breach of the rental agreement and failure to correct breach within the legally prescribed notice period;
 Maintenance of a nuisance and failure to abate within a reasonable time following notice;
 Refusal to accept one of a reasonable number of offers of replacement dwellings; or  The eviction is required by State or local law and cannot be prevented by reasonable efforts on the part of the public entity.

9. APPEAL PROCEDURES - GRIEVANCE

Any person aggrieved by a determination as to eligibility for a relocation payment, or the amount of a payment, may have the claim reviewed or reconsidered in accordance with HIP’s appeals procedure. Complete details on appeal procedures are available upon request from HIP.

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10. TAX STATUS OF RELOCATION BENEFITS

California Government Code Section 7269 indicates no relocation payment received shall be considered as income for the purposes of the Personal Income Tax Law, Part 10 (commencing with Section 170 01) of Division 2 of the Revenue and Taxation Code, or the Bank and Corporation Tax law, Part 11 (commencing with Section 23001) of Division 2 of the Revenue and Taxation Code. Furthermore, federal regulations (49 CFR Part 24, Section 24.209) also indicate that no payment received under this part (Part 24) shall be considered as income for the purpose of the Internal Revenue Code of 1954, which has been redesignated as the Internal Revenue Code of 1986. The preceding statement is not tendered as legal advice in regard to tax consequences, and displacees should consult with their own tax advisor or legal counsel to determine the current status of such payments.

(IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting marketing or recommending to another party any matters addressed herein)

11. NON-DISCRIMINATION AND FAIR HOUSING

No person shall on the grounds of race, color, national origin or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under HIP’s relocation assistance program pursuant to Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, and other applicable state and federal anti-discrimination and fair housing laws. You may file a complaint if you believe you have been subjected to discrimination. For details contact HIP.

12. ADDITIONAL INFORMATION AND ASSISTANCE AVAILABLE

Those responsible for providing you with relocation assistance hope to assist you in every way possible to minimize the hardships involved in relocating to a new home. Your cooperation will be helpful and greatly appreciated. If you have any questions at any time during the process, please do not hesitate to contact your relocation representative at Autotemp.

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ATTACHMENT 4
Appeals Policy/Grievance Procedure

6150. Purpose.

The purpose of this grievance procedure is to set forth the appeals process from BHDC determinations as to eligibility, the amount of payment, and for processing appeals from persons aggrieved by EDEN’s failure to refer them to comparable permanent or adequate temporary replacement housing.
6152. Right of Review.

(a) Any complainant; that is any person who believes himself aggrieved by a determination as to eligibility, the amount of payment, the failure of EDEN to provide comparable permanent or adequate temporary replacement housing or EDEN’s property management practices may, at his election, have his claim reviewed and reconsidered by EDEN (other than the person who made the determination in question) in accordance with the procedures set forth in this article, as supplemented by the procedures EDEN shall establish for such review and reconsideration.

(b) A person or organization directly affected by the relocation plan may petition the Department of Housing and Community Development (“Department”) to review the final relocation plan of EDEN to determine if the plan is in compliance with state laws and guidelines or review the implementation of a relocation plan to determine if EDEN is acting in compliance with its relocation plan. Review undertaken by the Department under this section shall be in accordance with the provisions of sections 6158 and may be informal.

Before conducting an investigation, the Department should attempt to constrain disputes between parties. Failure to petition the Department shall not limit a complainant’s right to seek judicial review. The Department can be petitioned through the following address:

Department of Housing and Community Development (Department), Legal Affairs Division
2020 West El Camino Avenue
Sacramento, CA 95833 916.263.2769
(c) If a relocation appeals board has been established pursuant to Section 33417.5 of the Health and Safety Code, a city by ordinance may designate the board to hear appeals from local public entities which do not have an appeal process. In the absence of such an ordinance, public entities shall establish procedures to implement the provisions of this Article.

(d) The appellant does not have to exhaust administrative remedies first; the appeal/grievance can either go directly to the city, directly to the Department or directly to the Court.
6154. Notification to Complainant. If EDEN denies or refuses to consider a claim, EDEN’s notification to the complainant of its determination shall inform the complainant of its reasons and the applicable procedures for obtaining review of the decision. If necessary, such notification shall be printed in a language other than English in accordance with section 6046.

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6156. Stages of Review by EDEN.

(a) Request for Further Written Information. A complainant may request EDEN to provide him with a full written explanation of its determination and the basis therefore, if he feels that the explanation accompanying the payment of the claim or notice of the entity’s determination was incorrect or inadequate. EDEN shall provide such an explanation to the complainant within three weeks of its receipt of his request. (b) Informal Oral Presentation. A complainant may request an informal oral presentation before seeking formal review and reconsideration. A request for an informal oral presentation shall be filed within the period described in subsection (d) of this section, and within 15 days of the request EDEN shall afford the complainant the opportunity to make such presentation. The complainant may be represented by an attorney or other person of his choosing. This oral presentation shall enable the complainant to discuss the claim with the head of EDEN or a designee (other than the person who made the initial determination) having authority to revise the initial determination on the claim.

EDEN shall make a summary of the matters discussed in the oral presentation to be included as part of its file. The right to formal review and reconsideration shall not be conditioned upon requesting an oral presentation.
(c) Written Request for Review and Reconsideration. At any time within the period described in subsection (d) a complainant may file a written request for formal review and reconsideration. The complainant may include in the request for review any statement of fact within the complainant’s knowledge or belief or other material which may have a bearing on the appeal. If the complainant requests more time to gather and prepare additional material for consideration or review and demonstrates a reasonable basis therefor, the complainant’s request should be granted.

(d) Time Limit for Requesting Review. A complainant desiring either an informal oral presentation or seeking a formal review and reconsideration shall make a request to EDEN within eighteen months following the date he moves from the property or the date he receives final compensation for the property, whichever is later. 6158. Formal Review and Reconsideration by EDEN.

(a) General. EDEN shall consider the request for review and shall decide whether a modification of its initial determination is necessary. This review shall be conducted by the head of EDEN or an authorized, impartial designee. (The designee may be a committee). A designee shall have the authority to revise the initial determination or the determination of a previous oral presentation. EDEN shall consider every aggrieved person’s complaint regardless of form, and shall, if necessary provide assistance to the claimant in preparing the written claim. When a claimant seeks review, EDEN shall inform him that he has the right to be represented by an attorney, to present his case by oral or documentary evidence, to submit rebuttal evidence, to conduct such cross- examination as may be required for a full and true disclosure of facts, and to seek judicial review once he has exhausted administrative appeal.

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(b) Scope of Review. EDEN shall review and reconsider its initial determination of the claimant’s case in light of:
(1) All material upon which the EDEN based its original determination including all applicable rules and regulations, except that no evidence shall be relied upon where a claimant has been improperly denied an opportunity to controvert the evidence or cross-examine the witness.
(2) The reasons given by the claimant for requesting review and reconsideration of the claim.
(3) Any additional written or relevant documentary material submitted by the claimant.
(4) Any further information which EDEN in its discretion, obtains by request, investigation, or research, to ensure fair and full review of the claim.

(c) Determination on Review by EDEN.
(1) The determination on review by EDEN shall include, but is not limited to:
(A) EDEN’s decision on reconsideration of the claim.
(B) The factual and legal basis upon which the decision rests, including any pertinent explanation or rationale.
(C) A statement to the claimant of the right to further administrative appeal, if EDEN has such an appeal structure, or if not, a statement to the claimant that administrative remedies have been exhausted and judicial review may be sought.
(2) The determination shall be in writing with a copy provided to the claimant. (d) Time Limits.
(1) EDEN shall issue its determination of review as soon as possible but no later than 6 weeks from receipt of the last material submitted for consideration by the claimant or the date of the hearing, whichever is later. (2) In the case of complaints dismissed for untimeliness or for any other reason not based on the merits of the claim, EDEN shall furnish a written statement to the claimant stating the reason for the dismissal of the claim as soon as possible but not later than 2 weeks from receipt of the last material submitted by the claimant or the date of the hearing, whichever is later.
6160. Refusals to Waive Time Limitation. Whenever EDEN rejects a request by a claimant for a waiver of the time limits provided in section 6088, a claimant may file a written request for review of this decision in accordance with the procedures set forth in sections 6156 and 6158, except that such written request for review shall be filed within 90 days of the claimant’s receipt of EDEN’s determination.
6162. Extension of Time Limits. The time limits specified in section 6156 may be extended for good cause by EDEN.

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6164. Recommendations by Third Party. Upon agreement between the claimant and EDEN, a mutually acceptable third party or parties may review the claim and make advisory recommendations thereon to the head of EDEN for its final determination. In reviewing the claim and making recommendations to EDEN, the third party or parties shall be guided by the provisions of this Article.
6166. Review of Files by Claimant. Except to the extent the confidentiality of material is protected by law or its disclosure is prohibited by law, EDEN shall permit the claimant to inspect all files and records bearing upon his claim or the prosecution of the claimant’s grievance. If a claimant is improperly denied access to any relevant material bearing on the claim, such material may not be relied upon in reviewing the initial determination. 6168. Effect of Determination on Other Persons. The principles established in all determinations by EDEN shall be considered as precedent for all eligible persons in similar situations regardless of whether or not a person has filed a written request for review.

All written determinations shall be kept on file and available for public review. 6170. Right to Counsel. Any aggrieved party has a right to representation by legal or other counsel at his expense at any and all stages of the proceedings set forth in these sections.
6172. Stay of Displacement Pending Review. If a complainant seeks to prevent displacement, EDEN shall not require the complainant to move until at least 20 days after it has made a determination and the complainant has had an opportunity to seek judicial review. In all cases EDEN shall notify the complainant in writing 20 days prior to the proposed new date of displacement.
6174. Joint Complainants. Where more than one person is aggrieved by the failure of EDEN to refer them to comparable permanent or adequate temporary replacement housing the complainants may join in filing a single written request for review. A determination shall be made by EDEN for each of the complainants.
6176. Judicial Review. Nothing in this Article shall in any way preclude or limit a claimant from seeking judicial review of a claim upon exhaustion of such administrative remedies as are available under this Article.

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CITY COUNCIL

STAFF REPORT
MEETING DATE: June 26, 2023
ITEM TITLE: Consideration of Adopting a Resolution Authorizing the City Manager to Execute the Agreement to Abandon Non-Conforming Use; Settlement Agreement and Release and Assignment of Lease at 1144 El Camino Real, San Carlos to City; and Authorizing an Appropriation of $390,000 in Fiscal Year (FY) 2022-23, $96,000 in FY 2023-24, and $98,000 in FY 2024-25 from the General Fund Unassigned Fund Balance to Cover the Settlement and Ongoing Lease and
Maintenance Costs.

RECOMMENDATION:

Staff recommends that the City Council adopt a Resolution authorizing the City Manager to execute the Agreement to Abandon Non-Conforming Use; Settlement Agreement and Release (the “Agreement”) and Assignment of Lease at 1144 El Camino Real to City; and authorizing an appropriation of $390,000 in Fiscal Year (FY) 2022-23, $96,000 in FY 2023-24, and $98,000 in FY 2024-25 from the General Fund Unassigned Fund Balance to cover the Settlement and ongoing lease and maintenance costs.

FISCAL IMPLICATIONS:

The agreement to abandon non-conforming use and assignment of lease at 1144 El Camino Real, San Carlos (the “Property”) provides for a one-time payment of $390,000 to Imbert & Smithers, Inc., the current occupant of the Property. The Lease will be assigned to the City, resulting in monthly payments initially at $7,300 per month pursuant to the Agreement. Approval of this resolution will require a budget appropriation in the amount of $390,000 for Fiscal Year FY 2022- 23 for the initial assignment of the lease, and additional appropriations of $96,000 in FY 2023-24 and $98,000 in FY 2024-25 from the General Fund Unassigned Fund Balance for monthly lease payments and maintenance costs. There are sufficient funds available in the General Fund Unassigned Fund Balance to cover this request.

The main terms of the Agreement are as follows:
•Payment to Imbert & Smithers in the amount of $390,000 •Release of all potential claims against the City
•Agreement that the existing non-conforming use at the Property is abandoned •Settlement amount payable within 30 days from Assignment of Lease •Owner/Landlord of Property approves Assignment of the Lease for the Property •Imbert & Smithers will have 30 days from Lease Assignment to clear premises of all trade fixtures and personal property
•Assignment of corporate and trade names held by Imbert & Smithers to City

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BACKGROUND:

Imbert & Smithers, Inc. (“Imbert”) has operated a sporting goods store including sale and service of firearms, ammunition, reloading supplies, gunpowder, and other related items (the “Use”) located at 1144 El Camino Real, San Carlos, California 94070 (the “Property”) since 1969. Imbert executed its most recent lease of the Property, effective January 1, 2023 (the “Lease”) with the property owner. The Lease expires at noon on February 1, 2027. The Lease includes an acknowledgement by Imbert that the leased premises are subject to all zoning laws, ordinances, and regulations applicable to and regulating the use of the Premises. The current base rent under the Lease is $7,300 per month.

In 2019, the City enacted zoning ordinances that limited the permissible locations of firearms retail and related uses in the City. As a result of this change, the Property is not a permitted location for a firearms and ammunition retailer and other related uses. The City further enacted ordinances that require firearms and ammunition retailers to obtain an annual law enforcement permit with background checks and other security requirements, such as security cameras and retention of 36 months of video surveillance (Chapter 5.13). Imbert did not comply with the three year video requirement beginning in 2022. On December 31, 2022, Imbert’s Federal Firearms License to sell firearms and ammunition was revoked and it removed all firearms from the premises and ceased selling firearms and ammunition at the Property.

Imbert has been in negotiations with a potential firearms dealer to reopen the business at the Property. The questions of whether Imbert qualifies for a law enforcement permit, whether it has violated City ordinances regarding obtaining a law enforcement permit for a firearms and ammunition retailer use, whether the use is grandfathered as provided in the Municipal Code, such that a purchaser of the business could locate at the Property, whether expansion could be allowed for a subsequent purchaser if the use were grandfathered, and whether the use can continue are disputed (the “Dispute”).

Imbert and Rolsky-Feige contend that the firearms and ammunition retailer use is grandfathered under the City zoning ordinances at San Carlos Municipal Code section 18.19.090. City contends that the firearms retailer use was abandoned at the time Imbert’s federal firearms license expired because the use associated with retail sales and service of firearms and ammunition ceased and that the site was vacated for this purpose when all guns and ammunition were removed from the premises. Due to the loss of the Federal Firearms dealer license as of December 31, 2022, the Property can no longer be used to sell firearms and ammunition. The six months for grandfathering of a non-conforming use will pass in the near term. City interprets its ordinances such that once the six month period runs, the Property will no longer be eligible for use as a firearms and ammunition retailer unless otherwise permitted under the San Carlos Municipal Code. City further contends that Imbert has not met the requirements for issuance of or continuance of a law enforcement permit.

Based on the City’s clear policy decision that the Property is not a proper or safe location for a firearms and ammunition retail location, given its proximity to other retail uses, residential neighborhoods, daycare uses and other sensitive uses, the location of the Property is not appropriate for a firearms dealer use and that resolution of the Dispute is appropriate, and accomplishes a public purpose benefitting the community.

As part of the Settlement of the Dispute, City, Imbert and the owner of the Property will agree to an assignment of the Lease to the City, which the City is considering as a potential option for relocation of other businesses displaced by proposed housing projects in the City or for other

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permitted uses consistent with the zoning district.

ANALYSIS:

Approval of the Agreement and assignment of the lease will accomplish the City’s goal of prohibiting firearms dealers in this zoning district. The firearms retailer non-conforming use will be abandoned at this location.

ALTERNATIVES:

The alternatives available to the City Council include:

1. Adopt a Resolution authorizing City Manager to execute the Agreement to Abandon Non-Conforming Use; Settlement and Release and Assignment of Lease at 1144 El Camino Real to City and Authorize an appropriation of $390,000 in Fiscal Year (FY) 2022-23 and $96,000 in FY 2023-24 and $98,000 in FY 2024-25 from the General Fund Unassigned Fund Balance to cover the Settlement and ongoing lease and maintenance costs; or

2. Do not adopt the Resolution; or

3. Provide staff with alternative direction.

Respectfully submitted by:

Gregory Rubens, City Attorney
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):

1. Resolution

2. Agreement to Abandon Non-Conforming Use and Settlement Agreement

3. Assignment of Lease at 1144 El Camino Real to City

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4883-7353-0219 v2
RESOLUTION NO. 2023-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS

AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT ABANDONING NON-CONFORMING USE; SETTLEMENT AGREEMENT AND RELEASE AND ASSIGNMENT OF LEASE AT 1144 EL CAMINO REAL; AND AUTHORIZING AN APPROPRIATION OF $390,000 IN FISCAL YEAR (FY) 2022-23, $96,000 IN FY 2023-24 AND $98,000 IN FY 2024-25 FROM THE GENERAL FUND UNASSIGNED FUND BALANCE TO COVER THE SETTLEMENT AND ONGOING LEASE AND MAINTENANCE COSTS. ____________________________________________________________________________ WHEREAS, Imbert & Smithers, Inc. (“Owner”) operated a business as a sporting goods store including sale and service of firearms, ammunition, reloading supplies, gunpowder, and other related items (the “Use”) located at 1144 El Camino Real, San Carlos, California 94070 (the “Property”); and
WHEREAS, Owner executed a lease of the Property, effective January 1, 2023 (the “Lease”) with the property owner. The Lease expires at noon on February 1, 2027. The Lease includes an acknowledgement by Owner that the leased premises are subject to all zoning laws, ordinances, and regulations applicable to and regulating the use of the Premises; and WHEREAS, in 2019, City enacted zoning ordinance amendments that limited the permissible location of firearms retail businesses in the city. As a result of this change, the Property is not a permitted location for a firearms and ammunition retailer and other related uses.

The City further enacted ordinances that require firearms and ammunition retailers to obtain an annual law enforcement permit with background checks and other security requirements, such as security cameras and retention of 36 months of video surveillance (Chapter 5.13); and WHEREAS, on December 31, 2022, the Owner and Jeana Rolsky-Feige’s (“Rolsky- Feige”) Federal Firearms License to sell firearms and ammunition was revoked and Owner was required by law to cease selling firearms and ammunition at the Property. She removed all firearms and ammunition from the Property pursuant to the revocation of the Federal Firearms Permit; and
WHEREAS, issues exist between City and Owner whether or not the Owner qualifies for a law enforcement permit, whether the Owner has violated City ordinances regarding obtaining a law enforcement permit for a firearms and ammunition retailer use, whether the use is grandfathered as provided in the Municipal Code, whether expansion could be allowed for a subsequent purchaser if the use were grandfathered, and whether the use can continue (the “Dispute”). The Owner and Rolsky-Feige contend that the firearms and ammunition retailer use is grandfathered under the City zoning ordinances at San Carlos Municipal Code section

18.19.090. City contends that the firearms retailer use was abandoned at the time the Owner’s federal firearms license expired because the use associated with retail sales and service of firearms and ammunition ceased and that the site was vacated for this purpose when all guns and ammunition for sale were removed. Due to the loss of the Federal Firearms dealer license as of December 31, 2022, the Property can no longer be used to sell firearms and ammunition. City also contends that the six months for grandfathering of a non-conforming use will pass in the near term. After the six months passes, City interprets its ordinances such that the Property will no longer be eligible for use as a firearms and ammunition retailer unless otherwise permitted under the San Carlos Municipal Code. City further contends that Owner has not met the requirements for issuance of or continuance of a law enforcement permit; and

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4883-7353-0219 v2
WHEREAS, based on the City’s clear and unambiguous policy decision that the Property is not a proper or safe location for a firearms and ammunition retail location, given its proximity to other retail uses, residential neighborhoods, daycare and preschool uses and other sensitive uses, the City Council finds that the location of the Property is not appropriate for a firearms dealer use and further finds that resolution of the dispute over grandfathering and the law enforcement permit and as identified above is appropriate, and accomplishes a public purpose benefitting the community; and
WHEREAS, Owner and Rolsky-Feige have agreed that the non-conforming use of the Property for retail sales of firearms and ammunition and associated uses has been abandoned; and
WHEREAS, Owner and the owner of the Property have agreed to an assignment of the Lease to the City, which the City is considering as a potential option for relocation of other businesses displaced by proposed housing projects in the City or for other uses consistent with the zoning district.

NOW, THEREFORE, BE IT FOUND, DETERMINED AND RESOLVED by the City Council of the City of San Carlos that:
a. The above recitals are incorporated by this reference. b. The City agrees to resolve the above described Dispute in exchange for the sum of $390,000 and other consideration as described in the Agreement Abandoning Non- Conforming Use; Settlement Agreement and Release (the “Agreement”) and the Assignment of Lease. The terms are reasonable, promote a public purpose and benefit the community by preventing a firearms dealer from reestablishing a firearms retailer use at a location where such uses are prohibited.
c. The Assignment of Lease is consistent with the City’s General plan. d. The City Manager is hereby authorized to sign the Agreement and Assignment of Lease in the form attached to the Staff report on behalf of the City. e. The City Council authorizes an appropriation of $390,000 in FY 2022-23 and $96,000 in FY 2023-24 and $98,000 in FY 2024-25 from the General Fund Unassigned Fund Balance to cover the Settlement and ongoing lease and maintenance costs. *****
I, City Clerk Crystal Mui, hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the City Council of the City of San Carlos at a scheduled meeting thereof held on the 26th day of June 2023, by the following vote:

AYES, COUNCILMEMBERS:___________________________________________ NOES, COUNCILMEMBERS:___________________________________________ ABSENT, COUNCILMEMBERS:___________________________________________

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4883-7353-0219 v2
________________________________
CITY CLERK of the City of San Carlos
APPROVED:

___________________________
MAYOR of the City of San Carlos

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CITY COUNCIL

STAFF REPORT
MEETING DATE: June 26, 2023
ITEM TITLE: Consideration of Adopting a Resolution Approving the City Attorney Employment Agreement.

RECOMMENDATION:

Staff recommends that the City Council adopt a Resolution approving the City Attorney Employment Agreement.

FISCAL IMPLICATIONS:

There is no fiscal impact or additional appropriation needed at this time. The total compensation for the City Attorney position was included in the Fiscal Year (FY) 2023-25 Adopted Biennial Budget.

BACKGROUND:

On May 5, 2023, the City Council held a budget study session to discuss staff recommendations for the FY 2023-25 Biennial Budget. Included in those recommendations was a discussion about reclassifying the part-time contract City Attorney position into a full-time, in-house City Attorney position. As discussed during the meeting, the need for legal services has increased dramatically since the position was first contracted and staff and Council are frequently competing with other agencies and Joint Powers Authorities (JPAs) for the City Attorney’s time.

ANALYSIS:

As a full-time, in-house position, the City Attorney would serve as a regular staff position and team member. This would provide staff with streamlined and timely access to legal services and advice.

The full-time City Attorney would continue to oversee and liaise with specialized, outsourced legal services provided by multiple legal agencies, on an as-needed basis.

The attached contract has been modeled from the City Manager agreement and includes the following:
•Appointment: The position will be at-will, with an effective date of July 31, 2023. •Compensation: An annual salary of $300,000, effective the first full pay period beginning after the effective date of the appointment, and eligible for the same cost of living and benefits offered to the Management Group.

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•Pension, Health, and Welfare Benefits: The City will provide City Attorney the same benefit programs, including medical, dental, life insurance, disability plans and post- employment benefits, on the same terms as offered to the City's current Management Group employees hired by the City before January 1, 2009. The City acknowledges that the City Attorney has previously vested in the right to post-retirement medical benefits under City policies after having completed 10 years of service to the City. •Vacation and Leave Balances: The City Attorney will be entitled to accrue vacation leave at the rate offered to the Management Group, and as of the effective date, shall have ten (10) days of vacation leave, five (5) days of administrative leave, and one (1) floating holiday on his leave banks.
•Life Insurance: The City Attorney will be provided with term life insurance in the amount of $400,000.
•Deferred Compensation: The City agrees to make monthly payments of $1,150 into the deferred compensation plan.
•Automobile Allowance: City will pay the City Attorney a monthly automobile allowance of $665, which shall increase annually per the applicable cost of living not to exceed $25 per month, subject to applicable withholdings.

ALTERNATIVES:

The alternatives available to the City Council include:

1. Adopt a Resolution approving the City Attorney Employment Agreement; or

2. Do not adopt the Resolution; or

3. Provide staff with alternative direction.

Respectfully submitted by:

Rebecca Mendenhall, Administrative Services Director
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):

1. Resolution

2. City Attorney Employment Agreement

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RESOLUTION NO. 2023 – ____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS APPROVING THE CITY ATTORNEY EMPLOYMENT AGREEMENT.

WHEREAS, on May 5, 2023, the City Council discussed the reclassification of the part- time contract City Attorney position to a full-time, in-house City Attorney position; and WHEREAS, the Fiscal Year 2023-25 Adopted Biennial Budget includes funding for this position; and
WHEREAS, the City Council has reviewed and agrees to the terms of the employment agreement.

NOW, THEREFORE BE IT RESOLVED, that the San Carlos City Council hereby approves the City Attorney employment agreement.
* * * * *
I, City Clerk Crystal Mui, hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the City Council of the City of San Carlos at a scheduled meeting thereof held on the 26th day of June 2023, by the following vote:

AYES, COUNCILMEMBERS:___________________________________________ NOES, COUNCILMEMBERS:___________________________________________ ABSENT, COUNCILMEMBERS:___________________________________________ ________________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos

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EMPLOYMENT AGREEMENT BETWEEN

THE CITY OF SAN CARLOS AND GREGORY
J. RUBENS

This Employment Agreement ( "Agreement") is entered into by the City of San Carlos , a municipal corporation (hereinafter "City" or "Employer"), and Gregory J. Rubens, ("Employee").

City and Employee may be collectively referred to herein as the "Parties."

Recitals

A. The City Council ("Council") and Employee entered into an agreement effective on December 16, 2008, whereby the Council retained the services of Employee in the position of City Attorney (the "Original Agreement"), which Agreement has been in continuous force and effect since that date; and

B. The Original Agreement provided for City Attorney Services to the City and allowed Employee to be employed by an outside law firm and provide legal services to other clients not in conflict with services provided to the City . The Original Agreement was amended from time to time to provide for the adjustment of the salary of Employee and to add or clarify certain specified benefits. Council desires to continue to employ Employee i n the position of City Attorney, to increase the time the City Attorney i s available to provide services, to establish that the City Attorney will be employed exclusively by the City, with limited exceptions and to provide for updated terms and conditions of employment for Employee; and

C. Employee desires to continue to provide uninterrupted services as the City Attorney for the City of San Carlos under the terms and conditions set forth herein; and

D. Employee is willing to work for t he City on an “in -house” basis and remains qualified to provide such services to the City.

Terms of
Agreement

In consideration of the mutual covenants contained herein, the Parties agree as follows:

1. Appointment

The Council agrees to continue to employ Employee as City Attorney to perform the functions and duties of City Attorney specified by state law and as may be articulated in the San Carlos Municipal Code, and to perform duties and functions as the Council may from time to time reasonably assign. This appointment and employment hereunder are "at­will" and may be terminated by the Council as provided in Section 4. Nothing in this Agreement prevents, limits or otherwise interferes with the right of either party to terminate the services of Employee at any time, except as provided in Section 4. Employee's appointment and employment herein are continuous from his initial appointment and employment under the Original Employment Agreement.

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2. Duties and Restrictions

Employee agrees to devote Employee's best efforts, attention, and skills to performance of the duties of the position of City Attorney. Employee may not engage, without the express prior written consent of the City Council, in any other business duties or pursuits whatsoever or, directly or indirectly, render any services of a business, commercial or professional nature to any other person or organization, whether for compensation or otherwise, that might cause a conflict of interest with the Employer or that might otherwise interfere with the business or operations of the City or the satisfactory performance of Employee's duties.

3. Term

This Agreement is effective as of July 31, 2023 ("Effective Date"), unless an earlier date is mutually agreed upon by Employee and the City Manager, will govern the terms and conditions of Employee's employment as of that date, and will remain in force and effect until terminated under Section 4.

4. Termination and Severance Pay

Notwithstanding anything in this Agreement to the contrary, the term of this Agreement may be terminated as follows by a 3/5 vote of the full Council:

A. Voluntary Resignation. Employee may voluntarily r esign from employment with the City. If Employee voluntarily resigns or retires from employment with the City, Employee is requested to give the City 60 days advance written notice, unless the parties agree otherwise. At the City’s option, Employee may be requested to work or requested not to report to work during the notice period. In either instance, Employee will receive Employee's regular compensation during the 60-day notice period. If City and Employee mutually agree to a shorter notice period, Employee will only be entitled to compensation during that mutually agreed upon amended notice period.

B. Termination by City. The City may terminate Employee in accordance with the following:

1. With Cause. This Agreement may be terminated by Council for cause or misconduct by Employee. Written notice must be provided to Employee at least 30 days before the termination date setting forth the grounds for termination. If requested by the Employee within 10 days of receipt of the notice, Council will hold a meeting to consider the termination. The meeting will occur within 20 days of the request or at such time as is mutually agreed upon by the Parties. If Employee request s, Council will hold a public session as provided in Government Code Section 54957(b). At the meeting, Council may determine whether or not Employee should be terminated. Employee is not entitled to severance pay if Council determines to terminate Employee for cause. For purposes of this Agreement, "cause or misconduct" means:

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• Willful breach or habitual neglect of duty of any City policy or procedure or any term of this Agreement;
• The commission any material act of dishonesty, fraud, misrepresentation or any other act of moral turpitude;
• Gross carelessness or misconduct;
• Conviction of any felony, or conviction of any misdemeanor arising out of Employee's duties under this agreement and involving a willful or intentional violation of law;
• Misappropriation of public funds, or misuse or destruction of City property; • Acts or conduct that may present an immediate danger to the public health and safety;
• Insubordination, which means the willful refusal to obey lawful direction of the Council;
• Violation of City harassment or discrimination policies; • Abuse of office or position; or,
• Absence without leave or death.

2. Without Cause. The Parties agree that circumstances may arise under which Council may wish to terminate this Agreement without reference to specific issues or failure to perform on the part of Employee. If Council terminates Employee without reference to specific cause or misconduct (as defined in Section 4.B.1 above), or if Council restructures the office of the City Attorney as a part-time or a contract position, then Council will provide Employee with notice of such decision and Employee will be entitled to severance pay equal to twelve (12) months’ salary calculated at Employee's base salary in effect at the time notice is given, payable in a lump sum as of Employee’s separation date . In addition, the City will pay COBRA benefits (medical, dental, vision) on a reimbursement basis for Employee and family for twelve (12) months, or until Employee secures alternate employment, whichever comes first. The Parties agree that any termination under this provision will not be initiated: (a) during the 90-day period succeeding any municipal election held in the City at which a member of the City Council is elected; or (b) during the 90 day period succeeding the appointment of any member to the City Council. Nothing in this provision prohibits the placement of Employee on paid administrative leave during any period during which termination without cause is prohibited by this provision. In addition, nothing in this provision prohibits Employee from resigning from employment with the City at any time. Payment of any severance will be made in accordance with Government Code Section 53260 and is contingent on Employee signing a full general release of all claims to include a mutual non-disparagement clause.

C. Pay Upon Termination. Upon termination of employment for any reason, Employee will be paid for services rendered through the date of termination, including payment for all accumulated and unused vacation leave at employee's base

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hourly rate of pay (determined by dividing employee's annual salary by 2,080 hours) as required by law.

5. Abuse of Office

A. In the event City places Employee on paid leave pending an investigation, Employee must fully reimburse such pay to the City if Employee is subsequently convicted of a crime involving an abuse of his office or position.

B. In the event City funds all or part of a legal criminal defense for Employee, Employee must full reimburse such funds to the City if Employee is subsequently convicted of a crime involving an abuse.

C. In the event this Agreement is terminated and Employee receives a cash payment related to the termination, Employee must fully reimburse those funds to the City if Employee is subsequently convicted of a crime involving an abuse of Employee's office or position.

D. For purposes of this Section, "abuse of office or position" is defined in Government Code Section 53243.4.

6. Disability

If Employee is medically unable, with or without reasonable accommodation, to perform the essential functions of the position, City may terminate this Agreement subject to the severance pay requirements of Section 4.B.2 above.

7. Salary

A. City agrees to compensate Employee for services rendered in the position of City Attorney at an annual salary of $300,000.00 effective as of the first day of the first full pay period beginning on or after Employee’s first day of employment . The salary paid to Employee will be paid in installments on the City's normal paydays , in accordance with the City's normal pay practices, and will be subject to customary withholding for taxes and other required or authorized deductions.

B. The Parties agree to conduct an annual salary review concurrently with the annual performance evaluation set forth in Section 14. The annual salary review will include consideration of those benefits provided to Employee under this Agreement.

The City Council may, but is not required to, consider or approve merit increases or other compensation enhancements in conjunction with the annual salary review, and may consider cost of living adjustments greater than the adj ustments offered to the Management Group.

C. Employee will be eligible for the same cost of living and benefit

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•
increases offered to the Management Group in each year that such increases are provided.

Except as provided herein, merit and cost of living increases in salary, performance bonuses, or other compensation adjustments will be determined by the City Council in its sole discretion as part of Employee's annual performance evaluation.

8. Pension, Health and Welfare Benefits

Unless modified by this Agreement, City will provide Employee the same benefit programs, including medical, dental, life insurance, disability plans and post-employment benefits, on the same terms as offered to the City's current Management Group employees hired by the City before January 1, 2009. City acknowledges that Employee has previously vested in the right to post -retirement medical benefits under City policies after having completed 10 years of service to the City.

9. Vacation and Administrative Leaves

Employee will be entitled to accrue vacation leave at the rate offered to the Management Group with service of 14 -16 years, which is currently 21 days per year . The Parties agree that as of the Effective Date of this Agreement, Employee shall have ten (10) days of vacation leave, five (5) days of administrative leave , and one (1) fl oating holiday in his leave banks, and that he will thereafter accrue leaves in accordance with those offered to the Management Group.

10. Life Insurance

The City will provide Employee with term life insurance in the amount of $400,000.

Employee understands a portion of this benefit is taxable and that he is responsible for remitting any tax owed.

11. Deferred Compensation

A. The City will provide Employee with access to a qualified deferred compensation plan under Internal Revenue Code Section) days 457, into which Employee may deposit funds from base salary at Employee's discretion and as allowed by law. The City agrees to make monthly payments of $1,150 into the deferred compensation plan. The contributions will not be deemed to increase Employee's base salary for any purpose.

B. The City will provide an Internal Revenue Code Section 401(a) plan into which employee may elect to make contributions in accordance with the plan. The City will make no contributions to Employee's account.

12. Management Benefits

A. Automobile Allowance. City will pay Employee a monthly automobile allowance of $665, which shall increase annually per the applicable cost of living not to exceed $25 per month, subject to applicable withholdings. This automobile allowance is intended to

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fully compensate Employee for the use of Employee's personal vehicle in performing City business.

B. Electronic Devices. The City agrees to provide Employee with a laptop and other necessary peripheral devices.

C. Dues and Subscriptions. The City agrees to budget for and to pay for professional dues and subscriptions of Employee necessary for his continuation and full participation in national, regional, state, and local associations and organizations that are necessary and desirable for Employee's continued professional participation , growth and advancement, and for the good of the City.

D. Professional Development.

1. The City will budget and pay for the costs associated with maintaining Employee's membership in the State Bar and complying with mandatory continuing legal education requirements.

2. Except as provided herein, the City will budget for and to pay for travel and subsistence expenses of Employee for professional and official travel, meeting, and other occasions to continue the professional development of Employee, and to adequately pursue necessary official functions for the City, including but not limited to the Cal Cities City Attorney Department meetings and conferences, and such other national, regional, state and local governmental groups and committees (including community and civic organizations) thereof which Employee serves as a member, and for travel and subsistence expenses of Employee for short courses, institutes and seminars that are necessary for his professional development and for the good of the City. Employee understands and agrees these professional development expenses are subject to budget constraints and that the Council retains discretion to limit expenditures under this paragraph.

13. Work Hours

The position of City Attorney is an exempt employee position. Employee is expected to work the hours necessary to fulfill the obligations of the City Attorney position. As the chief legal officer of the City, the City Attorney is expected to be available at all times and is generally expected to be physically present in the workplace during normal business hours on most days.

In recognition of the position's demands, the Council wishes to provide Employee with the flexibility to determine Employee's own work schedule so long as Employee fulfills all work­ related obligations. The Parties agree that Employee may therefore set Employee's own regular work schedule provided that this schedule averages at least 8 hours per regular workday (including leave taken) over a two-week period.

14. Performance Evaluation

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A. City and Employee acknowledge that periodic performance evaluations are an important means by which City and Employee may ensure effective communications regarding expectations and performance. Toward this end, the Council may review and discuss Employee's performance and set performance goals for Employee on an annual basis in or around February of each calendar year. Employee acknowledges and accepts the fact that Council has the right to schedule an evaluation session more frequently than once a year.

B. Employee or Council may request and schedule the annual performance evaluation as appropriate under Council agenda procedures or as otherwise directed by the Council.

15. Bonds

City will pay the full cost of any fidelity or other bonds required of Employee by law or ordinance.

16. Indemnification

City will defend, hold harmless, and indemnify Employee against any claim, demand, judgment or action of any type or kind arising out of an act or omission occurring within the course and scope of his employment to the extent required by Government Code Sections 825 and 995. In its sole discretion, the City may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered therefrom.

17. Notices

Notices to Employee must be served (1) to Employee personally, or (2) by deposit in the custody of the United States Postal Service, postage prepaid, to Employee's home address on file with the City. Notice is deemed given as of the date of personal service, delivery or deposit, respectively.

Notices to the City must be (1) delivered to the City Clerk personally, (2) delivered to the City Clerk's Office during normal business hours, or (3) deposited in the custody of the United States Postal Service, postage prepaid, address to the City Clerk.

18. Non-Disclosure of Confidential Information

Employee must not, during the term of this Agreement, or any time thereafter, impart to anyone any confidential information which Employee may acquire in the performance of his duties as city attorney under this Agreement, except as permitted by the City or under compulsion of law.

19. General Provisions

A. Construction. "Herein" and other similar compounds of the word "here" mean this entire instrument and not any particular provision. Section headings and numbers

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have been inserted for convenience of reference only and are of no legal effect. In the event of any conflict between any headings or numbers and the text of this Agreement, the text controls.

B. Counterparts. This Agreement may be executed in one or more counterparts, each of which is considered an original, and all of which taken together are considered one and the same instrument.

C. Waiver. Waiver by either party of any term or condition of this Agreement or any breach is not a waiver of any other term or condition or breach of the Agreement.

D. Execution and Applicable Law. This Agreement has been executed in California and is to be governed in accordance with the laws of the State of California in every respect. The Parties agree that venue for any action arising out of this Agreement will be a court of competent jurisdiction siting in or with jurisdiction over actions arising in San Mateo County.

E. Amendment. This Agreement may not be amended or modified except by a written instrument executed by the parties.

F. Entire Agreement. This Agreement contains all of the terms agreed upon by the City and Employee with respect to the subject matter of this Agreement and supersedes all prior agreements, arrangements and communications between the Parties concerning such subject matter, whether oral or written, including but not limited to information published in the job announcement and other recruiting documents pertaining to compensation and benefits of the city manager position.

G. Mediation. Neither party may file any legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The Parties will pay the costs of the mediator, if any, equally. If a mediated settlement is reached, neither party will be deemed the prevailing party for purposes of the settlement and each party will bear its own legal costs.

H. Attorney's Fees. In the event of litigation, reasonable attorney's fees shall be awarded to the prevailing party.

I. Successors. This agreement is binding upon and inure to the benefit of the heirs at law and executors of Employee.

J. Severance of Provisions. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, is considered severable, not affected, and remains in full force and effect.

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IN WITNESS WHEREOF, the City and Employee do hereby agree to the full performance of the terms set forth herein.

City of San Carlos Employee

__________________________________ __________________________________ Adam Rak, Mayor Gregory J. Rubens

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CITY COUNCIL

STAFF REPORT
MEETING DATE: June 26, 2023
ITEM TITLE: Consideration of Introducing an Ordinance(s) Amending the City of San Carlos Municipal Code Title 18 and Title 8.30 to Regulate Laboratories with Biosafety Levels (BSL).

RECOMMENDATION:

The Planning and Transportation Commission (“P&TC” or “Commission”) recommends (Resolution PTC2023-05) that the City Council adopt an Ordinance amending San Carlos Municipal Code Title 18 to prohibit activities requiring Biosafety Level (BSL) 4 containment and to allow for activities requiring BSL-3 containment with a conditional use permit as specified in the Ordinance as amended by the Commission.

FISCAL IMPLICATIONS:

There are no direct fiscal implications to the City’s General Fund associated with the City Council adopting an Ordinance to regulate research and development activities with assigned biosafety level containment requirements.

The Planning and Transportation Commission’s recommended Ordinance, which would allow BSL-3 activities with a Conditional Use Permit (CUP) and prohibit BSL-4 activities, requires the applicant to submit an Annual Report as a part of monitoring compliance with the CUP. The City would issue a request for qualifications (RFQ) to solicit proposals from potential on-call consultants to conduct a peer review of the submitted Annual Report. The on-call consultant would also inspect the facility to ensure that the facility complies with the CUP conditions of approval and is as represented in the land use application prior to commencement of operations.

Inspections would continue on an annual basis until such a time as the activities cease and the facility is decommissioned, at which time a special decommissioning inspection would be conducted. The applicant would pay fees for the CUP processing and submit a deposit to pay for the City’s on-call consultant / peer reviewer. Therefore, there are no fiscal implications to the City’s General Fund for the review, processing, annual inspections, and reporting.

BACKGROUND:

Summary
The Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) use biosafety levels to identify the special building design, safety equipment, and specific practices needed in a laboratory setting to protect workers, the environment, and the public. The four biosafety levels are BSL-1, BSL-2, BSL-3, and BSL-4, with BSL-4 requiring the highest (maximum) level of containment.

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Currently, the City of San Carlos has no regulations specific to biological research activities or biosafety levels. However, the City of San Carlos has recently experienced an unprecedented amount of private sector investment and development, including business and employment growth in the life sciences and biotechnology sectors, especially in the east San Carlos industrial area. Many life science and biotechnology companies conduct biological research activities that require specialized containment referred to as biosafety levels. Adopting regulations for biological research activities requiring containment in accordance with specific biosafety levels will provide protections and transparency for employees, nearby residents, and the overall San Carlos community.

Land use and zoning regulations are one way to regulate laboratories with biosafety levels.

Biosafety is also addressed through:
•Numerous requirements from county, state, and federal agencies which regulate biological research activities
•Requirements around specific building design and safety equipment •Requirements for security protocols and operational requirements •California Building and Fire Codes regulations for floodproofing and elevation, and for seismic activities
Examples of county, state, and federal agencies which regulate biological research activities requiring specialized containment are listed in Attachments 8, 10 and 11.

As of the writing of this staff report, no other cities within San Mateo County or the broader Bay Area have an outright ban on biological research activities requiring BSL-3 containment. Within San Mateo County, the cities of Brisbane, Burlingame, and Millbrae have adopted land use policies and/or regulations that regulate biosafety levels.

Staff has summarized four options for the City Council to consider at this meeting. Staff recommends that the City Council consider options 2 through 4 as shown in Table 1, below:

Table 1. Options for Council Consideration
# Option Description Benefits Challenges
1 Do nothing -Provides the most market
flexibility
-Eliminates the public input
process and oversight
2 Ban BSL-3 & -4 -Saves time for the
Council, P&TC, and staff
-Limits critical research
-Perception that this would
deter development
-Pushes potential for
development to neighboring
cities who may not regulate as
thoroughly as we could
3 Ban BSL-4, and allow
BSL-3 with a CUP
-P&TC’s recommendation
-Increased transparency
and ability to regulate and
monitor on a case-by-case,
agent basis
-Encourages community
participation
-Staff resource constraints due
to significant process times
-Monitoring is ongoing

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-Encourages market
flexibility & innovation
4 Ban BSL-4, and allow
BSL-3 with CUP and
Health & Safety Permit
-Same benefits as option
#3 and adds extra level of
City Council review
-Encourages market
flexibility & innovation
-Extremely rigorous review
process
-Staff resource constraints due
to significant process times
-Monitoring is ongoing
All the options above allow for research and development activities requiring BSL-1 or -2 containment with no additional regulations.

Background
On a policy level, in response to life science development interest, the City created the East Side Innovation District Vision Plan in 2021 to plan for changes in southeast San Carlos (the area defined by Holly Street, Brittan Avenue, Old County Road, and Highway 101). The City has also launched the Northeast Area Specific Plan process to plan for changes for the area north of Holly Street, to the San Carlos city limits at Belmont Creek, and between Highway 101 and Old County Road. The Northeast Area Specific Plan is anticipated for adoption in the fall of 2024.

During the October 25, 2021 City Council meeting, the City Council considered and adopted a resolution to approve the East Side Innovation District Vision Plan. During public comments, a representative from the Greater East San Carlos (GESC) Neighborhood Association requested that the City Council consider regulating the biosafety levels allowed within the city. Similar requests have been made by community members since that time.

During the recent Focused General Plan Update process, the City added the following new action to the Environmental Safety and Public Services Element:

Action ESPS-5.6: Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community.

This staff report is in response to the new guidance in the General Plan and community requests.

Planning and Transportation Commission’s Recommendations During the February 6, 2023 P&TC meeting, City staff and consultants presented an item titled:

Consider a Resolution Recommending the City Council Adopt an Ordinance Amendment to the City of San Carlos Municipal Code Section 18 to Regulate Laboratories with Biosafety Levels (BSL). The staff report and attachments are available on the City’s website at the following link – see Item 6a: https://cityofsancarlos.primegov.com/Portal/Meeting?meetingTemplateId=1407 (See Attachment 4 – Minutes from the February 6, 2023 Planning and Transportation Commission meeting.)
During the meeting, the P&TC conducted the public hearing, voted to continue the item, and requested that staff return to the Commission on March 6, 2023 with additional information about BSL-3 activities and necessary precautions for security, exposure, and seismic and flooding

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events. (See Attachment 7 – Responses to Questions from the Planning and Transportation Commission and Public). The Commission also requested that staff prepare a Zoning Ordinance Amendment option that allows BSL-3 activities with a CUP and prohibits BSL-4 activities.

At the March 6, 2023 P&TC meeting, City staff and consultants presented an item titled:

Consideration of a Resolution Recommending the City Council Adopt an Ordinance Amending San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels (BSL). The staff report and attachments are available on the City’s website at the following link – see Item 8b: https://cityofsancarlos.primegov.com/Portal/Meeting?meetingTemplateId=1581. (See Attachment 5 – Minutes from the March 6, 2023 Planning and Transportation Commission meeting).

The P&TC, at its March 4, 2023 meeting, approved Resolution PTC2023-05, recommending that the City Council adopt an Ordinance amending San Carlos Municipal Code Title 18 to prohibit activities requiring BSL-4 containment and to allow for activities requiring BSL-3 containment with a CUP, as amended by the Commission. The P&TC amended the Ordinance to add a requirement for an inspection of the BSL-3 laboratory, which would occur after the initial CUP approval (before occupancy of the laboratory), on an annual basis as a part of the Annual Report review, and upon decommissioning or closing of the laboratory. This change is reflected in Ordinance 1. (See Attachment 1 – Ordinance Allowing BSL-3 Activities with a Conditional Use Permit and Prohibiting BSL-4 Activities).

City Council Public Hearing
At the March 27, 2023 regular meeting of the City Council, City staff and consultants presented an item titled: Consideration of Introducing an Ordinance Amending the City of San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels (BSL). The staff report and attachments are available at the following link – see Item 10A:
https://cityofsancarlos.primegov.com/Public/CompiledDocument?meetingTemplateId=1422&co mpileOutputType=1 (see Attachment 6 – Minutes from the March 27, 2023 City Council meeting).

After taking public testimony, the City Council voted to continue the item to a date uncertain. A number of comments made during public testimony referenced the City of Boston’s Biological Safety Program ( https://www.boston.gov/government/cabinets/boston-public-health- commission/healthy-homes-and-environment/biological-safety) which is administered by the Boston Public Health Commission. Regulations are promulgated under the health and safety authority of the City, rather than zoning and land use. In order to consider regulating research and development activities requiring specific biosafety levels in a similar manner, staff developed an additional ordinance for consideration by the City Council.

Staff has prepared four options for the City Council’s consideration as outlined in the table above and summarized below:
•Option 1 – Do Nothing. No action is required by the City Council. BSL activities would continue to be regulated by other agencies.
•Option 2 - Ban BSL-3 and -4 activities. Requires the City Council to adopt Ordinance 3. •Option 3 – Ban BSL-4 and allow BSL-3 with CUP. Requires City Council adoption of Ordinance 1 to amend Title 18, Zoning, to allow BSL-3 activities with an approved CUP

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and prohibits BSL-4 activities. This Ordinance was recommended by the Planning and Transportation Commission.
•Option 4 – Ban BSL-4 and allow BSL-3 with a CUP and Health and Safety Permit.

Requires the City Council adopt both Ordinance 1 and Ordinance 2 to amend Title 8, Health and Safety, to require an operating permit for research and development activities that require biosafety level BSL-3 containment with City Council approval, and amend Title 18, Zoning, to allow BSL-3 activities with an approved Conditional Use Permit with Planning and Transportation Commission approval and prohibits BSL-4 activities.

All options above allow for research and development activities requiring BSL-1 or -2 containment with no additional regulations.

ANALYSIS:

The life science and biomedical industry focuses on the research and production of medical and healthcare products. This industry is comprised of many sub-industries. At a high-level, these sub-industries include: biotechnology, pharmaceuticals, medical devices, medical equipment, digital healthcare, and genomics. The proposed regulations would cover the biotechnology industry. The CDC and the NIH use biosafety levels to classify microbiological and biomedical laboratories. The purpose of the BSL classification is to protect workers, the environment, and the public, as well as regulate how hazardous materials are disposed and transported.

The four biosafety levels are BSL-1, BSL-2, BSL-3, and BSL-4, with BSL-4 requiring the highest (maximum) level of containment. The levels are defined in Biosafety in Microbiological and Biomedical Laboratories1 (the BMBL) and are summarized Attachment 11, Table 1. Each level has specific requirements regarding building design, safety equipment, and specific practices required in each laboratory setting.

BSL-1 and BSL-2 labs are the most common types of labs in the Bay Area. BSL-3 labs are much less common in the Bay Area, and none are located in San Carlos.2 BSL-4 laboratories are highly specialized facilities having the most stringent safety and security requirements; there are currently no operational BSL-4 labs in California.3 (See attachment 11 for BSL descriptions).

Typically, BSL-3 labs are assembled for a specific research endeavor and are then decommissioned once the research is completed. It can be extremely difficult to retrofit existing physical spaces to build BSL-3 laboratories. Requirements such as negative airflow and other facility requirements make it difficult to retrofit a building if the mechanical systems were not initially designed to accommodate this use.
1 Centers for Disease Control and Prevention, National Institutes of Health. Biosafety in Microbiological and Biomedical Laboratories. 6th Edition. U.S. Department of Health and Human Services. Revised June 2020.
https://www.cdc.gov/labs/pdf/CDC-BiosafetyMicrobiologicalBiomedicalLaboratories-2020-P.pdf 2 According to USA Today as of 2014, seven (7) BSL-3 laboratories are located in the Bay Area. https://www.usatoday.com/pages/interactives/biolabs/
3 https://www.niaid.nih.gov/research/biosafety-labs-needed

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Currently, the City of San Carlos does not have any adopted regulations specific to biosafety levels. The adopted San Carlos 2030 General Plan 4 does include the following policies which address biosafety levels and hazardous materials:
•Action ESPS-5.6 (Environmental Safety and Public Services Element): Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community. •Policy CSS-4.1 (Community Safety and Services Element): Prohibit uses involving the manufacturing of hazardous materials throughout the city. Hazardous materials are defined in Chapter 6.95, Section 25501 0-1 of the [California] Health and Safety Code.

This policy applies only to the direct manufacture of hazardous substances. It does not apply to the storage or use of such materials in conjunction with permitted industrial uses.

The San Carlos Airport Safety Zone Policies contained within the Airport Land Use Compatibility Plan (ALUCP) includes policies that govern the location of biosafety labs in the Airport Safety Zones. Policy 9.b limits where a biosafety lab can be located and states:

Biosafety Level 1 does not involve hazardous materials and is not subject to the same restrictions as Biosafety Levels 2, 3, and 4. Biosafety Level 2 facilities are not permitted in Safety Zones 1, 2, and 5. Biosafety Level 3 and 4 facilities are not permitted in Safety Zones 1 through 5.

Thus, in the Airport Safety Zone 3, BSL-3 and -4 facilities are not permitted and BSL-1 and -2 facilities are permitted. The ALUCP does not regulate facilities with specified biosafety levels in Zone 6. See Attachment 9 for San Carlos Airport Safety Zones Map.

See Attachment 8 for information on county, state, and federal regulatory agencies.

As of the writing of this staff report, no other cities within San Mateo County or the broader Bay Area prohibit BSL-3 laboratories. However, the cities of Brisbane, Burlingame, and Millbrae have adopted land use policies and/or regulations that regulate biosafety levels (See Attachment 10 – Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions.)
The cities of Menlo Park, Redwood City, San Mateo, and South San Francisco defer regulation to outside agencies, such as San Mateo County, local fire districts, local sanitary districts, and OSHA (Attachment 8, Tables 4 and 5).

The cities of Fremont, Oakland, Palo Alto, and San Francisco have addressed biosafety levels in their zoning regulations, primarily through use definitions for laboratories, life science, research and development, and similar terms (Attachment 8, Table 6) and (See Attachment 10 – Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions.)
The following are the key takeaways from other jurisdictions:
•In these cities, there is a great degree of variation regarding where BSL laboratories may be located (i.e., in which zoning districts) and the associated permitting process. 4 http://www.cityofsancarlos.org/Home/ShowDocument?id=1105

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•In general, BSL-1 and BSL-2 do not require additional performance standards or regulations.
•The regulation of BSL-3 facilities depends on the nature of the zoning district. •Example: In the City of San Francisco’s mixed-use zones, there are no additional restrictions for BSL-3 than for BSL-1 or -2.
•Example: The City of Fremont has incorporated definitions for BSL-1 through -4 into its zoning regulations, and the use tables specifically reference the allowed biosafety levels in specific districts to avoid any ambiguity.

Marketplace Feedback
Feedback has been received from life science and biotechnology developers and industry representatives that allowing the operation of BSL-3 laboratories provides increased flexibility for research and project lease ability. They have shared that prohibiting biological research activities requiring biosafety level BSL-3 containment may put San Carlos in a competitive disadvantage in the marketplace, especially since no other cities in San Mateo County or the overall Bay Area prohibit BSL-3 activities.

Conditional Use Permits (CUPs)
Conditional use permits apply to uses that are generally consistent with the purposes of the underlying zoning district where they are proposed, but require special consideration to ensure that they can be designed, located, and operated in a manner that will not interfere with the use or enjoyment of surrounding properties. CUPs are site-specific, and the CUP application review process allows for the evaluation of a proposed use at a specific site.

The Planning and Transportation Commission has the authority to approve, conditionally approve, or deny applications for CUPs. The proposed use must meet all the required findings for the Planning and Transportation Commission to approve the CUP. The required findings include a list of findings that apply to all CUPs (per Section 18.30.060. Required findings 5). The required findings may also include a list of findings specific to the use, as is the case in Ordinance 1.

Commission approval of CUPs are discretionary (i.e., approval is not “by-right”), and applications are reviewed on a case-by-case basis.

Prior to issuance of the permit, the CUP process allows for public input and consideration by the Planning and Transportation Commission. CUPs are revocable, if the applicant fails to comply with the conditions set forth in the permit (per Section 18.27.140: Revocation of permits of the San Carlos Municipal Code6).

Operating Permit
Title 8, Health and Safety, of the San Carlos Municipal Code provides precedents for permits that serve as a mechanism for verifying that an activity is being conducted in accordance with relevant regulations, and any specific conditions of approval. Examples include Tobacco Retailer permits (Section 8.07), and Commercial Cannabis Activity (Section 8.09). Ordinance 3 includes a requirement for an operating permit which must be approved by the City Council prior to 5 San Carlos Municipal Code, Section 18.30.060: Required findings. https://www.codepublishing.com/CA/SanCarlos/#!/SanCarlos18/SanCarlos1830.html#18.30.060 6 San Carlos Municipal Code, Section 18.27.140: Revocation of permits. https://www.codepublishing.com/CA/SanCarlos/#!/SanCarlos18/SanCarlos1827.html#18.27.140

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commencement of any research and development activities that require BSL-3 containment. The City Council would determine as part of the operating permit review and approval process that all of the requirements, standards and conditions of zoning have been met. This would include any conditions of approval for a CUP if adopted together with Ordinance 1.

Ordinances for Consideration
Three Ordinances are presented for the Council’s consideration. These are titled “Ordinance 1,” “Ordinance 2,” and “Ordinance 3.”
Ordinance 1 amends Title 18, Zoning, to allow BSL-3 activities with an approved Conditional Use Permit and prohibits BSL-4 activities, as recommended by the Planning and Transportation Commission.

Ordinance 2 amends and adds a new section to Title 8, Health and Safety, to require an operating permit approved by the City Council for research and development activities that require biosafety level BSL-3 containment.

Ordinance 3 prohibits BSL-3 and -4 activities.

These Ordinances are based on research regarding best practices around regulating laboratories, how other jurisdictions regulate laboratories with biosafety levels, and an understanding of how external agencies regulate and monitor laboratories with biosafety levels.

Ordinances 1, 2, and 3 contain the following:
•The addition of a zoning definition for “Biosafety Level.” •Modifies the Commercial and Industrial land use regulation tables to expressly permit BSL-1 and BSL-2 activities and to expressly prohibit BSL-4 activities.

Ordinance 1 (Allows BSL-3 with a Conditional Use Permit):
•Adds new standards specific to BSL-3 activities, which requires a CUP. •Requires that Research and Development Activity requiring biosafety level BSL-3 containment be accessory to the primary use.
•Adds specific CUP requirements, including the submittal of a Biosafety Plan and a Medical Waste Management Plan.
•Adds specific CUP findings, which include:
1) The applicant has made adequate provisions to address emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility; and
2) The applicant has provided a peer review of the proposed facility, safety equipment and practices by a qualified third-party demonstrating compliance with the guidelines set forth in Biosafety in Microbiological and Biomedical Laboratories (6th Edition or most recent) authored by the CDC and NIH.
•Adds specific CUP Operational and Performance Standards, which include:
1) The activities involving the use of biological agents requiring BSL-3 containment measures shall be located no less than ten (10) feet above the base flood elevation as identified on the current FEMA Flood Insurance Rate Maps;

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2) The activities involving the use of biological agents requiring BSL-3 containment measures shall be limited to the on-site tenants of the subject development and shall not, under any circumstance, be used by entities located outside of the subject development;
3) An inspection shall be conducted and a compliance report shall be submitted at the expense of the owner, operator, or tenant prior to initiating operations, and on each anniversary of the effective date of permit approval, and on the closure or discontinuance of the BSL-3 facility. Such reports shall be made by a qualified third party demonstrating continued compliance with the guidelines set forth in Biosafety in Microbiological and Biomedical Laboratories (6th Edition or most recent) authored by the CDC and NIH; and,
4) Failure by the applicant to submit the reports required in 18.23.310.C.3 in a timely manner may result in revocation of the CUP per San Carlos Municipal Code Section

18.27.140: Revocation of Permits.

Ordinance 2 (Allows Biological Research Activities Requiring BSL-3 Containment with an Operating Permit):
•Creates a new Section 8.30 which requires an operating permit to be approved by the City Council and general requirements, which include:
1) The permit in not transferable and does not run with the land; 2) Findings must be made by the City Council to assure that adequate provisions are made regarding emergency procedures in the event of uncontrolled releases; 3) A peer review is required by a qualified third-party demonstrating compliance with Biosafety in Microbiological and Biomedical Laboratories; and 4) Annual operating permits may be revoked by the City Council should the responsible party fail to comply with the terms and conditions of the permit.

Ordinance 3 (Prohibits BSL-3 and BSL-4):
•Modifies the Commercial and Industrial land use regulation tables to prohibit BSL-3 and BSL-4.

Table 6 provides a comparison of Ordinances 1, 2, and 3.

Table 6. Comparison of Ordinances 1, 2, and 3

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BSL
Level
Ordinance 1:

Allows BSL-3
with CUP
Ordinance 2:

Allows BSL-3 with
Operating Permit
Ordinance 3:

Prohibits BSL-3
BSL-1 Allowed; no
permit required.

Allowed; no permit
required.

Allowed; no permit
required.

BSL-2 Allowed; no
permit required.

Allowed; no permit
required.

Allowed; no permit
required.

BSL-3 Allowed upon
approval
of a Conditional
Use Permit
Allowed upon
approval
of an Operating Permit Not allowed.

BSL-4
Not allowed. Not allowed. Not allowed.

Monitoring Compliance (under Ordinances 1 and 2)
Ordinances 1 and 2 provide similar requirements for a CUP and an Operating Permit for research and development activities requiring BSL-3 containment, with monitoring compliance as an important aspect of this program. Both ordinances include a requirement that an Annual Report be submitted to the City demonstrating continued compliance with the guidelines set forth in the Biosafety in Microbiological and Biomedical Laboratories authored by the CDC and the NIH:

1. The applicant would be required to submit an Annual Report to the City for review and evaluation.

The Annual Report would document all regulatory processes with which the facility must comply and demonstrate compliance. The Annual Report must be prepared at the expense of the owner, operators, or tenant by an independent, third-party expert.

2. A proposed on-call consultant (retained by the City) would peer review the Annual Report and conduct an inspection of the facility.

The City would issue an RFQ to solicit proposals from potential on-call consultants to conduct a peer review of the submitted Annual Report. The applicant would submit a deposit to pay for the City’s on-call consultant / peer reviewer.

The on-call consultant would also conduct an inspection of the facility to ensure that the facility is accurately represented in the Annual Report and complies with the required regulations.

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3. If the Annual Report and laboratory inspection is found to be in compliance, no action would be needed. The next step would be the submission of another Annual Report and an inspection in one year’s time.

4. If the Annual Report and laboratory inspection is not found to be in compliance, under Ordinance 1, the applicant could risk revocation of the CUP based on lack of performance, per San Carlos Municipal Code, Section 18.27.140: Revocation of permits.7 Per Ordinance 2, the City Council could revoke the operating permit, and the applicant would also risk revocation of the CUP.

5. To monitor submission of the Annual Report, the City’s permitting system would provide a reminder prompt to staff that the Annual Report is due.

6. A report and inspection would also be required to be submitted when the permitted biological research activity has ended, or the laboratory housing the permitted biological research activity is decommissioned.

The most rigorous public review process and regulatory process would be to adopt both Ordinances 1 and 2 to require both a Conditional Use Permit and an Operating Permit. The submittal requirements are identical in both processes, and it provides for two levels of review authority - one at the Planning and Transportation Commission and the other at the City Council.

This results in two opportunities for public review and comment as well. Either Ordinance could be adopted and has been developed to stand-alone. However, it the Council choses the more rigorous review process for future BSL-3 labs, adoption of Ordinances 1 and 2 would be required and include the options language within each ordinance to provide internal consistency.

Public Notice and Comments
Notice of this hearing and the Ordinances presented for consideration was published in the Examiner newspaper on June 15, 2023. (See Attachment 13 – Public Notice – Proof of Publication.)
As of writing of the staff report, there were several comments received from the public. (See Attachment 12 – Correspondence from the Public as of 3.27.23 and Attachment 14 - Public Comments Received for 6.26.23 Council Public Hearing.)
Environmental Determination
The proposed amendments to the San Carlos Municipal Code are within the scope of the activities and impacts identified in the Focused General Plan Update Final Environmental Impact Report (EIR), and no new environmental effects have been found and no new mitigation is necessary.

Therefore, no additional environmental review is required pursuant to Public Resources Code Section 21166 and California Environmental Quality Act (CEQA) Guidelines Section 15162 and 15168.
7 San Carlos Municipal Code, Section 18.27.140: Revocation of permits. https://www.codepublishing.com/CA/SanCarlos/#!/SanCarlos18/SanCarlos1827.html#18.27.140

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ALTERNATIVES:

The alternatives available to the City Council include:

1. (Option 1) Do not enact an Ordinance to amend Title 8 or Title 18 to regulate research and development activities requiring biosafety level containment; or

2. (Option 2) Introduce Ordinance 3 to amend the San Carlos Municipal Code Sections

18.06.020 (Commercial Districts Land Use Regulations), 18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions) to prohibit BSL-3 and -4 activities; or

3. (Option 3) Introduce Ordinance 1 to amend the San Carlos Municipal Code Sections

18.06.020 (Commercial Districts Land Use Regulations), 18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions), and add Section 18.23.310 (Standards for Specific Uses and Activities) to allow for BSL-3 activities with a Conditional Use Permit as specified in the Ordinance and to prohibit BSL-4 activities. This option is consistent with the Planning and Transportation Commission recommendation; or

4. (Option 4) Introduce Ordinance 1 to amend the San Carlos Municipal Code Sections

18.06.020 (Commercial Districts Land Use Regulations), 18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions), and add Section 18.23.310 (Standards for Specific Uses and Activities) to allow for BSL-3 activities with a CUP as specified in the Ordinance and to prohibit BSL-4 activities; and Introduce Ordinance 2 to amend the San Carlos Municipal Code, Title 8 – Health and Safety, by adding a new Section 8.30 to require an operating permit for research and development activities requiring BSL-3 containment, and prohibit research and development activities requiring BSL-4 containment; add definitions; and add new general provisions for activities requiring BSL-3 containment with the optional language contained within each Ordinance for internal consistency; or

5. Provide staff with alternative direction.

Respectfully submitted by:

Al Savay, Community Development Director
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):

1.Ordinance 1: Ordinance Allowing Biological Research Activities Requiring Biosafety Level (BSL) 3 Containment with a Conditional Use Permit and Prohibiting BSL-4 Activities

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2.Ordinance 2: Ordinance Allowing Biological Research Activities Requiring Biosafety Level (BSL) 3 Containment with an Operating Permit, and Prohibiting BSL-4 Activities

3.Ordinance 3: Ordinance Prohibiting BSL-3 and BSL-4 Activities

4. Minutes from the February 6, 2023 Planning and Transportation Commission Meeting

5. Minutes from the March 6, 2023 Planning and Transportation Commission Meeting

6. Minutes from the March 27, 2023 City Council Meeting

7. Responses to Questions from the Planning and Transportation Commission and Public

8. Summary of City, County and Regional Regulations

9. San Carlos Airport Safety Zones Map

10. Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions

11. Summary of the Life Science and Biomedical Industry

12. Correspondence from the Public as of March 27, 2023

13. Public Notice – Proof of Publication

14. Public Comments Received for 6.26.23 Council Public Hearing

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Attachment 1. Ordinance Allowing BSL- 3 Activities with a Conditional Use Permit and Prohibiting BSL-4 Activities
ORDINANCE NO. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS AMENDING SAN CARLOS MUNICIPAL CODE, TITLE 18, ZONING, SECTIONS 18.06.020 (COMMERCIAL DISTRICTS LAND USE REGULATIONS), 18.07.020 (INDUSTRIAL DISTRICTS LAND USE REGULATIONS), AND 18.41.020 (DEFINITIONS), AND ADDING SECTION 18.23.310 (STANDARDS FOR SPECIFIC USES AND ACTIVITIES).

SECTION 1: The City Council of the City of San Carlos does hereby ordain as follows:

WHEREAS, the San Carlos 2030 General Plan’s Environmental Safety and Public Services Element sets forth Action ESPS- 5.6 that directs the City of San Carlos to: “Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community”; and

WHEREAS, the City of San Carlos is addressing Biosafety Levels (BSL) by adopting an Ordinance to amend San Carlos Municipal Code, Title 18, Zoning, Sections 18.06.02 0 (Commercial Districts Land Use Regulations), 18.07.020 ( Industrial Districts Land Use Regulations), and 18.41.020 (Definitions), and to add Section 18.23.310 (Standards for Specific Uses and Activities); and

WHEREAS, the Ordinance amends the San Carlos Municipal Code to amend the Land Use Regulations for Commercial and Industrial Districts to permit BSL-1 and -2 activities, permit BSL-3 activities with a Conditional Use Permit, and prohibit BSL- 4 activities associated with Research and Development uses; add a definition for Biological Agent and Biosafety Level (BSL); and add new standards for activities requiring BSL 3 containment; and

WHEREAS, pursuant to Government Code Section 65853 and 65850 and San Carlos Municipal Code Chapter 18.136, when a change in the Zoning Ordinance (Title 18 of the San Carlos Municipal Code) is found necessary, the Planning and Transportation Co mmission shall hold a public hearing to consider such change and render its decision to the City Council; and

WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and California Government Code Section 65090 and 650901, a Public Hearing Notice was published on January 25, 2023 for the item titled, “Consider a Resolution Recommending the City Council Adopt an Ordinance Amendment to the City of San Carlos' Zoning Code Section 18 to Regulate Laboratories with Biosafety Levels (BSL)” in the newspaper; and

WHEREAS, the Planning and Transportation Commission conducted a public hearing on amendments to the San Carlos Municipal Code to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on February 6, 2023 in consideration of a recommendation to the City Council regarding adoption of an Ordinance. During the meeting, the Planning and Transportation Commission voted to continue the item to the March 6, 2023 Planning and Transportation Commission meeting; and

WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and California Government Code Section 65090 and 650901, a Public Hearing Notice was published on February 22, 2023 for the item titled , “ Continuation of Consideration of a Resolution

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Recommending t he City Council Adopt an Ordinance Amendment to the City of San Carlos' Zoning Code Section 18 to Regulate Laboratories with Biosafety Levels (BSL)” in the newspaper; and

WHEREAS, the Planning and Transportation Commission conducted a public hearing on amendments to the San Carlos Municipal Code to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on March 6, 2023 and adopted Resolution PC2023- 0005, recomm ending the City Council regarding adopt an Ordinance to permit BSL 1 and 2 activities by right, prohibit BSL- 4 activities and require a Conditional Use Permit for BSL-3 activities; and

WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and the California Government Code Sections 65090 and 65091, a Public Hearing Notice for the City Council consideration of the Planning and Transportation Commission recommendation on the item titled, “Considering Introducing an Ordinance Amending the City of San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels (BSL)” was published on March 16, 2023 in the newspaper; and
WHEREAS, the proposed amendments to the Zoning Ordinance text were released for public review on March 23, 2023 and incorporate the recommendations of the Planning and Transportation Commission as recommended in Resolution of the Planning and Transportation Commission No. PC2023-0005 and
WHEREAS, the City Council conducted a public hearing on amendments to the San Carlos Zoning Ordinance to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on March 27, 2023 in consideration of adoption of this Ordinance. During the meeting, the City Council voted to continue the item to a date uncertain; and
WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and the California Government Code Sections 65090 and 65091, a Public Hearing Notice for the City Council consideration of Ordinances to Regulate Laboratories with Biosafety Levels (BSL) was published on June 15, 2023 in the newspaper; and
WHEREAS, the City Council conducted a public hearing on amendments to the San Carlos Zoning Ordinance to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on June 26, 2023; and
WHEREAS, the City Council desires to make findings for the proposed amendments to the San Carlos Municipal Code Title 18 Zoning Ordinance relative to implementation of the 2030 General Plan.

SECTION 2: The City Council makes the following findings:

1. The ordinance amendment is consistent with the General Plan.

Basis for finding: The Environmental Safety and Public Services Element of the San Carlos General Plan includes Goal ESPS-5, which states, “Protect the community from the harmful effects of hazardous materials,” and Action ESPS-5.6, which states “Prepare

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regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community.” The primary goal of this amendment to Title 18 of the San Carlos Municipal Code is to implement Action ESPS-5.6 by including a definition for Biosafety Levels (BSL), and by permitting BSL 3 activities with a Conditional Use Permit, and prohibiting BSL-4 activities.

2. The ordinance amendment is consistent with the purpose of the zoning title to promote the growth of the City in an orderly manner and to promote and protect the public health, safety, peace, comfort and general welfare.

Basis for finding: The amendment is consistent with the goals, policies, and actions of the San Carlos General Plan and includes adequate measures to ensure consistency with the General Plan. The amendment continues to allow life science and research and development uses while continuing to protect the public health, safety, peace, comfort, and general welfare.

SECTION 3: Replacement of Code. Sections 18.06.020 (Commercial Districts Land Use Regulations), 18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions) of Title 18 – Zoning is hereby replaced with the language in Exhibit A.

SECTION 4: Addition to Code. Section 18.23.310 (Standards for Specific Uses a nd Activities) of Title 18 – Zoning is hereby added with the language in Exhibit A.

SECTION 5: California Environmental Quality Act Determination. The City Council hereby finds that amendments to the San Carlos Municipal Code are within the scope of the activities and impacts identified in the Focused General Plan Update Final Environmental Impact Report (EIR) , and no new environmental effects have been found and no new mitigation is necessary. Therefore, no additional environmental review is required pursuant to Public Resources Code Section 21166 and California Environmental Quality Act (CEQA) Gui delines Section 15162 and 15168.

SECTION 6: Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of San Carlos hereby declares that it would have adopted this Ordinance and such section, subsection, clause, phrase, or portion may be declared invalid or unconstitutional.

SECTION 7 : That the City Council hereby declares that it would have passed this Ordinance sentence by sentence, paragraph by paragraph, and section by section, and does hereby declare that any provisions of this Ordinance are severable and, if for any reason any sentence, paragraph or section of this Ordinance shall be held invalid, such decision shall not affect the validity of the remaining parts of this Ordinance.

SECTION 8: This Ordinance shall be published and posted according to law and shall take effect and be in force from and after 30 days after its passage and adoption.

*****

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I, City Clerk Crystal Mui, hereby certify that the foregoing Ordinance was introduced on 26th day of June, 202 3 and adopted at a regular meeting of the City Council of the City of San Carlos held on the [insert here] by the following vote:

______________________________
CITY CLERK of the City of San Carlos

APPROVED:

___________________________
MAYOR of the City of San Carlos

Exhibit A: Changes to Sections 18.06.020 (Commercial Districts Land Use Regulations),

18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions), and Addition of Section 18.23.310 (Standards for Specific Uses and Activities)

AYES, COUNCILMEMBERS:

NOES, COUNCILMEMBERS:

ABSENT, COUNCILMEMBERS:

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EXHIBIT A
AMENDMENTS TO TITLE 18, ZONING, SECTIONS 18.06.020 (COMMERCIAL DISTRICTS LAND USE REGULATIONS), 18.07.020 (INDUSTRIAL DISTRICTS LAND USE REGULATIONS), AND 18.41.020 (DEFINITIONS), AND ADD SECTION 18.23.310 (STANDARDS FOR SPECIFIC USES AND ACTIVITIES).

18.06.020 Land use regulations.

Table 18.06.020 prescribes the land use regulations for commercial districts. The regulations for each district are established by letter designations as follows:
“P” designates permitted uses.
“M” designates use classifications that are permitted after review and approval of a minor use permit by the Zoning Administrator.
“C” designates use classifications that are permitted after review and approval of a conditional use permit by the Planning Commission.
“(#)” numbers in parentheses refer to specific limitations listed at the end of the table. “-” designates uses that are not permitted.

Use classifications are defined in Chapter 18.40, Use Classifications. In cases where a specific land use or activity is not defined, the Director shall assign the land use or activity to a classification that is substantially similar in character. Use classifications and subclassifications not listed in the table or not found to be substantially similar to the uses below are prohibited. The table also notes additional use regulations that apply to various uses. Section numbers in the right-hand column refer to other sections of this title.

TABLE 18.06.020: LAND USE REGULATIONS—COMMERCIAL DISTRICTS Use Classification NR GCI LC Additional Regulations
Public and Semi-Public Uses
Colleges and Trade Schools, Public or Private - C(3) -
Government Offices - C(3) -
Instructional Services P M(3) -
Public Safety Facilities - M(3) -
Commercial Uses
Automobile/Vehicle Sales and Services See subclassifications below

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Use Classification NR GCI LC Additional Regulations
Automobile/Vehicle Sales and Leasing - P C See Section 18.23.050, Automobile/vehicle sales and services
Automobile/Vehicle Washing - C -
Service Station (1) P -
Banks and Financial Institutions - P C
Business Services P P P(4)
Commercial Entertainment and Recreation See subclassifications below Cinema/Theaters - P C
Large-Scale - C C
Small-Scale - P P(4)
Eating and Drinking Establishments See subclassifications below Full Service M P P(4) See Section 18.23.140, Outdoor dining Convenience P P C
Food Preparation P P P(4)
Lodging See subclassifications below
Hotels and Motels C C M
Maintenance and Repair Services - P P(4)
Nurseries and Garden Centers - P M(6) See Section 18.23.270, Commercial cannabis businesses
Offices See subclassifications below
Business and Professional P P P(4)
Medical and Dental - P M
Walk-In Clientele P P P(4)
Personal Services See subclassifications below
General Personal Services P P P(4) See Section 18.23.170, Personal services Retail Sales See subclassifications below
Building Materials and Services - P M
Cannabis Dispensary - - -
Convenience Markets P P M
Food and Beverage Sales P P M
General Retail P P P(4)
Large-Format Retail - C C See Section 18.23.130, Large-format retail Price Point Retail - P M
Second-Hand Store - P M

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Use Classification NR GCI LC Additional Regulations
Retail Establishments Selling Ammunition or
Firearms
C C C See Section 18.23.290, Retail
establishments selling ammunition or
firearms
Industrial Uses
Construction and Material Yards - C C See Section 18.23.160, Outdoor storage Custom Manufacturing - P M
Industry, General - M M(6) See Section 18.23.270, Commercial cannabis businesses
Industry, Limited - P M
Recycling Facility See subclassifications below
Reverse Vending Machine - C(3) - See Section 18.23.190, Recycling facilities Recycling Collection Facility - C(3) -
Research and Development - P M(6) See Section 18.23.270, Commercial cannabis businesses
Research and Development Activities
requiring BSL-1 and BSL-2 containment P P P
Research and Development Activities
requiring BSL-3 containment - C(7) C(7)
See Section 18.23.310, Research and
Development activities requiring Biosafety
Level 3 containment
Research and Development Activities
requiring BSL-4 containment - - -
Salvage and Wrecking - C(2) - See Section 18.23.160, Outdoor storage Warehousing and Storage See subclassifications below
Indoor Warehousing and Storage - C(5) P(4)(5)
Outdoor Storage - C - See Section 18.23.160, Outdoor storage Wholesaling and Distribution - P M(6) See Section 18.23.270, Commercial cannabis businesses
Cannabis Microbusiness - P - See Section 18.23.270, Commercial cannabis businesses
Transportation, Communication, and Utilities Uses
Communication Facilities See subclassifications below
Antenna and Transmission Towers See Chapter 18.24, Wireless Telecommunications Facilities Facilities within Buildings P P M
Freight/Truck Terminals and Warehouses - P(3) -
Light Fleet-Based Services - P(3) C
Utilities, Major - C(3) -
Utilities, Minor P P(3) -
Other Applicable Types
Accessory Uses and Structures See Sections 18.23.030, Accessory uses, and 18.15.020, Accessory buildings and structures

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Use Classification NR GCI LC Additional Regulations
Nonconforming Use Chapter 18.19, Nonconforming Uses, Structures, and Lots Temporary Use Chapter 18.31, Temporary Use Permits
Specific Limitations:

1. Permitted if existing. New service stations are not allowed.

2. Shall be conducted entirely within an enclosed building.

3. Not allowed between Industrial Road and Highway 101 and Skyway Road fronting Highway 101.

4. Permitted by right in existing buildings only; additions or enlargements, tear downs and rebuilds may be considered subject to conditional use permit approval by the Planning Commission.

5. Storage in small individual spaces exclusively and directly accessible to a specific tenant is permitted by right on the condition that such uses occupy no more than five percent of the total square footage of any single building.

6. Uses that require a commercial cannabis business permit are not permitted.

7. Permitted as an accessory use only.
***

18.07.020 Land use regulations.

Table 18.07.020 prescribes the land use regulations for industrial districts. The regulations for each district are established by letter designations as follows:
“P” designates permitted uses.
“M” designates use classifications that are permitted after review and approval of a minor use permit by the Zoning Administrator.
“C” designates use classifications that are permitted after review and approval of a conditional use permit by the Planning Commission.
“(#)” numbers in parentheses refer to specific limitations listed at the end of the table. “-” designates uses that are not permitted.

Use classifications are defined in Chapter 18.40, Use Classifications. In cases where a specific land use or activity is not defined, the Director shall assign the land use or activity to a classification that is substantially similar in character. Use classifications and subclassifications not listed in the table or not found to be substantially similar to the uses below are prohibited. The table also notes additional use regulations that apply to various uses. Section numbers in the right-hand column refer to other sections of this title.

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TABLE 18.07.020: LAND USE REGULATIONS—INDUSTRIAL DISTRICTS

Use Classification IA IL IH IP Additional Regulations
Public and Semi-Public Uses
Colleges and Trade Schools, Public or Private C C C(8) - Government Offices - C C C
Hospitals and Clinics See subclassification below
Hospitals - - - C
Public Safety Facilities - M M -
Commercial Uses
Adult-Oriented Business C(1) C(1) C(1) - See Section 18.23.040, Adult- oriented businesses
Animal Care, Sales and Services See subclassifications below Kennels - M - -
Veterinary Services - M - -
Artist’s Studio P P - -
Automobile/Vehicle Sales and Services See subclassifications below Automobile/Vehicle Sales and Leasing - C(3) C(5) C(5)
See Section 18.23.050,
Automobile/vehicle sales and
services
Automobile/Vehicle Repair, Major P P P C
Automobile/Vehicle Service and Repair, Minor P P P -
Automobile/Vehicle Washing - P - -
Large Vehicle and Equipment Sales, Service
and Rental
- P P -
Service Station - P(6) - -
Towing and Impound - M M - See Section 18.23.160, Outdoor storage
Vehicle Storage - M M -
Business Services P P P P
Commercial Entertainment and Recreation See subclassifications below Large-Scale - C C -
Small-Scale - C C -
Eating and Drinking Establishments See subclassifications below Full Service - - - M(2) See Section 18.23.140, Outdoor
dining
Convenience M(2) M(2) M(2) M(2)
Food Preparation P P - -
Funeral Parlors and Interment Services P - - -
Maintenance and Repair Services P P P -

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Use Classification IA IL IH IP Additional Regulations
Nurseries and Garden Centers - M M - See Section 18.23.270, Commercial cannabis businesses
Offices See subclassifications below
Business and Professional - C C M
Medical and Dental - C - M
Parking, Public or Private - P P - See Chapter 18.20, Parking and Loading
Personal Services See subclassification below
Tattoo or Body Modification Parlor M - - -
Retail Sales See subclassifications below
Building Materials and Services M M M -
Cannabis Dispensary - - - -
Convenience Markets M(2) M(2) M(2) M(2)
Food and Beverage Sales M(2) M(2) M(2) M(2)
General Retail M(4) M(4) M(4) M(4)
Retail Establishments Selling Ammunition or
Firearms
C C C C See Section 18.23.290, Retail
establishments selling ammunition
or firearms
Industrial Uses
Construction and Material Yards P P P - See Section 18.23.160, Outdoor storage
Custom Manufacturing P P P -
Industry, General P P P - See Section 18.23.270,
Commercial cannabis businesses
Industry, Limited P P P P
Recycling Facility See subclassifications below
Reverse Vending Machine P P - - See Section 18.23.190, Recycling facilities
Recycling Collection Facility - C C -
Recycling Processing Facility - C C -
Research and Development P P P P See Section 18.23.270, Commercial cannabis businesses
Research and Development Activities
requiring BSL-1 and BSL-2 containment P P P P
Research and Development Activities
requiring BSL-3 containment C(9) C(9) C(9) C(9)
See Section 18.23.310, Research
and Development activities
requiring Biosafety Level 3
containment.

Research and Development Activities
requiring BSL-4 containment - - - -
Salvage and Wrecking M(3) M M - See Section 18.23.160, Outdoor storage

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Use Classification IA IL IH IP Additional Regulations
Warehousing and Storage See subclassifications below
Chemical, Mineral, and Explosives Storage - C(7) C(7) - Indoor Warehousing and Storage P P P -
Outdoor Storage P(9) P P - See Section 18.23.160, Outdoor storage
Wholesaling and Distribution P P P - See Section 18.23.270, Commercial cannabis businesses
Cannabis Microbusiness P P P - See Section 18.23.270,
Commercial cannabis businesses
Transportation, Communication, and Utilities Uses
Communication Facilities See subclassifications below
Antenna and Transmission Towers See Chapter 18.24, Wireless Telecommunications Facilities Facilities within Buildings M M M M
Freight/Truck Terminals and Warehouses - C P(10) -
Light Fleet-Based Services P P P -
Utilities, Major C C C C
Utilities, Minor P P P P
Waste Transfer Facility - P P -
Other Applicable Types
Accessory Uses and Structures See Sections 18.23.030, Accessory uses, and 18.15.020, Accessory buildings and structures
Nonconforming Use Chapter 18.19, Nonconforming Uses, Structures, and Lots Temporary Use Chapter 18.31, Temporary Use Permits
Specific Limitations:

1. Permitted only in the area shown on Figure 18.23.040-B: Adult-Oriented Business Area.

2. Permitted only as an ancillary use. The combined floor area of all eating and drinking uses on a site shall not exceed two thousand five hundred square feet unless a conditional use permit is approved.

3. Shall be conducted entirely within an enclosed building.

4. Permitted only as an ancillary use, not to occupy more than one thousand square feet, unless a conditional use permit is approved.

5. Limited to properties between Industrial Road and Highway 101 and adjacent to Shoreway Road.

6. Limited to alternative fueling stations such as for electric or hybrid vehicles, hydrogen-powered vehicles, and similar vehicles using alternative fuels.

7. Prohibited within five hundred feet of a residential district.

8. Except between Industrial and Highway 101 and Shoreway and Highway 101.

9. Permitted as an accessory use only.

10. Conditional use permit required if adjacent to an R district.

***
Chapter 18.23

STANDARDS FOR SPECIFIC USES AND ACTIVITIES

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Sections:

18.23.010 Purpose.

18.23.020 Applicability.
***

18.23.300 Indoor shooting ranges.
***

18.23.310 Research and Development activities requiring Biosafety Level (BSL) 3 containment.

Research and Development activities requiring BSL-3 containment shall be established and operated in compliance with the following standards:

A. Applicability. This section applies to Research and Development activities involving the use of biological agents requiring BSL-3 containment measures.

B. Permit Requirements. Any activities involving the use of biological agents requiring BSL -3 containment measures shall require a conditional use permit from the Planning Commission prior to commencement.

1. Any conditional use permit application must contain the following:
a. A Biosafety Plan (BSP) prepared in accordance with California Code of Regulations, Title 8, Division 1, Chapter 4, Subchapter 7, Group 16, Article 109, Section 5199(f)(4), including, but not limited to, the following:
i. Identification of a biological safety officer(s) with the necessary knowledge, authority, and responsibility for implementing the BSP;
ii. A list of all job classifications in which all or some employees have occupational exposure, and a list of all tasks and procedures in which employees have occupational exposure;
iii. A list of aerosol transmissible pathogens – laboratory (ATPs-L) known or reasonably expected to be present in laboratory materials and the applicable biosafety measures; iv. A requirement that all incoming materials containing ATPs-L are to be treated as containing the virulent or wild-type pathogen, until procedures have been conducted at the laboratory to verify that a pathogen has been deactivated or attenuated; v. Identification and description of engineering controls, including containment equipment and procedures, to be used to minimize exposure to infectious or potentially infectious laboratory aerosols;
vi. A description of safe handling procedures and prohibited practices that may increase employee exposure to infectious agents;
vii. A description of effective decontamination and disinfection procedures for laboratory surfaces and equipment;
viii. Identification and description of the appropriate personal protective equipment to be used to minimize exposure to infectious or potentially infectious laboratory aerosols; ix. Identification of any operations or conditions in which respiratory protection will be required. The use of respiratory protection shall be in accordance with California Code of Regulations, title 8, Section 5144, subsection (g);
x. A description of emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility. These procedures shall include effective means of reporting such incidents to the local health officer; and

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xi. Inclusion of a medical services program consistent with California Code of Regulations, title 8, section 5199(h), including the provision of all vaccinations as recommended by applicable public health guidelines for the specific laboratory operations, and the methods for providing investigation and medical follow up for exposure incidents (laboratory).

b. A Medical Waste Management Plan prepared in accordance with the requirements of the San Mateo County Medical Waste Program, including, but not limited to, the following:
i. Type of facility;
ii. Medical waste activities;
iii. Biosafety level(s);
iv. Types of regulated medical waste and amounts per month; v. Types of treatment;
vi. Regulated off-site transporter information;
vii. Back up off-site transporter information;
viii. Use of mail back program
ix. Treatment of waste pharmaceuticals;
x. Management of medical waste spills;
xi. Training requirements; and
xii. Emergency Action Plan (for large quantity generators only)

2. Necessary Findings. Prior to approving an application for a conditional use permit for any Research and Development activities involving the use of biological agents requiring BSL- 3 containment measures, the Planning Commission must make all of the findings for a use permit application found in Section 18.30.060 and the following additional findings:
a. The applicant has made adequate provisions to address emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility; and
b. The applicant has provided a peer review of the proposed facility, safety equipment and practices by a qualified third-party demonstrating compliance with the guidelines set forth in Biosafety in Microbiological and Biomedical Laboratories (6 th Edition or most recent) authored
by the Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH).

C. Operational and Performance Standards.

1. The activities involving the use of biological agents requiring BSL-3 containment measures shall be located no less than ten (10) feet above the base flood elevation as identified on the current FEMA Flood Insurance Rate Maps.

2. The activities involving the use of biological agents requiring BSL-3 containment measures shall be limited to the on-site tenants of the subject development and shall not, under any circumstance, be used by entities located outside of the subject development.

3. An inspection shall be conducted and a compliance report shall be submitted at the expense of the owner, operator, or tenant prior to initiating operations, and on each anniversary of the effective date of permit approval, and on the closure or discontinuance of the BSL-3 facility. Such reports shall be made by a qualified third party demonstrating continued compliance with the guidelines set forth in Biosafety in Microbiological and Biomedical Laboratories (6th Edition or most recent) authored by t he Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH) .

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4. Failure by the applicant to submit the reports required in 18.23.310.C.3 in a timely manner may result in revocation of the Conditional Use Permit per San Carlos Municipal Code Section 18.27.140:

Revocation of Permits.

***

18.41.020 Definitions.
***
“Bedroom” means any room having the potential of being a bedroom and meeting the standards of the California Building Code as a sleeping room.
“Biological Agent” means any microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsia or protozoa), or infectious substance, or any naturally occurring, bioengineered or synthesized component of any such microorganism or infectious substance up to and including Risk Group 3 or Biosafety Level 3 classifications as defined by the National Institute of Health (NIH) or the Center for Disease Control (CDC).
“Biosafety Level (BSL)” means the four ascending levels of containment precautio ns, referred to as Biosafety Levels 1 through 4, required to isolate dangerous biological agents in an enclosed laboratory facility as set forth in the most current edition of Biosafety in Microbiological and Biomedical Laboratories (BMBL) published by the U.S. Department of Health and Human Services Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH), based on the primary risk criteria of infectivity, severity of disease, transmissibility, and the nature of the work being conducted. Each level of containment describes the microbiological practices, safety equipment, and facility safeguards for the corresponding level of risk associated with handling an agent. “Block” means property bounded on all sides by a public right-of-way.

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Attachment 2. Ordinance Regulating Research and Development Activities and Requiring Operating Permit
ORDINANCE NO. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS AMENDING SAN CARLOS MUNICIPAL CODE, TITLE 8, HEALTH AND SAFETY, BY ADDING CHAPTER 8.30 (REGULATION OF RESEARCH AND DEVELOPMENT ACTIVITIES).

SECTION 1: The City Council of the City of San Carlos does hereby ordain as follows:

WHEREAS, the San Carlos 2030 General Plan’s Environmental Safety and Public Services Element sets forth Action ESPS-5.6 that directs the City of San Carlos to: “Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community”; and WHEREAS, the City of San Carlos is addressing Biosafety Levels (BSL) by adopting an Ordinance to amend San Carlos Municipal Code, Title 8, Health and Safety, to add Section 8.30 (Research and Development Activities); and
WHEREAS, the Ordinance amends the San Carlos Municipal Code to amend the Health and Safety Regulations to allow research and development activities requiring BSL-1 and -2 containment, require an operating permit for research and development activities requiring BSL- 3 containment, and prohibit research and development activities requiring BSL-4 containment; add definitions; and add new general provisions for activities requiring BSL-3 containment; and WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and the California Government Code Sections 65090 and 65091, a Public Hearing Notice for the City Council consideration of Ordinances to Regulate Laboratories with Biosafety Levels (BSL) was published on June 15, 2023 in the newspaper; and
WHEREAS, the City Council conducted a public hearing on amendments to the San Carlos Zoning Ordinance to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on June 26, 2023; and
WHEREAS, the City Council finds that the desired outcome of the Ordinance amendment is to protect the public health, safety, peace, comfort, and general welfare of the San Carlos community while balancing economic development and growth of life science and research and development uses; and
SECTION 2: The City Council makes the following findings:

1. The ordinance amendment is consistent with the General Plan.

Basis for finding: The Environmental Safety and Public Services Element of the San Carlos General Plan includes Goal ESPS-5, which states, “Protect the community from the harmful effects of hazardous materials,” and Action ESPS-5.6, which states “Prepare

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1 1
3 3
regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community.” The primary goal of this amendment to Title 18 of the San Carlos Municipal Code is to implement Action ESPS-5.6 by including a definition for Biosafety Levels (BSL), and by permitting BSL-3 activities with a Conditional Use Permit, and prohibiting BSL-4 activities.

2. The ordinance amendment is consistent with the purpose of the health and safety title to promote the growth of the City in an orderly manner and to promote and protect the public health, safety, peace, comfort and general welfare.

Basis for finding: The amendment is consistent with the goals, policies, and actions of the San Carlos General Plan and includes adequate measures to ensure consistency with the General Plan. The amendment continues to allow life science and research and development uses while continuing to protect the public health, safety, peace, comfort, and general welfare.

SECTION 3: Addition to Code. Chapter 8.30 (Regulation of Research and Development Activities) of Title 8 – Health and Safety is hereby added with the language in Exhibit A.

SECTION 4: California Environmental Quality Act Determination. The City Council hereby finds that amendments to the San Carlos Municipal Code are within the scope of the activities and impacts identified in the Focused General Plan Update Final Environmental Impact Report (EIR), and no new environmental effects have been found and no new mitigation is necessary. Therefore, no additional environmental review is required pursuant to Public Resources Code Section 21166 and California Environmental Quality Act (CEQA) Guidelines Section 15162 and 15168.

SECTION 5: Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of San Carlos hereby declares that it would have adopted this Ordinance and such section, subsection, clause, phrase, or portion may be declared invalid or unconstitutional.

SECTION 6: That the City Council hereby declares that it would have passed this Ordinance sentence by sentence, paragraph by paragraph, and section by section, and does hereby declare that any provisions of this Ordinance are severable and, if for any reason any sentence, paragraph or section of this Ordinance shall be held invalid, such decision shall not affect the validity of the remaining parts of this Ordinance.

SECTION 7: This Ordinance shall be published and posted according to law and shall take effect and be in force from and after 30 days after its passage and adoption. * * * * *
I, City Clerk Crystal Mui, hereby certify that the foregoing Ordinance was introduced on 26th day of June, 2023 and adopted at a regular meeting of the City Council of the City of San Carlos held on the [insert here] by the following vote:

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______________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos
Exhibit A: Amendments to San Carlos Municipal Code, Title 8, Health and Safety, Adding Chapter Section 8.30 (Regulation of Research and Development Activities) AYES, COUNCILMEMBERS:

NOES, COUNCILMEMBERS:

ABSENT, COUNCILMEMBERS:

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EXHIBIT A
AMENDMENTS TO SAN CARLOS MUNICIPAL CODE, TITLE 8, HEALTH AND SAFETY, ADDING CHAPTER 8.30 (REGULATION OF RESEARCH AND DEVELOPMENT ACTIVITIES) Chapter 8.30

REGULATION OF RESEARCH AND DEVELOPMENT ACTIVITIES

8.30.010 Purpose and Intent.

It is the purpose and intent of this chapter to:

A. Regulate research and development activities in order to ensure the health, safety and welfare of the residents of San Carlos; and
B. Provide that all research and development activities shall operate in accordance with the regulations in this chapter and with the conditions of approval associated with the applicable zone for the parcel of real property upon which the biological research activities are conducted; and C. Provide that any research and development activities operating in the City shall at all times be in compliance with current Federal, State, and local laws and this chapter; and D. Establish regulations necessary for biological research activities requiring biosafety level (BSL) 3 containment to obtain and maintain an operating permit; and E. Provide that any research and development activities requiring BSL-3 containment shall qualify for and receive an operating permit as provided by this chapter, a business registration from the City as provided in Title 5, Business Taxes, Licenses and Regulations, and operate only in a zone as provided in Title 18, Zoning, before commencing any research and development activity, and that any research and development activities requiring BSL-3 containment operating without a valid operating permit is in violation of this chapter; and

8.30.020 Zoning compliance and annual operating permit required.

Research and development activities requiring BSL-4 containment are prohibited. In certain commercial and industrial zoning districts, as set forth in Sections 18.06.020 and 18.07.020, research and development activities requiring BSL-3 containment require a conditional use permit. In addition, research and development activities requiring BSL-3 containment are required to obtain and maintain an annual operating permit subject to the requirements and conditions as set forth in this chapter.

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8.30.030 Definitions.

Unless otherwise specifically provided, the terms used in this chapter shall have the following meanings:

A. “Agent” means:

Any biological agent classified as Risk Group 2 through 4 by the NIH Guidelines, biological agent requiring biosafety level (BSL) 2 through 4 containment based on risk assessment, any agent meeting the definition of High-Risk Agent as defined in this chapter, or any agent modified using recombinant DNA unless exempted by the Boston Public Health Commission.

B. “Applicant” means:

A person who is required to file an application for an operating permit under this chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of research and development activities requiring BSL-3 containment.

C. “Biological Agent” means:

Any microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsia or protozoa), or infectious substance, or any naturally occurring, bioengineered or synthesized component of any such microorganism or infectious substance up to and including Risk Group 3 or Biosafety Level 3 classifications as defined by the National Institute of Health (NIH) or the Center for Disease Control (CDC).

D. “BMBL” means:

Biosafety in Microbiological and Biomedical Laboratories, published by the Centers for Disease Control and Prevention and National Institutes of Health, as amended.

E. “Biosafety Level (BSL)” means:

The four ascending levels of containment precautions, referred to as Biosafety Levels 1 through 4, required to isolate dangerous biological agents in an enclosed laboratory facility as set forth in the most current edition of Biosafety in Microbiological and Biomedical Laboratories (BMBL) published by the U.S.

Department of Health and Human Services Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH), based on the primary risk criteria of infectivity, severity of disease, transmissibility, and the nature of the work being conducted. Each level of containment describes the microbiological practices, safety equipment, and facility safeguards for the corresponding level of risk associated with handling an agent.

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F. “Director” means:

The Community Development Director of the City of San Carlos or their designee.

G. “High-Risk Agent” means:

Any Select or Overlap Select Agent and toxin or agents in Risk Group 3 (RG3) or Risk Group 4 (RG4) as specified in NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules or any agents recommended for Biosafety Level (BSL) 3 or Biosafety Level (BSL) 4 containment by the BMBL. This definition shall not include any Select or Overlap Agent or toxin specifically excluded pursuant to 42 Code of Federal Regulations 73.3(d), (e) and 73.4 (d), (e) respectively, from the requirements of 42 CFR Part 73.

H. “NIH Guidelines” means:

NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules, as amended.

I. “Recombinant DNA molecules” and “rDNA” means:

Organisms and viruses containing rDNA as defined in the “NIH Guidelines” above. For the purposes of these regulations, all references to “rDNA” and “recombinant DNA” shall be read to include synthetic nucleic acid molecules.

J. “Select and Overlap Select Agent” means:

Microbial and toxic agents listed at 42 CFR 72.3, 73.4, 73.5, 73.6, 7 CFR 331.3, 9 CFR Part 121.4 and the rulings made by the United States Department of Health and Human Services and United States Department of Agriculture relative thereto as amended from time to time. Select Agent shall not include any exempt amounts of select agents or toxins that are excluded from 42 CFR 73.00.

8.30.040 Compliance with Federal, State, and local laws.

A. Any research and development activities shall operate in conformance with all regulations and standards set forth in this chapter and assure that the operations are in compliance with applicable Federal, State, and local laws which have been established to mitigate any adverse secondary effects from its operations.

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8.30.050 General provisions for research and development activities requiring BSL-3 containment.

A. Operating Permit Required.

1. It shall be unlawful for any person, association, partnership, or corporation to engage in, conduct, or carry on, in or upon any premises within the City any research and development activities requiring BSL-3 containment without an operating permit. Any research and development activities requiring BSL-3 containment shall obtain an operating permit from the City prior to initiating operations, and renew said permit on an annual basis thereafter. The applicant shall pay a nonrefundable regulatory fee in an amount and at a frequency established by the City Council.

2. A copy of the operating permit shall be displayed at all times in a place visible to the public.

3. An operating permit shall be valid for one year or until December 31st each year, unless sooner revoked. No permit granted herein shall confer any vested right to any person or for more than the above-referenced period.

4. An operating permit shall not be issued or renewed to an individual or a business entity associated with an individual who has violated any provisions of this chapter.

5. The operating permit shall be issued to the specific person or persons listed on the application.

6. An operating permit is not transferable, and does not run with the land or with the business. Any change to the business location, organizational structure, or ownership requires a new application with associated fees.

7. An operating permit shall automatically expire upon the closure or discontinuance of the subject activities
B. Application Requirements.

1. Each applicant will pay an application fee in an amount established by the City Council and submit an application to the Director which will be reviewed for completeness. Any operating permit application must contain the following:
a. A Biosafety Plan (BSP) prepared in accordance with California Code of Regulations, Title 8, Division 1, Chapter 4, Subchapter 7, Group 16, Article 109, Section 5199(f)(4), including, but not limited to, the following:

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i. Identification of a biological safety officer(s) with the necessary knowledge, authority, and responsibility for implementing the BSP;
ii. A list of all job classifications in which all or some employees have occupational exposure, and a list of all tasks and procedures in which employees have occupational exposure;
iii. A list of aerosol transmissible pathogens – laboratory (ATPs-L) known or reasonably expected to be present in laboratory materials and the applicable biosafety measures; iv. A requirement that all incoming materials containing ATPs-L are to be treated as containing the virulent or wild-type pathogen, until procedures have been conducted at the laboratory to verify that a pathogen has been deactivated or attenuated; v. Identification and description of engineering controls, including containment equipment and procedures, to be used to minimize exposure to infectious or potentially infectious laboratory aerosols;
vi. A description of safe handling procedures and prohibited practices that may increase employee exposure to infectious agents;
vii. A description of effective decontamination and disinfection procedures for laboratory surfaces and equipment;
viii. Identification and description of the appropriate personal protective equipment to be used to minimize exposure to infectious or potentially infectious laboratory aerosols; ix. Identification of any operations or conditions in which respiratory protection will be required. The use of respiratory protection shall be in accordance with California Code of Regulations, title 8, Section 5144, subsection (g);
x. A description of emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility. These procedures shall include effective means of reporting such incidents to the local health officer; and xi. Inclusion of a medical services program consistent with California Code of Regulations, title 8, section 5199(h), including the provision of all vaccinations as recommended by applicable public health guidelines for the specific laboratory operations, and the methods for providing investigation and medical follow up for exposure incidents (laboratory). b. A Medical Waste Management Plan prepared in accordance with the requirements of the San Mateo County Medical Waste Program, including, but not limited to, the following:
i. Type of facility;
ii. Medical waste activities;
iii. Biosafety level(s);
iv. Types of regulated medical waste and amounts per month; v. Types of treatment;

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vi. Regulated off-site transporter information;
vii. Back up off-site transporter information;
viii. Use of mail back program
ix. Treatment of waste pharmaceuticals;
x. Management of medical waste spills;
xi. Training requirements; and
xii. Emergency Action Plan (for large quantity generators only) C. Review of Applications

1. Review Process. The Director shall determine whether an application is complete within thirty days of the date the application is filed with the required fee.

2. Incomplete Application. If an application is incomplete, the Director shall provide written notification to the applicant listing the forms, information and any additional fees that are necessary to complete the application.

3. Complete Application. When an application is determined to be complete, the Director shall make a record of that date. The Director shall schedule a public hearing with the City Council and notify the applicant of the date and time.

D. Public Notice. Notice of the public hearing shall follow the public notice requirements outlined in section 18.27.060 of this code.

E. Conduct of Hearings. The hearing before City Council shall be conducted in compliance the procedures outlined in section 18.27.070 of this code.

F. Timing and notice of action and findings required shall follow the procedures as outlined in section

18.27.080 of this code, with the following additional findings:.

1. Prior to approving an application for an operating permit for any research and development activities requiring BSL-3 containment, the City Council must make the following additional findings:
a. The applicant has made adequate provisions to address emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility; and

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b. The applicant has provided a peer review of the proposed facility, safety equipment and practices by a qualified third-party demonstrating compliance with the guidelines set forth in BMBL; and [.]
OPTIONAL [c. The applicant has verified that the facility in which the research and development activities will be conducted has obtained a Conditional Use Permit and is in compliance with any and all regulations, standards and conditions of approval as may be required by Title 18, Zoning.]
G. Operational and Performance Standards.

1. Research and development activities requiring BSL-3 containment measures shall be located no less than ten (10) feet above the base flood elevation as identified on the current FEMA Flood Insurance Rate Maps.

2. Research and development activities requiring BSL-3 containment measures shall be limited to the on-site tenants of the subject development and shall not, under any circumstance, be used by entities located outside of the subject development.

3. An inspection shall be conducted, and a compliance report shall be submitted at the expense of the owner, operator, or tenant prior to initiating operations, and on each anniversary of the effective date of the operating permit approval, and on the closure or discontinuance of the subject activities. Such reports shall be made by a qualified third party demonstrating continued compliance with the guidelines set forth in BMBL.

4. Failure by the applicant to submit the reports required in 8.30.050.D.3 in a timely manner may result in revocation of the operating permit.

K. Operating Permit Annual Renewal.

1. Applications for the renewal of an operating permit shall be filed at least sixty (60) calendar days before the expiration of the current permit. Any permittee allowing their permit to lapse shall be required to submit a new application, pay the corresponding original application fees, and be subject to all aspects of the initial application process.

2. Any person desiring to obtain a permit renewal shall file a written application under penalty of perjury on the required forms. The application shall be accompanied by a nonrefundable filing fee established by the City Council to defray the cost of the required review. An applicant shall be required to update the information contained in the original permit application and provide any new

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and/or additional information as may be reasonably required to determine whether said permit should be renewed.

3. The Director shall review the renewal application and, should it be determined that all conditions of the original operating permit remain in substantial compliance and with the original operating permit, may forward a request for approval to the City Council, without the requirement of a public hearing.

4. If the Director is not able to verify that all conditions of approval are in substantial compliance with the original operating permit, the permittee shall be required to submit a new application, pay the corresponding original application fees, and be subject to all aspects of the initial application process.

L. Revocation of an Operating Permit.

1. The City Council may suspend or revoke an operating permit when the permittee or the permittee’s agent or employee has committed any one or more of the following acts:
a. Any act that would be considered grounds for denial of the permit in the first instance. b. Violates any other provision of this section or any Federal, State, or local law, statute, rule, or regulation relating to the activity’s permitted operations. c. Conducts the permitted research and development activity in a manner contrary to the health, safety, or welfare of the public.
d. Violates or fails to comply with the terms and conditions of the operating permit.

2. Prior to suspension or revocation of the operating permit, the City Council shall conduct a hearing. Written notice of the time and place of such hearing shall be served upon the permittee at least five calendar days prior to the date set for such hearing. The notice shall contain a brief statement of the grounds to be relied upon for revoking or suspending the permit. Notice may be given either by personal delivery or by certified U.S. mail, postage prepaid.

3. The decision of the City Council shall be final subject to judicial review as set forth in this section.

8.30.060 Enforcement.

A. A violation of the regulations in this chapter by an act, omission, or failure of an agent, officer, or other person acting for or employed by a licensee within the scope of their employment or office shall be deemed the act, omission, or failure of the licensee or permittee.

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B. Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the municipal code. Additionally, as a nuisance per se, any violation of this chapter shall be subject to injunctive relief, revocation of the research and development activity’s operating permit, payment to the City of any costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity. The City may also pursue any and all remedies and actions available and applicable under local and State laws for any violations committed by the research and development activity and persons related or associated with the biological research activity.

D. City officials or their designees may enter and inspect the location of any research and development activity during normal business hours to ensure compliance with this chapter. A person engaging in research and development activities requiring BSL-3 containment without an operating permit required by this chapter shall be subject to civil penalties of up to twice the amount of the permit fee for each violation.

Each day of operation shall constitute a separate violation of this section.

8.30.070 Limitations on the City’s liability.

To the fullest extent permitted by law, the City of San Carlos shall not assume any liability whatsoever with respect to approving any operating permit pursuant to this chapter or the operation of any research and development activities requiring BSL-3 containment approved pursuant to this chapter. As a condition of approval of an operating permit as provided in this chapter, the applicant or its legal representative shall:

A. Execute an agreement indemnifying the City from any claims, damages, injuries, or liabilities of any kind associated with the operation of the biological research activities or the prosecution of the applicant or licensee or its members for violation of Federal or State laws; B. Maintain insurance in the amounts and types that are acceptable to the City Attorney or designee; C. Name the City as an additionally insured on all City required insurance policies; D. Agree to defend, at its sole expense, any action against the City, its agents, officers, and employees related to the approval of an operating permit; and
E. Agree to reimburse the City for any court costs and attorney fees that the City may be required to pay as a result of any legal challenge related to the City’s approval of an operating permit. The City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the operator of its obligation hereunder.

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8.30.080 Fees and taxes.

All research and development activities requiring BSL-3 containment shall pay applicable fees and taxes, which may include one or more of the following:

A. Deposit. The operating permit applicant shall pay a deposit of actual costs as determined by the City, and in line with the City’s cost of services fee schedule.

B. Initial Application Fees. The operating permit applicant shall submit a deposit to cover the cost of processing an initial application for the operating permit.

C. Application Renewal Fees. The research and development activity operator shall submit a non- refundable fee to cover the cost of processing an application renewal annually.

D. Business Registration Fee. The research and development activity operator shall at all times maintain a current and valid business registration and pay all business taxes required by Title 5, Business Taxes, Licenses and Regulations.

E. CEQA Fees. The applicant shall conduct and pay for any required CEQA reviews and analyses, and pay for all costs, including those of the City, associated with project review under CEQA.

F. Required Taxes. All required taxes including sales and use taxes, business, payroll, etc.

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Attachment 3. Ordinance Prohibiting Research and Development Activities Requiring Biosafety Level (BSL) 3 and 4 Containment
ORDINANCE NO. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS AMENDING SAN CARLOS MUNICIPAL CODE, TITLE 18, ZONING, SECTIONS 18.06.020 (COMMERCIAL DISTRICTS LAND USE REGULATIONS), 18.07.020 (INDUSTRIAL DISTRICTS LAND USE REGULATIONS), AND 18.41.020 (DEFINITIONS) TO PROHIBIT RESEARCH AND DEVELOPMENT ACTIVITIES REQUIRING BIOSAFETY LEVEL (BSL) 3 AND 4 CONTAINMENT.
____________________________________________________________________________ SECTION 1: The City Council of the City of San Carlos does hereby ordain as follows:

WHEREAS, the San Carlos 2030 General Plan’s Environmental Safety and Public Services Element sets forth Action ESPS-5.6 that directs the City of San Carlos to: “Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community”; and WHEREAS, the City of San Carlos is addressing Biosafety Levels (BSL) by adopting an Ordinance to amend San Carlos Municipal Code, Title 18, Zoning, Sections 18.06.020 (Commercial Districts Land Use Regulations), 18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions); and
WHEREAS, the Ordinance amends the San Carlos Municipal Code to amend the Land Use Regulations for Commercial and Industrial Districts to permit BSL-1 and -2 activities and prohibit BSL-3 and -4 activities associated with Research and Development uses; add a definition for Biological Agent and Biosafety Level (BSL); and
WHEREAS, pursuant to Government Code Section 65853 and 65850 and San Carlos Municipal Code Chapter 18.136, when a change in the Zoning Ordinance (Title 18 of the San Carlos Municipal Code) is found necessary, the Planning and Transportation Commission shall hold a public hearing to consider such change and render its decision to the City Council; and WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and California Government Code Section 65090 and 650901, a Public Hearing Notice was published on January 25, 2023 for the item titled, “Consider a Resolution Recommending the City Council Adopt an Ordinance Amendment to the City of San Carlos' Zoning Code Section 18 to Regulate Laboratories with Biosafety Levels (BSL)” in the newspaper; and WHEREAS, the Planning and Transportation Commission conducted a public hearing on amendments to the San Carlos Municipal Code to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on February 6, 2023 in consideration of a recommendation to the City Council regarding adoption of an Ordinance. During the meeting, the Planning and Transportation Commission voted to continue the item to the March 6, 2023 Planning and Transportation Commission meeting; and WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and California Government Code Section 65090 and 650901, a Public Hearing Notice was published on February 22, 2023 for the item titled, “Continuation of Consideration of a Resolution Recommending the City Council Adopt an Ordinance Amendment to the City of San Carlos'

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Zoning Code Section 18 to Regulate Laboratories with Biosafety Levels (BSL)” in the newspaper; and
WHEREAS, the Planning and Transportation Commission conducted a public hearing on amendments to the San Carlos Municipal Code to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on March 6, and adopted Resolution PC2023-0005, recommending the City Council regarding adopt an Ordinance to permit BSL 1 and 2 activities by right, prohibit BSL-4 activities and require a Conditional Use Permit for BSL-3 activities; and
WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and the California Government Code Sections 65090 and 65091, a Public Hearing Notice for the City Council consideration of the Planning and Transportation Commission recommendation on the item titled, “Considering Introducing an Ordinance Amending the City of San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels (BSL)” was published on March 16, 2023 in the newspaper; and
WHEREAS, the proposed amendments to the Zoning Ordinance text were released for public review on March 23, 2023 and incorporate the recommendations of the Planning and Transportation Commission as recommended in Resolution of the Planning and Transportation Commission No. PC2023-0005; and
WHEREAS, the City Council conducted a public hearing on amendments to the San Carlos Zoning Ordinance to hear and consider all comments of all persons interested in or concerned with a proposed amendments to the City of San Carlos Municipal Code on March 27, 2023 in consideration of adoption of this Ordinance. During the meeting, the City Council voted to continue the items to a date uncertain; and
WHEREAS, pursuant to San Carlos Municipal Code Chapter 18.136.030 and the California Government Code Sections 65090 and 65091, a Public Hearing Notice for the City Council consideration of Ordinances to Regulate Laboratories with Biosafety Levels (BSL) was published on June 15, 2023 in the newspaper; and
WHEREAS, the City Council conducted a public hearing on amendments to the San Carlos Zoning Ordinance to hear and consider all comments of all persons interested in or concerned with proposed amendments to the City of San Carlos Municipal Code on June 26, 2023; and
WHEREAS, the City Council desires to make findings for the proposed amendments to the San Carlos Municipal Code Title 18 Zoning Ordinance relative to implementation of the 2030 General Plan.

SECTION 2: The City Council makes the following findings:

1. The ordinance amendment is consistent with the General Plan.

Basis for finding: The Environmental Safety and Public Services Element of the San Carlos General Plan includes Goal ESPS-5, which states, “Protect the community from the harmful effects of hazardous materials,” and Action ESPS-5.6, which states “Prepare

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regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community.” The primary goal of this proposed amendment to Title 18 of the San Carlos Municipal Code is to implement Action ESPS-5.6 by including a definition for Biosafety Levels (BSL), and prohibiting facilities with biosafety levels (BSL) 3 and 4.

2. The ordinance amendment is consistent with the purpose of this Ordinance to promote the growth of the city in an orderly manner and to promote and protect the public health, safety, peace, comfort, and general welfare.

Basis for finding: The amendments are consistent with the goals, policies, and actions of the San Carlos General Plan and as such continue to allow life science and research and development uses while continuing to protect the public health, safety, peace, comfort, and general welfare.

SECTION 3: Modification of Code. Sections 18.06.020 (Commercial Districts Land Use Regulations), 18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions) of Title 18 – Zoning is hereby modified with the language in Exhibit A, and incorporated into Title 18 of the Municipal Code by this reference.

SECTION 5: California Environmental Quality Act Determination. The City Council hereby finds that amendments to the San Carlos Municipal Code are within the scope of the activities and impacts identified in the Focused General Plan Update Final Environmental Impact Report (EIR), and no new environmental effects have been found and no new mitigation is necessary. Therefore, no additional environmental review is required pursuant to Public Resources Code Section 21166 and California Environmental Quality Act (CEQA) Guidelines Section 15162 and 15168.

SECTION 6: Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of San Carlos hereby declares that it would have adopted this Ordinance and such section, subsection, clause, phrase, or portion may be declared invalid or unconstitutional.

SECTION 7: That the City Council hereby declares that it would have passed this Ordinance sentence by sentence, paragraph by paragraph, and section by section, and does hereby declare that any provisions of this Ordinance are severable and, if for any reason any sentence, paragraph or section of this Ordinance shall be held invalid, such decision shall not affect the validity of the remaining parts of this Ordinance.

SECTION 8: This Ordinance shall be published and posted according to law and shall take effect and be in force from and after 30 days after its passage and adoption. * * * * *
I, City Clerk Crystal Mui, hereby certify that the foregoing Ordinance was introduced on 26th day of June, 2023 and adopted at a regular meeting of the City Council of the City of San Carlos held on the [insert here] by the following vote:

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______________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos
Exhibit A: Changes to Sections 18.06.020 (Commercial Districts Land Use Regulations),

18.07.020 (Industrial Districts Land Use Regulations), and 18.41.020 (Definitions) to Prohibit Research and Development Activities Requiring Biosafety Level (BSL) 3 and 4 Containment.

AYES, COUNCILMEMBERS:

NOES, COUNCILMEMBERS:

ABSENT, COUNCILMEMBERS:

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EXHIBIT A
AMENDMENTS TO TITLE 18, ZONING, SECTIONS 18.06.020 (COMMERCIAL DISTRICTS LAND USE REGULATIONS), 18.07.020 (INDUSTRIAL DISTRICTS LAND USE REGULATIONS), AND 18.41.020 (DEFINITIONS) TO PROHIBIT RESEARCH AND DEVELOPMENT ACTIVITIES REQUIRING BIOSAFETY LEVEL (BSL) 3 AND 4 CONTAINMENT.

18.06.020 Land use regulations.

Table 18.06.020 prescribes the land use regulations for commercial districts. The regulations for each district are established by letter designations as follows:
“P” designates permitted uses.
“M” designates use classifications that are permitted after review and approval of a minor use permit by the Zoning Administrator.
“C” designates use classifications that are permitted after review and approval of a conditional use permit by the Planning Commission.
“(#)” numbers in parentheses refer to specific limitations listed at the end of the table. “-” designates uses that are not permitted.

Use classifications are defined in Chapter 18.40, Use Classifications. In cases where a specific land use or activity is not defined, the Director shall assign the land use or activity to a classification that is substantially similar in character. Use classifications and subclassifications not listed in the table or not found to be substantially similar to the uses below are prohibited. The table also notes additional use regulations that apply to various uses. Section numbers in the right-hand column refer to other sections of this title.

TABLE 18.06.020: LAND USE REGULATIONS—COMMERCIAL DISTRICTS Use Classification NR GCI LC Additional Regulations
Public and Semi-Public Uses
Colleges and Trade Schools, Public or Private - C(3) -
Government Offices - C(3) -
Instructional Services P M(3) -
Public Safety Facilities - M(3) -

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Use Classification NR GCI LC Additional Regulations
Commercial Uses
Automobile/Vehicle Sales and Services See subclassifications below Automobile/Vehicle Sales and Leasing - P C
Automobile/Vehicle Washing - C -
Service Station (1) P -
See Section 18.23.050, Automobile/vehicle
sales and services
Banks and Financial Institutions - P C
Business Services P P P(4)
Commercial Entertainment and Recreation See subclassifications below Cinema/Theaters - P C
Large-Scale - C C
Small-Scale - P P(4)
Eating and Drinking Establishments See subclassifications below Full Service M P P(4)
Convenience P P C
See Section 18.23.140, Outdoor dining
Food Preparation P P P(4)
Lodging See subclassifications below
Hotels and Motels C C M
Maintenance and Repair Services - P P(4)
Nurseries and Garden Centers - P M(6) See Section 18.23.270, Commercial cannabis businesses
Offices See subclassifications below
Business and Professional P P P(4)
Medical and Dental - P M
Walk-In Clientele P P P(4)
Personal Services See subclassifications below
General Personal Services P P P(4) See Section 18.23.170, Personal services Retail Sales See subclassifications below
Building Materials and Services - P M
Cannabis Dispensary - - -
Convenience Markets P P M
Food and Beverage Sales P P M
General Retail P P P(4)
Large-Format Retail - C C See Section 18.23.130, Large-format retail

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Use Classification NR GCI LC Additional Regulations
Price Point Retail - P M
Second-Hand Store - P M
Retail Establishments Selling Ammunition or
Firearms
C C C See Section 18.23.290, Retail
establishments selling ammunition or
firearms
Industrial Uses
Construction and Material Yards - C C See Section 18.23.160, Outdoor storage Custom Manufacturing - P M
Industry, General - M M(6) See Section 18.23.270, Commercial cannabis businesses
Industry, Limited - P M
Recycling Facility See subclassifications below
Reverse Vending Machine - C(3) -
Recycling Collection Facility - C(3) -
See Section 18.23.190, Recycling facilities
Research and Development - P M(6) See Section 18.23.270, Commercial cannabis businesses
Research and Development Activities
requiring BSL-1 and BSL-2 containment
P P P
Research and Development Activities
requiring BSL-3 containment
- - -
Research and Development Activities
requiring BSL-4 containment
- - -
Salvage and Wrecking - C(2) - See Section 18.23.160, Outdoor storage Warehousing and Storage See subclassifications below
Indoor Warehousing and Storage - C(5) P(4)(5)
Outdoor Storage - C - See Section 18.23.160, Outdoor storage Wholesaling and Distribution - P M(6) See Section 18.23.270, Commercial cannabis businesses
Cannabis Microbusiness - P - See Section 18.23.270, Commercial cannabis businesses
Transportation, Communication, and Utilities Uses
Communication Facilities See subclassifications below
Antenna and Transmission Towers See Chapter 18.24, Wireless Telecommunications Facilities Facilities within Buildings P P M
Freight/Truck Terminals and Warehouses - P(3) -
Light Fleet-Based Services - P(3) C
Utilities, Major - C(3) -
Utilities, Minor P P(3) -

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Use Classification NR GCI LC Additional Regulations
Other Applicable Types
Accessory Uses and Structures See Sections 18.23.030, Accessory uses, and 18.15.020, Accessory buildings and structures
Nonconforming Use Chapter 18.19, Nonconforming Uses, Structures, and Lots Temporary Use Chapter 18.31, Temporary Use Permits
Specific Limitations:

1. Permitted if existing. New service stations are not allowed.

2. Shall be conducted entirely within an enclosed building.

3. Not allowed between Industrial Road and Highway 101 and Skyway Road fronting Highway 101.

4. Permitted by right in existing buildings only; additions or enlargements, tear downs and rebuilds may be considered subject to conditional use permit approval by the Planning Commission.

5. Storage in small individual spaces exclusively and directly accessible to a specific tenant is permitted by right on the condition that such uses occupy no more than five percent of the total square footage of any single building.

6. Uses that require a commercial cannabis business permit are not permitted. ***

18.07.020 Land use regulations.

Table 18.07.020 prescribes the land use regulations for industrial districts. The regulations for each district are established by letter designations as follows:
“P” designates permitted uses.
“M” designates use classifications that are permitted after review and approval of a minor use permit by the Zoning Administrator.
“C” designates use classifications that are permitted after review and approval of a conditional use permit by the Planning Commission.
“(#)” numbers in parentheses refer to specific limitations listed at the end of the table. “-” designates uses that are not permitted.

Use classifications are defined in Chapter 18.40, Use Classifications. In cases where a specific land use or activity is not defined, the Director shall assign the land use or activity to a classification that is

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substantially similar in character. Use classifications and subclassifications not listed in the table or not found to be substantially similar to the uses below are prohibited. The table also notes additional use regulations that apply to various uses. Section numbers in the right-hand column refer to other sections of this title.

TABLE 18.07.020: LAND USE REGULATIONS—INDUSTRIAL DISTRICTS Use Classification IA IL IH IP Additional Regulations
Public and Semi-Public Uses
Colleges and Trade Schools, Public or Private C C C(8) - Government Offices - C C C
Hospitals and Clinics See subclassification below
Hospitals - - - C
Public Safety Facilities - M M -
Commercial Uses
Adult-Oriented Business C(1) C(1) C(1) - See Section 18.23.040, Adult- oriented businesses
Animal Care, Sales and Services See subclassifications below Kennels - M - -
Veterinary Services - M - -
Artist’s Studio P P - -
Automobile/Vehicle Sales and Services See subclassifications below Automobile/Vehicle Sales and Leasing - C(3) C(5) C(5)
Automobile/Vehicle Repair, Major P P P C
Automobile/Vehicle Service and Repair, Minor P P P -
Automobile/Vehicle Washing - P - -
Large Vehicle and Equipment Sales, Service
and Rental
- P P -
Service Station - P(6) - -
See Section 18.23.050,
Automobile/vehicle sales and
services
Towing and Impound - M M -
Vehicle Storage - M M -
See Section 18.23.160, Outdoor
storage
Business Services P P P P
Commercial Entertainment and Recreation See subclassifications below Large-Scale - C C -
Small-Scale - C C -

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1 1
3 4
Use Classification IA IL IH IP Additional Regulations
Eating and Drinking Establishments See subclassifications below Full Service - - - M(2)
Convenience M(2) M(2) M(2) M(2)
See Section 18.23.140, Outdoor
dining
Food Preparation P P - -
Funeral Parlors and Interment Services P - - -
Maintenance and Repair Services P P P -
Nurseries and Garden Centers - M M - See Section 18.23.270, Commercial cannabis businesses
Offices See subclassifications below
Business and Professional - C C M
Medical and Dental - C - M
Parking, Public or Private - P P - See Chapter 18.20, Parking and Loading
Personal Services See subclassification below
Tattoo or Body Modification Parlor M - - -
Retail Sales See subclassifications below
Building Materials and Services M M M -
Cannabis Dispensary - - - -
Convenience Markets M(2) M(2) M(2) M(2)
Food and Beverage Sales M(2) M(2) M(2) M(2)
General Retail M(4) M(4) M(4) M(4)
Retail Establishments Selling Ammunition or
Firearms
C C C C See Section 18.23.290, Retail
establishments selling ammunition
or firearms
Industrial Uses
Construction and Material Yards P P P - See Section 18.23.160, Outdoor storage
Custom Manufacturing P P P -
Industry, General P P P - See Section 18.23.270,
Commercial cannabis businesses
Industry, Limited P P P P
Recycling Facility See subclassifications below
Reverse Vending Machine P P - -
Recycling Collection Facility - C C -
Recycling Processing Facility - C C -
See Section 18.23.190, Recycling
facilities
Research and Development P P P P See Section 18.23.270, Commercial cannabis businesses

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1 1
3 4
Use Classification IA IL IH IP Additional Regulations
Research and Development Activities
requiring BSL-1 and BSL-2 containment

P P P P
Research and Development Activities
requiring BSL-3 containment
- - - -
Research and Development Activities
requiring BSL-4 containment
- - - -
Salvage and Wrecking M(3) M M - See Section 18.23.160, Outdoor storage
Warehousing and Storage See subclassifications below
Chemical, Mineral, and Explosives Storage - C(7) C(7) - Indoor Warehousing and Storage P P P -
Outdoor Storage P(9) P P - See Section 18.23.160, Outdoor storage
Wholesaling and Distribution P P P - See Section 18.23.270, Commercial cannabis businesses
Cannabis Microbusiness P P P - See Section 18.23.270,
Commercial cannabis businesses
Transportation, Communication, and Utilities Uses
Communication Facilities See subclassifications below
Antenna and Transmission Towers See Chapter 18.24, Wireless Telecommunications Facilities Facilities within Buildings M M M M
Freight/Truck Terminals and Warehouses - C P(10) -
Light Fleet-Based Services P P P -
Utilities, Major C C C C
Utilities, Minor P P P P
Waste Transfer Facility - P P -
Other Applicable Types
Accessory Uses and Structures See Sections 18.23.030, Accessory uses, and 18.15.020, Accessory buildings and structures
Nonconforming Use Chapter 18.19, Nonconforming Uses, Structures, and Lots Temporary Use Chapter 18.31, Temporary Use Permits
Specific Limitations:

1. Permitted only in the area shown on Figure 18.23.040-B: Adult-Oriented Business Area.

2. Permitted only as an ancillary use. The combined floor area of all eating and drinking uses on a site shall not exceed two thousand five hundred square feet unless a conditional use permit is approved.

3. Shall be conducted entirely within an enclosed building.

4. Permitted only as an ancillary use, not to occupy more than one thousand square feet, unless a conditional use permit is approved.

5. Limited to properties between Industrial Road and Highway 101 and adjacent to Shoreway Road.

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1 1
3 4

6. Limited to alternative fueling stations such as for electric or hybrid vehicles, hydrogen-powered vehicles, and similar vehicles using alternative fuels.

7. Prohibited within five hundred feet of a residential district.

8. Except between Industrial and Highway 101 and Shoreway and Highway 101.

9. Permitted as an accessory use only.

10. Conditional use permit required if adjacent to an R district. ***

18.41.020 Definitions.
***
“Bedroom” means any room having the potential of being a bedroom and meeting the standards of the California Building Code as a sleeping room.
“Biological Agent” means any microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsia or protozoa), or infectious substance, or any naturally occurring, bioengineered or synthesized component of any such microorganism or infectious substance up to and including Risk Group 3 or Biosafety Level 3 classifications as defined by the National Institute of Health (NIH) or the Center for Disease Control (CDC).
“Biosafety Level (BSL)” means the four ascending levels of containment precautions, referred to as Biosafety Levels 1 through 4, required to isolate dangerous biological agents in an enclosed laboratory facility as set forth in the most current edition of Biosafety in Microbiological and Biomedical Laboratories (BMBL) published by the U.S. Department of Health and Human Services Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH), based on the primary risk criteria of infectivity, severity of disease, transmissibility, and the nature of the work being conducted. Each level of containment describes the microbiological practices, safety equipment, and facility safeguards for the corresponding level of risk associated with handling an agent. “Block” means property bounded on all sides by a public right-of-way. ***

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1 CITY OF SAN CARLOS

SAN CARLOS PLANNING AND TRANSPORTATION COMMISSION
Tuesday, February 6th, 2023
7:00 PM
San Carlos City Hall, Council Chambers
600 Elm Street, San Carlos, CA 94070
www.cityofsancarlos.org

APPROVED MINUTES

COMMISSIONERS ADVISORY
Jim Iacoponi, Chair
Kristen Clements, Vice Chair
David Roof
Ellen Garvey
Janet Castaneda
Al Savay, Community and Economic Development
Director
Andrea Mardesich, Assistant Community
Development Director
Greg Rubens, City Attorney
Lisa Costa Sanders, Principal Planner, Consultant

1. MEETING CALLED TO ORDER
The meeting was called to order at 7:01 pm.

2. PLEDGE OF ALLEGIANCE

3. ROLL CALL

4. PUBLIC COMMENT
Debbie Baldocchi suggested the City to use another publication for Public Notices such as the San Mateo Daily Journal which is more well-read.

5. APPROVAL OF MINUTES
a. Approval of the Minutes from the Planning and Transportation Commission Meeting of January 3, 2023
Attachment 4. Approved Minutes from the February 6, 2023 Planning and Transportation Commission Meeting

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2 M/S Clements/Roof motioned and seconded to approve the minutes of January 3, 2023, Planning and Transportation Commission Meeting.

The motion passed 5-0 by the following roll call vote:

Ayes: Roof, Castaneda, Garvey, Clements, Iacoponi
Noes: None

b. Approval of the Minutes from the Planning and Transportation Commission Meeting of January 17, 2023
M/S Clements/Garvey motioned and seconded to approve the minutes of January 17, 2023, Planning and Transportation Commission Meeting with the edits noted by Commissioner Castaneda.

The motion passed 5-0 by the following roll call vote:

Ayes: Roof, Castaneda, Garvey, Clements, Iacoponi
Noes: None

6. PUBLIC HEARING

a. Consider a Resolution Recommending the City Council Adopt an Ordinance Amendment to the City of San Carlos Municipal Code Section 18 to Regulate Laboratories with Biosafety Levels (BSL)

Lisa Costa Sanders, Principal Planner, Consultant presented the item.

Vice Chair Clements wanted to know the typical proximity to other uses when a Biosafety Level 3 (BSL-3) Lab is put in place. She also wanted to know if there are examples of BSL-3 facilities.

Lisa Costa Sanders shared that in San Francisco and South San Francisco there have been occasions where BSL-3 Labs have been utilized and those were more a campus environment.

Carol Johnson, Consulting Planner, shared that they were unable to locate the specific address for BSL-3 facilities because they were commissioned and then decommissioned, therefore trying to find a current list is very difficult. Carol Johnson added that in San Franc isco, BSL-3 Labs are allowed with a Conditional Use Permit (CUP) in mixed -used areas such as office uses, and multi-family uses. She stated that many jurisdictions allow them in a mixed -use setting and do not require separation from sensitive uses.

Vice Chair Clements wanted to know whether the City would be in a disadvantage position or out of step with the market demand for facilities if it bans BSL-3.

Lisa Costa Sanders shared that there is only about 1% of BSL -3 Lab spaces. She added that based on some feedback from developers , businesses may choose to locate elsewhere in a jurisdiction that does not have BSL restrictions.

Commissioner Roof disclosed that he works for a pharmaceutical company , Genentech, but it will not impact his judgement on th is item. He wanted to know if the County and State regulations prevent BSL-3 and BSL-4 Labs.

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3 Lisa Costa Sanders stated that the County and State regulations do not prevent BSL-3 and BSL- 4 Labs. She noted that the Airport Compatibility Zones restricts BSL-3 and BSL-4 labs in certain areas close to the airport.

Commissioner Roof asked about the choice of language, “banning BSL-3 and BSL-4 facilities” in the report as opposed to “prevents the use of Level 4 ideological agents”. He shared that there may be companies wanting to build a BSL-3 facility and use it for BSL-2 work.

Carol Johnson stated that in their r esearch of various agencies at different jurisdictions that had adopted regulations specific to biosafety levels there is a preponderance of using the word “facility.” She added there are other jurisdictions that used the phrase “agent”, and Fremont is one of them. Carol Johnson shared that the choice of language can be part of the Commission’s deliberation and a recommendation to modify the text as they so choose.

Commissioner Castaneda wanted to know if there are only seven BSL3 Labs in the Bay Area.

Lisa Costa Sanders stated that is a difficult to find accurate information on current facilities , but it is the best research they were able to locate.

Commissioner Castaneda wanted to confirm that there are only 1% of labs classified in BSL3.

Lisa Costa Sanders stated that is correct at any given time.

Commissioner Castaneda wanted to know who inspects those BSL-3 Labs in the Bay Area.

Carol Johnson shared that in the City of San Francisco there is no prescribed annual inspection.

Commissioner Garvey wanted to know if any BSL -3 Labs ha ve ever been commissioned in the Peninsula, for example, Stanford.

Carla Boragno, Former Vice President of Sit e Services, Genentech shared that those labs are rare, and she is awar e of one lab in San Francisco, but she is not at liberty to share the name.

She added that Genentech in the 90s built and commissioned that type of lab for a particular research program for HIV, and when the lab was no longer needed it was decommissioned.

Carla Boragno added that there are clear and specific guidelines around the design and commissioning of those labs and when combined with design control and the containment along with administrative processes with regards to training and standard operati ng procedure, those labs are designed to be operated in a very safe way.

Chair Iacoponi referred to the Airport Compatibility Zone and the dotted purple line in the presentation. He wa nted to know if the Airport Zone, which excludes BSL -3 and BSL -4 covers most of San Carlos.

Lisa Costa Sanders clarified that it is the dark purple area that does not allow BSL -3 or BSL -4.

The purple dotted line is Compatibility Zone 6, which has no restriction.

Chair Iacoponi wanted to know the thinking behind allowing B SL-1 and BSL -2 only when other cities do not see the need to regulate this.

Lisa Costa Sanders stated that the City receive feedback from the public of their concern with BSL-3 and BSL-4, and the City received some direction from the City Council with the adoption of the General Plan Policy to consider prohibiting BSL-3.

Chair Iacoponi wanted to know the logic behind the cut off at BSL-3.

Lisa Costa Sanders explained that BSL -1 and B SL-2 do not have the same level of safety protocols requirements, and at BSL-3 there is a big step-up.

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4 Vice Chair Clements wanted to know why the City proposed to ban BSL -3 and not suggest a strict CUP with a strict monitoring program. She wanted to know the pros and cons.

Al Savay, Community and Economic Development Director explained that since it was just 1% of usage of BSL-3 facilities in the area and from an economic impact point of view, the City did not believe that it was significant. He stated that the City weighted the economic issues , community safety and concern, the City felt that they should move forward with the recommendation to the Planning and Transportation Commission, because it does not have a significant impact on the marketplace.

Vice Chair Clements wanted to know why the City want ed to put in such regulations when there are other agencies already regulating. She also wanted to know who the City would work with amongst the other agencies.

Lisa Costa Sanders stated that from their research the existing regulations are independent and specific to the kind of operations and agents that the facility is dealing with. She added that if the City were to regulate, one thing that could happen is that the City would act as an umbrella , receiving all the compliance reports from the labs stating they have met all regulations, which to the public the City is another check point and would provide additional reassurance.

Lisa Costa Sanders shared that in some jurisdiction s in the East Coast have committees to review this, but th e City of San Carlos does no t have the staff expertise . She added that perhaps the County could establish that level of oversight at the regional level.

Greg Rubens, City Attorney stated that City oversight is part of t he City’s general police power and general health a nd safety regulation. He stated that he would want to look at the overlay with the County and State regulation to see whether there is some level of preemption, where it's duplicative of what is already been done.

Vice Chair Clements wanted to know if the City would be preempted by something should they start to monitor CUPs.

Greg Rubens shared that the City has many standard conditions in the CUP review process that deal with interagency issues. He gave a few examples. Greg Rubens stated that the City in essence is adopting those standards as part of the CUP approval process . He added that i f someone does not follow those standards, the City c ould conduct a proceeding to revoke their permit or report t o the appropriat e agency who would have their own administrative process to create compliance with the rules.

Lisa Costa Sanders stated that the City’s role is to verify that the labs received all the appropriate approvals required by the other agencies and not to deny or review them.

Commissioner Castaneda wanted to know would th e effect of preemption by the state or federal emergency declaration still allow the City to help in a national emergency if the City were to limit operations at BSL-2.

Greg Rubens explained that should there be a situation where a BSL -2 Lab could do something to help the national emergency but would require them to be a BSL -3 Lab, and they were the only lab that could do that, there may be some emergency power that could apply to make that happen. He added that the City could also amend the Zoning Ordinance if required to help solve the national emergency.

Chair Iacoponi wanted to better understand the approval and on -going enforcement of a CUP for BSL-3.

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5 Lisa Costa Sander e xplained that findings would need to be made to grant CUP approval, and the City needs to develop what those findings are. She added that there are no annual reporting requirements for other CUPs, it would only be enforced when there is a violation.

Carol Johnson stated that the other CUP s did not have any unique findings, only the general conditional use findings for the jurisdiction such as compliance with the General Plan and no detriment to the public health safety.

Greg Rubens shared that the City could develop a special finding for local conditions for granting a CUP if that is something the Commission wanted.

Vice Chair Clements wanted to know how much it cost and what it entails to set up a CUP Monitoring Program.

Al Savay stated that it would be significant. He shared that he does not know of any other cities that have a monitoring program. Al Savay added that there is an informal oversight program that is complaint based and is very effective. He explained that once there is a complain t, the City would investigate and talk to related parties to verify facts. That process usually would get the CUP back in compliance, and if not, the City has the ability to revoke the CUP.

Commissioner Garvey w anted to know how easy is it to retrofit a BSL -2 to BSL -3 or w hether it make financial sense to start out with a BSL-3.

Lisa Costa Sanders stated that is would be difficult to retrofit later, therefore one should build a lab assuming they will want a BSL-3 lab in the future.

PUBLIC COMMENT

Ryan Guibara from MBC Biolabs stated that if the City bans BSL -3 that sends a clear message to the market that the City does not want biotechnology in San Carlos. He added that when a potential company is looking for space and compare the pros and cons of each city, the banning of BSL-3 will deter them from choosing San Carlos and would have a drastic impact to building a biotechnology community.

Ryan Guibara shared that retrofitting a BS L-2 to BSL -3 Lab is possible but difficult. He added that in general only a very small component of a BSL-2 Lab is a BSL-3 Lab.

Vice Chair Clements wanted to know what can be done in a BSL-3 Lab.

Ryan Guibara explained that some COVID work is don e in a BSL -3 Lab and Ebola is done in a BSL-4 Lab. He added that a BSL-3 Lab has higher safety requirements, which makes it foolproof for agents that are in there.

Commissioner Castaneda wanted to know the cost of retrofitting to a BSL -3 Lab. Ryan Guibara stated that it would be expensive.

Commissioner Garvey wanted to know if the BSL-3 Lab is similar to a semiconductor clean room where there are airlocks, HVAC, frequent air changes and filters.

Ryan Guibar explained that there are similarities and differences.

Caller 1 David Crabbe from the Sierra Club shared that he is agains t BSL-3 because of health and safety issues, particularly air born transmitted disease. He added that by putting these labs in the middle of the peninsula does not make sense. David Crabbe stated that the labs have control of what is within their facility, but the City has control o f what is outside the facility, that is the distance between labs and other buildings.

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6 Caller 1 David Crabbe agreed that with a CUP there needs extensive manpower to monitor and enforce, therefore by banning BSL -3, it would el iminate the problem entirely. He shared that BSL-3 is a real safety issue especially the City is in an earthquake area coupled with sea level rising.

Caller 3 Gary Baldocchi shared that labs that perform research on life -threatening pathogens have no place in densely populated residential neighborhoods . He shared his concerns of the consequences of flooding these BSL -3 labs would have on the east and northeast side of San Carlos neighborhood. Gary Baldocchi added that the cost of monitoring, establishin g committees, and passing new ordinance would be costly and he felt that taxpayers should not bear that burden. He agreed with City Staff that BSL-3 and BSL-4 should be banned.

Caller 4 Debbie Baldocchi strongly support ed the banning of BSL-3 and BSL -4. She i s concerned that it appears most of the Planning and Transportation Commission is opposed to banning BSL-3. Debbie Baldocchi urged the commissioners to read the links she shared in her first comment letter and hear what the experts have to say on un regulated private labs. Debbie Baldocchi also stated that flooding would have negative impact to the east and northeast area.

Caller 5 Steven Goodale , a member of the Sierra Club who is part of the working group that looked into the life science and biotech firms. He shared that they met some east coast experts in land use and permitting to give a webinar called Planning for Life Science Development in the Bay Area Communities on March 2nd. Steven Goodale stated he sen t a save-the-date invite to the Commissioners and hope they would attend.

Chair Iacoponi stated that he did receive the invite and thanked Steven Goodale.

Caller 6 Christy Shirilla Policy Manager from BioCom shared that BioCom is the S tate's oldest and largest association for the life sciences, advocating on behalf of 1700 members. She stated that companies are developing life-saving treatments and cures for all human ailments improving health outcomes and quality of life , and the industry is hig hly regulated and has a high rate of compliance. Christy Shirilla proposed to allow BSL-3 with a CUP.

Caller 7 Paul Maggin etti, board member of the Greater East Side San Carlos ( GESC) Neighborhood Association shared a list of questions he posed to the Commission. He stated that if the Commission does not know the answers to the questions, then they are making an uninformed decision on BSL-3 Labs. Paul Magginetti shared that private commercial BSL-3 labs are not subject to regulation s or oversight like publicly funded BSL-3 labs. He added that it is unwise to permit building of BSL-3 labs unti l there is a concrete action plan to address the unthinkable.

Caller 8 Jeff Maley a member of the GESC Board shared that he is very conce rned with labs processing dangerous toxins anywhere near where his f amily lives. He wanted everyone to ask themselves how close is comfortable living near some of those labs.

Caller 9 Jennifer Rosse a member of the GESC Board shared that many of them liv e very close to the purple area in the presentation. She applauded the Staff for making the recommendation and she i s in support of the Ordinance in banning BSL -3 and BSL -4 Labs in San Carlos.

Jennifer Rosse echoed the other callers who are supportive o f the ban. She did a Google search and shared that most of the BSL -3 facilities are in biotech campuses that are secl uded from residential area. Jennifer Rosse added that San Carlos is unique because it has residentials backing right up to life science c ompanies. She urged the Commission to educate themselves before deciding and recommended them to approve the motion.

Caller 10 Anna Axiaq , resident of Greater East Side , urged the Commission to listen to the staff report and thanked the City Staff for their hard work.

Caller 11 Dimitri Vandellos shared that there are onl y 13 BSL -4 facilities in the entire United States. He added that u nless the City is completely prepared, understands the situation, and

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7 have an infrastructure i n place, the City should not be considering BSL -3 facilities. Dimitri Vandellos stated that if a CUP is considered as a potential way to allow B SL-3, then strict guidelines need to be put in place and there needs to be an open process where the San Carlos residents are informed and understand the types of pathogens involved.

M/S Garvey/Castaneda motioned and seconded to close the public comment.

The motion passed 5-0 by the following roll call vote:

Ayes: Roof, Castaneda, Garvey, Clements and Iacoponi

Noes: None

Lisa Costa Sanders clarified a public comment regarding the prohibited location of BSL-3 & BSL-

4. She stated that they looked at a ll the zoning regulations where research and development are allowed, and those areas are where all the BSL-3 labs are prohibited.

Lisa C osta Sanders added that for Planned Development (PD) Zones, they co uld only allow uses that are permitted or conditi onal in the City therefore they could not pull in a prohibited use with a PD.

Commissioner Garvey wanted to know if private labs are subjec t to the same county, state and federal regulations as government labs.

Carla Boragno stated that private labs are subject to the same regulations as government labs, however, there is a distinction as it relates to companies that have National Institute of Health (NIH) funding. She explained that a company that is fund ed by NIH would have to follow NIH and Center for Disease Control and Prevention (CDC) guidelines.

COMMISSION DISCUSSION

Commissioner Roof shared that they must weigh the risk and perhaps San Carlos’ specific risk against the value of having BSL -3 facili ties. He added that it is important to take into consideration the image the City projects and how to overse e the industry. Commissioner Roof shared that the most important point for him is weighing the risk of something that may go wrong and the opportunity to research potentially life saving technolo gies that are important for society.

He shared that he is hesitant to have an across -the-board ban, but he is also not ready to agree with t he recommendation until there is more specific information. Commissioner Roof stated that he could land on the conditional use for BSL-3.

Commissioner Castaneda shared that after reading and hearing the public comments there are good reasons to support b anning BSL -3 and there are good reasons to look at the issues of having labs near major public transportation arter ies and flood zones. She wondered if they should investigate banning the lab itself versus the agent. Commissioner Castaneda supported the CUP for BSL-3 but emphasized that it would need to be narrowly tailored and she was also concerned about the City’s ability to monitor.

Vice Chair Clements shared that this is a difficult decision because it is a technical subject matter and having to balance the concern over health and safety versus to create a biotech hub and other business opportunities . She pon dered about a CUP for BSL -3 with an active monitoring program paid for by the applicant would be feasible if the cost involved was plausible .

She also shared that she appreciated the additional knowledge tha t the public brought to the conversation. Vice Chair Clements stated that she could see it both ways. She added that her first reaction was not to be the community to ban anything that wa s out of fear and not out of facts.

Vice Chair Clements wanted to get clarification on government code section 835 .2. Her understanding is that the code pertains to public property.

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8 Greg Rubens clarified that Section 835.2 refer to dangerous condition on public property.

Commissioner Garvey shared that she appreciate d everyone’s comment and she is supportive of banning BSL-4. She echoed Commissioner Roof’s point of weighing the risk of BSL -3 versus the value that it may gain from allowing life -saving technologies that may impact the health of residence of San Carlos.

Commissioner Garvey shared that she is sitting on the fence with BSL -3 and the one thing that is on top of her mind is supporting a CUP process that has strict monitoring . She liked th e suggestion of an open process that was brought up by the public. She added that the CUP process gives the City a n opportunity to review each of the developments on a case -by-case basis and put in the conditions that are strict for that development.

Commissioner Garvey shared that she could support a ban on BSL -3 with the commitment to revisit the issue in nine months.

Chair Iacoponi thanked the Staff for working on this in a short period of time. He shared that he is also on the fence with BSL -3, and he does not know enough to make a permanent ban on BSL-3. Chair I acoponi acknowledged the cost of a monitoring pr ogram and wondered if the CUP recipient should pay for the cost for the duration. He echoed Commissioner Garvey’s point on more work needed to be done to define what a CUP should look like. He stated that it is too premature to decide.

Commissioner Roof pointed out that the CDC developed BSL -3 Facility Standards that are used across the country and has no accidents or evidence of those bein g inadequate. He stated that he has not heard of any accidents that led to death or caused trouble in the news.

Vice Chair Clements suggested to potentially make a motion asking for additional information of the issue before moving forward with any recom mendation to the City Council because they would want the same info rmation. She then shared a list of questions that needs to be answered.

Chair Iacoponi wanted to hear from staff their recommendation for next step.

Al Savay stated that they would prefe r to defer action on this item and come back with additional information.

Greg Rubens stated that there is no ne ed for a motion for the Commission to give direction. He summarized that the Commission would like to see a CUP option for a BSL -3 lab and the related findings and additional information on what it takes to ensure public safety. He added that the Staff would bring both options, the original recommendation, and a CUP option for the Commission to make a final decision.

The Commission supported the direction as outlined by the City Attorney, Greg Rubens.

Vice Chair Clements added that staff should come back with information on business benefit or lack of by the additional cost involved in the CUP, the risk, CDC guidelines and a proposal o f the CUP Program.

Greg Rubens stated that when the Commission wants to come back with a topic a fter the close of the Public Hearing, typically the Commission should reopen the hearing so that all the members of the public would be able to continue to com ment on the new idea or concept in the next meeting when the Staff brings the item back.

Greg Rubens on behalf of staff recommended the Commission continue to a date certain , to March 6, 2023.

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9 M/S Iacoponi/Clements motioned and seconded to continue the public h earing date certain to March 6, 2023 and to reopen the public comment period.

The motion passed 5-0 by the following roll call vote:

Ayes: Roof, Castaneda, Garvey, Clements and Iacoponi

Noes: None

7. REPORTS, CORRESPONDENCE AND GENERAL INFORMATION
a. Report on recent City Council actions
Andrea Mardesich, Assi stant Community Development Director gave the following updates:

At the January 23, 2023 City Council meeting the City Council adopted the 2023 -2031 Housing Element and it has b een sent to the State Department of Housing and Community Development (HCD ) for certification, and at the same meeting the Council also adopted the associated zoning ordinance amendments.

City Council denied the 703 Knoll Drive appeal thereby uph olding the Planning and Transportation Commission's decision to approve the project. b. Planning and Transportation Commission comments or reports - None c. Correspondence
Andrea Mardesich stated that P lanning Division received several let ters regarding the public hearing item this evening and copies of those were emailed to the Planning and Transportation Commission and available here in the Chamber. d. Planning Staff comments, reports and updates of current projects Andrea Mardesich gave the following updates:

Currently there are no item scheduled for the Fe bruary 21 , 2023 Planning and Transportation Commission Meeting.

The Downtown Specific Plan Workshop is scheduled for February 15 , 2023 at 7:00 pm.

It is a virtual Community Workshop, and more information c ould be found at www.sancarlosdowntownplan.com.

Lisa Costa Sanders gave the following update on 808 Alameda de Las Pulgas.

The public review and comment period on the Draft Environmental Impact Report has closed and the City received about 56 written comments in addition to the comments received at the Planning and Transportation Commission Meeting.

The consultant team is currently working through those comments . Once they have organized and the contact information redacted, they w ould post them to the project webpage.

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10 The comments were very similar to what the Commission heard at the meeting.

8. ADJOURNMENT
The meeting was adjourned at 8:55 pm.

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1 CITY OF SAN CARLOS

SAN CARLOS PLANNING AND TRANSPORTATION COMMISSION
Tuesday, March 6th, 2023
7:00 PM
San Carlos City Hall, Council Chambers
600 Elm Street, San Carlos, CA 94070
www.cityofsancarlos.org

APPROVED MINUTES

COMMISSIONERS ADVISORY
Jim Iacoponi, Chair
Kristen Clements, Vice Chair
David Roof
Ellen Garvey
Janet Castaneda
Al Savay, Community and Economic Development
Director
Lisa Porras, Planning Manager
Megan Wooley-Ousdahl, Senior Planner
Andrea Mardesich, Assistant Community
Development Director
Greg Rubens, City Attorney
Lisa Costa Sanders, Principal Planner, Consultant

1. MEETING CALLED TO ORDER
The meeting was called to order at 7:01 pm.

2. ASSEMBLY BILL 2449 TELECONFERENCE REQUESTS

3. PLEDGE OF ALLEGIANCE

4. ROLL CALL
Commissioner Garvey excused.

5. PUBLIC COMMENT - None

6. APPROVAL OF MINUTES
Attachment 5. Approved Minutes from the March 6, 2023 Planning and Transportation Commission Meeting

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2 a. Approval of the Minutes from the Planning and Transportation Commission Meeting of February 6, 2023
M/S Clements/Roof motioned and seconded to approve the minutes of February 6, 2023, Planning and Transportation Commission Meeting.

The motion passed 4-0 by the following roll call vote:

Ayes: Castaneda, Roof, Clements, Iacoponi
Noes: None

7. PRESENTATION

a. New and Proposed Planning and Transportation Laws, Presentation by Amy Brown and Colin Hawley with Arc Strategies.

Amy Brown, Consultant with Arc Strategies presented the item.

Vice Chair Clements wanted to know the number of bills that were introduced last year.

Amy Brown estimated around 1500 to 1700 range and stated she would get the exact number to the Commission.

Vice Chair Clements, wanted to know it there was the affordability component to AB 2295.

Amy Brown shared that she did not know the answer but stated that she does not think there was the affordability component based on the Fiscal Analysis of the Appropriation Committee.

Vice Chair referred to SB4. She wanted to know if the City or County give up the institution lands for development, what would they get in return. Amy Brown stated that they would need to see how it evolves.

Vice Chair Clements wanted to know more about the status of SB35. Amy Brown stated that she believed the SB4 is the follow up to SB35.

Chair Iacoponi shared that he felt the measures that took effect in January were well included in all the work that Staff did in the Housing Element.

PUBLIC COMMENT - None

8. PUBLIC HEARING

a. Consideration of Design Review approval for a proposed Sign Program at 1501-1599 Industrial Road (APNs: 046-240-130 and 046-240-140).

Ralph Robinson, Associate Planner Consultant presented the item.

Commissioner Roo f wanted to if this represents are t he totality o f signs on the property or in addition to signs previously approved.

Ralph Robinson stated that the sign plan represents the totality of signs proposed at the site.

Chair Iaco poni wanted to know wh y this item is before th e Planning and Transportation Commission (PTC).

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3 Ralph Robinson stated that per City Municipal Code, sign programs are subject to review by the PTC.

Chair Iacoponi recalled approving a signage program for one of the properties in the Alexandria area and wanted to know if this was for another property.

Lisa Costa Sanders, Principal Planner Consultant clar ified that the property mentioned by C hair Iacoponi is for a separate building owned by Alexandria at 825/835 Industrial Road. She added that the code does require that whenever there is multi-tenant at a sign program it would require approval by the PTC.

Commissioner Castaneda wanted to know if there are any changes in the lighting of the signs.

Ralph Robinson stated that currently only the monument sign has lighting. He added that any new lighting changes would fall under the standard code requirements and staff review.

Vice Chair Clements wanted to know the definition of the banner mentioned in the report.

Ralph Robinson clarified that the banner mentioned is a temporary banner that is mounted on the fence. He added that per the City’s codes, a permanent fixture is not allo wed on the fence.

Ralph Robinson explained that in this case, it is categorized as a b anner because of the vinyl material used, the composition of the design, the color used, and it is temporary.

Vice Chair Clements wanted to kn ow if there are other more attracti ve and durable material that could be recommended.

Lisa Costa Sanders explain ed that if the applicant wanted a more pe rmanent solution such as replacing the fen ce with some gra phics on it , the City can look at it from a site develop ment standpoint and approve it at the Staff level.

Applicant Hormoz Ziaebrahimi from LPA provided context and reason behind the use of the vinyl graphics. He added that as a first touch it was an econo mical way of approaching and generating interest for the campus at the entry point. It could be reconsidered in the future.

Vice Cha ir Cleme nts wanted to know the durability of the sign . Applicant stated he does not know and would find out the specification for the Commission.

Commissioner R oof wanted t o know if some thing mor e per manent w ould replace the vi nyl banner.

Applicant stated that he w ould discuss with Alexandria and get back to the Commission with more specification of the material and Alexandria’s definition of permanence.

Due to technical difficulty, Lisa Porras asked the Zoom attendees to log off and log back in.

PUBLIC COMMENT

Caller Dimitri Vandellos stated he did not have comment on the signa ge program but wanted to make sure the c allers for the Biosafety item had a chance to log bac k in due to earlier te chnical difficulty as there was a large online attendance.

M/S Clements/Iacoponi motioned and seconded to close the public comment.

The motion passed 4-0 by the following roll call vote:

Ayes: Castaneda, Roof, Clements, Iacoponi

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4 Noes: None

COMMISSION DISCUSSION

Commission Castaneda wondered if the applicant should remove the vin yl sign or not. She added that it looks better than the existing fence and she could go either way.

Vice Chair Cl ements shar ed that she finds the vinyl sign attractive. She stated th at the Code does not promote the use of vinyl sign even on a temporary basis. Vice C hair Clements stated she would take Staff ’s r ecommendation to omit the vinyl sign from the plan or take Commissioner Castaneda’s idea of allowing the usage of the vinyl sign for one year.

Commissioner Roof thought the sign s in terms of quantity and size were con sistent with the project. He stated that he would like to define a usage period for the vinyl banner sign.

Chair Iacoponi stated that he is not a fan of vinyl signs and would not want to see another plastic get thrown away in a year. He felt that the design was good and stated he w ould support Staff’s recommendation to not have the viny banner sign.

Chair Iacoponi wanted to know if the applicant could come back and apply for an am ended sign program if they decide to use a different material with the same graphics.

Lisa Cosa Sanders clarified that if the applicant were to come back with some other permanent material that just had the decor on it and no signage, it is not a sign anymore and the staff could approve it. She added that if the applicant were to come back with other permanent material with graphics that had a small sign of the campus, then the applicant would come back to the PTC for an amendment to the Sign Program.

M/S Roof/Clements motioned and seconded to adopt the Resolution approving the Sign Program for the site and six industrial buildings at 1501, 1531, 1541, 1551, 1561 and 1581 Industrial Road. (APNs: 046-240-130 and 046-240-140).

The motion passed 4-0 by the following roll call vote:

Ayes: Castaneda, Roof, Clements, Iacoponi

Noes: None

b. Consideration of a Resolution Recommending the City Council Adopt an Ordinance Amending San Ca rlos Municipal Code Titl e 18 to Regulate Laboratories with Biosafety Levels (BSL)

Lisa Costa Sanders, Principal Planner Consultant presented the item.

Vice Chair Clements referred to the slide, Monitoring Compliance with a Conditional Use Permit (CUP). She wanted to know if the annual report is found to be non-compliant, what would be the precipitating event for that hearing to revoke.

Greg Rubens , City Attorney explained that i t is a notice hearing requirement, a due process hearing. He added that if the City found that ther e is a problem they would report to the state and federal agencies that have jurisdiction over the lab.

Commissioner Roof wanted to know h ow the City oversi ght would work with the state and federal rules.

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5 Lisa Costa Sanders clarified that the City is makin g sure the labs are in compliance with all t he rules and regulations by other agencies via peer-review.

Chair Iacoponi wanted to know whether the CUP applies to the pathogen or lab space. He also wanted to know if the applicant could sublease the space, and how could the City track that.

Lisa Costa Sanders clarified that the CUP must specify it is for the tenant on the site and for a specific plan. She added that if there are any changes, the tenant needs to come forward to the Commission to present the amended plan and provide all the new reporting. At that point the PTC can determine if they want to grant the CUP.

Chair Iacoponi wa nted to know whether the peer-reviewed plan would require an onsite inspection.

Lisa Costa Sanders stated that annu al reporting does not req uire an o nsite inspection and that could be a condition that the Commis sion includes or amend the Ordinance to inclu de onsite inspection as a requirement.

Chair Iacoponi wanted to know if the City would have an expert onsite inspection and review of all plans before presenting a case for CUP for Biosafety Level 3 (BSL-3).

Lisa Costa Sanders explained that the applicant would not fit out the equipment before obtaining a CUP approval. She suggested to have a post inspection to determine if the lab was implemented as planned and f ailure to do so with in a certain time f rame would trigger revocation.

Commissioner Castaneda wanted to know if there are other reputable Biosafety Committees in the area that the City can leverage to do the review instead of an outside consultant.

Lisa Costa Sanders stated that based on thei r research, the only committe es are in the east coast and there are none in S an Mateo County. She stated that e xternal consultants are the only alternative.

Commissioner Castaneda wanted to know more about the emergency procedures of these labs and how would the City handle a fire or flood.

Lisa Costa Sanders shared that she spo ke with the Fire Marshall, and they explained that the y need to know what material is inside the building, then eva luate the approach before entering.

Lisa Costa Sanders listed a few procedures of how the fire depa rtment would handle the emergency.

Commissioner Castaneda wanted to know why the language was not specific to a certain type of research.

Lisa Costa Sanders explained that the language was written that w ay because the City does not want there to be a standalone BSL -3 that others c ould utilize, rather the CUP i s for the tenant onsite and they have control over it. She added that the type of research th at could b e conducted would need to be evaluated through the Use Permit Process.

Greg Rubens added that a CUP is a discretionary land use approval , therefore the Commission has discretion whether to allow it or not, and condition it if necessary to make the findings.

Commissioner Castaneda was concerned with the City’s lack of subject matter expert.

Greg Rubens responded that that is where the peer-review comes into play and stated that the City has other resources such as the County Environmental Health Department.

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6 Commissioner Roof wanted to know if the C ity could impose more constraints and ob jections in the CUP application.

Greg Rubens explained that the d iscretionary process creates some flexibi lity for the City. He added that the City does no t have a set of standards but could use the findings to cre ate conditions that would be appropriate for a particular development.

Vice Chair Clements shared that the value hinges on the peer-review because the City does not have the expertise on staff . She stated tha t she assumed Staff would craf t the Request For Proposal (RFP) as to what they are looking for in an on-call consultant and wondered how many expert consultants are in the area.

Lisa Costa Sanders stated th at based on their research, there are a few consulting firms that could assist the City.

Vice Chair Clements wanted to know if the applicant would be able to bear the cost of the on-call consultant.

Lisa Costa Sanders stated the cost for the BSL-3 CUP would be the standard CUP fee plus the cost of the consultant.

Vice Chair Clements wanted to know if the market would bear the on-call consultant fee.

Lisa Cost Sanders stated they did not do that research.

PUBLIC COMMENT

Caller 1 Christy Shirilla from Biocom California Bay Area Policy Manager stated that the labs are highly regulated and shared a list of regulatory agencies that interacts with the labs.

Caller 2 Gita Dev Sierra Club Loma Prieta Chapter shared that the Ordinance is a good start but is not there yet. She stated that labs that are funded by private money are not required to meet all the regulations and that is a concern for the highe st lev el of government. Gita Dev also pointed out that animal labs are not covered by the Ordinances, and it is an important consideration. She asked the City to consider the r isk and decide i f it is worth taking on at this time.

Caller 3 Paul Magginetti referred to the video he sent for inclusion in the public record. He stated that the video explains why Option 2 falls short of what is needed to protect the public. Paul Magginetti also stated that the link in the letter list out examples of lab accidents. He stated that there is no comprehensive oversight response mechanism in the Bay Area . He added that t he City is not ready yet and Option 2 trades public safety for short -term economic gain. He stated that BSL-3 Labs should not be allowed.

Caller 4 Steve Goodale resident of Redwood Shores shared his opposition of BSL -3 Labs. He shared the example of the Corona Virus and the damage that it has caused due to the leak from the Wuhan Lab. He shared that the City should not take the chance to ruin its reputation.

Caller 5 Gary Baldocchi shared that he does not t hink the CUP would adequately protect the public and shared his reasons. He asked the Commiss ion to ban BSL-3 and BSL-4 Labs in San Carlos.

Caller 6 Debbie Baldocchi urged the Commission to join other cities in the east coast to ban high containment BSL-3 and BSL -4 Labs in the community . She shared her reason s and cited two experts’ concern on biosafety.

Ben Paul (in person) fro m San Mateo County Chamber sh ared that the Chamber conducted its own researc h and hosted a presentation on bi osafety levels. He learned how regulated the

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7 industry is and the massive level of care that goes in to the opera tion of these state-of-the-art laboratories. Ben Paul listed the needs of having the innovative labs in San C arlos and asked the Commission to permit the BSL-3 Labs under the CUP process.

Gary Boitano (in person) shared that he agreed with Ben Paul ’s comment. He stated that if the City bans BSL -3 Labs it would put a big halt on businesses wanting to come to San Car los, which will cause a big freeze on growth. He added that San Carlos w ould be the only city that has the outright ban on BSL-3 Lab.

Ryan Guibara (in person) shared that a ban on BSL-3 Labs will be very bad for the City, and it ought to have a CUP process in place. He shared a list of local, state, and national agencies his company, MBC BioLabs deals with. Ryan Guibara added that the CUP for BSL-3 would be the most restrictive option in the Bay Area.

Caller 7 Bryce Nickels Professors of Genetics a t Rutgers University , Lab Direc tor at the Waksman Institute of Microbiology, Co-Founder of a nonprofit called Biosafety Now. He shared that as an in sider of the industry he does not underst and why the Commission focus on money and not the safe ty of the com munity. Bryce Nickels added that the research related incidents would not just impact the local community but the entire global community. He stated that San Carlos has an opportunity to stand up for th ose special interest groups and people wh o are in only for the dollar and say no to them.

Caller 8 Gladwyn d ’Souza from Belmont asked the Commission to ban BSL -3 Labs, shared his reasons and sighted examples of different cities that have lab accidents. He added that the City should not shoulder the risk.

Caller 9 Jennifer R from Grea ter East San Carlos Area stated that she is in support of banning BSL-3 Labs. She agreed with all the previous caller s who believed there should be a ban on BSL-3 Labs. She pointed out that typical BSL-3 Labs are in cam pus-like settings and not right up next door to residents. Jennifer R shared that she asked all her neighbors and none of them wanted to be next to a BS L-3 Lab. She asked the Commission to think about public safety, cost and the liabilities involved.

Caller 10 Nina G asked the Commission to vote to prohibit high containment labs and stated that BSL-3 and BSL-4 labs have no place in the densely populated Silicon Valley neighborhood. She asked the Commission to listen to the concerned constituents and protect the community.

Caller 11 David Crabbe sha red that he echoed what everyone said again st the BSL-3 Labs. He shared that the dollars are trumping the safety issue. David Crabbe added his other concerned was that the PTC is considering a CUP without having the expertise in how to do it. He stated that the outside experts are all connected to the Biotech Industry and if would be very difficult to be unbiased.

Caller 12 Melanie Cohn from Biocom California shared that she is concerned by the comments from th e people calling as they appear to not have any understanding of the industry. She stated that there is no such th ing as unregulated BSL-3 Labs unless it is operating illegally. She challenged those callers who stated that COVID was released from a lab and reminded them the COVID vaccines were developed in BSL -2 and BSL-3 Labs. Melanie Cohn also shared that she personally benefited from the industry researching a rare disease that she has.

Dino Perazzo (in person) resident of San Carlos and runs the Life Science Practice from CBRE representing and advising many Biotech companies . He shared that from his experience the broader industry exceeds the r egulations for training, safety, and secu rity in their labs. He voiced his support for a CUP for BSL-3 Labs.

Caller 13 Dimitri Vandellos President of the Greater Eastside San Carlos Community (GESC) Neighborhood Association. He shared that the CUP for BSL-3 needed a lot more to be developed before the PTC or the C ity could accept any kind of CUP option. Dimitri Vandellos

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8 stated that the CUP process that is currently outlined is nowhere near adequate and does not do the necessary notification for the c ommunity. He added that the City has a p oor track record of environmental safety and cleanup.

M/S Castaneda/Clements motioned and seconded to close the public comment.

The motion passed 4-0 by the following roll call vote:

Ayes: Castaneda, Roof, Clements, Iacoponi

Noes: None

COMMISSION DISCUSSION

Commissioner Roof wanted clarification on the Food and Drug Administration (FDA) rule regarding following the drug approval process.

Carla Boragno, Former Vice President of Site Services, Genentech stated she could not answer the question because she is not from the FDA. She pointed out that in the Staff Report the CUP requires the applicant to following the Biosafety in Microbiological and Biomedical Laboratories (BMBL) which is from the National Institu te of Health (NIH) and Center for Dise ase Control (CDC) as well as all the other requirements in California regulations. Carla Boragno stated that the CUP allows the enforcement of those regulations.

Chair Iacoponi wanted to know if there is a distinction between private and public funded labs in terms of regulations and standards compliance.

Carla Boragno shared that based on her understanding the guidelines are consistent whether it is a private or public funded lab, however with public funded labs, they are required to s ubmit their reports showing they are compliant with the BMBL to the NIH and CDC. She added that the CUP Optio n requires the reports to be certified by a third party consultant, and that essentially is doing the same thing as what is required by the public labs.

Commissioner Castaneda wanted to know if there are peer reviews o f the research project itself in the private labs.

Carla Bora gno shared that there are peer reviews in pr ivate compani es and researc h organizations as well . She clarified that she could not sp eak for all companies as there are much research going on.

Vice Chair Clements wanted to know if t here are standards and best practices about communication with the public on releasing reports to the public.

Carla Boragno stated that in the BMBL there are two or three requirements on incident reporting to the local authorities as well as requirement to have an emergency response plan . The CUP process has that transparency.

Chair Iacoponi wan ted to know should the Commission wanted to move forward with the CUP Option but is hesitant on a point, could they clarify a point and amend the conditions.

Greg Rubens explained that if the PTC felt that Staff’s recommendation on the CUP o ption is insufficient, they c ould give the Staff specific recommendation or addition and that would become part of the recommendation to the Council. He added that the Staff would like to have a recommendation tonight beca use the item has bee n before the P TC once and th e PTC’s recommendations is required for a Zoning change befor e it can be considered by the City Council.

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9 Chair Iacoponi asked the Commissioners to share where their thoughts are on the two options.

Commissioner Castaneda shared that she has been told tha t the National Science Advisory Board for Biosafety (NSABB) is concerned with the trend of the growing BSL-3 and BSL-4 Labs, and they have issu ed propose reforms and the reforms have been sen t to the Federal Government. She also shared that the NSABB is concerned about the nature of the research over the safety of the labs themselves , and until the issues are addressed she is reluctant to go ahead with the CUP as it is. Commissioner Castaneda shared that sh e would have support it if it was limited to pubi c government sponsored controlled research because s he believed those kind of research should have adequate peer review to consider the benefits of the research itself versus its risk. She added that she did not think a consultant is sufficient for peer review.

Commissioner Roof shared that he is e xcited the City c ould nurture and welcome the Biotech Industry because of the potential medical benefits that it brings to the society. He stated that he does not see the benefit as financial profits, but the drugs that would be developed to benefit the society. Commissioner Roof added that he does not think a blanket ban of BSL -3 makes sense.

He shared that he preferred t he CUP Option because it would allow the City to decide whether something was appropriate based on what it is.

Commissioner Roof stated that it would be an easier discussion to have when there is a speci fic request instead of imagining the worst possible situation.

Vice Chair Clements shared th at she could go either way with the options. She stated that the way the Ordinance is written i t is unclear to her if the City c ould retain its rights to say no to a particular use by a particular tenant, based on the research and the product itself, and not based on the condit ions of the lab or the presence of the safety techniques. Vice Chair Cle ments wanted to know if the City has latitude to make decisions on a case by case basis and not confined by the opinion on lab space, safety and standards for the practices and not the product.

Greg Rubens, City Attorney clarified that the Zoning Ordinance is not drafted with that level of specificity to the types of uses. He added that with a CUP process it means there is no by right development for that particular use, and the City still has discretion to deny uses based upon any one of the finding s. Greg Rubens stated that one of the drawbacks of drafting a law is that Staff could not analyze every specific situation that might come forward, but they would try and give the City the discretion to say yes or no to a project based upon those facts.

Greg Rubens clarified that the Ordinance is supplemental to the standard findings that the Commission has to make for health and safety consisten t with the General Plan. He stated that the Ordinance is designed to allow the Commission to analyze all different aspects of a potential project. Greg Rubens stated that it is open-ended on purpose because it allows the PTC to look at the individual situation of any application.

Vice Chair Clements stated that with Greg Ruben’s clarification she is leaning in the direction of a CUP process that adds transparency to the public when there may not be one now.

Vice Chair Clements referred to Section 2, page 104 in the report , Operational and Performance Standards. She suggested to make a recommendation to state that once the plan gets approved, there needs to be an inspection to confirm that those improvements were made and that those conditions match the report in the plan.

Chair Iacoponi wanted to know once a CUP is approved would there still be a set of inspection requirements before granting the certificate of occupancy to utilize the facility . He wanted to know who owns the last step of confirming the applicant performed what they s et out to do according to the plan.

Lisa Costa Sanders agreed that a pee r r eview inspection post CUP approval to ensure that everything has been adequately implemented could be an added requirement.

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10 Chair Iacoponi stated that he would ask for the peer review inspection post CUP approval.

Commissioner Roof added that in addition to the peer review inspection post CUP approval as a final si gn off , there nee ds to be an annual report inspection to ensure compliance and continuous oversight.

Commissioner Castaneda wanted to know what the effect of any government standards on the CUP would be.

Greg Rubens clarif ied that in a typical CUP there is the condition to comply with the standards, and in a BSL -3 CUP there would be a long list of standards to c omply. He stated that i f the Commission wanted to add a particular standard or if they wanted the recommendation to say all standards, the Staff could develop for them tonight to recommend to the Council.

Lisa Costa Sanders stated that the recommendation of re quiring an inspection to ensure everything has been implemented prior to operation of the lab should be added to Section C, last category in the Operational and Performance Standards.

Chair Iacoponi wanted to clarify one additional point, the local, state and federal standards are fully implemented.

Vice Chair Clements wanted t o clarify Commissioner Roof’s point of annual i nspection. She stated that the inspection is not just the initial inspection, but an annual inspection confirmed by the consultant to certify that the lab plan was still being followed.

Commissioner Roof wanted it to be explicitly written.

Chair Iacoponi gave a summary. He shared that a CUP Option would create an opportunity and an environment which would benefit the comm unity and a straight-out ban would eliminate that.

He appreciated the risk raised by the community, on the other hand the Staff has set a high bar to be met and gave the Commission the latitude to reject a CUP if it did not meet the standards.

Chair Iacoponi shared that while he is not an expert in any organization, he believed that there is the collective ability to ask the righ t questions amongst the Commission and to seek help from expertise wherever needed. He added that with the work that the Staff put forward there is a mechanism to determine whether pubic safety is met , and in that instance determine whether the risk versus the o pportunity is balanced. The Commission has the latitude to say yes, or no to the application. Chair Iacoponi stated fro m a land use perspective he is supportive of the CUP process with the written amendments and additions that was just framed.

Commissioner Castaneda asked the Commission if it is necessar y to add a statement that they do not want gain-of-function research and certain potential pandemic pathogen research.

Chair Iacoponi stated from his point of view he does not think it is necessary.

Commissioner Roof shared that they could not prejudge everything in advance. He stated that he does not think it would be appropriate.

Vice Chair Clements shared that it is not an exhaustive list and the conditions could change over time. She added the process is flexible enough that they could ask for the findings and a lot more information about the actual use of the lab and then decide if the y are comfortable enough to decide.

Chair Iacoponi wanted to first get confirmation on the modification discussed before they vote for the CUP. He stated to have a 10min break for the Staff to amend the language.

Commissioner Castaneda wanted to know who will pay for the decommissioning of the lab.

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11 Greg Rubens stated that the applicant would have to pay for it and the City is never obligated to pay for it.

Vice Chair Clements wanted to know if there was an edit on current standards being periodically reviewed or implemented.

Greg Rubens stated that there is a reference to guideline set forth in the BMBL 6th edition as well as CDC and NIH Standards.

Commissioner Roof shared that he believed San Carlos is the first city in San Mateo County to bring biosafety labs under land use purview. He added that this is a progressive nature that San Carlos is taking in addressing BSL-3 Labs.

Staff read the revised wording for the Ordinance as follows.

“An inspection shall be conducted, and a compliance report shall be submitted at the expense of the o wner, operator, or tenant prior to initiating operations, and on each anniversary of the effective date of permit approval, and on the closure or discontinuance of the Biosafety Level (BSL) 3 facility. Such reports shall be made by a qualified third party demonstrating continued compliance with the guidelines set forth in Bi osafety in Microbiological and Biomedical Laboratories (6th Edition or most recent) authored by the Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH).”

M/S Roof/Clements motioned and seconded to Adopt a Resolution rec ommending that the City Council adopt an Ordinance amending San Carlos M unicipal Code Section 18 to require to prohibit BSL-4 activities and to allow for BSL -3 activities with a conditional use permit as specified in the Ordinance and as amended this evening.

The motion passed 3-1 by the following roll call vote:

Ayes: Roof, Clements and Iacoponi

Noes: Castaneda

Greg Rubens addressed the members of the public . He stated that the PT C made a recommendation to the City Council therefor e this matter w ould go to the Ci ty Council for final review of the recommendation.

9. REPORTS, CORRESPONDENCE AND GENERAL INFORMATION
a. Report on recent City Council actions – None
b. Planning and Transportation Commission comments or reports Commissioner Castaneda shared t hat she attended the Downtown Coffee and Comments Open House at the Library on March 4 and thought it was an excellent program. She added that it was well attended and wanted to compliment everyone for the exhibits that were put up, the ability for people to make choices and it was an excellent presentation.

Commissioner Roof shared that he also attended the Open House and echoed Commissioner Castaneda’s comment fully.

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12 Chair Iacoponi shared that his household went through the Objective Design Review Surve y. He added that he appreciate d the opportunity and thought it was well done, especially the simple examples.

Chair Iacoponi appreciated the Staff’s work and their help in guiding the Commission through the Biosafety item.
c. Correspondence
Lisa Porras s tated that prior to the distribution of March 6 PTC packet, the City received a total of five public comments from Paul Ma gginetti, Gail Ghose, Gary and Debbie Bald occhi, Joe and Kelly Haws, and Terezia Nemeth. She added that they were all forward to the PTC this evening. d. Planning Staff comments, reports and updates of current projects Lisa Porras gave the following updates:

The Downtown Coffee and Comments Open House on March 4, 2023 had a great turnout .

Approximately eighty people attended. The Staff is compiling the comments and would be presenting to the PTC in late Apr il. Staff would share the community’s response on the preliminary design concepts that the City put forward.

An a dditional online survey is available at sancarlosdowntownplan.com for t hose who did not have a chan ce to attend the February 15 , 2023 Downtown Community Workshop. The online survey is available from March 1 to April 1.

The Northeast Specific P lan Virtual Workshop will be on Wednesday, March 15, 2023. An email invitation was sent to the commissioners, and they are welcome to distribute to their friends and network.

In the next PTC Meeting, March 20 , 2023 Staff would bring forward the Objective De sign Standards – Single Family Home Building Types. That would be a Study Session and no formal request is asked of the Commission.

On March 20, 2023 , 888 Branston, a new Life Science development would be coming forward before the Commission.

8. ADJOURNMENT
The meeting was adjourned at 10:33 pm.

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March 27, 2023 1
San Carlos City Council/Successor Agency to the
Redevelopment Agency/Housing Authority Regular Meeting
Council Chambers, City Hall
600 Elm Street, San Carlos, CA 94070
March 27, 2023 7:00 PM

MINUTES

ROLL CALL
City Council Present: Adam Rak, Mayor (depart from meeting at 9:34 PM) John Dugan, Vice Mayor
Ronald Collins, Councilmember
Sara McDowell, Councilmember
Pranita Venkatesh, Councilmember
Staff Present: Nil Blackburn, Assistant City Manager
Lisa Costa Sanders, Principal Planner Consultant
Gareth Harris, Fire Marshall
Adam Lokar, Senior Sustainability Analyst
Steven Machida, Public Works Director
Andrea Mardesich, Assistant Community Development Director Rebecca Mendenhall, Administrative Services Director
Crystal Mui, City Clerk
Amy Newby, Parks and Recreation Director
Cristian Padilla, Economic Development Coordinator
Lisa Porras, Planning Manager
Gregory Rubens, City Attorney
Al Savay, Community Development Director
Megan Wooley-Ousdahl, Senior Planner

1. CALL TO ORDER
M
ayor Rak called the meeting to order at 7:00 PM.

2. ASSEMBLY BILL 2449 TELECONFERENCE REQUESTS
M
ayor Rak announced that all members of the Council are participating in this meeting in-per
son.

3. PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Mayor Rak.

4. CHANGES TO THE ORDER OF THE AGENDA
None.

Attachment 6

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March 27, 2023 2

5. REPORT FROM CLOSED SESSION
City Attorney Greg Rubens reported that there are no reports from the closed session item held this evening.

6. PRESENTATIONS
a. Present a City Coin to Community Volunteer Debbie Denton.

Mayor Rak presented a city coin to Debbie Denton for her volunteer work in the community.

Ms. Denton thanked the Council fo r the recognition and encouraged everyone to volunteer.

7. COUNCIL COMMUNICATIONS AND ANNOUNCEMENTS

Councilmember Collins reported that there will be weekend service interruption on Caltrain due to electrification work.

Councilmember McDowell reported that the San Mateo County Library now provides free period products and that she recently delivered Meals on Wheels to homebound residents.

Vice Mayor Dugan spoke on a recent letter that Peninsula Clean Energy sent to the B ay
Area Air Quality Management District summariz ing a list of concerns mandating electrification.

Mayor Rak announced that the call for commission applications has opened and the deadline is May 12th. He also announced that he had the opportunity to throw out the first pitch at Little League’s opening night.

8. PUBLIC COMMENT

Klare Allen spoke about out against National Emerging Infection Diseases Laboratories (NEIDL) and cautioned the City about these laboratories.

Amanda, with the Bay Area Youth Climate Action Group
, spoke on the adverse affects
artificial turf has on our health and environment and requested Council pass a moratorium on them.

Mark, with the Bay Area Youth Climate Action Group,
spoke on the adverse affects artificial
turf has on our health and environment and requested Council pass a moratorium on them.

Zinovy Fichenholz, resident, commented that
biosafety lab 3s are dangerous and also
suggested synchronizing street lights to reduce idling of cars.

9. CONSENT CALENDAR

MOTION: Adopt Consent Calendar items ‘a’ – ‘i’.

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MOVER: Sara McDowell
SECONDER: Pranita Venkatesh
AYES: Collins, McDowell, Venkatesh, Dugan, Rak
NAYS: None
RESULT: Motion Passed 5 – 0

a. Motion to Waive Reading of All Ordinances.

b. Approve the February 13, 2023 City Council Regular Meeting Minutes.

c. Adopt a Resolution Approving a Professional Services Agreement for On Call Mechanical, Electrical, and Plumbing Engineering Services for a One Year Term, with an Annual Not to Exceed Amount of $1,000,000, to Salas O’Brien and Authorizing the City Manager to Execute the Agreement. Resolution 2023-033

d. Adopt a Resolution Proclaiming the Termination of the Declaration of Local Emergency Dated January 5, 2023 Arising out of the December 2022 and January 2023 Atmospheric River Storms. Resolution 2023-034

e. Adopt a Resolution Authorizing the City Attorney to Draft a Revocable License Agreement with Bianchini’s Supermarket Inc. for the Installation of a Shopping Cart Security System Within the Right of Way of a Public Parking Lot that is Owned by the City of San Carlos (APN: 050-163-500), and Authorize the City Manager to Sign and Approve the Agreement. Resolution 2023-035

f. Deny Claim of Thelma Ruiz.

g. Adopt a Resolution Authorizing the City Manager to Amend the Agreement with Pacific Office Automation for Printing Services and Authorize the City Manager to Amend the Agreement to Add, Replace, and Modify Printers, Devices and Maintenance Services as Needed. Resolution 2023-036

h. Deny Claim of Scott Rhodes.

i. Adopt a Resolution Authorizin g the City Manager to Sign the Regional Early Action Planning (REAP) Streamlining Pilot Agreement with the Association of Bay Area Governments for a Two Year License for Symbium Plancheck Software at No Cost to the City of San Carlos. Resolution 2023-037

10. PUBLIC HEARING

a. Consideration of Introducing an Ordinance Amending the City of San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels (BSL).

Principal Planner Lisa Costa Sanders presented on proposed regulations for biosafety levels and, along with Consultant Carla Boragno - Former Vice President of Site Services with Genentech, Planning Director Consultant Carol Johnson, City Attorney

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Greg Rubens, Community Development Director Al Savay and Fire Marsh all Garet Harris, responded to Council questions.

Council provided the following disclosures and noted that it won’t impact their decision:

- Vice Mayor Dugan met with the MBC Biolab Developer on this topic and also met with the Sierra Club.
− Councilmember McDowell met with several life science developers over last 4 years, including Alexandria, MBC Biolabs and Presidio Bay , but those conversations were not related to tonight’s topic. She also met with the Sierra Club.
− Councilmember Collins met with life science developers in previous years on other issues.
− Mayor Rak met several developers over the last few years, but not on this topic .

He also met with the Sierra Club.
− Councilmember Venkatesh’s husband works for life science .

Public Comment

Sue Chow, Chair of the Sierra Club Peninsula Regional Group , spoke against approving levels 3 and 4 biolabs.

Richard Ebright, Professor of Chemistry and Chemical Biology at Rutgers University, addressed Council questions and spoke in support to proceed with the proposed Ordinance.

Sam Herzberg, resident on behalf of the Greater East San Carlos Board, requested more development notices be sent directly to the east side and requested staff to respond to their letter submitted on Friday.

Jeff Maley, spoke in favor of banning them Biosafety Level (BSL) 3 labs.

Zinovy Fichenholz, resident, spoke in favor of banning BSL 3 and 4 labs.

Gladwyn d’Souza, Conservation Chair of the Sierra Club, spoke in favor of banning BSL 3 and 4 labs.

Robert spoke in favor of banning BSL 3 labs.

Gita Dev, Co-Chair of the Sustainable Land Use Committee in the Sierra Club Loma Prieta Chapter, spoke in favor of banning BSL 3 research.

Paul Magginetti, resident, spoke in favor of Option 2 to prohibit BSL 3 and 4 activities.

Bryce Nickels, Professor of Genetics and Lab Director at the Waksman Institute of Microbiology at Rutgers, spoke in support of banning BSL 3 and 4 labs.

Gary Baldocchi, resident, spoke in favor of banning BSL 3 labs.

Debbie Baldocchi, resident, spoke in favor of banning BSL 3 labs.

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March 27, 2023 5

Sean Peters spoke in favor of banning BSL 3 labs.

Angela Williams -Mitchell, representing Roxbury Safety Net , spoke in favor of banning BSL 3 labs.

Anna Axiaq, resident, spoke in favor of banning BSL 3 and 4 labs.

Dimitri Vandellos, resident, highlighted reasons for and against banning BSL 3 labs and requested an open public process for these types of decisions.

Jennifer Rosse, resident, spoke against BSL 3 and 4 labs.

Daniel, resident, spoke in favor of banning BSL 3 and 4 labs.

David Crabbe, resident and on behalf of the Sierra Club , spoke in favor of banning
BSL 3.

Steven Goodale spoke in favor of banning BSL 3 and 4 labs.

Lorraine Fultz, with the Roxbury Safety Net, spoke in favor of banning BSL 3 and 4 labs.

Ben Fuller, resident, asked for his letter to be added to the Council’s agenda packet and spoke against BSL 3 and 4 labs.

Christy Shirilla, Bay Area Policy Manager for Biocom California, spoke in support of a conditional use permit on BSL 3 and banning BSL 4.

Klare Allen spoke in fa vor of banning BSL 3 and 4 labs and recommended the community view the regional FEMA map for more info.

MOTION: Approve to Continue the Item to a Date Uncertain.

MOVER: John Dugan
SECONDER: Sara McDowell
AYES: Dugan, Collins, McDowell, Venkatesh, Rak
NAYS: None
RESULT: Motion Passed 5 – 0

Mayor Rak left the meeting at 9:34 PM.

Vice Mayor Dugan chaired the remainder of the meeting. He called a recess at 9:35 PM and reconvened the meeting at 9:41 PM.

11. NEW BUSINESS

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a. Consideration of Adopting a Resolution Appropriating $50,000 from the General Capital Fund (Fund 25) Unassigned Fund Balance for the Preparation of a Greenhouse Gas In-Lieu Fee Study.

Senior Sustainability Analyst Adam Lokar spoke on the need to conduct a study on the development of a Greenhouse Gas In-Lieu Fee and responded to Council questions.

Public Comment

Gladwyn d’Souza, resident, voiced support for a Greenhouse Gas In-Lieu Fee.

Vice Chair Dugan r equested staff return to Council for an additional appropriation if that would help expedite the process.

MOTION: Adopt Resolution 2023-038 Appropriating $50,000 from the General Capital Fund (Fund 25) Unassigned Fund Balance for the Preparation of a Greenhouse Gas In-Lieu Fee Study.

MOVER: Ronald Collins
SECONDER: Sara McDowell
AYES: Venkatesh, Collins, McDowell, Dugan
NAYS: None
NONE: Rak
RESULT: Motion Passed 4 – 0 – 1

12. AGENDA SETTING

None.

13. ADJOURNMENT

The meeting adjourned at 9:52 PM.

___________________________
Crystal Mui,
City Clerk

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Attachment 7
Questions and Responses Regarding Biosafety Regulations Biosafety FAQ
What is a Biosafety Level?
The Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) use Biosafety Levels (BSL) to identify the special building design, safety equipment, and specific practices needed in a laboratory setting to protect workers, the environment, and the public. The four biosafety levels are BSL-1, BSL-2, BSL-3, and BSL-4, with BSL-4 having the highest (maximum) level of regulations and oversight.

Why is the City considering this now?
Currently, the City of San Carlos has no regulations specific to laboratories with biosafety levels.

However, since 2015, the City of San Carlos has experienced an unprecedented amount of private sector investment and development, including business and employment growth in the life sciences and biotechnology sectors, especially in East San Carlos. Many life science and biotechnology companies require laboratories with assigned biosafety levels for their research and work. Adopting regulations for laboratories with biosafety levels will provide protections and transparency for employees, nearby residents, and the overall San Carlos community.

Many County, State, and Federal agencies provide oversight over laboratories with biosafety levels. Therefore, even in communities that do not regulate biosafety levels, laboratories with biosafety levels must adhere to strict guidelines.

What do BSL-3 labs study, and does every BSL-3 lab study the same thing? What is studied at a lab is unique to each lab. A lab is assigned a biosafety level based on the type of biological agents being used, the research that is being done, and how that research is conducted, including whether the lab is creating aerosols.

How many labs with assigned BSL levels are located in the Bay Area or California? BSL-3 labs are much less common in the Bay Area, and none are located in San Carlos. There are no BSL-4 laboratories in California, being highly specialized facilities with the most stringent safety and security requirements.

There is no single resource that compiles all locations of BSL-3 labs, so the exact number can be difficult to find, especially since labs can be decommissioned once their specific research has been completed.

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BSL-3 labs are located on major university campuses like UCSF, Stanford, UC Berkeley, UC Davis, UC Irvine, private companies, and research facilities like the Lawrence Livermore National Laboratory.

Regulatory Oversight
How do Federal, State, and County agencies provide regulatory oversight to biosafety labs?
Laboratories with biosafety levels are required to obtain a number of permits from specific Federal, State, and County agencies. The types of permits vary based on the lab’s activities and the biological agents they work with. Examples of agencies which regulate labs with biosafety levels include:
●At the County level: Environmental Health Services Department, City/County Association of Governments of San Mateo County (C/CAG), the Fire District, and the Sanitation District.
●At the State level: State’s Division of Occupational Safety and Health (OSHA), Department of Industrial Relations, Environmental Protection Agency, and more. ●At the Federal level: Federal Select Agent Program (requires permits for the use of certain agents); Centers for Disease Control and Prevention, National Institutes of Health, Department of Transportation, and more.

Which jurisdictions in San Mateo County regulate BSL-3 labs? Currently, no cities within San Mateo County or the broader Bay Area prohibit BSL-3 laboratories. Within San Mateo County, the cities of Brisbane, Burlingame, and Millbrae have adopted land use policies and/or regulations for biosafety levels. The cities of Menlo Park, Redwood City, San Mateo, and South San Francisco defer regulation to outside agencies, such as San Mateo County, local fire districts, local sanitation districts, and Occupational Safety and Health (OSHA).

The following table provides an overview of the jurisdictions within San Mateo County that reference BSL-3 labs or have adopted policies for BSL-3 labs.

Regulation Type Jurisdiction
Ban None
Conditional Use Permit (CUP) Brisbane
(CUP required for BSL-4 labs; no CUP required for
BSL-3 labs. Has adopted performance standards
for all BSL labs.)

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Regulation Type Jurisdiction
Regulation within SFO Airport
Safety Zone
Millbrae & Burlingame
(Burlingame also has regulations for BSL labs
which are applicable to various zoning districts and
special designated areas.)
Defer regulation to outside agencies Menlo Park, Redwood City, San Mateo, & South San Francisco
No Regulation All other jurisdictions not listed here

How do jurisdictions outside of San Mateo County regulate BSL-3 labs? Within Alameda, Santa Clara, and San Francisco counties, only the cities of Fremont, Oakland, Palo Alto, and San Francisco have addressed biosafety levels in their zoning regulations, primarily through use definitions for laboratories, life science, research and development, and similar terms.

All cities (i.e., Fremont, Oakland, Palo Alto, and San Francisco) allow BSL-3 activities; only the City of Fremont requires a Zoning Administrator Permit for BSL-3 activities.

Why are BSL-3 and BSL-4 labs banned in airport safety zones? Typically, areas around airports have a higher potential for airplane crashes, so these policies prohibiting BSL-3 and BSL-4 labs are based on hazard mitigation.

The City/County Association of Governments of San Mateo County (C/CAG) has adopted the Comprehensive Airport Land Use Compatibility Plan for the Environs of San Carlos Airport (ALUCP) which establishes Airport Safety Zones, numbered 1-6 based on location. In Airport Safety Zone 3 within San Carlos, BSL-3 and BSL-4 labs are not permitted.

City of San Carlos Regulations
What is the status of BSL-1 and BSL-2 labs in San Carlos? BSL-1 and BSL-2 labs are the most common types of labs in the Bay Area, and these labs have the lowest levels of containment and regulations. Currently, no regulations for BSL-1 and BSL-2 labs are proposed for the Council’s consideration.

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Why did staff originally recommend prohibiting BSL-3 labs? Early in the process, City staff heard sentiment from the City Council and community about their interest in prohibiting BSL-3 labs. City staff have learned a great deal since making the original recommendation. With the proposed Conditional Use Permit process, City staff are seeking to prioritize community safety and health and being a business-friendly community.

Would the City’s proposed Conditional Use Permit for BSL-3 labs be more or less restrictive than the regulations in other Bay Area communities? If the City moves forward with the proposed Conditional Use Permit process, this would result in the City of San Carlos being more restrictive in the regulation of biosafety levels (outside of airport safety zones) than any other city in San Mateo County and the broader Bay Area.

How are the labs protected against seismic activity?
All projects built in the City of San Carlos are subject to the most recently adopted California Building and Fire Code regulations, including regulations for seismic activity (see San Carlos Municipal Code Chapter 15.04 - Technical Building Codes). These Codes are the most restrictive seismic regulations in the United States.

How are the labs protected against flooding?
All projects built in the City of San Carlos are subject to provisions set forth in the City’s Flood Damage Prevention regulations per Chapter 15.56 in the San Carlos Municipal Code. The regulations require all new construction and mechanical equipment (including back-up generators) be built at or above the floodplain. If underground parking is constructed, this is required to be protected from the risk of flood.

For the proposed Conditional Use Permit process, laboratory space would be required to be elevated 10 feet above base flood elevation which is based on planning guidance from OneShoreline, the San Mateo County Flood and Sea Level Rise Resiliency District.

Could we prohibit BSL-3 labs within a certain distance from residences or other uses? Legally, the City can impose geographic limitations; however, there are no requirements or recommendations from the National Institutes of Health or the Centers for Disease Control and Prevention and no scientific evidence that indicates the need for a buffer around BSL-3 labs.

Proposed Conditional Use Permit Process
Why has staff developed a proposed Conditional Use Permit (CUP) process? The conditional use permit (CUP) process was recommended by the Planning & Transportation Commission during their meeting on March 6, 2023. The CUP process is designed to give

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complete discretion to the City and identifies the conditions that the project would be subject to.

Each CUP application would be considered and approved on a case-by-case basis by the Planning & Transportation Commission.

Who can apply for a Conditional Use Permit for a BSL-3 lab? While a commercial developer is the entity that may construct a building with infrastructure to support a BSL-3 lab, a tenant is the entity (i.e., the lab) that would apply for a conditional use permit. Tenants would initiate the conditional use permit application process since they are the ones who would be familiar with the proposed use and agents within the space.

What would the proposed CUP application require?
The proposed CUP application includes:
●Submittal of a Biosafety Plan
●Submittal of a Medical Waste Management Plan
●Adherence with the following Operational and Performance Standards: Floodproofing, On- Site Tenants, Initial Compliance Inspection, Annual Reports and Compliance with the Biosafety in Microbiological and Biomedical Laboratories (BMBL), and Revocation of Permit.

Additional details about the CUP application and process are provided in the March 27, 2023 Staff Report to City Council which can be found here (see Item 10a).

What findings would the Planning & Transportation Commission need to make in order to issue a CUP for BSL-3 activities?
The Planning & Transportation Commission would need to make the following findings in order to issue a CUP for BSL-3 activities:
● Findings that are required for all Conditional Use Permits (see Section 18.30.060 of the San Carlos Municipal Code).
●The applicant has made adequate provisions to address emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility.
●The applicant has provided a peer review of the proposed facility, safety equipment, and practices by a qualified third-party demonstrating compliance with the guidelines set forth in Biosafety in Microbiological and Biomedical Laboratories (6th edition or most recent) authored by the Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH).

Can the proposed CUP process address how many biosafety labs are in San Carlos? Yes, by requiring labs to apply for a CUP, the number of labs in San Carlos would be transparent and part of the public record.

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What are the benefits to having a CUP process for biosafety labs? The proposed CUP process provides:
●A better understanding of risks since the applicant must provide a Biosafety Plan that lists agents, pathogens, and research practices.
●Increased transparency since the Conditional Use Permit application would be reviewed during a public Planning & Transportation Commission hearing which allows for public input.
●Regular reporting and inspections, documentation of employee, public, and environmental safety procedures, and annual reports.
●Accountability and redundancy in permitting and reporting. To operate laboratories with BSL-3 activities, companies must obtain a number of permits from different agencies. The proposed CUP process would require the applicants to have those permits peer reviewed by the City’s consultant.

Would the CUP be tied to a specific biological agent?
Yes, the CUP would be tied to the biological agent, and the CUP application requires that the specific agents are identified. Since the CUP would be linked to the specific project, a new CUP would be required if new research, agents, or tenants are proposed.

Could the City ban certain agents?
In order to ban agents, the City would have to predict and define every agent that is prohibited.

This would be cumbersome and risky because if an agent is not specifically prohibited, it would be allowed, even if that is not the desired outcome. However, through the CUP process, the applicant must propose specific agents for the Planning & Transportation Commission to consider.

Would the Conditional Use Permit application be reviewed by the City Council? The CUP application would be reviewed by the City Council only on appeal, or if the application was “called-up” by the Council. However, staff can research other options, if desired, by the Council.

Public Comments and Noticing
What was the community outreach / public notice process for this item prior to the March 27, 2023 Council Meeting?
The intent of Planning & Transportation Commission and City Council meetings is to provide public outreach and an open forum for public comment.

Information was shared about the topic of biosafety regulations and the public meetings through:

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●Public notices posted in The Examiner newspaper on January 25, 2023, February 22, 2023, and March 23, 2023.
●Articles in the City Council Newsletter on January 27, 2023 and February 17, 2023. ●Meetings advertised via ATT Channel 99 and Comcast Channel 27. ●Articles in local news forums, including the San Mateo Daily Journal and Palo Alto Daily Post.
●Staff updates to the Harbor Industrial Association at their monthly meetings.

Has the City received public comments on the topic of BSL-3 labs in San Carlos? The City has received significant public comments prior to and during the Planning & Transportation Commission meetings on February 6, 2023 and March 6, 2023. The PTC took extra time to carefully consider the comments from the February 6 meeting and asked staff to return to the March 6, 2023 meeting with additional information. The opportunity for public comment was provided at both meetings.

All written public comments received as of March 22, 2023 are included in the staff report for the March 27th City Council meeting in “Attachment 9: Correspondence from the Public” and can be found here (see Item 10a). Public comments received after March 22 were provided to the Council members directly.

What is the City’s noticing process?
Based upon community feedback, staff created a “Public Notices” page on the City’s website dedicated to upcoming official Public Notices that are required to be legally published in an adjudicated newspaper of general circulation. All Public Hearing Notices will be published at least 10 days prior to the meeting at which it will be heard. To receive an email notification when a Public Hearing notice is published, please sign up for the “Public Notices” E-notify group.

What is the City’s public comment process for City Council Meetings? Public comments provided in writing to the City Clerk by noon the Wednesday prior to the City Council meeting will be included in the agenda packet. Any written comments received after that time are provided directly to Councilmembers and will be batched and available as supplemental materials on the agenda portal – www.cityofsancarlos.org/agenda. To access them, click on the three dots on the meeting line item and locate “Supplemental Materials.” Community members will also have the option to provide public comment at the meeting in-person or remotely via Zoom. Details and instructions will be available on the meeting agendas.

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Monitoring, Infractions, and Accidents
Have there been any reported BSL-3 lab incidents in the Bay Area or California? Based on staff’s research, none have been identified.

Is there a website where BSL-3 lab infractions are listed? No, currently, there is not a “one stop shop,” (i.e., one website) which lists infractions at labs with assigned biosafety levels.

How would accidents in a BSL-3 lab (for example, a needle stick or a mouse bite) be reported to the City?
The lab must notify a responsible agency when there are accidents or infractions. The City’s proposed CUP application requires applicants to submit a Biosafety Plan (B.1.a) which includes a requirement for the "methods for providing investigation and medical follow up for exposure incidents" (subparagraph xi).

How would a release be detected, and what would the response be? As a requirement in the City’s proposed Conditional Use Permit application, applicants must provide a description of emergency procedures for uncontrolled releases within the laboratory facility and untreated releases outside the laboratory facility. The lab is required to utilize building engineering that contains releases in a lab. When constructed, labs must follow all regulations so that they are built as safety as possible.

If a release occurred, the local Hazardous Materials Response Team would respond. All cities in San Mateo County provide funding through a joint powers authority (JPA) to fund a Hazardous Materials Response Team, hosted by the San Mateo Consolidated Fire Department and housed at Station 14 in Belmont.

Per the Redwood City and San Carlos Fire Department:
●All buildings proposed for laboratory use will have an enhanced fire suppression system, so the built-in fire protection can handle a large fire, if needed. ●The Fire Department can augment the fire suppression systems by using fire engines to pump into the systems.
●There are restrictions and limitations, as to the quantity of hazardous materials, the higher the building floor, per the California Fire Code. There are also increasing fire-rated separation requirements the higher the building floor.

Who monitors privately-funded BSL-3 labs?
The City’s proposed Conditional Use Permit (CUP) would apply to both publicly and privately funded BSL-3 activities. Both privately- and publicly-funded laboratories would be required to

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submit the same information to the City as a part of the initial application, inspection, and subsequent Annual Reports. Through a request for qualifications (RFQ) process, the City would hire an on-call consultant with expertise in this area to review the initial CUP application, conduct inspections, and review the Annual Reports. If a private company is using an agent under the Federal Select Agent Program, then the Federal government has oversight as well.

What happens if a lab goes bankrupt?
When labs are decommissioned for any reason, including bankruptcy, the tenant/applicant must report this to the City.

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ATTACHMENT 8

SUMMARY OF CITY, COUNTY AND REGIONAL REGULATIONS
Current City of San Carlos Policies
Currently, the City of San Carlos does not have any adopted regulations specific to biosafety levels. The adopted San Carlos 2030 General Plan 1 does include the following policies which address biosafety levels and hazardous materials:
•Action ESPS-5.6 (Environmental Safety and Public Services Element): Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community. •Policy CSS-4.1 (Community Safety and Services Element): Prohibit uses involving the manufacturing of hazardous materials throughout the city. Hazardous materials are defined in Chapter 6.95, Section 25501 0-1 of the [California] Health and Safety Code.

This policy applies only to the direct manufacture of hazardous substances. It does not apply to the storage or use of such materials in conjunction with permitted industrial uses.

San Carlos Airport Safety Zone Policies
The City/County Association of Governments of San Mateo County (C/CAG) has adopted the Comprehensive Airport Land Use Compatibility Plan for the Environs of San Carlos Airport 2 (ALUCP) which establishes Airport Safety Zones, numbered 1-6 based on location. The San Carlos Airport Safety Zones are primarily located east of Highway 101 between Cormorant Drive on the north, and Bing Street on the south. Airport Safety Zone 3 and Zone 6 are the two zones that are located west of Highway 101. (See Attachment 10 – San Carlos Airport Safety Zones Map.)
The ALUCP includes policies that govern the location of biosafety labs in the Airport Safety Zones.

Policy 9.b limits where a biosafety lab can be located and states:

Biosafety Level 1 does not involve hazardous materials and is not subject to the same restrictions as Biosafety Levels 2, 3, and 4. Biosafety Level 2 facilities are not permitted in Safety Zones 1, 2, and 5. Biosafety Level 3 and 4 facilities are not permitted in Safety Zones 1 through 5.

Thus, in the Airport Safety Zone 3, BSL-3 and -4 facilities are not permitted; BSL-1 and -2 facilities are permitted. The ALUCP does not regulate facilities with specified biosafety levels in Zone 6.

Airport Safety Zone 3:
•Extends into a portion of the Palo Alto Medical Facility located at 301 Industrial Road.

Zoned: Planned Development (PD-21).
1 http://www.cityofsancarlos.org/Home/ShowDocument?id=1105 2 https://ccag.ca.gov/wp-content/uploads/2015/11/SQL_FinalALUCP_Oct15_read.pdf

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•Partially covers the southwest corner of Highway 101 and Brittan Avenue. Zoned: General Community/Industrial (GCI); “Research and Development” is a permitted use in GCI.

Currently developed with large format retail uses.

County, State, and Federal Regulatory Agencies
Many county, state, and federal agencies provide oversight over laboratories with biosafety levels.

The specific agencies, and permits required, vary depending on the type of laboratory; however, Table 2 provides a sample of the agencies that regulate laboratories with biosafety levels. These agencies have requirements around practices within the labs, safety equipment, building design, waste disposal, transportation of waste, and other regulations.

Even in the absence of local regulations, laboratories with biosafety levels are highly regulated with stringent oversight.

Table 3. Regulatory Agencies
Entity Regulatory Agency
Within San Mateo
County
•San Mateo County Environmental Health Services Department which serves as the local “CUPA” (Certified Unified Program Agency) that oversees the Unified Hazardous Waste and
Hazardous Materials Management Regulatory Program3
•City/County Association of Governments of San Mateo County – San Carlos Airport Safety Zones
•Local Fire Districts
•Local Sanitary Districts
State of California •Division of Occupational Safety and Health (OSHA) •Department of Industrial Relations
•Environmental Protection Agency
Federal •Centers for Disease Control and Prevention
•National Institutes of Health
•Department of Health and Human Services
•Occupational Safety and Health Services
•USDA Animal and Plant Health Inspection Service
•Department of Commerce
•Department of Transportation
Biosafety Level Regulations in San Mateo County Jurisdictions As of the writing of this staff report, no other cities within San Mateo County or the broader Bay Area prohibit BSL-3 laboratories. However, the cities of Brisbane, Burlingame, and Millbrae have adopted land use policies and/or regulations that regulate biosafety levels (see Table 4). 4 (See Attachment 10 – Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions.)
3 https://www.smchealth.org/hazardous-materials-cupa
4 In preparation of this staff report, staff also reviewed the policies for the cities of Belmont, Colma, Daly City, East Palo Alto, Emeryville, Foster City, Half Moon Bay, Pacifica, and San Bruno. Currently, these cities do not have any confirmed policies that regulate biosafety levels.

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The cities of Menlo Park, Redwood City, San Mateo, and South San Francisco defer regulation to outside agencies, such as San Mateo County, local fire districts, local sanitary districts, and OSHA (see Table 4).

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Table 4. San Mateo County Jurisdictions with Adopted Policies Jurisdiction Overview of Adopted Policies
Brisbane
•Conditional use permit required from the City Council where research and development uses include BSL-4.
•Adopted performance standards require any research and development use incorporating biological agents to meet all the design standards, as defined by the respective Biosafety Levels, as required by the CDC Office of Health and Safety document Biosafety in Microbiological and Biomedical Laboratories.

Burlingame
Citywide
•Specific regulations applicable to various zoning districts and special designated areas, including research and development uses in commercial/industrial zones and mixed-use zones.

Within the San Francisco International Airport (SFO) Safety Compatibility Zones5 •Within SFO Safety Compatibility Zone 3, BSL-3 and BSL-4 facilities are not allowed.
•Within SFO Safety Compatibility Zone 3, a Conditional Use Permit is required for research and development offices and laboratories if the use includes hazardous materials.
•Within SFO Safety Compatibility Zone 2, no research and development laboratories are allowed if the use includes hazardous materials.

Millbrae
•Per adopted policies in the Millbrae Station Area Plan, facilities with BSL-1 and BSL-2 are allowed in SFO Safety Compatibility Zone 2, subject to a Conditional Use Permit.

Table 5. San Mateo County Jurisdictions with Reference to Review Jurisdiction Overview
Menlo Park
•Regulates the use of hazardous materials – Applications for uses with hazardous materials are routed to the Menlo Park Fire Protection District, San Mateo County Environmental Health Services Department, and West Bay Sanitary District for review and confirmation that the use would comply with relevant standards for each agency.

Redwood City •Defers to hazardous materials regulations from the San Mateo County Environmental Health Services Department and the State of California.

San Mateo •Defers to hazardous materials regulations from the San Mateo County Environmental Health Services Department and the State of California.

South San
Francisco
•Defers to hazardous materials regulations from the San Mateo County Environmental Health Services Department and the State of California. 5 The Comprehensive Airport Land Use Compatibility Plan for the Environs of San Francisco International Airport establishes Safety Compatibility Zones around the SFO Airport. The ALCUP determines which uses are incompatible and should be avoided in each zone. https://ccag.ca.gov/wp- content/uploads/2014/10/Consolidated_CCAG_ALUCP_November-20121.pdf

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Analysis of Biosafety Level Regulations in Bay Area Jurisdictions The cities of Fremont, Oakland, Palo Alto, and San Francisco have addressed biosafety levels in their zoning regulations, primarily through use definitions for laboratories, life science, research and development, and similar terms (see Table 5). (See Attachment 10 – Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions.) The following are the key takeaways:
•In these cities, there is a great degree of variation regarding where BSL laboratories may be located (i.e., in which zoning districts) and the associated permitting process. •In general, BSL-1 and BSL-2 do not require additional performance standards or regulations.
•The regulation of BSL-3 facilities depends on the nature of the zoning district. •Example: In the City of San Francisco’s mixed-use zones, there are no additional restrictions for BSL-3 than for BSL-1 or 2.
•Example: The City of Fremont has incorporated definitions for BSL-1 through 4 into its zoning regulations, and the use tables specifically reference the allowed biosafety levels in specific districts to avoid any ambiguity.

Table 6. Biosafety Level Regulations in Bay Area Jurisdictions6 BSL
Level Cities
Fremont Oakland Palo Alto San Francisco
BSL-1 Allowed in certain
districts.

Sometimes requires a
Zoning Administrator
Permit.

Allowed in
certain zoning districts.

Allowed in areas zoned
for Research and
Development uses.

Allowed in areas zoned
for Laboratory uses
and Life Science uses.

BSL-2 Allowed in certain
districts.

Sometimes requires a
Zoning Administrator
Permit.

Allowed in
certain zoning districts.

Allowed in areas zoned
for Research and
Development uses.

Allowed in areas zoned
for Laboratory uses
and Life Science uses.

BSL-3 Allowed in certain
districts.

Requires a Zoning
Administrator Permit.

Allowed in
certain zoning districts.

Allowed in areas zoned
for Research and
Development uses.

Allowed in areas zoned
for Laboratory uses
and Life Science uses.
6 Image sources: “Check” by Nasik Lababan from Noun Project. “No” by P.J. Onori from Noun Project.

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BSL
Level Cities
BSL-4
Not allowed. Allowed in areas zoned
for Heavy/High Impact
Industrial subject to a
Conditional Use
Permit.

Not allowed. Not allowed.

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Attachment 9. San Carlos Airport Safety Zones
Source: Exhibit 4-3. Comprehensive Airport Land Use Compatibility Plan for the Environs of the San Carlos Airport. https://ccag.ca.gov/wp- content/uploads/2015/11/SQL_FinalALUCP_Oct15_read.pdf

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Attachment 10. Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions
Table 8A. Code Language for Biosafety Regulations in San Mateo County Jurisdictions Jurisdiction Codified Language
Brisbane BMC 17.18-SP-CRO Sierra Point Commercial District.

BMC 17.18.035.C - Conditional Uses - Research and Development.

Any use utilizing biological agents exceeding Risk Group 3 or Biosafety Level 3 as defined by the National Institute of Health or the Center for Disease Control may be allowed in the SP-CRO district, upon the granting of a use permit pursuant to Chapter 17.40 of this title, subject to the provision that the city council (instead of the planning commission) shall act as the reviewing and approving authority for all purposes under Chapter 17.40 for any such research and development- related conditional use permit(s).

BMC 17.18.045.C – Performance Standards. Research and development uses involving the use of biological agents shall comply with all design standards set forth in the most current Center for Disease Control (CDC) Office of Health and Safety document "Biosafety in Microbiological and Biomedical Laboratories.”
Burlingame BMC 25.12.020: Table 25.12-1 Commercial and Industrial Zoning Districts Use Regulations.

Office-Research and Development is Permitted in the C-1, BFC and I-I districts. However, for properties within SFO Safety Compatibility Zone 3 in the I-I zoning district, a Conditional Use Permit required if the use entails hazardous materials.

For properties within SFO Safety Compatibility Zone 3 in the I-I zoning district, Biosafety Level 3 and 4 facilities not allowed.

BMC 25.14.020: Table 25.14-1: Mixed-Use Zoning Districts Use Regulations.

Laboratories/Research and Development are Permitted in the RRMU and NBMU districts.

However, for properties located within SFO Safety Compatibility Zone 3: a Conditional Use Permit is required if the use entails hazardous materials. Biosafety Level 3 and 4 facilities not allowed.

In SFO Safety Compatibility Zone 2, the use is Not Allowed if use entails hazardous materials.

Millbrae Millbrae Station Area Specific Plan 5.2, Table 5-12. Permitted and Conditionally Permitted Land Uses.

NOTES: Within SFO Safety Compatibility Zones 1 and 3, uses must comply with the ALUCP policies and criteria described in Policy SP-2, Safety Compatibility Land Use Criteria; Table IV- 2, Safety Compatibility Criteria; and Policy SP-3, Hazardous Uses. (See pages IV-27 through IV-34 of the SFP ALUCP, November 2012, or the latest adopted Plan). Within SFO Compatibility Zone 2, Hazardous Uses up to Biosafety Level 2 may be allowed, subject to a Conditional Use Permit, per City of Millbrae Resolution 21-08 and Resolution No. 21-60 within the TOD Zone and the Employment Center/Light Industrial Zone.

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Table 8B. Code Language for Biosafety Regulations in San Mateo County Jurisdictions and Bay Area Jurisdictions
Jurisdiction Codified Language
Fremont FMC 18.25.330 defines Biosafety Level (BSL): In accordance with the most current version of the Biosafety in Microbiological and Biomedical Laboratories published by the U.S. Department of Health and Human Services Centers for Disease Control and Prevention and National Institutes of Health (CDC/NIH), “biosafety level” or “BSL” shall mean the safe handling of biological materials, particularly infectious agents which are classified on the basis of degree of risk to humans working with them and includes definition of biosafety levels for handling such agents. A specific combination of work practices, safety equipment, and facilities are designed to minimize the exposure of workers and the environment to infectious agents. There are four biosafety levels (BSLs). BSL 1 applies to laboratories in which work is done with defined and characterized strains of viable microorganisms not known to consistently cause disease in healthy adult humans. BSL 2 applies to laboratories in which work is done with the broad spectrum of indigenous moderate-risk agents that are present in the community and associated with human disease of varying severity. BSL 3 applies to clinical, diagnostic, teaching, research, or production facilities in which work is done with indigenous or exotic agents with the potential for respiratory transmission, and which may cause serious and potentially lethal infection. BSL 4 is used for the diagnosis of exotic agents that pose a high risk of life-threatening disease, which may be transmitted by the aerosol route and for which there is no vaccine or therapy.

FMC 18.49 - Warm Springs Innovation (WSI) District: Manufacturing of biological products and Research, development and testing services are categorized by biosafety level (BSL). BSL 1 and 2 are permitted outright or subject to a Zoning Administrator Permit. BSL 3 uses are limited to one subdistrict within the WSI, and BSL 4 uses are prohibited.

FMC 18.50 – Industrial Districts: Manufacturing of biological products with BSL 1 or 2 are permitted, with a Zoning Administrator Permit for BSL 3, and prohibited for BSL 4 in the I-T and I-G Districts.

Pharmaceutical and medicine manufacturing2 not exceeding biosafety level 2 are permitted in the I-T and I-G Districts, and BSL 3 may be considered through a Zoning Administrator Permit.

Scientific research and development services, including physical, engineering, and life sciences and systems with BSL 1 or 2 are permitted in the I-S, I-T, and I-G Districts; subject to a Zoning Administrator Permit with BSL 3 in the I-T and I-G Districts; and prohibited with BSL 4.

Oakland The Oakland Planning Code (OPC) prohibits BSL 4 within the definition of the associated use.

OPC 17.10.580 - Heavy/High Impact Manufacturing Industrial Activities: include high impact or hazardous manufacturing processes. This classification also includes certain activities accessory to the above, as specified in Section 17.10.040. Examples of activities in this classification include, but are not limited to, the following:

B. Any biotechnology research, development or production activities involving materials defined by the National Institute of Health as Risk Group 4 or Restricted Agents (commonly known as "biosafety level 4")
OPC 17.10.581 Research and Development Industrial Activities: include scientific research for the design, development, engineering, and testing of high technology electronic, industrial, or scientific products in advance of full-scale manufacturing of final products. The only manufacturing uses in this classification consist of the creation of prototype products, plans, or designs for the primary purpose of research, development, or evaluation, rather than sale. This classification also includes certain activities accessory to the above, as specified in Section

17.10.040.

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Jurisdiction Codified Language
This classification excludes manufacturing uses, wholesale and storage uses, repair and retail sales, except as an accessory use as specified in Section 17.10.040; this classification also excludes the on-site production of products for sale, and biotechnology laboratories approved for National Institute of Health experiments using Risk Group 4 or Restricted Agents (commonly known as "bio-safety level 4") (Section 17.10.580 Heavy/High Impact Manufacturing Activities).

Heavy/High Impact Manufacturing Industrial Activities are permitted subject to a conditional use permit in the Industrial (M-40) and General Industrial (IG) zones.

Research and Development Industrial Activities are permitted in Regional Commercial (CR), Housing and Business Mix Commercial (HBX-1, 2, 3, 4), Industrial (M-40), Commercial Industrial Mix (CIX-1), West Oakland Plan Aera Commercial Industrial Mix (CIX-1A, CIX-1B, CIX-1C, CIX-1D), General Industrial (IG), and Industrial Office (IO) zones; and subject to obtaining a conditional use permit in the Central Business District General Commercial (CBD- C), Central Business District Mixed Commercial (CBD-X), and Industrial (M-20, M-30) zones.

Palo Alto The Palo Alto Municipal Code incorporates limitations on BSL in use definitions and prohibits BSL 4 under hazardous materials standards.

PAMC 18.04.030 – Definitions:
(95.1) “Medical research” means a use related to medical and/or dental research, testing and analysis, including but not limited to trial and clinical research. Biomedical and pharmaceutical research and development facilities are not included in this definition. Medical Research does not include the storage or use of quantities of hazardous materials above the exempt quantities listed in Title 15 of the Municipal Code nor any toxic gas regulated by Title 15. Additionally, Medical Research may include storage and use of etiological (biological) agents up to and including Risk Group 2 or Bio Safety Level 2 (Center for Disease Control). (123) “Research and development” means a use engaged in the study, testing, engineering, product design, analysis and development of devices, products, processes, or services related to current or new technologies. Research and development may include limited manufacturing, fabricating, processing, assembling or storage of prototypes, devices, compounds, products or materials, or similar related activities, where such activities are incidental to research, development, or evaluation. Examples of “research and development” uses include, but are not limited to, computer software and hardware firms, computer peripherals and related products, electronic research firms, biotechnical and biomedical firms, instrument analysis, genomics, robotics and pharmaceutical research laboratories, and related educational development.

Research and development may include the storage or use of hazardous materials in excess of the exempt quantities listed in Title 15 of the Municipal Code, or etiological (biological) agents up to and including Risk Group 3 or Bio Safety Level 3 classifications as defined by the National Institute of Health (NIH) or the Center for Disease Control (CDC). Higher classification levels of etiological (biological) agents are not allowed without express permission of the City Manager, Fire Chief, and Police Chief.

PAMC 18.42.200.B(viii)-Hazardous Materials: No facility proposing the use of Biosafety Level 4 etiological agents shall be permitted in the city of Palo Alto.

San
Francisco
The San Francisco Planning Code incorporates limitations on BSL in use definitions.

Article 1, Section 102-Defintions:

Laboratory. A Non-Retail Sales and Services Use intended or primarily suitable for scientific research. The space requirements of uses within this category include specialized facilities and/or built accommodations that distinguish the space from Office uses, Light Manufacturing, or Heavy Manufacturing. Examples of laboratories include the following:

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Jurisdiction Codified Language
(d) Biological laboratories including those classified by the Centers for Disease Control (CDC) and National Institutes of Health (NIH) as Biosafety level 1, Biosafety level 2, or Biosafety level 3;
(e) Animal facility or vivarium, including laboratories classified by the CDC/NIH as Animal Biosafety level 1, Animal Biosafety level 2, or Animal Biosafety level 3; Life Science. A Non-Retail Sales and Service Use that involves the integration of natural and engineering sciences and advanced biological techniques using organisms, cells, and parts thereof for products and services. This includes the creation of products and services used to analyze and detect various illnesses, the design of products that cure illnesses, and/or the provision of capital goods and services, machinery, instruments, software, and reagents related to research and production. Life Science uses may utilize office, laboratory, light manufacturing, or other types of space. As a subset of Life Science uses, Life Science laboratories typically include biological laboratories and animal facilities or vivaria, as described in the Laboratory definition Subsections (d) and (e).

Sales and Services, Non-Retail. A Commercial Use category that includes Uses that involve the sale of goods or services to other businesses rather than the end user, or that does not provide for direct sales to the consumer on site. Uses in this category include, but are not limited to:

Business Services, Catering, Commercial Storage, Design Professional, General Office, Laboratory, Life Science, Non-Retail Professional Service, Trade Office, Wholesale Sales, and Wholesale Storage.

Article 8, Section 890-Definitions for Mixed Use Districts:

Section 890.52: Laboratory.

Laboratory shall mean space within any structure intended or primarily suitable for scientific research. The space requirements of uses within this category include specialized facilities and/or built accommodations that distinguish the space from office uses (as defined in Section 890.70), light manufacturing (as defined in Section 890.54(a)), or heavy manufacturing (including uses listed in Sections 226(g) through 226(w)). Examples of laboratories include the following:
(d) Biological laboratories including those classified by the Centers for Disease Control (CDC) and National Institutes of Health (NIH) as Biosafety level 1, Biosafety level 2, or Biosafety level 3;
(e) Animal facility or vivarium, including laboratories classified by the CDC/NIH as Animal Biosafety level 1, Animal Biosafety level 2, or Animal Biosafety level 3; Laboratories, Life Science are permitted in Mixed Use Office (Sec. 842.85), and WSOMA Mixed Use Office (Sec. 845.85).

Laboratories, not including Life Sciences, are permitted in Mixed Use General (Sec. 840.86), Mixed Use Residential (Sec. 841.86), Mixed Use Office (Sec. 842.86), Urban Mixed Use (Sec. 843.86), WSOMA Mixed Use Office (Sec. 845.86), and Service/Arts/Light Industrial, except Sec. 890.52(e) (Sec. 846.86).

Non-Retail Sales Service (which includes Laboratory and Life Sciences) is permitted in Central SOMA Mixed-Use Office (Table 848).

Research and Testing Laboratory is permitted in Mission Bay Commercial-Industrial District (Section 913.56).

Experimental Laboratory is permitted as a conditional use in Mission Bay Commercial-Industrial District (Section 913.57).

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ATTACHMENT 11

SUMMARY OF LIFE SCIENCE AND BIOMEDICAL INDUSTRY AND BSL Life Science and Biomedical Industry
The life science and biomedical industry focuses on the research and production of medical and healthcare products. This industry is comprised of many sub-industries. At a high-level, these sub-industries include: biotechnology, pharmaceuticals, medical devices, medical equipment, digital healthcare, and genomics, as illustrated in Figure 1. Each sub-industry has different characteristics, which can include regulations, space requirements, transportation needs, funding, and number of employees and associated formal educational levels, and others.

Figure 1. Sub-Industries Within the Life Science or Biomedical Industry Sub-Industries Within the Life Science / Biomedical Industry Biotechnology Pharmaceuticals Medical
Devices
Medical
Equipment
Digital
Healthcare
Genomics
Many of the life science companies that are interested in locating in San Carlos are biotechnology companies. The characteristics that differentiate biotechnology companies from other biomedical companies are listed below:
•Smaller companies with less employees (than, for example, a pharmaceutical company) •“Slower” or “more patient” funding and often funded by governmental grants •Focused on research and development, and therefore “early” in life cycle of a medical product or device
•Often need laboratories to conduct their research
•Need stable office space to conduct their research; biotechnology companies are not as nimble or easy to move as, for example, a digital healthcare company •Need reliable utility services because the research and experiments are ongoing and often run 24/7
Based on the types of research that is being conducted, biotechnology laboratories have assigned biosafety levels, which is discussed below.

Biosafety Levels (BSL)
The Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) use Biosafety Levels (BSL) to classify microbiological and biomedical laboratories. The purpose of the BSL classification is to protect workers, the environment, and the public, as well as regulate how hazardous materials are disposed and transported.

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The four biosafety levels are BSL-1, BSL-2, BSL-3, and BSL-4, with BSL-4 requiring the highest (maximum) level of containment. The levels are defined in Biosafety in Microbiological and Biomedical Laboratories 1 (the BMBL) and are summarized Table 1. Each level has specific requirements regarding building design, safety equipment, and specific practices required in each laboratory setting.

BSL-1 and BSL-2 labs are the most common types of labs in the Bay Area. BSL-3 labs are much less common in the Bay Area, and none are located in San Carlos.2 BSL-4 laboratories are highly specialized facilities having the most stringent safety and security requirements; there are currently no operational BSL-4 labs in California.3
Table 2. Biosafety Level Descriptions4
Biosafety
Level Agents Practices Safety Equipment Facilities
BSL-1 These agents are
not generally
associated with
disease in healthy
people.
•Good micro-
biological practice
•Hand washing
•No eating,
drinking, or gum
chewing in the
laboratory
•Pipetting devices:

Mouth pipetting is
prohibited
•No specific
facility
requirements
BSL-2 These agents are
associated with
human disease.

BSL-1 practices,
plus:
•Limited lab access
•Most work may be
performed on a
bench top
•Biohazard warning
signs
•"Sharps"
precautions
•Biosafety manual
defining any
needed waste
decontamination
or medical
surveillance
policies
BSL-1 requirements,
plus:
•Class I or II
Biological Safety
Cabinets (BSCs)
or other physical
containment
devices
•Lab coats,
gloves, face
protection, as
needed
•Open bench-top
•Sink for hand
washing is
required
•Autoclave
available
1 Centers for Disease Control and Prevention, National Institutes of Health. Biosafety in Microbiological and Biomedical Laboratories. 6th Edition. U.S. Department of Health and Human Services. Revised June 2020.
https://www.cdc.gov/labs/pdf/CDC-BiosafetyMicrobiologicalBiomedicalLaboratories-2020-P.pdf 2 According to USA Today as of 2014, seven (7) BSL-3 laboratories are located in the Bay Area. https://www.usatoday.com/pages/interactives/biolabs/
3 https://www.niaid.nih.gov/research/biosafety-labs-needed 4 Source: National Institute of Allergy and Infectious Diseases. https://www.niaid.nih.gov/research/biosafety-labs-needed

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BSL-3* These agents:
•Are associated
with human
disease and
cause illness by
spreading
through the air
(aerosol)
•Cause diseases
that may have
serious or lethal
consequences
BSL-2 practices,
plus:
•Controlled access
•Decontamination
of all waste
•Decontamination
of lab clothing
before laundering
•Class I or II
Biological
Safety Cabinets
(BSCs) or other
physical
containment
devices
•Protective lab
clothing, gloves,
respiratory
protection as
needed
BSL-2
requirements, plus:
•Physical
separation from
access corridors
•Self-closing,
double-door
access
•Exhaust air is
not re-circulated
•Negative airflow
into laboratory
•Design includes
back
up/redundant
systems
BSL-4 These agents:
•Are associated
with human
disease and
cause illness by
spreading
through the air
(aerosol) or have
an unknown
cause of
transmission
•Cause diseases
that are usually
life threatening
BSL-3 practices,
plus:
•Clothing change
before entering
•Shower on exit
•All material
decontaminated on
exit from facility
•Class ll
procedures
conducted in
Class III BSCs
or Class I or II
BSCs in
combination
with full-body,
air-supplied,
positive-
pressure
personnel suit
BSL-3
requirements, plus:
•Separate
building or
isolated zone
•Dedicated
supply and
exhaust,
vacuum, and
decontamination
systems
•Design includes
back-
up/redundant
systems
•Other
requirements
outlined in
Biosafety in
Microbiological
and Biomedical
Laboratories1
*Typically, BSL-3 labs are assembled for a specific research endeavor and are then decommissioned once the research is completed. It can be extremely difficult to retrofit existing physical spaces to build BSL-3 laboratories. Requirements such as negative airflow and other facility requirements make it difficult to retrofit a building if the mechanical systems were not initially designed to accommodate this use.

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Attachment 12. Correspondence from the Public, as of March 27, 2023 Correspondence #1
January 25, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
600 Elm Street
San Carlos, CA 94070
Subject: Re: Biosafety Ordinance - Public notice for 2/6 Planning Commission meeting Lisa: I will review the ordinance when it is available and provide comments. However, the banning of a biosafety level 3 or 4 lab makes absolutely no sense. A BSL 3 lab is a collection of safety measures that makes a lab safer. So banning a safer lab is exactly contrary to what the community is concerned about.

Instead, I would suggest regulating activities that require a BSL 3 or BSL 4 lab, but I would not ban the lab itself.

At MBC Biolabs, we only use BSL 2 labs as we only have BSL 2 activities. However, if we elected to build a BSL 3 lab and still only do BSL 2 activities, that would be an example of a safer environment, yet would likely be banned by this ordinance. I think this is a very important distinction here that you ought to take into consideration for this ordinance and how it is drafted. I'm happy to further clarify if necessary.

Ryan Guibara
Correspondence #2
January 29, 2023
City of San Carlos
Community & Economic Development Director Al Savay
Planning Division Staff
600 Elm Street
San Carlos, CA 94070
Subject: BSL-3 work in San Carlos
Dear Mr. Savay and members of the Planning Division,
I want to commend the City of San Carlos for building a wonderful life -science community. The companies you have attracted are working hard to solve critical health issues and provide wonderful jobs to diverse workers – even non-college workers. Our life-science incubators, MBC BioLabs, have loved being in San Carlos.

I am writing today to encourage you, and your colleagues, to avoid legislation that would send a chilling message to prospective biotech companies that are wondering about the stability and support that life science companies will receive in San Carlos.

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While, MBC BioLabs will never permit BSL-3 or above work in our labs, we support the potential for BSL- 3 in other companies in the community.

BSL-3 work is occasionally critical – just look at the COVID pandemic. A number of companies that were not focusing on infectious diseases lent their expertise to this public health crisis. We wouldn’t want these companies to be thwarted should we need their skills to solve the next crisis.

Rather than banning BSL-3, I think it would make more sense to use the conditional use permitting process. This provides for a case-by-case review of these activities.

I hope the City continues to seek to encourage diverse growth and supports the emerging life science sector.

Thank you for your attention to this matter.

All the best,
Doug Crawford
Doug Crawford, PhD

Correspondence #3
February 2, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Planning Manager Lisa Porras
CC: City Manager Jeff Maltbie
Community & Economic Development Director Al Savay
Mayor Adam Rak
600 Elm Street
San Carlos, CA 94070
Subject: Fwd: Massachusetts cheat sheet of ordinances
Hi All,
I am forwarding a “cheatsheet” of ordinances prepared by members of the Sierra Club Biosafety working committee. I sent this to Mayor Rak and forgot to include all of you. I thought you’d find it helpful as staff

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prepare a biosafety study session for the city council and planning. Has a date been scheduled for that presentation?
The Sierra Club biosafety group is putting on an educational webinar about BSL labs on March 2nd.

It is intended for city planners, city council members and policy makers in Silicon Valley. A Save the Date email will be sent soon.

Hope you’ll be able to attend. The speakers are nationally renowned experts, Sam Lipson, Director of Public Health in Cambridge, MA, Dennis Carlone, a Cambridge City Council member, and a couple of other local industry experts.

Thank you!
Debbie Baldocchi
Sent from my iPhone Begin forwarded message:

From: Gary Baldocchi
Date: February 2, 2023
To: Mayor Adam Rak

Subject: Massachusetts cheat sheet of ordinances Reply-To: Gary Baldocchi Hi Mayor Rak,
This is the list of draft ordinances I mentioned:

On Wed, Feb 1, 2023 at 8:48 PM Steven Goodale wrote:

We've compiled a cheat sheet, of sorts, with information relating to the Massachusetts towns we've been referring to. The intent is to provide easy access for busy leaders to get the information they want or need. This would be linked on the main webinar website.

Have at it!
https://docs.google.com/spreadsheets/d/15X0JsXNJ0jiJnGY1uUayuvGKBDWN09enRLnnqhLkeW0/edit? usp=sharing
--
Steven Goodale,
--Goody!

Correspondence #4

February 2, 2023
City of San Carlos
Community & Economic Development Director Al Savay
Principal Planner Lisa Costa Sanders

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600 Elm Street
San Carlos, CA 94070

Subject: Number of Bsl 3 labs in California?
Hi Mr. Savay and Planner Costa Sanders,
How are you? Hope all is well. We are researching BSL labs and are trying to find out how many BSL -3 labs are located in California? At two of the recent Planning Commission meetings, we heard staff say there are 15 BSL -3s in the state. We’ve been trying to confirm this number. What is the source of that information? We’d greatly appreciate your assistance in confirming thi s number or the actual number. And, are you aware of any BSL 4s in California?
We ask bc the California Fire code has a provision required labs to notify the fire department of the location of any BSL 3 or 4 labs on an annual basis. Sunnyvale referenced it in their new ordinances. It’s concerning the BSL 3 labs are not required to notify the cities, counties or San Mateo Department of Environmental Safety and Public Health.

Will you please confirm if there are any BSL 3 labs currently in San Carlos or if an y others are planned? Thank you!
Debbie Baldocchi Sent
from my iPhone

Correspondence #5

February 5, 2023
City of San Carlos
CC: City Clerk Crystal Mui
Planning Division
City Council
600 Elm Street
San Carlos, CA 94070

Subject: Resolution Recommending the City Council Adopt an Ordinance Amending San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels (BSL) Dear Planning Commission and City Council Members,
I would like to clear up some inaccuracies found in the packet that staff has provided for Agenda item 6a for the Planning Commission meeting on 06FEB2023. The CDCs standard, Biosafety in Microbiological and Biomedical Laboratories. 6th Edition, is an advisory document only and not intended as a regulation. BSL4 described in table 1 is incomplete. It fails to note that biological agents of this class have no known vaccine or treatment. Knowing what we do now of Covid 19, in January of 2020 it would have been classified as a BSL4 agent. Chinese authorities

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assured the world at the time that it did not pass easily person to person even as bodies were stacking up in the streets. Any biological agent whose method of transmission or morbidity/lethality are unknown must be treated as a BSL4 agent until demonstrated otherwise. The potential consequence is a pandemic like the one we currently experience. This includes gain of function testing done on known BSL3 agents.

As noted on page 6, there is no policy or plan of action in the event the release of a biological agent to the community, nor is there a regional plan for such a tragedy. While uncommon, such events do happen1 and are usually caused by human error.2 Such events can also be the result of mal intent3 and, while we hope never to see the darker side of human nature, recent shootings on the Peninsula and even a beheading in the downtown area tells us it can happen. Given the magnitude of the risk, it is wise to refrain from building BSL3 labs until there is a concrete action plan in the event that the unthinkable happens. Allowing BSL4 labs in San Carlos poses such a risk that, in my opinion, it should never be allowed in an urban setting like the City of Good Living.

By not permitting BSL3 labs, the city can also avoid the question of who will pay to sterilize and decommission these labs when they reach the end of their useful life. In the past the city has turned a blind eye to the risks of allowing certain semiconductor and electronic industry practices; instead relying on the experts to tell us what was safe. The results are the brownfields of East San Carlos with developers who are generally only willing to do the absolute minimum to mitigate toxic waste hazards in order to protect their bottom line.

What is safe in the Life Science industry 20 yrs from now may look much different than it does today. Even the experts at the NIH cannot agree that current standards are sufficient, especially when it co mes to private commercial BSL3 labs, which are not subject to regulations or oversight that publicly funded BSL3 labs must comply with.4
In closing, I want to say that, contrary to the claim that biosafety labs in the industry are “highly regulated with stringent oversight even in the absence of local regulations”, the fact is there are serious gaps that exist. Industry reluctance to disclose where these higher risk labs are located while at the same time asking us to trust their judgement without objective evidence is insufficient justification when compared to the risk they present. Until local governments stop being passive partners in the growth of this industry and create a real mechanism that maintains public involvement and transparency, long-term trust will be hard to come by. Until then BSL3 labs should not be permitted in the City of San Carlos.

1. https://www.science.org/doi/10.1126/science.345.6194.247

2. https://pubmed.ncbi.nlm.nih.gov/27234593/

3. https://www.bisnow.com/national/news/commercial-real-estate/building-management-ownership- face-lawsuit-after-janitor-tampered-with-water-bottles-spreading-disease-117424

4. https://www.washingtonpost.com/health/2023/01/20/nih-biosecurity-report/ Sincerely,
Paul Magginetti

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Correspondence #6
February 6, 2023
City of San Carlos
Planning Commission
Principal Planner Lisa Costa Sanders
Planning & Transportation Commissioner Janet Castaneda
Planning & Transportation Vice-Chair Kristen Clements
Planning & Transportation Chair Jim Iacoponi
Planning & Transportation Commissioner David Roof
600 Elm Street
San Carlos, CA 94070
Subject: Public Comments Regarding Ordinance Amending San Carlos Municipal Code to Regulate Laboratories with Biosafety Levels (BSL) Planning Commission Monday, 2/6/23 Thank you for this opportunity to comment on this critical environmental health and safety issue.

With specific reference to the remark on page 7 of the staff report:
“Even in the absence of local regulations, laboratories with biosafety levels are highly regulated with stringent oversight.”
Please note that if City Council solely relies upon this official statement, it fails to address the fact that PRIVATE, COMMERCIAL biocontainment lab developments in Silicon Valley --which are additionally often speculative, Venture Capital-funded, and with proprietary trade secret exemptions in terms of biological agents used --are currently being scrutinized for heightened review as a "problem" by the National Institute of Health's National Science Advisory Board on Biosecurity (NSABB). SOURCE: NSABB Board Meeting - September 2022 Wednesday, September 21, 2022
Please also view the draft recommendations, unanimously approved last week by the Expert Panel: https://osp.od.nih.gov/wp-content/uploads/2023/01/DRAFT -NSABB-WG-Report.pdf Additionally, a subject matter expert to our Sierra Club Loma Prieta Chapter Bay Area Biosafety (BABS) Working Group, who has also provided testimonial to Congress and directly expressed concerns to the NSABB about high containment labs,specifically advised that we focus on high- containment biolabs (BSL -3 and BSL-4).

Thank you.

Nina Goodale
Correspondence #7

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February 6, 2023
City of San Carlos
Planning Commission
Principal Planner Lisa Costa Sanders
Planning & Transportation Commissioner Janet Castaneda
Planning & Transportation Vice-Chair Kristen Clements
Planning & Transportation Commissioner Ellen Garvey
Planning & Transportation Chair Jim Iacoponi
Planning & Transportation Commissioner David Roof
CC: City Council
City Clerk Crystal Mui
600 Elm Street
San Carlos, CA 94070
Subject: Public Comments Regarding Ordinance Amending San Carlos Municipal Code to Regulate Laboratories with Biosafety Levels (BSL) Planning Commission Monday, 2/6/23 Dear Planner Lisa Costa Sanders, Members of the Planning and Transportation Commission, Mayor Rak and Members of the City Council,
We have attached a letter of public comments for Monday's, 2/6/23, Planning Commission meeting regarding a proposed zoning ordinance regulating laboratories with biosafety levels.

We strongly support the proposed ordinance that w ill ban BSL 3 and 4 labs in San Carlos. We applaud the city's progressive leadership on this issue and are impressed that San Carlos will be among the first cities in Silicon Valley to pass an ordinance that balances the important interests of the bioscien ce industry with public and environmental health and safety.

Thank you for considering our request to clarify that BSL 3 and 4 labs are prohibited throughout San Carlos, included in Planned Development zoning. We also request that the city consider adding regulations for BSL 1 and 2 labs that are common in other cit ies, including reasonable setbacks from residential zoning and flood protection mitigations such as elevated platforms for backup generators, prohibition of underground parking on sites adjacent to creeks or have a history of flooding and design and constr uction standards for BSL -2 laboratory ventilation systems.

Sincerely,
Debbie and Gary Baldocchi
Attention Neighbors:

We have listed many folks as bcc recipients on this email to protect your email inboxes. This is a very important public hearing. We hope you will join us in submitting public comments. (They can be very brief comments in support of the ban on BSL 3 and 4 labs and flood mitigation protections for lab developments along the creeks. The City needs to hear from us.)

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To attend tomorrow night' s Planning Commission meeting by zoom and review the agenda packet, use this link: https://cityofsancarlos.primegov.com/Portal/Meeting?meetingTem plateId=1407

Thank you!

Attachment: BioSafety Lab Ordiances San Carlos Public Comments February 5, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the City Council
Members of the Planning Commission
600 Elm Street
San Carlos, CA 94070

Subject: Public Comment Regarding Proposed Ordinance Amending San Carlos Municipal Code, Title 18 to Regulate Laboratories with Biosafety Levels (BSL); Planning and Transportation Commission Meeting, February 6, 2023
Dear Lisa Costa Sanders, Mayor Rak, Members of the City Council and Planning Commissioners, Thank you for your leadership in proposing and adopting an ordinance amending the Municipal code to regulate laboratories with biosafety levels in various zoning districts throughout San Carlos. We support the proposed zoning amendment that prohibits BSL 3 and 4 labs in San Carlos for the reasons outlined in the agenda packet. However, we ask that the ordinance be amended to clarify that BSL 3 and 4 labs are not permitted in Planned Development zoning or in any zoning in San Carlos. Planned Development zoning was omitted from the proposed ordinance.

We note that the Planning Commission recently approved a change in zoning from Landmark Commercial to Planned Development for a Life Sciences development at 405 Industrial Road. In addition, the developers for a proposed Life Sciences development that includes BSL 1 and 2 labs at 642 Quarry Road also asked to change the zoning from Light Industrial to Planned Development. The proposed ordinance should make it clear that the prohibition on BSL 3 and 4 labs applies to all zoning throughout San Carlos. And, the ordinance should also make it clear that it applies to vivaria or BSL 1 and 2 labs that may house animals intended for use in BSL 3 or 4 research.

We provide the following public comments for your review and consideration at the Planning Commission meeting on February 6th.

1. Privately owned and operated Biosafety labs that do not receive federal or state funds are not subject to stringent oversight.

Most of the biolabs in San Carlos are privately funded and some lab tenants may be speculative start- ups. Contrary to the bioscience industry’s extensive public relations efforts to convince the public that biosafety laboratory facilities are highly regulated and safe, hundreds of documented lab accidents have

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gone undisclosed to the public. The proliferation of millions of square f eet of biosafety labs in heavily populated areas is an issue of nationwide concern because of odors, noise, emissions, and transportation of hazardous materials, hazardous pathogens and biological waste through residential neighborhoods.

See: The Risks of Building Too Many Biolabs.; Newly Disclosed CDC biolab failures ‘like a screenplay for a disaster movie
In fact, the lack of oversight of Silicon Valley’s privately-owned and operated biosafety labs has drawn the recent attention and concern of the (NIH) National Institute of Health’s National Science Advisory Board for Biosecurity (NSABB). The NSABB has held numerous meetings about biosafety and biosecurity, with specific focus on Potential Pandemic Pathogen Care and Oversight (PC3O) and Dual Use Research of Concern (DURC). The most recent meeting took place a week ago. NSABB Board of Directors Meeting—January 27, 2023.

One notable public comment was from a biosafety/biosecurity public health expert at Columbia University who urged the NSABB to focus on BSL 3 labs in the private sector. Privately funded labs are a prominent focus of these meetings. They discussed the need for transparency, in connection with the need for public membership on biosafety committees, as well as transparency of the process, in terms of rules and regulations. They also discussed standards for review.

In a prior NSABB meeting on September 21, 2022, Dr. Richard Ebright pointed out 6 major gaps in the biosafety/biosecurity framework, including the lack of oversight of private, non -federally funded labs. (NSABB Board Meeting - September 2022 Wednesday, September 21, 2022 ) Timestamped at approximately 33:00.

At approximately 42:00, Dr. Kenneth Bernard, a NSABB board member stated: “We have to deal with the problem of domestic research that’s not funded by the US government. That’s a big chunk right now, especially out here in the west with Silicon Valley.”

Clearly, the issue of privately-funded, high-containment labs is a matter of concern at the NIH. Prohibiting BSL 3 and 4 labs in all zoning in San Carlos is an important step in regulating BSL labs to protect public and environmental health and safety.

2. Other cities have ordinances and permitting procedures for all levels of biosafety labs.

Although the staff report indicates that few bay area cities have ordinances or regulations regarding biosafety labs, many cities on the east coast, that have decades of experience dealing with the consequences of millions of square feet of biosafety lab d evelopments, have enacted comprehensive BSL ordinances. Many of them prohibit BSL 3 and 4 labs. However, they also have ordinances regulating BSL 1 and 2 labs.

Cities in the greater Boston metropolitan area have shown progressive leadership in protecting their communities. The following cities near Boston prohibit BSL 3 and 4 labs: Boxborough, Brookline, Natick,

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and Revere, among others. In addition, Revere does not allow warm-blooded animal research and Natick prohibits all animal testing. See this helpful spreadsheet, cited with permission from the Sierra Club Loma Prieta Chapter, Bay Area Biosafety working group.

3. Please consider amending the proposed ordinance to include regulations for BSL 1 and 2 labs.

We are not opposed to BSL 1 and 2 labs sited in areas that are environmentally and ecologically suitable, are located a safe distance from residences, childcare and senior facilities, and are governed by robust university, city or county guidelines, biosafety committees, ordinances, or regulations. Private BSL 1 and 2 labs are self-regulated and lack operational oversight. The City of San Carlos and San Mateo County Department of Environmental Health and Safety do not have biosafety committees , guidelines or ordinances that specify where biosafety labs should be sited and how privately -owned, speculative developments with multiple unknown BSL tenants should be operated and monitored. Most San Mateo county regulations address hazardous materials, not hazardou s biological cellular materials or pathogens.

Ventilation--Negative and Positive Air Pressure
The proposed ordinance does not contain any regulations that govern BSL 1 and 2 labs, vivaria or animal testing. These facilities are less concerning than BSL 3 and 4 labs, but they are not without risk. Of utmost concern is ensuring appropriate ventilation design and construction. See Stanford’s: Ventilation Concerns for Biosafety Level 2 Laboratories . It reads in part:

1. Air pressure in laboratories and animal care rooms should be negative in relation to the corridor or adjacent non-laboratory areas. Rooms housing immunocompromised animals should be at a positive pressure with respect to adjoining areas. Consult with SU Fire Marshall for design details. CDC-NIH Biosafety in Microbiological and Biomedical Laboratories (ABSL 2, D.5) Good Practice per Stanford EH&S Potentially harmful aerosols can escape from the containment of the laboratory room unless the room air pressure is negative to adjacent non-laboratory areas. As a general rule, air should flow from low hazard to high hazard areas.

2. Dedicated sterile tissue culture rooms should be balanced neutral or slightly positive with respect to adjoining areas. Tissue culture rooms that involve the use of biohazardous agents shall be negative as stated in C-1 above.

This will minimize the potential for possible contamination of experiments within these rooms.

3. An autoclave should be provided with a canopy hood, slotted exhaust, or other suitable means of local exhaust. In addition, autoclave rooms should have a minimum of 10 air changes per hour.

Unpleasant heat and odors will linger in the room unless provided with effective local exhaust and adequate frequency of air changes.

Because of the risk of airborne pathogens escaping to adjacent non-laboratory areas, we ask the city to consider amending the ordinance to provide specific guidelines that ensure the above ventilation guidelines are incorporated into building design and construction. We also request that the city prohibit

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all BSL labs within a specified distance (250 or more feet) from residences, childcare and senior facilities; require floor plans of BSL 1 and 2 labs and a description of the organisms in use; a procedure to alert the city and the public of lab accidents, employee exposure to transmissible pathogens and an emergency response plan.

We respectfully request that the city consider hiring a third-party biosafety and biosecurity consultant, to be paid for by developers or BSL tenants, to perform biosafety and biosecurity oversight responsibilities similar to those adopted by Cambridge, MA.

See Cambridge, MA biosafety regulations:

The responsibilities of the Cambridge Biosafety Committee include:

• Reviewing the appropriate design and operation of all laboratory areas within the proposed facility for research or manufacturing involving regulated biological agents at the biosafety containment level (Biosafety Level) request for that location;

• Determining whether appropriate and reasonable practices to contain and mitigate biological hazards match the potential biological hazards associated with the specific agents in the form present, particularly as they impact lab workers and the community;

• Listening to each presentation for a new or amended permit and providing feedback or submitting questions to the applicant as applicable;

• Reviewing laboratory walkthrough inspection summaries provided by Committee staff before determining that all applicable standards and practices for safe operation of a biological laboratory are met;

• Reviewing practices, expectations, and standards imposed on the regulated laboratories by the Committee in order to establish clear enforcement protocols and to offer transparency to the regulated community. Key policies and direction will be summarized in a companion document to the ordinance and the regulation;

• Providing a community perspective in assessing the impact of any application and anticipating issues of greater public concern or interest;

We also ask that the city consider developing a specifi c Laboratory Biosafety permit, such as the one below:

To receive a Laboratory Biosafety permit, every new applicant must present to the Cambridge Biosafety Committee. The presentation must include:

1. Street address of the proposed facility or facilities. Please include a specific floor or suite within the building.

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2. Total floor area of biological laboratory space (estimate is OK) and proposed biological containment level(s) or biological safety levels (BSL).

3. A summary of research or manufacturing activities and agents, organized by Risk Group as determined by the Institutional Biosafety Committee for the applicant.

4. A floor plan indicating all laboratory areas, biological containment levels or BSL(s), waste storage location and pathway for removal, doors, and exits.

5. Documentation of a medical surveillance agreement with a local occupational health provider or an in-house clinical provider.

6. Documentation showing that an air balance was conducted to document a steady negative airflow into any BSL-2 lab areas.

7. Summary of compliance status for all local and state health and safety regulations requiring permits (e.g., flammable storage and cryogenic gas permit, DEP VSQG or SQG chem waste permit, state radiation permit, MWRA wastewater permit).

8. A list of vendors that support the safe operation of the laboratory.

Presentations generally last 20 to 45 minutes, and should provide a broad explanation of the recombinant technologies, risk of infection, biological vectors, and host organisms being used.

For an example, see our sample presentation. For more information, please view the Cambridge Biosafety Committee’s Policies and Procedures .

4. Flood Prevention
In order to prevent or minimize the effects of flooding on BSL 1 and 2 lab facilities, we respectfully request that the biosafety ordinance include a minimum set-back requirement of 25-35 feet or more, if possible, from all creeks and the bay, a prohibition on underground parking or underground structures in FEMA flood zones and a requirement for elevated platforms for back -up generators (diesel, gas or battery operated).

Most of the Life Sciences developments containing BSL 1 and 2 labs will be located in east or northeast San Carlos. Unfortunately, those areas are prone to flooding due to their proximity to Pulgas, Belmont and Cordilleras creeks. Many sites are in FEMA designated flood zones. A series of atmospheric rivers caused widespread flooding in San Carlos on December 31, 2022.

Pulgas creek flooded, swamping portions of Industrial Road and surface roads near the intersection of 930 and 1030 Brittan where MBC Biolabs are located. On July 19, 2021, the development, now under construction at 1030 Brittan, received an exemption from the Planning Commission for the 25-foot creek setback requirement and located its underground parking structure within 9 feet of Pulgas Creek. https://padailypost.com/2021/07/19/biotech -project-approved-in-san-carlos/ See 12/31 photos:

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Fortunately, Ryan Guibara of Dewey Land Company, developer for MBC Biolabs, is an experienced developer and he ensured that the construction site was properly protected and maintained during the storms. We appreciate his willingness to meet with members of the community and consider our input.

We also appreciate that MBC Biolabs limits their operations to BSL 1 and 2 labs. Mr. Guibara met with us in January and described a number of flood prevention mitigations he is undertaking to prevent flooding in the underground parking structure, including flood gates at the entrance.

There was also widespread flooding in northeast San Carlos. The PG&E substation at 275 Industrial Road flooded. The orange flood barriers were still in place on 1/6/23:

On 12/31/22, water levels reached 1-2 feet in the parking structure at Natera, a biotech company at 201 Industrial Road. See partially submerged cars:

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In addition, Belmont Creek flooded at the site of a proposed 800,000 square foot Life Science development at 642 Quarry Road. Fortunately, the developers recently withdrew their request for BSL 3 “use,” but it will have BSL 1 and 2 facilities on the site. We were surprised to learn that underground parking is proposed on this site because it is notorious for flooding. This photo was taken in the parking lot of 642 Quarry Road on 12/31/22:

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See this Belmont Staff Report dated October 24, 2014. It includes multiple photos showing 2010 flooding in the parking lot and underground parking structure at Novartis Pharmaceutical Corporation, previously located at 150 Industrial Road. The 2010 flooding from Belmont Creek swamped Old County Road, Quarry Road and Industrial Road. Novartis paid for the Belmont Creek Watershed Study included in the Belmont staff report. Despite subsequent years of dredging and preventative maintenance, Belmont creek still floods Quarry Road, Old County Road, Harbor Blvd and Industrial Road all the way from El Camino Real to Hwy 101. Building 800,000 square feet of BSL 1 and 2 labs directly on the banks of Belmont creek, with proposed underground parking seems reckless. If the underground parking structure floods, the building may lose electrical power which is crit ical to maintaining negative and positive air pressure in BSL-2 labs on the site. In addition, the back-up generators proposed on surface parking lots around the structures and would likely be submerged in the event of significant flooding.

5. Inadequate p ublic notice of significant changes to zoning ordinances related to biosafety labs, a topic of significant public interest

We respectfully contend that there was inadequate public notice of this Planning Commission meeting where a topic of significant public interest will be discussed. Members of the public and the GESC board have previously raised concerns on a number of occa sions about the lack of BSL ordinances and requested a public hearing. We sent a number of emails to the city raising this issue as early as September 8, 2021. In December 2022, the City Council directed City staff to prepare a presentation and study session on biosafety labs. However, we only became aware of this meeting when we sent an email to Lisa Costa Sanders on 2/2/23 asking about the status of the BSL study session.

On the last page of the packet we saw that the city published a notice in the "ENQUIRER-BULLETIN" newspaper on January 25th. We have never heard of this obscure publication, but discovered that it is listed as one of the San Mateo County newspapers for legal publication. While the small posting may satisfy the legal public notification requirement, we are disappointed that the City did not mention the date of this important meeting in the monthly City Council newsletter or in a City Council meeting in order to give the public advance notice.

If we had known the date of this meeting earlier, we would have submitted public comment letters and encouraged interested neighbors to submit their comments for inclusion in the agenda packet. We note that the packet included “public comments” from Ryan Guibara, MBC Biolabs dated 1/25/23 and Doug Crawf ord, MBC Biolabs dated 1/29/23. It appears that their input was obtained as part of Marketplace Feedback noted on page 11 of the packet. See:

https://cityofsancarlos.primegov.com/Portal/Meeting?meetingTemplateId=1407

In the future, we respectfully request that members of the public be afforded the same courtesy offered to developers, especially those of us who have written emails and specifically requested information about topics on calendar for discussion. We also request that the general public be n otified of zoning changes or matters of significant public interest in the City Council newsletter or by other methods in addition to the minimally required public notice. Will the city consider publishing future notices in the San Mateo Daily Journal instead? It is a more well-known publication with wider circulation.

Thank you for considering our comments. We greatly appreciate the staff’s research, hard work and their recommendation to prohibit all BSL 3 and 4 labs in San Carlos. We applaud San Carlos p lanners and

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city council members for demonstrating progressive leadership in the regulation of Silicon Valley’s important Biotech industry. San Carlos’ BSL ordinances will set an important precedent in the bay area.

Sincerely,
Debbie and Gary Baldocchi

Correspondence #8

February 6, 2023

Honorable Mayor Adam Rak 600
Elm Street
San Carlos, CA 94070
RE: Item 6 San Carlos Planning and Transportation Commission Agenda for February 6th.

Dear Mayor Rak, Members of City Council, and Members of Planning and Transportation Commission
On behalf of the Board of Directors of Chamber San Mateo County we are writing to express our concern regarding the proposal to fully ban Bio Safety Level 3 (BSL-3) laboratories in the City of San Carlos.

Chamber San Mateo County is a dynamic organization that is always looking to the future with over 1,500 members from all industries such as business, government, labor, education and non- profit and serving over 100,000 employees. Our Chamber continues to stay true to our purpose, our promise, and our difference by providing local and regional leadership on critical economic issues, such as education, housing affordability, infrastructure, transportation, economic development, supporting commercial and life science expansion, and government efficiency initiatives.

In December 2022, our Chamber’s Economic Development Committee held a presentation on California’s Economic Driver – Life Science. We called together a panel of life science industry experts:
• Michelle Nemits, Bay Area Executive Director, Biocom
• Melanie Cohn, Senior Director, Regional Policy & Government Affairs, Biocom • Dr. Greg Theyel, Program Director, Biomedical Manufacturing Network.

We had over 55 attendees, including city staff members from the Cities of San Carlos, Redwood City and Belmont personally invited by me. One key area that was discussed widely within the presentation with numerous questions was “What are BSL-1, BSL-2, BSL-3, and BSL- 4?”

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San Carlos, CA 94070

RE: Item 6 on the San Carlos Planning Commission Agenda for February 6th.

Dear Mayor Rak, Councilmembers, and Planning Commissioners,

I am writing regarding the proposal to ban BSL-3 laboratories in the City of San Carlos.

Biocom California is the state’s oldest and largest association for the life sciences. We work on behalf of over 1,700 members to drive public policy, build a network of industry leaders, create access to capital, introduce workforce development and STEM education programs, and create value driven purchasing programs. Our members include biotechnology, pharmaceutical, medical device, and bioinformatics companies, contract research organizations, academic institutions/research institutes, service providers, and investment firms.

Membership ranges companies with under 10 employees to those with 500+ employees.

Life science is the economic backbone of the peninsula. According to our 2022 Economic I mpact Report, San Mateo County is home to 807 life science establishments, employing 40,349 people at an average wage of $274,258. The life science industry in San Mateo County represents $14.1 billion in annual economic impact. This is not just a question of economic value – these companies are developing lifesaving treatments and cures for all human ailments, improving health outcomes and quality of life.

The industry is very highly regulated; each facility must acquire and maintain many permits covering everything from the materials used in laboratories to wastewater. These facilities also have a high rate of compliance because to maintain these permits, companies hire in -house or consulting teams to track safety measures and ensure conformity.

The BSL designation itself outlines the application of specific practices, safety equipment, and specially designed laboratories to create a safe environment, both within and outside the laboratory.

We support the staff recommendation to allow BSL-1 and BSL-2 by right in the San Carlos Innovation District. It is also reasonable to not allow BSL-4 uses in San Carlos as these labs are generally limited to governmental entities.

On the issue of BSL-3, the use of a BSL-3 laboratory is rare in the life science industry. While the number of these labs is few, their use is necessary in certain life-saving research processes. We are not aware of any other jurisdiction that disallows BSL-3 completely; this policy could limit economic and job growth in the life sci ence industry in San Carlos. Its very existence could give companies who don’t currently have plans for a BSL-3 lab pause when deciding whether to locate in the city.

It is our suggestion that the city considers a Conditional Use Permit process for BSL-3, where these laboratories would not be allowed in underlying zoning but could be approved on a case-by-case basis.

We appreciate your concerns, and as the number of regulated companies on the peninsula continues to increase, we hope you remain open to further discussion. We welcome the opportunity to meet with anyone who would like additional information about Biosafety Levels and the regulations in place around laboratory operations.

Melanie Cohn
Senior Director, Regional Policy & Government Affairs

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Correspondence #10

February 9, 2023
City of San Carlos
Planning Division
600 Elm Street
San Carlos, CA 94070

Subject: Re - proposed development of level 3 biotech lab attn Jim Incaponi Hi
I am writing to you because I am a concerned City of San Carlos resident for many years. I would like to speak against the proposed development of level 3 biotech labs for many reasons.

1. First and foremost the health and safety of the citizens should be come before $$$$$$$$! This does not belong anywhere and certainly not in a family community like San Carlos.

2. The traffic increase and congestion will only serve to give us that big city feel and is not in keeping with our City.

3. This will have a detrimental effect on property values as “people in the know” will not want to move to “a Little Wuhan”!

Can you please help preserve our city. Please reach out to me so we can discuss this further.

Lina Marie Fava

Correspondence #11

March 1, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the City Council
Members of the Planning Commission
600 Elm Street
San Carlos, CA 94070

Subject: Public Comment Regarding Ordinance Amending San Carlos Municipal Code to Regulate Laboratories with Biosafety Levels (BSL) Planning Commission Monday, 3/6/23

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Dear Member of the Planning Commission,
We submitted the attached letter for the 2/6/23 Planning Commission meeting. We re -submit it here.

Please include it in the agenda packet for the 3/6/23 Planning Commission meeting. Lisa Costa Sanders informed us that we must submit public comments by noon tomorrow (3/2/23) in order to have them included in the agenda packet. Unfortunately, the agenda packet won't be posted until five hours later at 5:00 pm. We anticipate that the proposed ordinance will contain recommendations for a Conditional Use Permit. We will submit an additional public comment letter after we have had a chance to read it.

However, in light of the fact that only 1% of lab tenants will use BSL -3 space and the fact that EDAC Director assured you that the city does not think prohibiting BSL-3 labs will have a significant economic impact, we ask that you carefully consider the cost/benefit and risk/benefit analy sis proposed by Commissioner Roof and prohibit BSL-3 and 4 labs in San Carlos.

We submitted a detailed public comment letter in response to the Mitigated Negative Declaration for 642 Quarry Road. The developers subsequently withdrew their request for BSL -3 use. That is anecdotal evidence that prohibiting BSL-3 labs will not deter developers. We include that public comment letter here because it describes in detail the possible public safety and environmental impacts of siting BSL-3 labs in east San Carlos FEMA flood zones and on the edge of the bay. It contains information and cites research that is relevant to your decision.

We hope that the links and information we provided in our public comment letter, citing members of the National Institute of Health's National Science Advisory Board for Biosecurity (NSAAB) are persuasive.

They expressed concerns about unregulated, private biosafety labs in Silicon Valley and their remarks convinced us that private BSL -3 and 4 labs should not be approved by cities tha t do not have comprehensive biosafety and biosecurity ordinances and Biosafety Committees that regulate them. We implore you to listen to the NSAAB meetings in the links we sent so that you can hear what they have to say. They are the globally renowned subject matter experts on biosafety and biosecurity, some of them are from Stanford.

The allegation that the public's opposition to high-containment labs sited near neighborhoods is based on "fear, not facts" is unfounded. That is a talking point that serves to attack, not advance public discourse and engagement. The question is whether the public safety risks of having high-containment biosafety labs in San Carlos are foreseeable. Why take the risk?

Sincerely,

Debbie and Gary Baldocchi

Attachment 1.1. Baldocchi Letter dated February 5, 2023

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February 5, 2023

City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the City Council
Members of the Planning Commission
600 Elm Street
San Carlos, CA 94070

Subject: Public Comment Regarding Proposed Ordinance Amending San Carlos Municipal Code, Title 18 to Regulate Laboratories with Biosafety Levels (BSL); Planning and Transportation Commission Meeting, February 6, 2023

Dear Lisa Costa Sanders, Mayor Rak, Members of the City Council and Planning Commissioners, Thank you for your leadership in proposing and adopting an ordinance amending the Municipal code to regulate laboratories with biosafety levels in various zoning districts throughout San Carlos. We support the proposed zoning amendment that prohibits BSL 3 and 4 labs in San Carlos for the reasons outlined in the agenda packet. However, we ask that the ordinance be amended to clarify that BSL 3 and 4 labs are not permitted in Planned Development zoning or in any zoning in San Carlos. Planned Development zoning was omitted from the proposed ordinance.

We note that the Planning Commission recently approved a change in zoning from Landmark Commercial to Planned Development for a Life Sciences development at 405 Industrial Road. In addition, the developers for a proposed Life Sciences development that includes BSL 1 and 2 labs at 642 Quarry Road also asked to change the zoning from Light Industrial to Planned Development. The proposed ordinance should make it clear that the prohibition on BSL 3 and 4 labs applies to all zoning throughout San Carlos. And, the ordinance should also make it clear that it applies to vivaria or BSL 1 and 2 labs that may house animals intended for use in BSL 3 or 4 research.

We provide the following public comments for your review and consideration at the Planning Commission meeting on February 6th.

1. Privately owned and operated Biosafety labs that do not receive federal or state funds are not subject to stringent oversight.

Most of the biolabs in San Carlos are privately funded and some lab tenants may be speculative start- ups. Contrary to the bioscience industry’s extensive public relations efforts to convince the public that biosafety laboratory facilities are highly regulated and safe, hundreds of documented lab accidents have gone undisclosed to the public. The proliferation of millions of square feet of biosafety labs in heavily populated areas is an issue of nationwide concern because of odors, noise, emissions, and transportation of hazardous materials, hazardous pathogens and biological waste through residential neighborhoods.

See: The Risks of Building Too Many Biolabs.; Newly Disclosed CDC biolab failures ‘like a screenplay for a disaster movie

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In fact, the lack of oversight of Silicon Valley’s privately-owned and operated biosafety labs has drawn the recent attention and concern of the (NIH) National Institute of Health’s National Science Advisory Board for Biosecurity (NSABB). The NSABB has held numerous meetings about biosafety and biosecurity, with specific focus on Potential Pandemic Pathogen Care and Oversight (PC3O) and Dual Use Research of Concern (DURC). The most recent meeting took place a week ago. NSABB Board of Directors Meeting—January 27, 2023.

One notable public comment was from a biosafety/biosecurity public health expert at Columbia University who urged the NSABB to focus on BSL 3 labs in the private sector. Privately funded labs are a prominent focus of these meetings. They discussed the need for transparency, in connection with the need for public membership on biosafety committees, as well as transparency of the process, in ter ms of rules and regulations. They also discussed standards for review.

In a prior NSABB meeting on September 21, 2022, Dr. Richard Ebright pointed out 6 major gaps in the biosafety/biosecurity framework, including the lack of oversight of private, non -federally funded labs. (NSABB Board Meeting - September 2022 Wednesday, September 21, 2022 ) Timestamped at approximately 33:00.

At approximately 42:00, Dr. Kenneth Bernard, a NSABB board member stated: “We have to deal with the problem of domestic research that’s not funded by the US government. That’s a big chunk right now, especially out here in the west with Silicon Valley.”

Clearly, the issue of privately-funded, high-containment labs is a matter of concern at the NIH. Prohibiting BSL 3 and 4 labs in all zoning in San Carlos is an important step in regulating BSL labs to protect public and environmental health and safety.

2. Other cities have ordinances and permitting procedures for all levels of biosafety labs.

Although the staff report indicates that few bay area cities have ordinances or regulations regarding biosafety labs, many cities on the east coast, that have decade s of experience dealing with the consequences of millions of square feet of biosafety lab developments, have enacted comprehensive BSL ordinances. Many of them prohibit BSL 3 and 4 labs. However, they also have ordinances regulating BSL 1 and 2 labs.

Cities in the greater Boston metropolitan area have shown progressive leadership in protecting their communities. The following cities near Boston prohibit BSL 3 and 4 labs: Boxborough, Brookline, Natick, and Revere, among others. In addition, Revere does not allow warm-blooded animal research and Natick prohibits all animal testing. See this helpful spreadsheet, cited with permission from the Sierra Club Loma Prieta Chapter, Bay Area Biosafety working group.

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3. Please consider amending the proposed ordinance to include regulations for BSL 1 and 2 labs.

We are not opposed to BSL 1 and 2 labs sited in areas that are environmentally and ecologically suitable, are located a safe distance from residences, childcare and senior facilities, and are governed by robust university, city or county guidelines, biosafety committees, ordinances, or regulations. Private BSL 1 and 2 labs are self-regulated and lack operational oversight. The City of San Carlos and San Mateo County Department of Environmental Health and Safety do not have biosafety committees , guidelines or ordinances that specify where biosafety labs should be sited and how privately -owned, speculative developments with multiple unknown BSL tenants should be operated and monitored. Most San Mateo county regulations address hazardous materials, not hazardou s biological cellular materials or pathogens.

Ventilation--Negative and Positive Air Pressure
The proposed ordinance does not contain any regulations that govern BSL 1 and 2 labs, vivaria or animal testing. These facilities are less concerning than BSL 3 and 4 labs, but they are not without risk. Of utmost concern is ensuring appropriate ventilation design and construction. See Stanford’s: Ventilation Concerns for Biosafety Level 2 Laboratories . It reads in part:

1. Air pressure in laboratories and animal care rooms should be negative in relation to the corridor or adjacent non-laboratory areas. Rooms housing immunocompromised animals should be at a positive pressure with respect to adjoining areas. Consult with SU Fire Marshall for design details. CDC-NIH Biosafety in Microbiological and Biomedical Laboratories (ABSL 2, D.5) Good Practice per Stanford EH&S Potentially harmful aerosols can escape from the containment of the laboratory room unless the room air pressure is negative to adjacent non-laboratory areas. As a general rule, air should flow from low hazard to high hazard areas.

2. Dedicated sterile tissue culture rooms should be balanced neutral or slightly positive with respect to adjoining areas. Tissue culture rooms that involve the use of biohazardous agents shall be negative as stated in C-1 above.

This will minimize the potential for possible contamination of experiments within these rooms.

3. An autoclave should be provided with a canopy hood, slotted exhaust, or other suitable means of local exhaust. In addition, autoclave rooms should have a minimum of 10 air changes per hour.

Unpleasant heat and odors will linger in the room unless provided with effective local exhaust and adequate frequency of air changes.

Because of the risk of airborne pathogens escaping to adjacent non-laboratory areas, we ask the city to consider amending the ordinance to provide specific guidelines that ensure the above ventilation guidelines are incorporated into building design and construction. We also request that the city prohibit all BSL labs within a specified distance (250 or more feet) from residences, childcare and senior facilities; require floor plans of BSL 1 and 2 labs and a description of the organisms in use; a procedure to alert the city and the public of lab accidents, employee exposure to transmissible pathogens and an emergency response plan.

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We respectfully request that the city consider hiring a third-party biosafety and biosecurity consultant, to be paid for by developers or BSL tenants, to perform biosafety and biosecurity oversight responsibilities similar to those adopted by Cambridge, MA.

See Cambridge, MA biosafety regulations:

The responsibilities of the Cambridge Biosafety Committee include:

• Reviewing the appropriate design and operation of all laboratory areas within the proposed facility for research or manufacturing involving regulated biological agents at the biosafety containment level (Biosafety Level) request for that location;

• Determining whether appropriate and reasonable practices to contain and mitigate biological hazards match the potential biological hazards associated with the specific agents in the form present, particularly as they impact lab workers and the community;

• Listening to each presentation for a new or amended permit and providing feedback or submitting questions to the applicant as applicable;

• Reviewing laboratory walkthrough inspection summaries provided by Committee staff before determining that all applicable standards and practices for safe operation of a biological laboratory are met;

• Reviewing practices, expectations, and standards imposed on the regulated laboratories by the Committee in order to establish clear enforcement protocols and to offer transparency to the regulated community. Key policies and direction will be summarized in a companion document to the ordinance and the regulation;

• Providing a community perspective in assessing the impact of any application and anticipating issues of greater public concern or interest;

We also ask that the city consider developing a specific Laboratory Biosafety permit, such as the one below:

To receive a Laboratory Biosafety permit, every new applicant must present to the Cambridge Biosafety Committee. The presentation must include:

9. Street address of the proposed facility or facilities. Please include a specific floor or suite within the building.

10. Total floor area of biological laboratory space (estimate is OK) and proposed biological containment level(s) or biological safety levels (BSL).

11. A summary of research or manufacturing activities and agents, organized by Risk Group as determined by the Institutional Biosafety Committee for the applicant.

12. A floor plan indicating all laboratory areas, biological containment levels or BSL(s), waste storage location and pathway for removal, doors, and exits.

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13. Documentation of a medical surveillance agreement with a local occupational health provider or an in-house clinical provider.

14. Documentation showing that an air balance was conducted to document a steady negative airflow into any BSL-2 lab areas.

15. Summary of compliance status for all local and state health and safety regulations requiring permits (e.g., flammable storage and cryogenic gas permit, DEP VSQG or SQG chem waste permit, state radiation permit, MWRA wastewater permit).

16. A list of vendors that support the safe operation of the laboratory.

Presentations generally last 20 to 45 minutes, and should provide a broad explanation of the recombinant technologies, risk of infection, biological vectors, and host organisms being used.

For an example, see our sample presentation. For more information, please view the Cambridge Biosafety Committee’s Policies and Procedures .

4. Flood Prevention

In order to prevent or minimize the effects of flooding on BSL 1 and 2 lab facilities, we respectfully request that the biosafety ordinance include a minimum set-back requirement of 25-35 feet or more, if possible, from all creeks and the bay, a prohibition on underground parking or underground structures in FEMA flood zones and a requirement for elevated platforms for back -up generators (diesel, gas or battery operated).

Most of the Life Sciences developments containing BSL 1 and 2 labs will be located in east or northeast San Carlos. Unfortunately, those areas are prone to flooding due to their proximity to Pulgas, Belmont and Cordilleras creeks. Many sites are in FEMA designated flood zones. A series of atmospheric rivers caused widespread flooding in San Carlos on December 31, 2022.

Pulgas creek flooded, swamping portions of Industrial Road and surface roads near the intersection of 930 and 1030 Brittan where MBC Biolabs are located. On July 19, 2021, the development, now under construction at 1030 Brittan, received an exemption from the Planning Commission for the 25-foot creek setback requirement and located its underground parking structure within 9 feet of Pulgas Creek. https://padailypost.com/2021/07/19/biotech -project-approved-in-san-carlos/ See 12/31 photos:

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Fortunately, Ryan Guibara of Dewey Land Company, developer for MBC Biolabs, is an experienced developer and he ensured that the construction site was properly protected and maintained during the storms. We appreciate his willingness to meet with members of the community and consider our input.

We also appreciate that MBC Biolabs limits their operations to BSL 1 and 2 labs. Mr. Guibara met with us in January and described a number of flood prevention mitigations he is undertaking to prevent flooding in the underground parking structure, including flood gates at the entrance.

There was also widespread flooding in northeast San Carlos. The PG&E substation at 275 Industrial Road flooded. The orange flood barriers were still in place on 1/6/23:

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On 12/31/22, water levels reached 1-2 feet in the parking structure at Natera, a biotech company at 201 Industrial Road. See partially submerged cars:

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In addition, Belmont Creek flooded at the site of a proposed 800,000 square foot Life Science development at 642 Quarry Road. Fortunately, the developers recently withdrew their request for BSL 3 “use,” but it will have BSL 1 and 2 facilities on the site. We were surprised to learn that underground parking is proposed on this site because it is notorious for flooding. This photo was taken in the parking lot of 642 Quarry Road on 12/31/22:

See this Belmont Staff Report dated October 24, 2014. It includes multiple photos showing 2010 flooding in the parking lot and underground parking structure at Novartis Pharmaceutical Corporation, previously located at 150 Industrial Road. The 2010 flooding from Belmont Creek swamped Old County Road, Quarry Road and Industrial Road. Novartis paid for the Belmont Creek Watershed Study included in the Belmont staff report. Despite subsequent years of dredging and preventative maintenance, Belmont creek still floods Quarry Road, Old County Road, Harbor Blvd and Industrial Road all the way from El Camino Real to Hwy 101. Building 800,000 square feet of BSL 1 and 2 labs directly on the banks of Belmont creek, with proposed underground parking seems reckless. If the underground parking structure floods, the building may lose electrical power which is critical to maintaining negative and positive air pressure in BSL-2 labs on the site. In addition, the back-up generators proposed on surface parking lots around the structures and would likely be submerged in the event of significant flooding.

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5. Inadequate p ublic notice of significant changes to zoning ordinances related to biosafety labs, a topic of significant public interest

We respectfully contend that there was inadequate public notice of this Planning Commission meeting where a topic of significant public interest will be discussed. Members of the public and the GESC board have previously raised concerns on a number of occa sions about the lack of BSL ordinances and requested a public hearing. We sent a number of emails to the city raising this issue as early as September 8, 2021. In December 2022, the City Council directed City staff to prepare a presentation and study session on biosafety labs. However, we only became aware of this meeting when we sent an email to Lisa Costa Sanders on 2/2/23 asking about the status of the BSL study session.

On the last page of the packet we saw that the city published a notice in the "ENQUIRER-BULLETIN" newspaper on January 25th. We have never heard of this obscure publication, but discovered that it is listed as one of the San Mateo County newspapers for legal publication. While the small posting may satisfy the legal public notification requirement, we are disappointed that the City did not mention the date of this important meeting in the monthly City Council newsletter or in a City Council meeting in order to give the public advance notice.

If we had known the date of this meeting earlier, we would have submitted public comment letters and encouraged interested neighbors to submit their comments for inclusion in the agenda packet. We note that the packet included “public comments” from Ryan Guibara, MBC Biolabs dated 1/25/23 and Doug Cra wford, MBC Biolabs dated 1/29/23. It appears that their input was obtained as part of Marketplace Feedback noted on page 11 of the packet. See:

https://cityofsancarlos.primegov.com/Portal/Meeting?meetingTemplateId=1407

In the future, we respectfully request that members of the public be afforded the same courtesy offered to developers, especially those of us who have written emails and specifically requested information about topics on calendar for discussion. We also request that the general public be notified of zoning changes or matters of significant public interest in the City Council newsletter or by other methods in addition to the minimally required public notice. Will the city consider publishing future notices in the San Mateo Daily Journal instead? It is a more well-known publication with wider circulation.

Thank you for considering our comments. We greatly appreciate the staff’s research, hard work and their recommendation to prohibit all BSL 3 and 4 labs in San Carlos. We applaud San Carlos planners and city council members for demonstrating progressive leadership in the regulation of Silicon Valley’s important Biotech industry. San Carlos’ BSL ordinances will set an important precedent in the bay area.

Sincerely,

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Debbie and Gary Baldocchi

Correspondence #12

March 2, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the City Council
Members of the Planning Commission
600 Elm Street
San Carlos, CA 94070

Subject: Biosafety Now--Prohibit High-Containment Biolabs in San Carlos--Public Comment Regarding Ordinance Amending San Carl Planning Commission Monday, 3/6/23 Dear Lisa Costa Sanders, Planning Commission members and members of the City Council, Please add this le tter of public comments to the agenda packet for the Planning and transportation Committee on March 6th. Sent at 11:51 on 3/2/23.

Thank you,
Debbie and Gary Baldocchi

Attachment 2.1. Baldocchi Letter dated March 2, 2023
March 2, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the Planning and Transportation Commission
Members of the City Council
600 Elm Street
San Carlos, CA 94070

Subject: Public Comment Regarding Proposed Ordinance Amending San Carlos Municipal Code, Title 18 to Regulate Laboratories with Biosafety Levels (BSL); Planning and Transportation Commission Meeting, March 6, 2023
Request: (Biosafety Now—Prohibit High Containment Biosafety Level 3 labs in San Carlos)

Dear Lisa Costa Sanders, Planning Commissioners, Mayor Rak, and members of the City Council,

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The Planning and Transportation Commission declined to follow the February 6th City Council and staff recommendations to adopt a proposed ordinance that would prohibit privately operated, high - containment biosafety labs in San Carlos in order to protect the community from the harmful effects of hazardous materials.

Commissioners did not discuss the harmful effects of hazardous materials, but expressed concerns that prohibiting high-containment labs would discourage the private biotech industry from moving to San Carlos and directed staff to submit a revised ordinance that will allow BSL-1 and 2 use by right and BSL- 3 use with a Conditional Use Permit (CUP). Commissioners were willing to prohibit BSL-4 labs, but that is not a significant public health and safety concession because there are none in California—that the public is aware of.

The ordinance proposed on February 6th reads in part:

PROPOSED MUNICIPAL CODE CHANGES TO REGULATE LABORATORIES WITH BIOSAFETY LEVELS
Staff has prepared proposed changes to the San Carlos Municipal Code Sections 18.06.010, 18.06.020,

18.07.010, 18.07.020, 18.40.050, and 18.41.020 for the Planning and Transportation Commission’s consideration regarding regulating laboratories with biosafety levels. (See Attachment 1 – Resolution Recommending the City Council Adopt the Proposed Changes to the San Carlos Municipal Code Title

18. Exhibit A: Proposed Changes to the San Carlos Municipal Code.) These proposed changes include:
• Adding a zoning definition for “Biosafety Level.”
• Allowing BSL-1 and BSL-2 laboratories with no permit requirement. • Modifying the purpose of zoning districts where Research and Development uses are permitted to expressly prohibit BSL-3 and BSL-4 laboratories.
• Modifying the Research and Development use definition to expressly prohibit BSL-3 and BSL-4 laboratories.
1) Findings:

1. The ordinance amendment is consistent with the General Plan.

Basis for finding: The Environmental Safety and Public Services Element of the San Carlos General Plan includes Goal ESPS -5, which state s, “Protect the community from the harmful effects of hazardous materials,” and Action ESPS-5.6, which states “Prepare regulations that address biosafety levels (BSL) for new life science, biotechnology, or other scientific developments to ensure a healthy and safe San Carlos community.” The primary goal of this proposed amendment to Title 18 of the San Carlos Municipal Code is to implement Action ESPS-5.6 by including a definition for Biosafety Levels (BSL), and prohibiting facilities with biosafety levels (BSL) 3 and 4.

2. The ordinance amendment is consistent with the purpose of this Ordinance to promote the growth of the city in an orderly manner and to promote and protect the public health, safety, peace, comfort, and general welfare. Attachment 1, Resolution, page 14. Link to Agenda Packet.

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It is our perception that the commissioners minimized staff and community members concerns about the public health and environmental safety hazards of siting high -containment biolabs near residential neighborhoods, schools, childcare facilities, medical offices and other environmentally sensitive areas prone to flooding. We respectfully request that they reconsider.

We do not think that allowing private, BSL-3 labs in San Carlos with a Conditional Use Permit adequately protects the community from the harmful effects of hazardous materials. City staff admitted they have no biosafety or biosecurity experience or expertise and that regulations and oversight will be complex, time- consuming and expensive. Planner Costa Sanders pointed out that cities on the east coast that allow high-containment labs have biosafety/biosecurity committees that provide oversight. She said: we don’t have that expertise. See video of the meeting: Link to 2/6/23 Planning Commission (Minute: 29.) Staff also conceded that only 1% of biosafety lab tenants will request BSL-3 use. EDAC Director Al Savay said that the city does not think the economic impacts on market dynamics will be significant and that he feels good about moving forward with the proposed ord inance based on public safety and community concerns. (Minute: 26.) The city staff specifically stated that there will be no significant economic impacts.

Why are planning commissioners disputing that?
In fact, the developers for a proposed 410,000 square foot Life Sciences complex at 642 Quarry Road recently withdrew their request for BSL -3 use after public opposition to their Mitigated Negative Declaration.

There is an unprecedented proliferation of private, high containment biosafety labs throughout Silicon Valley. Now, more than ever, local ordinances are needed to regulate the foreseeable public and environmental health and safety impacts. The lack of comprehensive federal, state, and local biosafety regulations is a glaring public health and safety issue. Prominent scientists, including Richard Ebright, a molecular biologist at Rutgers University, has pushed for federal regulations for high-containment labs for years.

In a recent issue of Science magazine, he said: Current U.S. biosafety guidelines, which only cover federally funded research and are enforced with fines and loss of grants, should be replaced with federal regulations with the force of criminal penalties, the group says. (There are stricter U.S. regulations for research on certain risky pathogens and toxins known a s select agents, but these laws mainly are intended to prevent terrorists or enemy nations from getting access to potential bioweapons, Ebright notes.) The World Health Organization could help countries harmonize biosafety rules, the group says.

We recognize that it can be difficult for a city to balance risks to public and environmental health and safety with sustainable economic growth. EDAC Director Al Savay agrees that protecting both is possible.

We are optimistic that San Carlos will continue to lead by protecting the community from the harmful effects of hazardous materials. The city has demonstrated their commitment to enforcing regulations in the Environmental Safety and Public Services Element of the San Carlos General Plan by requiring developers to clean up former industrial sites that contain brown fields and enforcing the 25 feet set-back requirement from creeks.

We ask San Carlos to follow the example of many other cities and prohibit high-containment BSL-3 labs and in its own words: promote the growth of the city in an orderly manner and to promote and protect the public health, safety, peace, comfort, and general welfare. We appreciate your thoughtful and careful consideration.

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We provide the following additional information:

Background
I am a retired prosecutor. During the first 10 years of my career, I was a Registered Nurse with a Master’s Degree in Nursing. In the mid-80s, I was the Director of Nursing for Shriners Hospital for Children in San Francisco. I was also an assistant clinical professor at UCSF and served on the San Francisco Directors of Nursing Infectious Diseases committee during the HIV epidemic. The committee’s focus was instituting policies and procedures to prevent hospital, laboratory or blood bank acquired infections from spreading to patients, staff and the community.

The Sierra Club, Loma Prieta Chapter, hosted a webinar on Life Sciences Development on March 2nd. I am not a member, but they graciously invited me to attend the planning sessions as a member of the public.

Members of the group had many meetings with city and county leaders, biosafety experts, biotech consultants, scientists and university professors, including the webinar speakers:
(a) Dennis Carlone, Cambridge, MA City Council member and Urban Design/Architec ture consultant;

(b) Sam Lipson, Senior Director of Environmental Health, Cambridge Public Health Department;

(c) Vanessa Cook, Ph.D, Associate BioSafety officer, UC San Diego. Dr. Cook also works for BioNet, Biological Safety Information Network; and

(d) Paul Magginetti, a senior biosciences quality engineer and board member of Greater East San Carlos (GESC.)

We also met with San Mateo County Supervisor Dave Pine and representatives from the San Mateo Department of Environmental Health and Safety. We confirme d that there are no county ordinances regulating biosafety levels in private labs. Zoning ordinances that govern biosafety labs are enacted by cities, unless they are located on county property.

Discussion
(1) What are biosafety levels

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https://biosafety.utk.edu/biosafety -program/the -biosafety -program/biosafety -manual/2 -principles -of-biosafety/

Additional information and description of biosafety hazards can be found in this letter by the Sierra Club, Loma Prieta Chapter.

(2) Insufficient local oversight and regulation of private high-containment biosafety labs

It is concerning to see how little public information is available about private high-containment biolabs located in Silicon Valley. We perceive this to be a coordinated effort by the billion-dollar biotech industry that attempts to shut down questions and stifle local regulations by claiming they are already "highly regulated." Unlike university and federally funded labs, they have fragmented and incomplete oversight.

Universities like Stanford have comprehensive Biosafety manuals and committees. That is not true for private labs which may include underfunded start-ups.

The number of high-containment biolabs (HDBLs) continues to increase; that trend will likely continue with COVID-19 worldwide as countries and states will choose to prioritize and build them. Since many academic and private laboratories are not under governmental oversight, it is difficult to obtain accurate counts of HCBLs (Peters, 2018). In our references, we also noted inconsistences in the HCBLs especially those listed in the BSL -3 category. The Significance of High -Containment Biological Laboratories Performing Work During the COVID-19 Pandemic: Biosafety Level-3 and 4 Labs.

Scientist across the nation are raising public safety concerns, including Stanford researcher Dr. David Relman who recommends stronger oversight. Another group of scientists who are advocating for national and international regulations and oversight is Protect our Future. https://biosafetynow.org/ One of its co- founders, Richard Ebright, who testified before congress at the Homeland Security Subcommittee on Emerging Threats and Spending, recently summed up the public safety risks: The government does not

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even maintain a comprehensive database of where such experiments are taking place, let alone practice any rigorous oversight of them. Instead, there are different standards based on crude risk categorization, funding source and research facility. It’s a crazy patchwork quilt of “rules” giving rise to a ‘big zone’ of uncertainty about which labs are doing what under whose oversight and with what level of security and precaution.

These scientists are interested in learning how San Carlos will address the issue of high-containment biolabs in the proposed ordinance. Local media, including the Palo Alto Daily Post and the San Mateo Daily Journal are also following the story.
(3) Lack of transparency and secrecy

The public doesn't know how many private BSL-3 labs are in the bay area or where they are located. At the February 6th Planning Commission meeting, Planner Costa Sanders said she thinks there are seven BSL-3 labs in the region, but conceded that due to proprietary or security reasons an inventory of labs is not readily available online. Link to 2/6/23 Planning Commission (Video: 11 :54.) One of the city’s consultants, Carla Boragno, former vice president of site services for Genentech, was asked about the number and location of private BSL-3 lab in the bay area. She did not know how many, but said that she is aware of one in San Francisco, but is not at liberty to say which one. (Video: 12:00).

Private, high-containment biolabs located near residential areas should not be allowed to justify their secrecy and lack of transparency by claiming proprietary or security issues. The public has a right to know what pathogens are being researched in labs next door. We need local, enforceable regulations that will minimize the risk of infectious diseases spreading into the community. (4) What type of research is conducted in BSL-3 labs?

There are many types of research performed in BSL-3 labs. The most high-risk is enhanced potential pandemic pathogen research or (ePPP). The issues were recently addressed in an easy to read article in Vox.

A more in-depth description is provided by biosafetynow.org.

High-Risk Research with Potential Pandemic Pathogens
Enhanced potential pandemic pathogen (ePPP) research is defined as research activities reasonably anticipated to increase transmissibility or pathogenicity of a potential pandemic pathogen. Historically ePPP research also has been referred to as “gain-of-function research of concern” (GoFRoC). The amount of ePPP research performed in the US is difficult to estimate. However, because ePPP research is carried out in high-level biocontainment laboratories (BSL-3 and BSL-4), the number of high-level biocontainment laboratories in the US, provides an estimate. The total number of US BSL-3 and BSL-4 laboratories is not known, but likely is between 1,000 and 2,000.

Multiple GAO reports over the last decade have lamented the fact that no federal, state, or other entity knows numbers, much less locations, of US BSL-3 and BSL-4 laboratories. Numbers of BSL-3 laboratories are known only for the subset of laboratories that are either operated by state public health departments or registered with the CDC or USDA Select Agent programs. These totaled 1,782 (possibly with some duplication) in 2009, with many facilities present in each state

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What are the risks associated with ePPP research ?

ePPP research involves the creation of new health threats–health threats that did not exist previously and that might not come to exist by natural means for tens, hundreds, thousands, or tens of thousands of years. Most ePPP research to date has been performed in the US with US funding, or overseas with US funding.

ePPP research poses high–potentially existential–risks. ePPP research poses both material risks and information risks. ePPP research is performed because it is easy and fast (much faster and much easier than vaccine or drug development) and because it is fundable and publishable.

Not because it is needed

Because ePPP research poses high–potentially existential–risks and provides limited benefits, the risk-benefit ratio for the research almost always is unfavorable and in many cases is extremely unfavorable. ePPP research is a small part of biomedical research (less than 0.1% of all biomedical research and less than 1% of virology). However, because ePPP research of concern can cause pandemics, this small part of the biomedical research enterprise is highly consequential and requires effective oversight.

How is ePPP research currently monitored and regulated in the US ?

Before 2014, there was no national-level US oversight of gain-of-function research of concern.

In 2014-2017, there was a moratorium on federal funding for “selected gain of function research,” defined as research activities reasonably anticipated to increase transmissibility or pathogenicity of influenza, SARS, or MERS viruses. The policy was referred to as the “US Government Research Funding Pause on Selected Gain-of-Function Research Involving Influenza, MERS, and SARS Viruses,” or, for short, as the “Pause.” Under the Pause, 18 projects were paused.

However, at least 7 of the 18 projects that were paused were allowed to re-start almost immediately (based on a certification by the NIH Director that the projects were “urgently necessary to protect the public health or national security”).

More important, other projects that met the definition for coverage under the Pause–including a project on engineering of SARS- and MERS-related coronaviruses by EcoHealth Alliance and the Wuhan Institute of Virology–were not paused, due to the failure of the NIH to identify and flag all covered projects

In 2018-present, there has been a requirement for HHS-Secretary-level risk-benefit assessment prior to awarding HHS funding for “research involving enhanced potential pandemic pathogens,” defined as research activities reasonably anticipated to increase transmissibility or pathogenicity of a potential pandemic pathogen.

The policy is referred to as the “HHS Framework for Research Involving Enhanced Potential Pandemic Pathogens,” or, for short, as the “P3CO Framework“

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Under the P3CO Framework, covered projects are to be identified and flagged by HHS funding agencies (i.e., the NIH and the CDC), and covered projects are to be reviewed by a committee appointed by the HHS Secretary (i.e., the HHS P3CO Committee).

The P3CO Framework applies to funding for proposed research and operates before funding and conduct of the research (not after completion of the research). Accordingly, identification of covered projects coverage under the policy is based on proposed research and evaluates “reasonably anticipated” results of the proposed research (not results after completion of the research). The “reasonably anticipated” standard employed by the policy is equivalent, in all respects, to the “reasonable person” standard employed in US administrative and civil law.

The definitions of the research activities covered by the P3CO Framework, and the definitions of research activities exempted from the P3CO Framework, are clear. They are as clear as in any US statute or rule having a “reasonable person” standard. The policy covers research activities reasonably anticipated to increase the transmissibility or the pathogenicity of a potential pandemic pathogen, including research activities in which neither the pathogen to be modified nor the enhanced pathogen to be generated is known to infect humans.

What are the shortcomings in US oversight of ePPP research?

In principle, the P3CO Framework provides for risk-benefit assessment and risk-mitigation review for gain-of-function research of concern. However, in practice, the P3CO Framework largely has existed only on paper. In the four-and-one-half years since the policy was announced, only three projects have been reviewed: two projects that had been carried over from the Pause, and one new project. Most covered projects–including the project on engineering of SARS- and MERS-related coronaviruses by EcoHealth Alliance and the Wuhan Institute of Virology–were not reviewed, due to a failure by the NIH to identify covered projects, flag them, and forward them to the HHS P3CO Committee for review.

The HHS P3CO Committee has operated with complete non-transparency and complete unaccountability. The names and agency affiliations of its members have not been disclosed, its proceedings have not been disclosed, and even its decisions have not been disclosed.

Responsibility for oversight is assigned to federal agencies that perform research and/or fund research. This constitutes an inherent conflict of interest.

Oversight applies only to HHS-funded research. Oversight is not codified in regulations with force of law, and, as a result, compliance is neither mandated, monitored, nor enforced.

Oversight is undermined by the failure of federal research funding agencies to identify covered projects, flag them, and forward them to the HHS P3CO Committee for review.

Oversight is not transparent and accountable, neither at the level of the federal research funding agencies, nor at the level of the HHS P3CO Committee.

What can be done to mitigate the risks of ePPP research?

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Lapses in US oversight of ePPP research may have caused the COVID-19 pandemic, and could cause future pandemics. Therefore, it is imperative that ePPP research be subject to national- or international-level oversight to ensure that, before the research is started, risk-benefit assessment is performed, risk-benefit profiles are acceptable, and mitigable risks are mitigated.

Effective oversight includes three components: Research proposals that include gain-of function research of concern must be identified. A risk-benefit assessment and a risk-mitigation review must be performed.

This entails enumerating anticipated risks, enumerating anticipated benefits, weighing risks and benefits, and reaching a decision either (i) to proceed as proposed, (ii) to proceed with additional risk mitigation, or (iii) not to proceed. Compliance with the decision from the risk-benefit assessment and risk-mitigation review must be mandated, monitored, and enforced. High-Risk Research with Po tential Pandemic Pathogens.

(5) Many other cities prohibit BSL-3 labs, vivaria and certain types of animal testing

It is surprising that there is so little local biosafety lab regulation and local ordinances in other cities in Silicon Valley. The biotech industry is new to San Carlos so it understandable that we do not yet have ordinances in place.

There are extensive biosafety lab regulations in cities on the east coast, but perhaps that is because they have many more labs and a much longer history of regulating them. Many cities near Cambridge ban BSL- 3 and 4s. The ones that allow them have extensive guidelines and ordinances.

Historically, there have been few BSL -3 labs in the bay area and they were located in South San Francisco and areas that are not near residential neighborhoods.

(6) Conditional Use Permit requirements
We are not opposed to BSL 1 and 2 labs sited in areas that are environmentally and ecologically suitable, are located a safe distance from residences, childcare and senior facilities, and are governed by robust university, city or county guidelines, biosafety committees, ordinances, or regulations. San Mateo County Department of Environmental Health and Safety does not have biosafety committees , guidelines or ordinances that specify where biosafety labs should be sited and how privately -owned, speculative developments with multiple unknown BSL tenants should be operated and monitored. Most San Mateo county regulations address hazardous materials, not hazardous biological cellular materials or pathogens.

Ventilation--Negative and Positive Air Pressure
The initial proposed ordinance banning BSL -3 labs did not contain any regulations that govern BSL 1 and 2 labs, vivaria or animal testing. These facilities are less concerning than BSL 3 and 4 labs, but they are not without risk. Of utmost concern is ensuring appropriate ventilation design

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and construction. See Stanford’s: Ventilation Concerns for Biosafety Level 2 Laboratories . It reads in part:

1. Air pressure in laboratories and animal care rooms should be negative in relation to the corridor or adjacent non-laboratory areas. Rooms housing immunocompromised animals should be at a positive pressure with respect to adjoining areas. Consult with SU Fire Marshall for design details.

Potentially harmful aerosols can escape from the containment of the laboratory room unless the room air pressure is negative to adjacent non-laboratory areas. As a general rule, air should flow from low hazard to high hazard areas.

2. Dedicated sterile tissue culture rooms should be balanced neutral or slightly positive with respect to adjoining areas. Tissue culture rooms that involve the use of biohazardous agents shall be negative as stated in C-1 above.

This will minimize the potential for possible contamination of experiments within these rooms.

3. An autoclave should be provided with a canopy hood, slotted exhaust, or other suitable means of local exhaust. In addition, autoclave rooms should have a minimum of 10 air changes per hour.

Unpleasant heat and odors will linger in the room unless provided with effective local exhaust and adequate frequency of air changes.

Because of the risk of airborne pathogens escaping to adjacent non-laboratory areas, we ask the city to provide specific guidelines that ensure the above ventilation guidelines are incorporated into building design and construction. We also request that the city prohibit all BSL-3 labs within a specified distance (500 or more feet) from residences, childcare and senior facilities; require floor plans of BSL labs and a description of the organisms in use; a procedure to alert the city and the public of lab accidents, employee exposure to transmissible pathogens and an emergency response plan.

If the city chooses to allow high-containment BSL-3 labs, we respectfully request that the city consider hiring a third-party biosafety and biosecurity consultant, to be paid for by developers or BSL tenants, to perform biosafety and biosecurity oversight responsibilities similar to those adopted by Cambridge, MA.

See Cambridge, MA biosafety regulations:

The responsibilities of the Cambridge Biosafety Committee include:

• Reviewing the appropriate design and operation of all laboratory areas within the proposed facility for research or manufacturing involving regulated biological agents at the biosafety containment level (Biosafety Level) request for that location;

• Determining whether appropriate and reasonable practices to contain and mitigate biological hazards match the potential biological hazards associated with the specific

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agents in the form present, particularly as they impact lab workers and the community;

• Listening to each presentation for a new or amended permit and providing feedback or submitting questions to the applicant as applicable;

• Reviewing laboratory walkthrough inspection summaries pr ovided by Committee staff before determining that all applicable standards and practices for safe operation of a biological laboratory are met;

• Reviewing practices, expectations, and standards imposed on the regulated laboratories by the Committee in order to establish clear enforcement protocols and to offer transparency to the regulated community. Key policies and direction will be summarized in a companion document to the ordinance and the regulation;

• Providing a community perspective in assessing the impact of any application and anticipating issues of greater public concern or interest;

We also ask that the city consider developing a specifi c Laboratory Biosafety permit, such as the one below:

To receive a Laboratory Biosafety permit, every new applicant must present to the Cambridge Biosafety Committee. The presentation must include:

17. Street address of the proposed facility or facilities. Please include a specific floor or suite within the building.

18. Total floor area of biological laboratory space (estimate is OK) and proposed biological containment level(s) or biological safety levels (BSL).

19. A summary of research or manufacturing activities and agents, organized by Risk Group as determined by the Institutional Biosafety Committee for the applicant.

20. A floor plan indicating all laboratory areas, biological containment levels or BSL(s), waste storage location and pathway for removal, doors, and exits.

21. Documentation of a medical surveillance agreement with a local occupational health provider or an in-house clinical provider.

22. Documentation showing that an air balance was conducted to document a steady negative airflow into any BSL-2 lab areas.

23. Summary of compliance status for all local and state health and safety regulations requiring permits (e.g., flammable storage and cryogenic gas permit, DEP VSQG or SQG chem waste permit, state radiation permit, MWRA wastewater permit).

24. A list of vendors that support the safe operation of the laboratory.

Presentations generally last 20 to 45 minutes, and should provide a broad explanation of the recombinant technologies, risk of infection, biological vectors, and host organisms being used.

For an example, see our sample presentation. For more information, please view the Cambridge Biosafety Committee’s Policies and Procedures .

At a minimum, we ask that the Conditional Use Permit address the following: Will it require the developer to have an internal Responsible Official (RO) who has the authority and responsibility to ensure tenants

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compliance with regulatory agencies? Will it require tenants to have a formal biosafety committee? If the developer later requests a conditional use permit for a BSL-3 lab as part of a remodel, will members of public be notified? How will they be notified? Who is included in the notification? Will members of the community have an opportunity to provide public comment?

(7) Lab accidents and infectious disease transmission

We quote the following experts who have identified the risks:

(a) Lab leaks occur at a stunning frequency. A 2019 report actually said that there were four or more lab releases of these select agents, or highly contagious viruses or toxins, in the US in 2019," added Dr. Chan. She would like to see more public oversight of labs on a national and international level. This could come from impacts to funding or publishing of findings. She believes it will lead to safer conditions and more transparency. https://www.cbsnews.com/boston/news/covid -origin-wuhan-lab-leak- alina -chan -mit-harvard/

(b) Science. France issues moratorium on prion research after fatal brain disease strikes two lab workers. Barbara Casassus, July 28, 2021.

PARIS—Five public research institutions in France have imposed a 3-month moratorium on the study of prions —a class of misfolding, infectious proteins that cause fatal brain diseases—after a retired lab worker who handled prions in the past was diagnosed with Creutzfeldt-Jakob disease (CJD), the most common prion disease in humans. An investigation is underway to find out whether the patient, who worked at a lab run by the National Research Institute for Agriculture, Food and Environment (INRAE), contracted the disease on the job.
(c) Financial Times . Scientists fear future leaks as top -level labs proliferate . Kiran Stacey, Helen Warrell, Yuan Yang. June 4, 2021.
(d) Wall Street Journal. How Easily Can a Virus Escape From a Lab? By Alina Chan and Matt Ridley. November 11, 2021.
(e) Bulletin of the Atomic Scientists. Human error in high-biocontainment labs: a likely pandemic threat . Lynn Klotz. February 25, 2019.
(f) ProPublica. Here are six accidents UNC researchers had with lab -created coronaviruses . Alison Young and Jessica Blake. August 17, 2020 In addition, we were curious where we might find examples from BSL labs that publicly report "accidents" or incidents. I checked Boston University, National Emerging Infectious Diseases Laboratories, Institutional Biosafety Committee (IBC) monthly minutes. They disclose near misses and lab incidents. Some of these occurred in BSL-2 and 3 labs. There are BSL-4 labs onsite. See Research Occupational Health Program (ROHP) and Environmental Health and Safety (EHS) reports. They generate reports for all the labs on site, BSL 1-4.

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Most of these involved BSL-2 and BSL-3s. Most are employee exposures due to needle sticks, glove lacerations and mice bites, but a couple are related to employees whose nasal swabs were positive for environmental SARS-Co-V-2, despite not working in the BSL -labs. Those were thought to be from exposure to workers who do work in the labs and share office space and break rooms with others. Here are a few excerpts from monthly minutes in Jan/Feb 2021 and Jan/Feb 2022:
(1) https://www.bu.edu/researchsupport/files/2021/05/January -2021-IBC-Meeting-Minutes-WEB.pdf

This one involved the escape of prion infected mice:

1. EHS Report: On the morning of 12/24/20, an animal care staff member discovered a cage in with no mice present and reported the finding to the animal care supervisor who notified the corresponding lab and ASC vet services and operations staff. ASC set up more traps within the room to trap these three mice, which were reported to be prion -infected. On the morning of 12/26/20, one mouse was caught by an animal care staff and subsequently euthanized by a vet tech per vet instructions due to numerous limb injuries.

EHS investigation revealed that these wild type mice C57BL6 were sent from an external vendor and had been inoculated intra -cerebrally on 11/30/20 with mouse -adapted RML prions (a standard laboratory strain). There is a strong barrier to inter -species transmission of prions, so this strain poses little threat to humans. In addition, this strain is not known to be shed by the animals (it remains in the CNS), so the risk to other mice is also minimal. Prions are not casually transmissible (for example, by respiratory or fecal routes), and even the oral route requires the ingestion of tissues of the central nervous system. Finally, these mice are only 30 days into the incubation period, which normally lasts 150 days, so the titer of infective prions in their brains of these escaped mice is extremely low. Given all these considerations, it was believed that these three mice pose little risk to the health and safety of ASC and other personnel, to other laboratory animals, or the community. No recombinant DNA orsynthetic nucleic acids were administered to them. By 12/29/20 the other two mice were caught and humanely euthanized.

2. The three mice made an inch -wide hole and escaped out of the cage by tearing through the filtered top. The feeding bottles that had been used to administer the liquid diet were either accidentally pushed too far back giving the mice access to the filter cage top or it is also possible the mice pushed it back themselves. ASC has already made co rrections and worked with the lab so this mishap can be avoided in the future. All the cages now have food hoppers, cutting off access to the filtered top.

(2) https://www.bu.edu/researchsupport/files/2021/05/February -2021-IBC-Meeting-Minutes-WEB.pdf

Just one month later, there were 6 incidents, one involved a worker who only worked in BSL-2 labs, but works in shared space with others who work with inactivated virus. Amplicon exposures are common, but can be minimized with stringent and frequent decontamination:

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ROHP Report
Since the last IBC meeting on 1-26-21, ROHP has six incidents to report:
1-28-21: ROHP received notification of a needle stick injury from a syringe to finger after the researcher resuspended a pellet taken from intestinal luminal fluid extracellular vesicles (from patients having inflammatory bowel disease). She discarded the pair of nitrile gloves she was wearing, allowed the blood to drain from the wound (6 drops), washed her hands with water and soap for a minute and sanitized her hands with 70% ethanol. Please note this researcher did not report this incident to her supervisor or ROHP until the next day.

1. 1-29-21: An asymptomatic researcher tested positive for SARS-CoV-2 which was later deemed to be related to environmental SARS-CoV-2 amplicon exposure. This researcher works in BSL2, does not work with SARS-CoV-2 but works in shared space with others that do work with inactivated virus.

2-3-21: ROHP received notification of laceration to a finger with a razor used to slice mouse lung tissue. This incident was related to an IBC protocol, but the tissue did not contain any biologics.

2-8-21: An asymptomatic researcher at the NEIDL tested positive for SARS -CoV-2. This researcher denied working with SARS CoV2 but works in shared space. Her positive test was later deemed to be related to environmental amplicon exposure.

2-8-21 and 2-17-21: One asymptomatic researcher at the NEIDL tested positive for SARS-CoV- 2 twice. This researcher works in BSL3 with SARS -CoV-2 and in BSL2 with a different coronavirus strain. This was later deemed to be related to amplicon exposure and not any live virus.

ROHP continues to work with Healthway, Safety, PIs and BPHC regarding all researchers who test positive for SARS - CoV-2 to determine if it was community related infection or due to environmental amplicon exposure.

One member asked when researchers are continuously wearing masks in the lab, how it is possible for them to contract amplicon contamination in their nasal swabs. The Research Safety Director and ROHP Medical Director indicated that this is still unknown but they discussed some possibilities such as touching door knobs or lab work surfaces before changing into workplace clean masks or placing personal clothing on chairs in the lab before donning a lab coat or such.

(3) https://www.bu.edu/researchsupport/files/2022/03/January -2022-IBC-Meeting-Minutes WEB.pdf

Research Occupational Health Program (ROHP) & Environmental Health and Safety (EHS) Report:

12/16/21: MD/PhD student reported experiencing low grade temperatures and other symptoms after he accidentally injured his thumb percutaneously on 12-6-21 while cleaning forceps that he had used to remove infected lungs from mice inje cted with NL63 virus. He cleaned the wound with soap and water and applied topical antiseptic medication. Discussion with ROHP suggested that the symptoms are consistent with community-based viral infection, Researcher was advised to stay home until afebri le for 24 hours without taking antipyretics and to isolate from his roommate who is asymptomatic. Advised to follow up with ROHP should symptoms worsen or not improve or as needed. BPHC has been notified. EHS Report: Safety specialist interviewed

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both PI and researcher. Root cause of the incident was attributed to not being conscientious. Steps to prevent reoccurrence included review of exposure control plan and procedures for reporting incidents. Advised on proper decontamination techniques and sharps safe ty practices. Online Sharps safety training was assigned as a reminder. (They do not say what illness caused the fever, but indirectly attribute the illness to exposure to infected mice lungs bc researcher was not being conscientious.

12/21/21: A fully va ccinated, asymptomatic PhD student tested positive for SARS -CoV-2 on 12/21/21. The student had been in the NEIDL office space prior to testing but denied entering lab spaces. She reports she has not worked in the BSL 2 lab for a couple of months and she do es not work with SARS -CoV-2, but shares office space and break room with others that do. Repeat testing performed outside BU on 12/23/21 was negative, the student remained asymptomatic and was cleared to return to work 12/29/21. This student was educated o n the importance scheduling routine SARS-CoV-2 testing prior to entering the work space. After this incident ROHP prompted Dr. Corley, NEIDL Director, to send out notification to NEIDL researchers to get routine surveillance testing prior to entering the l ab. There have been no incidents since then. EHS Report: Results of samples collected for testing will be reported on when received. BPHC has been notified.

1/3/22: An asymptomatic postdoc researcher who works in the NEIDL, tested positive for SARS- CoV-2 on 1 -3- 22. He reported no known exposures, no recent travel, fully vaccinated, and received a booster shot. Released from isolation and deemed amplicon exposure . He denied working with SARS -CoV-2 but does work in shared possible influenza and not likely r elated to the reported forceps injury incident as NL63 is a respiratory virus that does not cause any symptomatic infection in human space that does perform SARS -CoV-2 work. ROHP deemed this positive case is deemed to be an Amplicon contamination. Amplicon prevention education was provided and the researcher is cleared to return to work. BPHC has been notified.

1/6/22: A fully vaccinated, asymptomatic PhD student tested positive for SARS -CoV-2. The student worked in NEIDL BSL2 in shared space where SARS -CoV-2 rDNA work is performed.

Repeat testing performed was negative and the researcher was cleared from isolation on 1 -10-

22. Amplicon prevention education was provided by ROHP. Deemed amplicon contamination due to testing at the end day after being in the laboratory. Report will be submitted to BPHC.

1/12/22: Potential biological exposure to a BSL4 staff who entered a NEIDL BSL4 lab unsuited not realizing it was in use. The incident was reported to ROHP by the NEIDL Biosafety Officer and the NEIDL Response Team. The staff member also reported the possible exposure to EHS.

After the exposure, she took a whole-body shower and was advised to remove her contacts and use the eye wash. However, it was deemed no-to-low risk incident of infection to the researcher, as there were no pathogens in the lab and no work was being done at the time of this incident.

Employee was cleared to return to work but was escorted to ROHP for further evaluation and counseling. ROHP provided the employees with a medical surveillance wa llet card with ROHP contact information and a thermometer. She was advised to call ROHP or NEIDL Control should she have any concerns and was cleared to return to full duty work with no restrictions. Report submitted to BPHC.

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1/22/22: An Animal Care Technician sustained an ABSL1 transgenic mouse bite on the right finger near to middle knuckle. The PI of the study reports that the Adipo -cre transgenic mice involved in the incident, express a protein called Cre recombinase (exclusively in their fat cells). T his incident took place in ABSL1 and the mouse contained no hazardous agent. There is no hazardous concern regarding this transgenic mouse other than the potential for infection or local allergic reaction with a mouse bite. ROHP discussed the importance of washing for full time period (10-15 min) following a bite and risk of infection from own skin flora. She could apply antibiotic ointment over the site of the bite marks until they are resolved. Instructed to monitor for signs of infection. A report will be submitted to BPHC. EHS Report: More information will be provided on this mouse bite incident at the next IBC meeting.

(4) https://www.bu.edu/researchsupport/files/2022/03/February -2022-IBC-Meeting-Minutes WEB.pdf

In February 2022 they reported a "near-miss" that was considered a NIH reportable incident:

1. Research Occupational Health Program (ROHP) & Environmental Health and Safety (EHS) Report ROHP reported three (3) incidents to the committee:
• A visiting researcher cut left thumb with razor blade while cutting unfixed human kidney tissue;
• A graduate student sustained a puncture to left 2 nd digit with a needle that had been used to inject lentivirus vector on transgenic mice; • A PhD student sustained percutaneous injury to left 5th finger from unknown glass shard.

EHS reported on a near-miss incident to the committee: • Needles found in biohazard trash. EHS provided follow-up on the root cause of these incidents and corrective actions. It was noted that the needle stick injury with lentiviral vector inside is a NIH reportable incident and the report will be sent to NIH and BPHC

(8) High energy use and power outages

BSL-3 labs are particularly energy intensive because of the HVAC negative (and positive) air pressure requirements, lab animal cooling and heating requirements and 24/7 operation. In an extended power outage, temperatures in glass, high-rise buildings could "quickly fall or rise to dangerous levels."

Labs have redundant power systems, including backup generators, but the generators are not designed to last for more than 24-48 hours according to several developers we have spoken with. The back -up generators are intended to last long enough to allow them to shut down the labs. During power outages this summer, Santa Clara Valley Medical Center (SCVMC) and O' Connor hospital lost power for hours.

See the doctors' descriptions of moving ICU patients in the dark using light from their cell phones. https://www.fiercehealthcare.com/providers/backup -generators-fail-northern-california-hospital- during-record-breaking-heatwave

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Unfortunately, many of the generators are powered by diesel which is in increasingly short supply in California. Should the ordinance require developers to maintain at least a weeks’ supply of diesel on- site?
Some Menlo Park residents were without power for multiple days during the week of February 20, 2023.

Their City Council held an emergency meeting on February 23rd. Residents called for the city to improve its communication amid a week of high winds and storms that have left households without power for multiple days across the city. They see weather as prep for a potential major natural disaster. However, according to city officials, some small pockets of Menlo Park still remain without power. "If we struggle the first 48 hours for something relatively small like we did this time, how will we communicate when something more serious happens? How can we just learn from this so that we do better in the future." The city will reimburse residents $400 per night if they are still without power." https://www.smdailyjournal.com/content/tncms/live/
Stanford recently posted an article titled: Preparing for a Power Outage in a Research Facility. It reads in part: Normal occupancy and research operations are always prohibited in affected buildings during power outages, regardless of emergency generator status. (9) High water use and limited supply and capacity

One proposed development in San Carlos at 642 Quarry Road submitted a Mitigated Negative Declaration in December 2022 that discussed the tremendous amount of water that high-containment labs require. Water service to the project site is provided by the Mid-Peninsula Water District (MPWD).

MPWD supplies water to consumers within San Carlos, Redwood City, and parts of the unincorporated County of San Mateo. Within the system there are ten storage tanks in which a combined total of 11,360,000 gallons of water are stored (MPWD 2022). (MND Page 167.)The proposed water demand for the project is estimated to result in an Incremental increase above existing site use by 73,400 gallons per day (or 27 million gallons per year.) (MND Page 167.) Millions of square feet of biolabs planned in San Carlos and San Mateo County will strain water supply and capacity, especially BSL-3 labs and vivaria which may have higher water demand. Biolabs are unable to use recycled water, but that is a moot point because recycled water is not yet available in San Carlos.

What strategies can be utilized to address this so that labs will not have priority over residents for limited water resources? Should labs have onsite water storage tanks, not only for water supply, but also for fire suppression? Should the ordinance require this?
(10) Fire departments and first responders will NOT enter BSL-3 labs in the event of a fire or emergency

Emergency responders, including the fire chief, confirmed that that the fire department and first responders, including paramedics, will not enter a BSL-3 lab in the event of a fire or medical emergency due to the potential exposure to unknown deadly pathogens, rDNA, infected transgenic lab animals, other biohazards or infectious biologic agents. In addition, a San Mateo Environmental Health and Safety representative told us that the County Hazmat team will not respond to a fire in a BSL-3 lab. Who will? We were told by Vanessa Cook, Associate BioSafety officer, UC San Diego, that the procedure in the event of a fire requires BSL -3 occupants to decontaminate themselves by removing their PPE, wiping

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down their exposed skin with disinfectant wipes and then evacuating from the BSL-3 lab space. The fire department will "let it burn."
Although there are sprinklers and fire extinguishers in BSL -3 labs, they often contain tanks of highly flammable gases that pose an explosion risk in the event of fire. Cambridge, MA has a coordinated emergency response plan in place.

If BSL-3 labs are allowed, San Carlos should coordinate its emergency response and evacuation plan with neighboring cities, the county, Caltrans, and state and federal governmental agencies because of the labs proximity to major evacuation routes (Hwy 101), El Camino Real, and a commuter train track.

The ordinance should include a detailed description of the emergency response plan.

(11) We ask the city to reject land developers’ strategies and tactics that have allowed them to circumvent stringent environmental review and public hearings in order to site BSL-3 labs in densely populated residential areas.

A BSL-3 lab was set up in 2020 in Foster City in an existing Gilead building in 30 days --but that was during the Covid-emergency and they had federal grant money and oversight. The developers bragged about how they got away with doing it and how they plan to get away with it in the future.

The article reads in part: Focusing Gilead’s real-estate strategy on scientific efficiency rather than operational economics served the company well during the pandemic. When COVID -19 hit, Joydeep Ganguly, senior vice president of corporate operations, and his team engineered and delivered a Biosafety Level 3 (BSL -3) laboratory on the main campus in only four weeks, so Gilead’s scientists could work with the virus safely. Amid unprecedented urgency to create drugs, the innovative campus and laboratory systems played an important role in attracting crucial talent to the company . See Workplace real estate in the Covid -19 era: From cost center to competitive advantage, Companies today should build workplaces that help them realize their strategies. Here’s why and how.

The article concludes by encouraging real estate developers to be bold in the face of the “unprecedented opportunity ” provided by the covid -era that will allow them to maximize their profits and make them “more competitive than ever.” It encourages develop ers to “prevent cultural or industry norms,” presumably environmental review and community opposition, from shaping their decisions. It reads in part:

Traditionally, real-estate choices have been made by a real-estate team that typically reports to a chief procurement or operations officer. The most important decisions are escalated to the CFO.

But today’s real -estate team has new responsibilities, namely: making the current footprint consistent with corporate objectives and the moments that matter. This calls for a different set of decision makers. The CEO can set the real -estate agenda, supported by the chief human - resources officer (CHRO), the CIO, the CFO, and the head of real estate. Experts from all these domains can help make real estate a source of competitive advantage.

In the wake of the pandemic, historical precedent or cultural or industry norms should not shape real-estate decisions. Today, a company’s larger goals must serve as the guide. CEOs and

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executive teams know what makes companies succe ssful and are best positioned to create a physical environment to match. Merging a company’s approach to real estate with its strategy is a change in the way things have been done and a new responsibility. It’s also a once -in-a- generation opportunity to ac t boldly and emerge from the pandemic stronger and more competitive than ever.

We are confident that San Carlos City Council members agree with members of the public who think that private developers’ profits and corporate objectives should not come at the expense of public health, environmental safety and transparency. We urge the city to address this strategy in the proposed Conditional Use Permit ordinance and require developers and tenants to submit Environmental Impact reports if BSL-3 use is planned on site.

At the last Planning Commission meeting on February 6th, Ryan Guibara of MBC Biolabs conceded that only 1% of tenants would use BSL -3 lab space, but spoke for eight minutes, claiming that prohibiting them would have a "drastic impact on the market" and "have a hugely chilling effect." We are curious why he is taking such an aggressive stance in favor of BSL-3 labs because he claims his developments do not have any BSL-3s and "don't plan to."
We expect vigorous push-back from members of the private biotech industry and lobbyists. They want to continue business as usual because they have gotten away with little regulation or oversight in South San Francisco and other areas in Silicon Valley for years. Many of those labs are in areas east of Hwy 101 an d are farther away from residential areas. They were built before there were hundreds of developers planning millions of square feet of biolabs along the Peninsula --the most sensitive, at -risk ecological area in California. San Mateo County is the county m ost threatened by sea level rise and extreme weather events because of its' geologic limitations, proximity to the bay and the highly dense population crowded into a concentrated area between Hwy 101 and the hills near Hwy 280.

We are concerned that if San Carlos permits BSL-3 labs, many of those lab tenants will flock here and overwhelm our existing infrastructure, strain our already overtaxed resources and increase the public's risk of accidental exposure to lethal pathogens from lab-acquired infectious diseases, lab accidents or lab containment failure due to flooding, fires or power outages. These risks are foreseeable.

(12) Conclusion

We oppose BSL-3 labs in San Carlos and implore City Council members to remain steadfast to their earlier vocal position supporting a ban on BSL-3s in San Carlos. We urge Planning Commissioners to follow the recommendations of staff in the initial proposed ordinance and prohibit BSL-3 and 4 labs. If the city declines to do so, and chooses a Conditional Use Permit procedure, we ask that it incorporate the guidelines established by Cambridge.

Thank you for your careful and thoughtful consideration.

Sincerely,
Debbie and Gary Baldocchi,

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Correspondence #13

March 5, 2023
City of San Carlos
Mayor Adam Rak
Principal Planner Lisa Costa Sanders
Members of the Planning and Transportation Commission
Members of the City Council
600 Elm Street
San Carlos, CA 94070

Subject: Comments to the Planning Commission on Item 8b of Planning Commission Mtg on BSL3 labs

Dear Lisa Costa Sanders, Planning Commissioners, Mayor Rak, and members of the City Council,

Please find a copy of my comments, attached, to item 8b of the Planning Commission agenda for 06MAR2023. At this time, I think it is wise to stick to the proposed moratorium on Biohazard Level 3 laboratories in San Carlos until such time that all issues surrounding the operation of these labs can be addressed with clear rules that are transparent, include independent review, Community input, and subject to outreach and public hearings. Allowing Biohazard Level 3 labs with only a CUP removes any incentive to put these type of rules in place and gives the appearance that the city is willing to trade public safety for short term economic gain.

Sincerely,

Paul Magginetti

Attachment. Letter

March 5, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the Planning and Transportation Commission
Members of the City Council
600 Elm Street
San Carlos, CA 94070

Subject: Public Comment Regarding Proposed Ordinance Amending San Carlos Municipal Code, Title 18 to Regulate Laboratories with Biosafety Levels (BSL); Planning and Transportation Commission Meeting, March 6, 2023
Request: (Biosafety Now—Prohibit High Containment Biohazard Level 3 labs in San Carlos)

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Dear Lisa Costa Sanders, Planning Commissioners, Mayor Rak, and members of the City Council, I am writing in reference to Item 8b of the Planning Commission meeting agenda regarding the Consideration of a Resolution Recommending the City Council Adopt an Ordinance Amending San Carlos Municipal Code Title 18 to Regulate Laboratories with Biosafety Levels Option 1 not allowing labs working at Biohazard levels 3 and 4 seems the best course for now. Option2, allowing Biohazard level 3 labs, is not well thought through and inadequately addresses risks to public health and safety. The best designed lab in the world is still subject to failure due to natural disaster, mechanical breakdown and human error. This is the usual case with the many lab accidents that have already happened (https://biosafetynow.org/lab-accidents-in-the-news/ ). Given enough labs and time, such a lab accident becomes inevitable. Option 2 falls short in the following ways:
• There is no limit to the number of BSL3 labs. Developers claim a BSL3 lab would represent less than 1% of all BSL labs; One BSL3 lab in San Carlos should be more than adequate to meet those needs.
• There is no constraint on location. These should be located >1000 yards from residential, day care, restaurants etc.
• The entire city should be informed, with a public hearing and through community outreach, addressing all issues and mitigations of such a lab. A biohazard release could affect all of us, from Industrial Rd to Crestview Dr. A lack of transparency will undermine public trust.
• The city, not the applicant, should choose the independent 3rd party and they must be approved by the NIH. Allowing the developer to approve their own work is like me asking the city inspector to take my word for it, sight unseen. that my home modification meets requirements. The stakes here are much higher.
• There is no requirement to report to anybody the nature/risk of the work being done. This is critical to planning a response to a lab accident. They will be doing research, which by its very nature means they don’t know what will happen. New discoveries and practices in the Life Sciences will surely come about that will require us to reevaluate the risks these labs pose.
• Stakeholders must be notified in advance (this mechanism doesn't exist and subject matter expertise is lacking)
o City Government (no subject matter expertise)
o Health Department (un derstaffed and lacks BSL subject matter expertise) o Fire Department (no subject matter expertise)
o Community oversight committees (doesn't yet exist)
• There is no requirement for incident reporting and nobody to report them to • There is no effective mechanism for reporting unsafe operation. The only way we could report to the city that they were in operating unsafely, in violation of the CUP, is after people start getting sick. That was the plan in Wuhan; once the bodies started stacking up in the street, they knew they had a problem.

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• There is no provision for an emergency response plan once people do start getting sick.

The city won't know who to notify or what to test for if they don't know the nature of the work being carried out.
• Decommissioning is mentio ned with no guarantee funds will be available. What if a company like Theranos was operating a BSL3 lab? What happens in 10 yrs? 20yrs? 50 yrs? Would the city pick up the tab?
• There is no mention of liability in the event of a lab accident. What is t he city/taxpayer exposure to such an event? That is how we ended up with the brownfields on the East side.

What it all comes down to is that there is no plan in place for when the unthinkable happens. I find the overreliance by staff on advice from industry insiders with conflicts of interest, and the deference given to them by the commission during public comment, disturbing and ill advised. The 2nd option allows BSL3 labs to be built without constraint. This removes the incentive to create a real mechanism that truly protects public health as outlined above. It trades public safety for short term economic gain. There are plenty of BSL1 and BSL2 applications that afford equal economic benefits without putting public health and safety at risk. Until all issues are addressed in a transparent way, BSL3 labs should not be allowed.

Thank you for your careful and thoughtful consideration.

Sincerely,
Paul Magginetti

Correspondence #14

March 5, 2023
City of San Carlos
Members of the Planning and Transportation Commission
600 Elm Street
San Carlos, CA 94070

Subject: BioSafety Labs-level 3

Hello, Commissioners,
I am writing to share my concerns about having BSLs - Level 3 in San Carlos., operating with Conditional Use Permits . If this is permitte d San Carlos could have an influx of Level 3 labs, with each one operating under its own rules and regulations. Self -policing of labs. cannot be allowed, and the City does not have the know -how, or the finances, to effectively regulate these labs.

Thank you for not allowing BSL -3 labs. in San Carlos.

Gail Ghose

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Correspondence #15
March 6, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
600 Elm Street
San Carlos, CA 94070
Subject: RE: Planning and Transportation Commission packet for the March 6, 2023 meeting Thank you Lisa.

I just was sent this link to an article about Watertown – a Massachusetts town of about the same size as San Carlos which has been experiencing an increase in life science laboratory development in recent years and projection for more such development. They have actively worked to ensure that their community is protected while providing for the needs of this emerging industry. https://coderedconsultants.com/insights/watertown-laboratory-permitting/ Best
Terezia Nemeth
Correspondence #16
March 4, 2023
City of San Carlos
Principal Planner Lisa Costa Sanders
Members of the Planning and Transportation Commission
Members of the City Council
CC: [emails redacted]
600 Elm Street
San Carlos, CA 94070
Subject: Urgent Call to Action: BIOSAFETY NOW--BAN HIGH CONTAINMENT BIOSAFETY LABS IN SAN CARLOS---Planning and Transportation Commission Agenda - March 6, 2023, 7:00 pm (zoom link) Dear Neighbors,
This is a public safety call to action to everyone who lives or works in San Carlos, including our neighbors in Redwood Shores and other cities in San Mateo County. On Monday, March 6th, the San Carlos Planning and Transportation Commission will consider adopting an ordinance that will provide biosafety regulations for the millions

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of square feet of privately- operated biosafety labs (BSLs) being constructed in Life Sciences developments throughout east San Carlos. We ask you to join us in urging San Carlos to ban BSL-3 and 4 labs. See packet: Agendas and Minutes On February 6th, planning commissioners refused to pass the proposed biosafety ordinance recommended by the City Council and staff to prohibit BSL-3 labs in San Carlos in order to protect the community from the harmful effects of hazardous materials. The commissioners did not discuss the risks or harmful effects of hazardous materials. Instead, they expressed concerns that prohibiting high -containment labs would discourage private bioscience companies from moving to San Carlos. EDAC Director Al Savay assured the commissioners that the city does not think the economic impacts on market dynamics will be significant because only 1% of biosafety lab tenants use BSL-3 labs. He said that he feels good about moving forward with the proposed ordinance based on public safety and community concerns.

The developers for a proposed 410,000 square feet Life Sciences complex at 642 Quarry Road recently withdrew their request for BSL-3 lab use after public opposition. Developers know that there are very few private BSL-3

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labs in the state and even fewer are sited in residential communities along the edge of the bay in environmentally sensitive areas that are prone to flooding and susceptible to sea level rise.

The commissioners directed staff to submit an alternative ordinance that will allow BSL-1 and 2 use by right and BSL -3 use with a Conditional Use Permit (CUP).

Commissioners were willing to prohibit BSL-4 labs, but that is not a significant public health and safety concession because there are no BSL -4 labs in California.

The proposed CUP relies on biosafety lab tenants basically policing themselves.

City staff admitted they have no biosafety or biosecurity expertise and that oversight will be complex, time-consuming and expensive.

There is an unprecedented proliferation of biosafety labs throughout Silicon Valley.

There is insufficient oversight, regulation and transparency of BSL -3 labs. It is concerning how little public information is available about them. We perceive this to be a coordinated effort by the private, billion -dollar bioscience industry and developers to shut down opposition and stifle local regulations by claiming they are "highly regulated" and that community concerns are based on "fear not facts."
Scientist across the nation are raising public safety concerns about high -containment labs, including Stanford researcher Dr. David Relman who recommends stronger oversight.

Stanford, which has a BSL -3 lab, has comprehensive Biosafety manuals and biosafety committees that evaluate the risks of allowing research that involves lethal, potential pandemic pathogens. That is not true for private labs which may include underfunded start -ups.

Another group of scientists who are advocating for national and international regulations and oversight is Protect our Future at https://biosafetynow.org/ One of its co-founders, molecular biologist Richard Ebright testified before congress at
the Homeland Security Subcommittee on Emerging Threats and Spending. He recently summed up the public safety risks of high -containment labs: The government does not even maintain a comprehensive database of where such experiments are taking place, let alone practice any rigorous oversight of them. Instead, there are different standards based on crude risk categorization, funding source and research facility. It’s a crazy patchwork quilt of “rules” giving rise to a ‘big zone’ of uncertainty about which labs are doing what under whose oversight and with what l evel of security and precaution.

Many cities on the east coast ban BSL- 3 and 4s. The ones that allow them have extensive guidelines and ordinances. San Carlos is a small city and

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does not have the resources or expertise to safety oversee them.

Private, high-containment biolabs should not be located near residential areas or the bay. They should not be allowed to justify their secrecy and lack of transparency by claiming proprietary or security issues. The public has a right to know what pathogens are being researched in labs next door to us. We need local, enforceable regulations that will minimize the risk of infectious diseases spreading into the community and the environment.

We ask San Carlos to prohibit high -containment BSL -3 labs and, in its own words, promote the growth of the city in an orderly manner and to promote and protect the public health, safety, peace, comfort, and general welfare.

Neighbors, will you please help:
(1) Attend the meeting on Monday night and make a public comment (zoom link below).

Tell the commission which of the two ordinances you support. Do you want them to ban BSL-3s or allow them with a Conditional Use Permit. Do you think the proposed CUP ordinance adequately protects the public and environment? If not, what changes do you recommend?;
(2) Submit a public comment to the planning commission and city council by "replying all" to this email;
(3) Forward this email to others;
(4) Learn more about the risks and what we can do about them from scientists and researchers at the biosafety advocacy group: https://biosafetynow.org/ (5) Support neighboring communities' efforts to ban high-containment labs in their cities.

This is a critical public health and environmental safety issue that affects all of us. Monday will be our final chance to speak to the Planning Commission before they decide which of the two ordinances to approve.

Kind Regards,
Debbie and Gary Baldocchi
(We are San Carlos residents. We are retired. We do not belong to any organizations or groups. We speak only for ourselves.)
Planning and Transportation Commission Agenda - March 6, 2023

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Date: 03/03/2023 3:08 PM
City of San Carlos
Planning and Transportation Commission Regular
Meeting
March 6, 2023, 7:00 P.M.

Council Chambers. City Hall
600 Elm Street, San Carlos, CA 94070
www.cityofsancarlos.org
AGENDA
This meeting will be conducted both in-person at City Hall and virtually via Zoom. Members of the public will have the option to observe the meeting and address the Planning and Transportation Commission as outlined below.

In-Person Participation: