Agenda packet — San Rafael City Council, May 1, 2023 (part 2 of 2)

Recording Requested By:

The City of San Rafael
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Lindsay Lara, City Clerk
1400 Fifth Avenue, 209
San Rafael, CA 94901

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NOTICE OF COMPLETION
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1. The undersigned is the agent of the owner of the Project described below.

2. Owner’s full name is City of San Rafael (“City”)

3. City’s address is 1400 Fifth Ave., San Rafael, CA 94901

4. The nature of City’s interest in the Project is:
__ Fee Ownership __ Lessee __ Other: Public Right-of-Way Easement

5. Construction work on the Project performed on City’s behalf is generally described as follows:

Spinnaker Point Parking Modification Project: Scope of work includes excavation/demolition, off-haul of materials, reconfiguring Spinnaker Point Drive to incorporate angled parking, narrowing median, widening sidewalk, realigning curb and gutter, and installing new streetlights.

6. The name of the original Contractor for the Project is: Michael Paul Company, Inc. located at 1200 Casa Grande Rd., Petaluma, CA 94954.

7. The Project was accepted as complete on: May 1, 2023.

8. The Project is located at: Spinnaker Point Drive from Bahia Way to the crosswalk west of Portsmouth Cove.

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____________________________________________________________________________________

FOR CITY CLERK ONLY
Council Meeting: _______________________
Disposition: ___________________________
Agenda Item No: 5.a
Meeting Date: May 1, 2023

SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Community Development
Prepared by: Alicia Giudice,
Community Development Director
Leslie Mendez, Planning Manager
City Manager Approval: ______________
TOPIC: USE PERMIT REVOCATION FOR NIGHTCLUB AT 842 FOURTH STREET SUBJECT: RESOLUTION OF THE SAN RAFAEL CITY COUNCIL DENYING AN APPEAL (AP23- 001) AND AFFIRMINGTHE PLANNING COMMISSION’S MARCH 28, 2023 ACTION TO REVOKE THE USE PERMIT (UP05-01) ALLOWING THE RE-ESTABLISHMENT

OF LIVE ENTERTAINMENT AND A COCKTAIL LOUNGE AS PART OF A NEW RESTAURANT/SUPPER CLUB LOCATED AT 842 FOURTH STREET
EXECUTIVE SUMMARY:

George’s Nightclub is located at 842 Fourth Street. The business operates under Use Permit UP05-01, which allows live entertainment and a cocktail lounge as part of a restaurant/supper club. The Use Permit includes conditions of approvals (COAs) designed to address and monitor business operations, site management and security, business license maintenance, hours of operation, and operation as a bona fide eating place (i.e. full-service restaurant). Since re-opening after the pandemic quarantine in April 2021, George’s Nightclub has been operating in direct violation of several fundamental conditions of the Use Permit approval resulting in numerous and ongoing incidents of over-intoxication and violence related to club operations. These incidents constitute a public nuisance which is both detrimental to San Rafael Police Department (PD) resources and detrimental to the public health, safety, and welfare of the surrounding community.

Due to the frequent and ongoing disturbances related to the nightclub’s operations, staff brought the Use Permit up to the Planning Commission for revocation hearing at the March 28, 2023 Planning Commission meeting. The owner of the business Evolution Nightclub & Restaurant, LCC attended the hearing and responded to staff’s presentation. Based on evidence presented by staff and the business owner at the hearing, and documentation presented in the staff report and attachments, the Planning Commission found that the business was operating in non-compliance with Use Permit conditions and represented a public nuisance, and unanimously voted to revoke Use Permit 05-01.

On April 5, 2023, the City received a timely appeal by the business owner of the Planning Commission’s March 28, 2023 action (Attachment 2). The appeal asserts numerous arguments alleging that the Planning Commission’s revocation was defective, including claims that the Planning Commission was misinformed and that the City has discriminated against the appellant. Pursuant to SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
San Rafael Municipal Code Section 14.28.040.B, staff scheduled the appeal for the next available City Council meeting.

RECOMMENDATION:

Staff recommends that the City Council adopt the attached Resolution denying the appeal (AP23-001) and affirming the Planning Commission’s March 28, 2023 action to revoke Use Permit 05-01.

BACKGROUND:

On January 10, 2006, the Planning Commission adopted Resolution No. 06-02 approving Use Permit (UP05-01) to allow live entertainment and a cocktail lounge (i.e. nightclub) as part of a restaurant/supper club at 842 Fourth Street. The Use Permit conditions stipulate, among other provisions, that food service and on-site security be provided during all hours of operation of the nightclub use. The Nightclub is owned by Evolution Nightclub & Restaurant, LCC and does business under the name of George’s Nightclub.

Throughout the years, PD has received numerous calls to respond to incidents at George’s Nightclub.

Since the business re-opened in the spring of 2021, PD has received service calls related to incidents at or related to the nightclub with increased frequency. Following the shooting and double homicide that occurred in July 2021 involving people associated with a performance at the club, a Code Enforcement Officer was assigned to conduct inspections to ensure compliance with the terms and conditions as established as a part of the Use Permit. Numerous violations were noted, detailed, and conveyed to Esly Figueroa, the business operator, in a letter dated September 8, 2021, with a request to correct and comply.

Follow-up inspections since the September 2021 communication indicated that the business had made no movement to correct the identified Use Permit violations and the PD continues to receive and respond to frequent disturbance calls directly related to the club’s operations. Given that George’s Nightclub continues to operate in non-compliance with fundamental conditions required of the Use Permit and continues to cause frequent and ongoing disturbances requiring PD intervention, staff brought Use Permit 05-01 up for a revocation hearing pursuant to the authority of San Rafael Municipal Code (SRMC) Section 14.30.070 - Revocation of discretionary permits before the Planning Commission at the March 28, 2023 meeting.

After considering the evidence presented before them, including testimony from Esly Figueroa, owner of Evolution Nightclub & Restaurant LLC, the Planning Commission voted to revoke Use Permit 05-01 upon finding that the business was operating in non-compliance with Use Permit conditions and that it represented a public nuisance. On April 5, 2023, Ms. Figueroa, Owner of Evolution Nightclub & Restaurant LLC (“Appellant”) appealed the Planning Commission decision. Staff’s analysis presented below demonstrates that the appeal of the Planning Commission’s decision to revoke the use permit has no merit.

ANALYSIS:

Summary of Appeal (AP23-001) and Staff Responses
The following is a list of appeal points submitted by appellant Esly Figueroa, followed by staff response.

The complete appeal letter is included as Attachment 3.

Appeal Point 1 – Inadequate Spanish Interpretation
The appellant alleges that the Spanish interpretation services provided during the hearing were “inadequate, “improper and incomplete.”
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
Staff Response:

The interpretation was sufficient to have afforded the Appellant an adequate opportunity to participate in the Planning Commission hearing.

The Appellant is a native Spanish speaker who understands and speaks English but is more comfortable conversing in Spanish. As a courtesy to Ms. Figueroa, staff provided Spanish/English language interpretation services for the March 28th Planning Commission hearing to ensure that language would not serve as a barrier to the Appellant’s participation in the public process. Staff publicly announced at the beginning of the hearing that interpretation was available on the Spanish Interpretation Zoom channel.

During planning staff’s presentation to the Planning Commission and throughout the duration of the hearing, the interpreter provided simultaneous translation from English to Spanish on the Spanish Zoom channel. When the Appellant first addressed the Commission in response to the staff report, she spoke in English, she did not ask for an interpreter or imply in any way that she did not understand staff’s presentation. She also did not claim that the interpretation that had been provided to her up to that point had been inadequate.

When the Appellant spoke again during public comment period, she requested interpretation services and spoke in Spanish and the interpreter subsequently translated her comments into English. Staff reviewed the video recording of the Planning Commission meeting to analyze the quality of the Spanish to English interpretation. A comparison of a transcript of the Appellant’s public comments (translated after the fact into English) with a transcript of the English interpretation provided in real-time during the hearing demonstrates that while the interpretation was not word-for-word, it adequately conveyed all of the points the Appellant made while speaking in Spanish (see Attachment 5). This comparison contradicts the Appellant’s claim that she was provided inadequate interpretation.

Appeal Point 2 – Missing Commissioners, Inadequate Review, & Discrepancies The Appellant notes that some commissioners were absent at the hearing, asserts that those present likely did not appropriately review the documents, and claims that “there are multiple discrepancies between the documents and what was stated during the public meeting by city staff.”
Staff Response:

Four Planning Commissioners attended the March 28th Planning Commission hearing. There were two absences and one existing vacancy. Beyond making a cursory claim, the Appellant has not explained how the number of Commissioners present affected the outcome or why a decision by four commissioners would be improper. The Planning Commission Rules and Procedures of the City of San Rafael adopted January 24, 2023, state that a quorum consists of four members and that an affirmative vote of a majority of the quorum present (i.e. three Commissioners) is necessary to act on a Use Permit revocation decision. In this case, the four present Commissioners constituted a quorum, and the unanimous vote by all four present Commissioners to revoke the permit exceeded the vote count required for revocation.

Although the Appellant asserts that the Commissioners did not review the hearing packet and that multiple discrepancies existed between the packet documents and what was relayed orally during the hearing, she provides no examples or evidence to support this claim. To the contrary, the questions asked and comments made by the Commissioners during the hearing make it evident SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
that the Commissioners had read the agenda packet prior to the meeting. This appeal point has no merit.

Appeal Point 3 – July 2021 Shooting Weaponized to Slander the Venue The Appellant asserts that the George’s Nightclub has been wrongly associated with a shooting and double homicide that occurred in July 2021 and that the shooting incident was repeatedly referred to during the Planning Commission hearing. She alleges the City has weaponized the event to slander the venue.

Staff Response:

The incident referred to by the Appellant represents only one of 24 incidents of violence and disorderly conduct at or around George’s Nightclub involving nightclub patrons during the 19- month period between June 2021 and January 2023. The Planning Commission’s decision to revoke the nightclub permit and find it a public nuisance was based on the entirety of the evidence presented and not on a single incident. The allegation in this appeal is unfounded.

Appeal Point 4 – Wrongful Accusation of Reselling Food
The Appellant states the venue was wrongfully accused of reselling food to a City staff member who conducted an under-cover site visit, and that that staff member should be discredited because she purchased and consumed food and alcohol during the visit.

Staff Response:

As relayed in the Planning Commission staff report, both the nightclub’s Use Permit and ABC License require that the business operate a full-service restaurant and serve food during their regular business hours. The nightclub is approved as a bona fide eating place, which is defined in condition of approval #20:
“Bona fide public eating place” means a place which is regularly used and kept open for the serving of meals to guests for compensation and which has: a) suitable kitchen facilities for the cooking of an assortment of foods which may be required for meals; b) a primary use of a sit down service to patrons; c) adequate seating arrangement for sit down patrons provided on the premises; d) Take-out service that is only incidental to the primary sit-down use; and e) alcoholic beverages all sold or dispensed for consideration for consumption on the premises only, and only when, served at tables or sit down counters by employees of the restaurant. A bona fide eating place does not include a place where food service is incidental to the service of alcoholic beverages, constituting less than 51% of sales.

Code Enforcement Officers conducted an undercover site visit to George’s Nightclub on June 4, 2022. The purpose of the visit was official city business to ascertain whether the venue was operating as a full service/bona fide public eating place compliant with the Use Permit condition.

Senior Code Enforcement Officer Ana Santiago reported her experience at the club in a memorandum included as Attachment 11 to the Planning Commission resolution and upon questioning by the Commissioners during the revocation hearing. As reported, she was able to order food with a drink, but there was no menu, food service was not offered before 9:45 p.m., chicken wings were the only food item available and cash payment was required (whereas drinks could be paid for either in cash or with card). Ms. Santiago’s surreptitious visit to observe the kitchen area confirmed inactivity. Ms. Santiago’s visit verified that the business was not operating primarily as a full-service restaurant with incidental alcohol sales.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
Neither Ms. Santiago nor planning staff stated or claimed that food was resold, and this was not a basis for the Planning Commission’s revocation. The Appellant has not provided any information which could discredit the Code Enforcement report. Regardless, the Code Enforcement report was just one piece of evidence in an extensive record which the Planning Commission considered in finding non-compliance with Use Permit conditions. This appeal point has no merit.

Appeal Point 5 – Wrongful Accusation of Inoperable Kitchen/No Menu/No Permit The Appellant states the venue is wrongfully accused of not having an operating kitchen, menu, or food preparation license.

Staff Response:

As stated above, George’s Nightclub is required to operate as a full-service restaurant/supper club which is regularly used and kept open for the serving of meals to guests for compensation.

Evolution Nightclub (dba George’s Nightclub) possesses a Limited Food Preparation license from the County of Marin. This license type, however, is restricted; it does not allow the preparation of any food that must be refrigerated or washed and is not valid for the preparation of full-service meals as required for a bona fide eating place as verified by the Senior Environmental Health Specialist at Marin County Environmental Health Service Division (See Attachment 10 to Planning Commission Resolution). Additionally, as documented in Attachment 9 of the Planning Commission resolution, on its Facebook page, Yelp listing, and Do the Bay listing, George’s advertises as a night club, and all references to the restaurant, including menus, have been removed from the website and online ordering services. Site visits by both Code Enforcement (see Appeal Point 4 above) and PD have documented that the venue’s kitchen cooking facilities are not being used during business hours (see page 5 of Planning Commission staff report).

Staff has documented that the venue does not regularly operate the kitchen, advertise as a fullservice restaurant, provide a regular menu, prepare full-service meals, or even have a valid license to prepare full-service meals as required by the approved Use Permit. The Appeal Point has no merit.

Appeal Point 6 – Holding a Valid Business License
The Appellant states she operates with a valid business license and claims that at some point, she was prevented from bringing it up to date.

Staff Response:

As relayed in the Planning Commission staff report (p.3), the business license for George’s Nightclub expired on January 1, 2022, and has not been renewed since. City of San Rafael Finance Department staff (Finance) have verified that the Appellant is able to renew her license at any time. When Finance sends out business license renewal requests each December, any unpaid accounts from the preceding 11 months are marked delinquent in the system. Once an account is deemed delinquent, online renewal is no longer an option; the business owner is required to contact Finance directly to renew the license, submit receipts and to pay delinquent fees. Pursuant to these procedures, Finance marked the Appellant’s account as delinquent for failure to renew the business license within 11 months of its expiration; the Appellant, therefore, must contact Finance to renew the business license. This Appeal point has no merit.

Appeal Point 7 – No Communication to Modify the Use Permit The Appellant states that the purpose of the Planning Commission hearing was to consider revocation or modification of the use permit, but that the City went straight for “the nuclear option” of revocation without considering modification of the Use Permit.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6
Staff Response:

Staff clearly relayed, both in the staff report and presentation, that the Planning Commission had the option to:

1. Adopt the Resolution revoking the Use Permit

2. Continue the hearing (to a date certain or an undefined date) to allow staff to address any of the Commission’s comments or concerns; or

3. Recommend the Use Permit remain in effect as is or with additional conditions.

To begin the hearing, both planning staff and the Appellant were given an opportunity to present to the Planning Commission. Staff presented facts about George’s Nightclub and recommended revocation of the Use Permit. When it was Appellant’s turn to present, she gave only a very brief statement and made no request for the Planning Commission to modify, rather than revoke, her Use Permit. With the information it had been presented, the Planning Commission then voted to revoke the Use Permit.

The Planning Commission acted within its powers in deciding to revoke, rather than modify, the Use Permit. The Planning Commission relied on the detailed staff report and related attachments, and the presentations by staff and Appellant, in finding that revocation was the appropriate action.

George’s Nightclub has been operating in direct violation of several fundamental conditions of the Use Permit and numerous incidents of over-intoxication and violence related to club operations have been documented since the venue reopened in April of 2021. In a letter dated September 8, 2021, Use Permit violations were noted, detailed, and conveyed to Ms. Figueroa, the business owner, with a request to correct and comply. Follow-up inspections since the September 2021 communication indicate that the business made no movement to correct the identified Use Permit violations and the PD continues to receive and respond to frequent disturbance calls directly related to the club’s operations. Given that George’s Nightclub continued to operate in noncompliance with fundamental conditions required of the Use Permit and continued to cause frequent and ongoing disturbances requiring PD intervention, staff brought Use Permit 05-01 up for a revocation hearing. The severity of the incidents, ongoing impacts to patrons, passers-by, and the surrounding neighborhood, and the club’s total failure to show correction and improvement led the Planning Commission to concur with the staff recommendation to revoke the Use Permit.

Appeal Point 8 – Biased Decision due to City Staff and Police Department Bias The Appellant alleges that the Planning Commission decision was biased against Evolution Nightclub due to City staff and Police Department with insinuation that the cause is due to one of race, economic, and legal status. The Appellant further alleges harassment by the Police.

Staff Response:

The Appellant has provided no evidence of bias or harassment by City staff including PD. Police Chief Spiller testified during the Planning Commission hearing that the number of PD responses to incidents at George’s Nightclub have been three times greater than those for any other San Rafael venue over an equal time period. Chief Spiller also explained that the police do not selectively monitor certain venues more than others; rather, they respond to incidents as members of the public report them. The high number of police contacts with George’s is thus indicative not of bias, but of repeated threats to public safety so concerning that they are reported to the police by third parties.

Likewise, there is no evidence of bias by the Planning Commissioners. In fact, the Commissioners stated during the public hearing that they were reluctant to revoke the permit because George’s SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 7
Nightclub provides vitality and contributes positively to the diversity of the City, and that they would be saddened at the loss of the positive aspects the venue provides. Ultimately, the Commissioners objectively weighed the positive community benefits with the extensive record of detriments to the health, safety, and welfare of the community as a whole and determined revocation was appropriate.

Appeal Point 9 – Business is not Detrimental to the Community The Appellant alleges that the nightclub is not detrimental to the public health, safety, or welfare and that she has operated under the impression that she was operating in compliance with Use Permit conditions.

Staff Response:

Staff specifically informed the Planning Commission during the March 28th hearing that a Use Permit may be revoked based on (1) non-compliance with Use Permit conditions or (2) because the Use Permit holder has operated its business in a way that constitutes a public nuisance, meaning an activity that is detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity, or to the general welfare of the city. As documented, City staff have informed the Appellant of non-compliance with Use Permit conditions on several occasions with no action on her end to address or remediate. Even assuming the Appellant believed she was operating her business in compliance with the Use Permit conditions, the number and severity of incidents requiring PD intervention demonstrate that George’s Nightclub operates as a public nuisance impacting the health, safety and welfare of the community.

COMMUNITY OUTREACH:

Notice of all public hearings on the project, including this City Council appeal hearing, has been conducted in accordance with the public review period and noticing requirements contained in Chapter 29 of the Zoning Ordinance. All notices of public meeting or hearing on the project were mailed to all property owners and occupants within a 300-foot radius of the site and the representing neighborhood groups at least 15 days prior to each meeting or hearing. In addition, notice was sent via certified mail to the business owner and operator, and property owner. Notice of the appeal hearing was published in the Marin Independent Journal on April 21, 2023.

FISCAL IMPACT:

None.

OPTIONS:

The City Council has the following options to consider on this matter:

1. Adopt the Resolution denying the appeal and affirming Planning Commission March 28, 2023 decision to revoke the Use Permit

2. Do not adopt the Resolution and uphold the appeal

3. Modify the Planning Commission’s determination
RECOMMENDED ACTION:

Adopt the Resolution denying the appeal and affirming Planning Commission March 28, 2023 decision to revoke the Use Permit
ATTACHMENTS:

1. City Council Resolution

2. Appeal of Planning Commission decision from Esly Figueroa, owner of Evolution Nightclub & SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 8
Restaurant LLC, dated Received April 5, 2023

3. Planning Commission staff report PLAN23-018 Use Permit Revocation, dated March 28, 2023

4. Planning Commission Resolution 23-001

5. Excerpt of Spanish to English Interpretation from March 28, 2023, Planning Commission meeting

6. Public Comments
RESOLUTION NO.

RESOLUTION OF THE SAN RAFAEL CITY COUNCIL DENYING AN APPEAL (AP23-001) AND AFFIRMING THE PLANNING COMMISSION’S MARCH 28, 2023 ACTION TO REVOKE THE USE PERMIT (UP05-01) ALLOWING THE RE-ESTABLISHMENT OF LIVE

ENTERTAINMENT AND A COCKTAIL LOUNGE AS PART OF A NEW
RESTAURANT/SUPPER CLUB LOCATED AT 842 4TH STREET
(APN 011-224-14)
WHEREAS, on January 10, 2006, the San Rafael Planning Commission held a dulynoticed public hearing and adopted Planning Commission Resolution No. 06-02 approving a Use Permit (UP05-01) allowing the re-establishment of live entertainment and a cocktail lounge as part of a new restaurant/supper club located 842 4th Street; and WHEREAS, Evolution Nightclub & Restaurant, LLC (dba George’s Nightclub) took over business operations in September of 2013; and
WHEREAS, the Use Permit includes several conditions of approval and requires that George’s Nightclub continually comply with the conditions of approval; and WHEREAS, a Use Permit may be revoked for the permit holder’s failure to comply with the conditions of approval; and
WHEREAS, a Use Permit may also be revoked if the permit holder operates their business in such a way as to constitute a public nuisance; and WHEREAS, the Community Development Department became aware that George’s Nightclub failed to comply with the conditions of its Use Permit and operated its business in such a way that constituted a public nuisance; and
WHEREAS, on September 8, 2021 the City sent a notice of noncompliance via standard mail to Ms. Esly Figueroa, the operator of George’s Nightclub, notifying her of the various violations of the conditions of the Use Permit for George’s Nightclub and giving the opportunity to correct such violations; and
WHEREAS, Ms. Figueroa did not correct the violations of the conditions of the Use Permit and operated George’s Nightclub in a way that was detrimental to the public health, safety, and welfare; and
WHEREAS, on February 27, 2023, the City sent a letter to both Ms. Figueroa and the property owner via certified mail notifying them that a revocation hearing had been set for March 28, 2023; and
WHEREAS, on March 28, 2023, the San Rafael Planning Commission held a duly noticed public hearing on the proposed revocation of Use Permit 05-01, accepting all oral and written public testimony and the written report of the Community Development Department staff; and
WHEREAS, on March 28, 2023, the Commission adopted Resolution No. 23-001 revoking the Use Permit (UP05-01); and
WHEREAS, on April 5, 2023, the City received a timely appeal of the Planning Commission Action filed by Esly Figueroa; and
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WHEREAS, on May 1, 2023, the City of San Rafael City Council held a duly noticed public hearing to review and consider the appeal (AP23-001), accepting all oral and written public testimony and the written report by the Community Development Department Planning staff and closed said hearing on that date; and
WHEREAS, the custodian of documents which constitute the record of proceedings upon which this decision is based is the Community Development Department; and WHEREAS, the City Council finds and determines that the Appeal (AP23-001) cannot be supported for the following reasons.

NOW THEREFORE BE IT RESOLVED, that the City Council of the City of San Rafael hereby denies the Appeal (AP23-001) and affirms the Planning Commission’s action to revoke the Use Permit (UP05-01) based on the following findings:

A. Findings for Denial of Appeal (AP23-001)
Appeal Point 1 – Inadequate Spanish Interpretation
Whether the Spanish interpretation services provided during the Planning Commission hearing were “inadequate, “improper and incomplete.”
The City of San Rafael City Council has reviewed, considered and agrees with the staff response to this appeal point presented in the Agenda Report to the City Council dated May 1, 2023, that the interpretation provided during the Planning Commission hearing was adequate.

Appeal Point 2 – Missing Commissioners, Inadequate Review, & Discrepancies Whether the Planning Commission appropriately reviewed the documents, whether there were discrepancies between the documents and what was presented during the public meeting by City staff, and whether there was quorum and a proper vote to revoke the Use Permit.

The City of San Rafael City Council has reviewed, considered and agrees with the staff response to this appeal point presented in the Agenda Report to the City Council dated May 1, 2023, that the Planning Commission appropriately reviewed the documents, that there were not discrepancies between the documents and what was presented during the public hearing, and that there was a quorum and proper vote to revoke the Use Permit.

Appeal Point 3 – July 2021 Shooting Weaponized to Slander the Venue Whether George’s Nightclub was wrongly associated with a shooting and double homicide that occurred in July 2021 and whether the Planning Commission focused too heavily on that event in making its decision to revoke the Use Permit.

The City of San Rafael City Council has reviewed, considered and agrees with the staff response to this appeal point presented in the Agenda Report to the City Council dated May 1, 2023, that George’s Nightclub was not wrongfully associated with a shooting and double homicide in 2021, and that the Planning Commission gave appropriate weight to this event in making its decision to revoke the Use Permit.
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Appeal Point 4 – Wrongful Accusation of Reselling Food
Whether the Appellant’s venue was wrongfully accused of reselling food to a City staff member who conducted an undercover site visit.

Appeal Point 5 – Wrongful Accusation of Inoperable Kitchen/No Menu/No Permit Whether Appellant had an operating kitchen, a menu, and a food preparation license.

Appeal Point 6 – Holding a Valid Business License
Whether Appellant had a valid business license and whether she was prevented from renewing her business license.

The City of San Rafael City Council has reviewed, considered and agrees with the staff response to this appeal point presented in the Agenda Report to the City Council dated May 1, 2023, that George’s Nightclub did not have a valid business license and that its operator was not prevented from renewing the business license.

Appeal Point 7 – No Communication to Modify the Use Permit Whether the Planning Commission was informed that it had the option to modify, rather than revoke the Use Permit.

The City of San Rafael City Council has reviewed, considered and agrees with the staff response to this appeal point presented in the Agenda Report to the City Council dated May 1, 2023, that the Planning Commission was informed that it had the option to modify, rather than revoke the Use Permit, and that the Planning Commission exercised appropriate discretion in choosing to revoke rather than modify the Use Permit.

Appeal Point 8 – City Staff and Police Department Bias
Whether the Police Department or the Planning Commission was biased against George’s Nightclub.

Appeal Point 9 – Business is not Detrimental to the Community Whether George’s Nightclub is operated in such a way that it is detrimental to the public health, safety, or welfare.
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The City of San Rafael City Council has reviewed, considered and agrees with the staff response to this appeal point presented in the Agenda Report to the City Council dated May 1, 2023, that George’s Nightclub is operated in such a way that it is detrimental to the public health, safety, and welfare of the community, and therefore a public nuisance.

B. Findings for Revocation of Use Permit (UP05-01)

1. George’s Nightclub has repeatedly violated the conditions of approval contained within its Conditional Use Permit.

2. George’s Nightclub is a strain on police department resources, and has repeatedly conducted its business in a way that is detrimental to the public health, safety or welfare, and is materially injurious to properties or improvements in the vicinity or to the general welfare of the city; therefore, George’s Nightclub operates as a public nuisance in contravention of San Rafael Municipal Code Section 14.22.080.B.

BE IT FURTHER RESOLVED, that the City Council makes the following findings of fact related to the California Environmental Quality Act (CEQA):

C. California Environmental Quality Act (CEQA) Findings The revocation of the Use Permit is categorically exempt from CEQA pursuant to Section 15321 of the CEQA Guidelines (“Enforcement Actions by Regulatory Agencies”).

BE IT FURTHER RESOLVED, that the City of San Rafael City Council does hereby deny the Appeal (AP23-001) and affirms the Planning Commission’s March 28, 2023 action revoking the Use Permit (UP05-01).

I, Lindsay Lara, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday, the 1st day of May, 2023, by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:
_______________________________
Lindsay Lara, City Clerk

Attachment 3:

Planning Commission staff report PLAN23-018 Use Permit Revocation, dated March 28, 2023 https://storage.googleapis.com/proudcity/sanrafaelca/uploads/2023/03/PC-Staff-Report-3-28-

23.pdf
Attachment 4:

Planning Commission Resolution 23-001
https://storage.googleapis.com/proudcity/sanrafaelcaemployees/uploads/2023/05/Attachment4_PC-Resolution-23-01_Use-Permit-Revocation_Georges-Nightclub.pdf Hearing Transcript Excerpts – Translated
YouTube video:
https://www.youtube.com/watch?v=OzqXf5P0wiw
0:30-0:54 – Planning staff mentions that Spanish interpretation will be provided on a Spanish Interpretation zoom channel
5:30 - 16:35 – Planning staff present their recommendation that the Planning Commission revoke the use permit
- The recording does not include a record of what was occurring on the Spanish Interpretation Zoom channel, so it is impossible to evaluate the adequacy of this portion of the interpretation
16:55 – Planning staff says that it is Ms. Figueroa’s turn to present; asks Ms. Figueroa if she wants to speak, present, or respond.
17:05 – Ms. Figueroa says, in English:
- “Hello, my name is Esly, um, I’m the owner of George’s nightclub almost for ten years, and I can hear everything, I was listening to everything they were saying, most of them is not… like, we talked with Leslie before, we had a meeting before this hearing, and some of them are not true, some of them are false, and I believe why… the police is the ones that came over to the club many times, several times, just without a call or anything, and came over to tell me what I had to do. And, no, I’m not okay with this, with everything you’re saying about me, about my club, it’s not true. It’s not what they’re saying. That’s all I can say.”
18:00 – Ms. Figueroa finishes giving her statement, commissioners open up the hearing to discussion among the commissioners, ask staff questions, etc. 38:35 – Commission finishes their questioning and opens up the floor to public comment. 38:38 – Ms. Figueroa speaks up, wants to make a public comment. Ms. Figueroa says, in English:
- “Hello? Yeah, uh, well the only thing I was reading is about.. um.. you say you have interpreter, right, in Spanish? So I think it’s better for me to speak Spanish, I’m Latina, like Mrs. Santiago said”
38:57 – Planning staff says, in English:
- “Great, go ahead.”
38:58 – Chair Suade says, in English:
- “Yes, please proceed.”
39:00: Ms. Figueroa says, in English:
- “In Spanish?”
39:02: Chair Saude and planning staff both say, in English:
- “Yes.”
39:03: Ms. Figueroa begins, in Spanish:
- “So, estaba ley[endo]… estaba viendo uno de los puntos que ellos dijeron fue de la licencia de la comida, que insisten que yo no la tengo y yo tengo la licencia de ah… venta de comida en ah… Evolution Nightclub. No es George’s. George’s es conocido por años, pero es Evolution el club and restaurant así es, entonces está la licencia vigente. El otro punto que habló eh.. han hablado es de los seguridad.. los cuatro seguridad. Que no… que no han tenido su … ah.. una…la señora Santiago que estaba allí dijo que vio alguien que estaba fumando marijuana, y eso es algo que yo no puedo manejar porque estaba fuera de la hora de trabajar. Entonces, esto no lo podía manejar yo. Son cuatro seguridad los que he tenido todas las noches y tengo cómo probarlo. Ah.. el otro punto que ah.. estaba diciendo la señora Santiago fue de que los chicken wings habían sido cocinados nada más y que ya no vio. Tengo un cocinero a que le pago semanalmente y no solamente está eso.

Hay tacos de carne, hay tacos de pollo, eh… también ella.. estaba viendo yo que ella en su reporte, y la tuve enfrente de mí, no pude hablar con ella, ella en el reporte estaba diciendo que una bebida se la cobraron más y no fue así. Yo, um, quiero decir esto – tuve un… tuve un ahm.. ah.. un, una… una fiesta de.. de negros, voy a decir así.. que tenía antes. Desde entonces, han utilizado mi …”
o Translation: “So, I was read[ing]… I was seeing some of the points that they said, about the food license, which they insist that I don’t have, and I have a license for um… food sales in um… Evolution Nightclub. It’s not George’s. It’s been known as George’s for years, but it’s Evolution, the club and restaurant, that’s how it is, so the license is valid. The other point that they said um… they talked about the security guards, the four security guards. That … that they didn’t have their.. um .. a… Ms. Santiago, who was there, said that she saw someone who was smoking marijuana, and this is something that I can’t control because it was outside of work hours. So I couldn’t control that. They are four security guards who I have had every night and I have proof of this. Um.. the other point that.. um.. was that Ms. Santiago was saying that the chicken wings had been cooked, nothing else, and that she didn’t see any more. I have a cook who I pay weekly and it’s not just that. There are beef tacos, chicken tacos, um… also she… I was seeing that in her report, she.. and I had it in front of me, I couldn’t talk to her, in her report she was saying that they charged her more for a drink and that wasn’t the case. I, um… I want to say this – I had a… I had a um… ah.. a… um.. a party… a Black party, I’m going to call it that… that I had before. Since then, they have used my…” 41:03 – Eli (counsel for the Planning Commission) asks if there’s a way for some interpretation to be provided to the commission.
41:16 – Interpreter says in English that she’s sorry, that she would begin to interpret 41:21 – Interpreter says, in Spanish:
- “Um, señora Figueroa, le voy a interpretar lo que ha dicho hasta el momento, ok?” o Translation: “Um, Ms. Figueroa, I’m going to translate what you’ve said up to this point, ok?”
41:25 – Ms. Figueroa says, in Spanish:
- “Sí”
o Translation: “Yes.”
41:27 – Interpreter says, in English:
- “So I’m gonna interpret what she said so far. She said that she wanted to address a couple of the points. Yes, she does have a license for food, and with respect to the marijuana, it’s something that she can’t control because that person was off shift. When the other lady came, she said that there were only chicken wings, but she did have chicken tacos and other items of food.”
42:00 – Intepreter says (to Ms. Figueroa), in Spanish:
- “Ok, señora Figueroa, entonces dijo que desde que tu… la fiesta para negros, desde entonces?”
o Translation: “Ok, Ms. Figueroa, so you said that since you… the Black party, since then?”
42:09 – Ms. Figueroa says, in Spanish:
- “Siempre tuve eventos de hip hop. Y de toda clase. Bodas, quinceañeras, de toda clase.

Porque tenemos la cocina allí. Entonces, esta es…fue un evento de hip hop, desde eso entonces la policía me ha puesto como un target a mí, diciendo que yo traigo mal grupos a San Rafael.”
o Translation: “I always had hip hop events. And [events] of every kind. Weddings, quinceañeras, all kinds. Because we have a kitchen there. So, this is… it was a hip hop event, since then, then the police have put, like, a target on me, saying that I bring bad groups to San Rafael.”
42: 38 – Interpreter says (to Ms. Figueroa), in Spanish:
- “Permítame un segundito”
o Translation: “Give me a second”
42:40 – Interpreter says, in English:
- “Ok so she said that uh, she has parties, hip hop parties, all types of parties, weddings, quinceañeras, and since she had a hip hop party one time, uh, she’s been targeted by the police, who say that she brings bad groups to San Rafael. 43:02 – Ms. Figueroa says, in Spanish:
- “Sigo?”
o Translation: “Should I continue?”
43:03 – Interpreter says, in Spanish:
- “Si, por favor”
o Translation: “Yes, please.”
43:04 – Ms. Figueroa continues, in Spanish:
- “Entonces, hubo incidente tres blocks de George’s Nightclub esa noche. Sin embargo, ellos vinieron a pelear conmigo, la policía, fue una mujer. Y todos. Y que fueron… que, que, que había sido porque yo había hecho ese evento y un policía me dijo que por qué yo no mejor hacía eventos latinos, y ya no eventos negros, porque ellos eran problemáticos.” o Translation: “So, there was an incident three blocks from George’s Nightclub that night. Nevertheless, they came to fight with me, the police, it was a woman. And everyone. And they were… that, that, that it had been because I had had this event and a police officer said [asked] me why I didn’t instead have Latino events, and no more Black events, because they’re problematic.”
43:35: Interpreter says (to Ms. Figueroa), in Spanish:
- “Ok, permítame, perdón.”
o Translation: “Ok, allow me, sorry”
43:38: Interpreter says, in English:
- “Ah, so, ah, there was an incident three blocks from George’s that night, but the police came to see me, actually it was a woman who came, and said that this had happened because of the event that I had had there. And the police told me why don’t I do parties for Latinos, not for black people, because these cause problems.” 44:00: Interpreter says (to Ms. Figueroa), in Spanish:
- “Ok, adelante.”
o Translation: “Ok, continue.”
44:03: Ms. Figueroa continues, in Spanish:
- “Entonces, este, ella me dijo que no tenía que hacer más de este tipo de eventos sin embargo no hubo nada que comprometiera mi club. Porque hubo investigaciones de parte de la policía, estuvieron hasta personas que venían el [incomprehensible], el, ah, los bomberos, vinieron todos, todos a mi club, y yo las entregué las cámaras, yo las entregué todo. después de la investigación, se dio conocer que mi club no tuvo nada que ver con ese evento. Sin embargo, desde esa fecha, me he sentido como un target que es a mí, a que buscan siempre problemas y yo sé que hay más bares alrededor, y no son solo los míos, los clientes que vienen de mí que están borrachos como ellos, la policía, me han dicho.”
o Translation: “So, ok, she told me I didn’t have to have any more of these types of events. Nevertheless, there was nothing that compromised my club. Because there were investigations by the police, there were so many people that came, the [incomprehensible], the, um, the firefighters, everyone came, everyone to my club, and I gave them the cameras, I gave them everything. After the investigation, it became know that my club didn’t have anything to do with this event. Nevertheless, since this date, I have felt like a target, which is, to me, that they always look for problems and I know that there are more bars around, and it’s not just my patrons who are drunk like they, the police, have told me.” 44:54: Interpreter says, in English:
- “Ok, uh, so the police said I shouldn’t do any more of those parties because it compromises my club, but there was an investigation, I gave them all, everything that they needed, the cameras, they were.. everybody came, the firefighters, everybody. I gave them everything from my cameras and at the end of the day they saw that my club was not involved in this, but I still feel like a target. They look at me when things happen.

And there are other clubs around my business that have drunk people as well.” 45:33: Interpreter says (to Ms. Figueroa), in Spanish:
- “Ok, adelante.”
o Translation: “Ok, continue.”
45:35: Ms. Figueroa continues, in Spanish:
- “Entonces, ah, desde el después del COVID, que ha sido muy difícil para mí, ah… del COVID, es sin embargo en seguido, adelante. Voy a cumplir casi diez años de estar en Evolution Nightclub, trabajando bien. Y hasta ahora vinieron ellos que me quieren revocar el permiso. Y si yo he hecho las cosas… he tratado de hacer las cosas bien.” o Translation: “So, um, since after COVID, which has been very difficult for me, um… since COVID, it’s in any case onward, forward. I’m going on ten years of being with Evolution Nightclub, working well. And just now they came, they want to revoke my permit. And yes, I have done things – I have tried to do things well.”
46:06: Interpreter says, in English:
- “Ok, um, so after COVID, because this has been hard for me, after COVID I’ve continued, and I’ve been almost ten years with Evolution Nightclub and it’s going well, now they want to revoke my license and all I’m doing is trying to do things correctly.” 46:25-46:30 – there is a pause in the conversation
46:30: Interpreter says (to Ms. Figueroa), in Spanish:
- “Algo más señora?”
o Translation: “Anything else, Ms.?”
46:33: Ms. Figueroa says, in Spanish:
- “Ah, sí, lo único que quiero decir es que me siento triste por todo lo que estoy pasando, esto me está enfermando, y yo era la dueña del edificio y el ano pasado yo perdí mi edificio de George’s Nightclub, ahora solamente soy la dueña de Evolution Nightclub y Restaurant. Y yo quero que escuchen mi parte también porque soy una mamá soltera y lo único que quiero es trabajar y hacer las cosas bien y ayudar a la comunidad. Es lo que he hecho. Gracias.”
o Translation: “Um, yes, the only thing that I want to say is that I feel sad because of everything I’m going through, it’s making me sick, and I was the owner of the building and last year I lost my building where George’s Nightclub is, now I’m only the owner of Evolution Nightclub and restaurant. And I want them to hear my side too, because I’m a single mother and the only thing that I want is to work and do things well and help the community. It’s what I have done. Thank you.” 47:13: Interpreter says, in English:
- “Ok, the last thing I want to say is that, um, I feel this makes me sad what I’m going through, it’s making me sick, I was the owner of the building of George’s, but last year I lost that and now I’m just the owner of Evolution Nightclub. I want to say, too, that I’m a single mother, I’m just trying to work well and help the community. Thank you.” 48:00 – Chair Saude closes the public hearing.

From: Craig Thomas Yates
Sent: Sunday, April 16, 2023 5:38:00 PM
To: Mayor Kate <[email protected]>
Subject: New George’s

Hello Kate
Recognized him, he conducted last show at New George’s for private invite 250 audience inclusive of myself. His beginning there at New George’s, New George’s historical landmark for City San Rafael and County of Marin!
We need to restore virtues of New George’s as well allow for second story! Huey Lewis
Sincerely
Craig Yates
Sent from my iPhone
Sent from my iPhone
Sent from my iPhone
____________________________________________________________________________________

FOR CITY CLERK ONLY
File No.: _______________________________
Council Meeting: _______________________
Disposition: ___________________________
Agenda Item No: 5.b
Meeting Date: May 1, 2023

SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: City Manager’s Office, Sustainability
Prepared by: Walter Gonzalez, Management
Analyst & Anna Oliva, Sustainability Fellow
City Manager Approval: ______________
TOPIC: REUSABLE FOODWARE ORDINANCE
SUBJECT: AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING THE SAN RAFAEL MUNICIPAL CODE TO REPEAL AND REPLACE CHAPTER 10.92 - PROHIBITION

ON USE OF POLYSTYRENE FOAM DISPOSABLE FOOD PACKAGING WITH NEW CHAPTER 10.92 - REGULATION OF FOODWARE FOR RETAIL FOOD VENDORS EXECUTIVE SUMMARY:

If adopted, the Reusable Foodware Ordinance would require the use of reusable and compostable foodware materials such as plates, bowls, cups, utensils, and trays at restaurants, grocery stores, and other food outlets. Exemptions are available for foodware with no compliant alternative. The ordinance would be enforced by the County of Marin’s Environmental Health Services Division via its health inspection program. Enforcement of the ordinance would begin on November 1, 2023, beginning with extensive outreach and education. Several Marin jurisdictions have adopted or are in the process of adopting an identical ordinance.

RECOMMENDATION:

Introduce and waive further reading of an ordinance amending the San Rafael Municipal Code to repeal and replace Chapter 10.92 - Prohibition on Use of Polystyrene Foam Disposable Food Packaging with New Chapter 10.92 - Regulation of Foodware for Retail Food Vendors.

BACKGROUND:

Foodware made of polystyrene or single-use plastic is typically not reusable, recyclable, or compostable and presents a threat to our environment and quality of life. Single-use plastic foodware makes up a significant portion of the litter in San Rafael. It clogs storm drains, arch culverts, and catch basins and ultimately gets discharged into the Bay, which results in an environmental hazard for residents and wildlife. Many types of plastic takeout containers also contain chemical additives that are known or suspected carcinogens and endocrine disruptors that can leach into food and beverages. Finally, plastics break down into microplastics, causing further harm to marine life.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
Durable, reusable foodware offers environmentally preferable alternatives to the harmful products currently used. These dishes, utensils, cups, and other foodware for dining on-site can be reused hundreds of times and create no waste. Compostable takeout containers can be processed into valuable soil amendments to support agriculture and landscaping. In addition, using reusable or compostable foodware reduces the costs of disposing of material in landfills.

In 2012, the City of San Rafael adopted Ordinance No. 1907, prohibiting the use of polystyrene foam (also known as Styrofoam) in packaging for prepared food or takeout. In 2014 the City adopted Ordinance No. 1920 prohibiting the use of single-use plastic bags at checkout in retail stores, requiring recyclable and reusable bags to be for sale, and requiring a 10-cent charge for recyclable or reusable bags offered at checkout. In 2021, the state passed AB 1276, which prohibits food vendors from providing single-use foodware accessories unless requested by the customer. State legislation is moving toward reducing single-use foodware; other similar legislation has been passed or introduced at the State level.

On May 10, 2022, the County of Marin adopted a Reusable Foodware Ordinance (RFO). The RFO requires all food facility vendors to use reusable foodware for dine-in operations and compliant compostable or recyclable foodware for take-out services. The County created this as a model ordinance for jurisdictional adoption with the goal of creating consistent regulations county-wide. County-wide adoption of the RFO would standardize requirements across Marin, ensuring consistent enforcement and minimizing confusion for consumers and food service providers. The Towns of Tiburon, San Anselmo, and Fairfax have adopted the model ordinance. The cities of Mill Valley, Novato, Larkspur, and the Town of Ross are on track to adopt the ordinance by May 2023.

The City of San Rafael explored adopting the RFO in 2021 and 2022. City staff reached out to businesses that would be affected by the ordinance and the San Rafael Chamber of Commerce, Business Improvement District, and Latino Council of Marin among others. Staff worked with City Council Sustainability Liaison Maika Llorens Gulati and Mayor Kate Colin and determined that it was not the time to adopt due to the ongoing impacts of COVID-19 and the lack of support in the business community.

Concerns included financial hardship and the availability of compliant foodware due to supply chain issues at the time. There were also concerns about our smaller, immigrant-owned businesses being adversely affected without sufficient support. In addition, staff focus at that time was dedicated to compliance and implementation of new SB 1383 regulations.

ANALYSIS:

The County’s deadline to introduce the model RFO is May 10, 2023, for jurisdictions to benefit from waived enforcement fees. COVID-19 emergency orders have been lifted, and most business and supply chain concerns have subsided. SB 1383 compliance is well underway. After discussing the ordinance with the County, the San Rafael Chamber of Commerce, and others, staff and the ad hoc Council Subcommittee have revisited the ordinance and are recommending adoption at this time.

If adopted, the RFO would apply to all food vendors permitted by the County of Marin to sell prepared food to the public - including restaurants, grocery stores and delis, bakeries, carry-out, quick services, farmers markets, food trucks, and any other business that requires a health permit. The ordinance would also apply to public events, City events, and gatherings where food vendors serve food.

The proposed ordinance uses the following general hierarchy of environmental impact: 1) reusables have the least impact and are required for dine-in, 2) natural-fiber compostable foodware is next best and compliant for takeout, and 3) single-use plastics, including bioplastics, are prohibited. The ordinance only allows fiber-based compostable foodware as compliant alternatives because our local compost facility at the Redwood Landfill will not accept bioplastics, given its status as an organic compost production facility.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
The proposed ordinance would:

1. Require compliant compostable foodware1 for takeout for all food vendors.

2. Require reusable foodware for dine-in.

3. Implement a $0.25 cup itemized charge for all disposable cups.

4. Require foodware accessories such as straws and sauce packets only to be provided upon request.

5. Require food vendors to provide clearly labeled, separate waste receptacles for solid waste, recyclables, and organics.

6. Allow temporary exemptions if no compostable alternative is available.

Financial impacts to businesses in San Rafael would vary depending on the type of business, foodware types used, and amounts of materials. Generally, moving to reusable foodware for dine-in has been shown to save money for food vendors over the long run. For businesses that rely on takeout containers, the cost of compliance could increase minimally for compostable alternatives but could be included in the price of the food in most cases at a price point of just a few cents extra. The County provides information and case studies on its RFO website with more information for businesses, including a tool to find compliant types of foodware for different applications.

Implementation
The County of Marin’s Environmental Health Services Division (EHS) would implement and enforce the proposed ordinance. EHS is uniquely positioned to provide proactive outreach during already scheduled business visits as part of its health inspection program. EHS will take a proactive approach by educating all retail food facility owners regularly on the requirements of the RFO and taking enforcement action only after multiple attempts to achieve compliance.

Enforcement will include written notice of non-compliance and a reasonable opportunity to correct prior to issuance of any penalty. The County may approve a temporary exemption of specific nonreusable foodware or foodware accessories should foodware or foodware accessories made of compliant compostable natural fiber not be commercially available as determined by the EHS Director or their designee. The County will maintain a list, updated annually, with foodware and/or foodware accessories deemed unavailable commercially.

The County of Marin requests jurisdictions to enter into an agreement, attached to this staff report, to define the responsibilities of the County and the City for enforcement of the ordinance. The County would act as the enforcement agency and provide updates to the City of any modifications to its ordinance or the enforcement program. The City must adopt the ordinance and pay the onboarding fee of $33,327, which the County will waive if the City introduces the ordinance before May 10, 2023. The City Manager will enter into the agreement if the Council adopts the ordinance.

Alignment with City Priorities
The adoption of the RFO would further the City’s goal of reducing single-use plastic waste, as it will address goal WR-C7 Inorganic Waste, from the Climate Action Plan 2030, calling to reduce single-use items. Reducing single-use foodware will help the City remove plastics from waterways, aiding Program C-3.6A, Water Quality Improvements from the General Plan 2040. The RFO would also work in tandem with SB 1383 by improving sorting capabilities with further education to businesses and the public. 1 Compliant foodware must be natural-fiber compostable and be certified by the Biodegradable Products Institute. The County of Marin has a list on its EHS website listing compliant foodware that will continue to be updated as more foodware becomes commercially available.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
Repeal of Polystyrene Foam Disposable Food Packaging Regulation If adopted, the RFO would replace Ordinance No. 1907, prohibiting using polystyrene foam in packaging for prepared food or takeout. The RFO also prohibits polystyrene foam in foodware packaging materials.

COMMUNITY OUTREACH:

During the County of Marin’s drafting of the ordinance, the County conducted extensive outreach, including the development of a technical assistance and grant program. County staff developed a website with draft ordinance materials and resources, distributed community and business surveys in English and Spanish, and hosted various meetings and workshops to collect feedback from relevant stakeholders.

The County also sent a letter to all food facility permit holders countywide inviting food vendors to business workshops and included background on the proposed ordinance, a link to the survey, and an informational flyer.

Throughout the ordinance development process, the County and its consultant R3 Consulting Group, hosted over 20 meetings with stakeholders from across Marin, including restaurant owners, various chamber of commerce groups (including the Council of Chambers), Latinx business leaders, disability advocates, waste haulers and processors, food inspectors, and advocacy groups. The County and R3 also provided one-on-one technical assistance to individual businesses, including calling 75 businesses and conducting 56 in-person site visits. During the site visits, businesses were informed of the ordinance features, provided outreach materials, and offered free technical assistance.

In late 2021 and early 2022, City staff conducted over 50 in-person interviews with food vendors throughout San Rafael, including Downtown, Terra Linda, and the Canal neighborhood. Staff interviewed the management and owners of restaurants, coffee shops, grocery stores, specialty drink shops, and other food vendors to hear feedback, assess support and understand better what types of materials were in use. Staff provided this feedback to the County as they developed and refined the ordinance. A summary of findings for both the County and City engagements is attached to this staff report.

City staff will continue to work with the County of Marin to aid businesses in the transition to compliance via various educational channels, as well as aiding the County in providing bilingual materials for all engagement efforts with our various businesses. County EHS has committed to prioritizing outreach and education and including information about compliance with SB 1383 requirements during the outreach and enforcement stage starting November 1, 2023.

FISCAL IMPACT:

Financial impacts of implementation to the City are expected to be minimal if the City adopts the proposed ordinance by the County’s deadline. If the City Council introduces the County’s model ordinance by May 10, 2023, EHS will take responsibility for enforcement through the food inspection program, and the onetime enforcement fees will be waived. If the City does not meet this deadline, the City will be required to pay the County a fee of $33,327 to receive enforcement services from EHS.

OPTIONS:

1. Introduce the ordinance.

2. Do not introduce the ordinance, and direct staff to return with additional information or changes to the ordinance.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
RECOMMENDED ACTION:

Introduce and waive further reading of the ordinance amending the San Rafael Municipal Code to repeal and replace Chapter 10.92 - Prohibition on Use of Polystyrene Foam Disposable Food Packaging with New Chapter 10.92 - Regulation of Foodware for Retail Food Vendors.

ATTACHMENTS:

Attachment A: Ordinance
Attachment B: Agreement with the County of Marin Regarding Enforcement of the Foodware Ordinance Attachment C: County of Marin Outreach Summary
Attachment D: City of San Rafael Business Outreach – Key findings Attachment E: Marin Sanitary Service Letter of Support
1 CITY COUNCIL OF THE CITY OF SAN RAFAEL
ORDINANCE NO.

AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING

THE SAN RAFAEL MUNICIPAL CODE TO REPEAL AND
REPLACE CHAPTER 10.92 - PROHIBITION ON USE OF

POLYSTYRENE FOAM DISPOSABLE FOOD
PACKAGING WITH NEW CHAPTER 10.92 - REGULATION

OF FOODWARE FOR RETAIL FOOD VENDORS
SECTION 1. FINDINGS
WHEREAS, the City of San Rafael has a desire and responsibility to protect the health, welfare, and safety of its residents and economy. The proliferation of non-reusable (or disposable) foodware, packaging, and plastics has contributed to street litter, ocean pollution, marine, and other wildlife harm.

WHEREAS, using reusable dishware significantly reduces the generation of unnecessary waste, and in most applications saves money, reduces disposal costs, and improves customer experience.

WHEREAS, reducing the generation of non-reusable foodware including plastic utensils, plastic cups, plastic clamshells, and plastic straws maximizes the operating life of landfills, reduces litter, and helps to lessen the economic and environmental costs of managing waste. This will also help protect San Rafael’s environment from contamination and degradation making it cleaner, healthier, and safer for all residents, businesses, and visitors.

WHEREAS, non-reusable foodware threatens public health because many types contain fluorinated chemical additives are known or suspected carcinogens or endocrine disruptors.

These additives are known to leach from foodware into food and beverages and into compost, soil, and water.

WHEREAS, numerous jurisdictions in the San Francisco Bay Area and the State of California have adopted legislation reducing the use of non-reusable food packaging, with local and national businesses successfully replacing single-use food packaging with affordable durable and reusable foodware or, when needed, compliant compostable fiber foodware products.

WHEREAS, on May 10, 2022, the County of Marin adopted a local Reusable Foodware Ordinance which includes language offering enforcement services via the Environmental Health Services Food Program for cities/towns adopting the same ordinance for the food vendors in their jurisdictions.

WHEREAS, the City of San Rafael wishes to utilize the enforcement services offered by the County of Marin through the County’s Environmental Health Services Food Program. 2 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS:

SECTION 2. AMENDMENT OF SAN RAFAEL MUNICIPAL CODE, CHAPTER 10.92 Chapter 10.92 – Prohibition on Use of Polystyrene Foam Disposable Food Packaging of the San Rafael Municipal Code is hereby repealed in its entirety, and replaced with a new Chapter 10.92 entitled “Regulation of Foodware for Retail Food Vendors” to read in its entirety as follows:

Chapter 10.92 – Regulation of Foodware for Retail Food Vendors

10.92.010 - Purpose.

The purpose of this chapter is to prevent actual or potential public health hazards and nuisance within the city of San Rafael, Marin County, state of California, by regulating reusable foodware for dine-in operations and compliant compostable foodware for take-out services. This chapter is intended to reduce the impacts of single-use plastic takeout containers which cause forms of pollution, including contaminating recycling and composting waste streams, clogging storm drains, and discharging into the Bay becoming a threat to wildlife.

10.92.020 - Definitions.
(a) “BPI Certified” means those Compostable fiber Foodware products that have been certified by the Biodegradable Products Institute (BPI) to safely and readily biodegrade in an industrial composting facility in the typical processing time. As of January 1, 2020, BPI ensures all certified products are Fluorinated Chemical free. (b) “Compliant Non-Reusable Foodware” means that an item or product intended for disposal after one use and is: (1) accepted by the County of Marin through its composting collection program as Compostable as identified by the Deputy Director of Environmental Health Services or their designee; (2) certified by either BPI Certified or other third party product certification recognized by the County of Marin through its Deputy Director of Environmental Health Services or their designee to ensure the item is free of harmful chemicals including but not limited to Fluorinated Chemicals, that may have been used in foodware manufacture, and (3) made entirely of Natural Fiber, as defined that term is below, and including but not limited to paper, wood, or sugarcane fibers. (c) “Compliant Foodware Accessory” means that an item or material is (1) accepted in Marin County composting collection program as Compostable; and is (2) made entirely of Natural Fiber.
(d) “Compost Facility” means compost facilities used by the city’s current waste haulers for composting organic material.
(e) “Compostable” means an item or material (1) will break down, or otherwise become part of usable compost in a safe and timely manner and (2) is Natural Fiber-based or made from other materials approved by the Deputy Director of Environmental Health Services or designee.
3 (f) “Compostable Plastics or Biodegradable Plastics” means the disposable products developed from polylactic acid (PLA), which require a specific set of conditions to compost and/or biodegrade that do not exist in the County of Marin or the region. These products are considered non-compliant.
(g) “City” means the City of San Rafael.
(h) “City Facility” means any building or structure owned, leased, or operated by the City of San Rafael.
(i) “Customer” means any person obtaining Prepared Food from a Food Vendor. (j) “Director” means the County of Marin Deputy Director of Environmental Health Services or their designee.
(k) “Disposable (or Non-Reusable) Cup” means a beverage cup designed for single-use to serve beverages such as water, hot and cold drinks, and alcoholic beverages. (l) “Effective Date” means June 14, 2023.
(m) “EPS” means expanded polystyrene, also known as Polystyrene Foam. (n) “Fluorinated Chemical” means a class of fluorinated organic compounds containing at least one (1) fully fluorinated carbon atom, also known as perfluoroalkyl (PFOA) and polyfluoroalkyl (PFOS) substances, or PFAS chemicals. California Prop 65 lists PFOA and PFOS as reproductive toxicants.
(o) “Foodware” means all containers, bowls, plates, food trays, cups, lids, boxes, and other like items that are used for Prepared Foods, including without limitation, Foodware for takeout foods and/or leftovers from partially consumed meals prepared by Food Vendors. (p) “Foodware Accessories” means types of items usually provided alongside Prepared Food including but not limited to forks, spoons, knives, chopsticks, napkins, cup sleeves, food wrappers, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, toothpicks, tray-liners, and plate-liners.
(q) “Food Vendor” means a food facility as that term is defined in Health & Safety Code section 113789, or its successor, including but not limited to a restaurant, bar, grocery store, delicatessen, bakery, food service establishment (carry out, quick service, fullservice), food truck, itinerant restaurant, pushcart, farmers market, caterer, microenterprise home kitchen operation, or cottage food operation, that sells Prepared Food to be consumed on and/or off the premises located or operating within the city, except that for purposes of this ordinance the term “food vendor” shall not include a public or private school cafeteria.
(r) “Natural Fiber” means a plant-based, non-synthetic fiber, including but not limited to paper, wood, bamboo, palm leaf, wheat straw, or sugarcane. Natural Fiber does not include plastic of any kind.
(s) “On Request” means that only at the request of a customer shall the compliant product be provided.
4 (t) “Polystyrene Foam” means and includes blown polystyrene and expanded and extruded foams (sometimes incorrectly called Styrofoam, a Dow Chemical Co. trademarked form of polystyrene foam insulation) which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene). Polystyrene Foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays, coolers, packing peanuts, and egg cartons.
(u) “Prepared Food” means food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises of the Food Vendor and includes Takeout Food. For the purposes of this chapter, Prepared Food does not include raw, butchered meats, fish and/or poultry, which are sold from a butcher case or similar appliance.
(v) “Reusable or Durable” Foodware and Foodware Accessories, including plates, bowls, cups, jars, trays, glasses, straws, stirrers, condiment cups, utensils, etc. that are manufactured of durable materials and specifically designed and manufactured to be washed and sanitized and to be used repeatedly over an extended period of time, and are safe for washing and sanitizing according to applicable regulations. (w) “Takeout Food” means food or beverages requiring no further preparation to be consumed and which generally are purchased to be consumed off the premises of the Food Vendor.

10.92.030 - Dine-in Foodware regulations.

Food Vendors within the city:
(a) Shall sell or provide food and beverages for consumption on the premises using Reusable Foodware and utensils (forks, spoons, knives, chopsticks) except as otherwise provided in section 10.92.040(b);
(b) May provide all other Compliant Foodware Accessories, which are made of Natural Fibers, including napkins, food wrappers, straws, stirrers, cocktail sticks, toothpicks, tray-liners, and plate-liners;
(c) Shall offer condiments in reusable containers or dispensers rather than pre-packaged single-use condiment packets; and
(d) Food Vendors will have until November 10, 2023, before enforcement of this regulation begins.

10.92.040 - Takeout Foodware regulations.

Food Vendors within the city selling Takeout Food for consumption off premises:
(a) Shall provide takeout food in Reusable Foodware, or compostable Natural Fiber Compliant Foodware, or items composed entirely of glass or aluminum; 5 (b) Shall provide all other Compliant Foodware Accessories, which are made from Natural Fibers, including napkins, cup sleeves, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, and toothpicks only On Request or at self-serve stations;
(c) Takeout food bags shall be Reusable, paper, or comply with Chapter 10.94 (regulations of single use carry out bags);
(d) Takeout Food delivery services shall provide the option for Compliant Foodware Accessories (forks, spoons, knives, chopsticks) and single-use condiments only On Request. A Food Vendor or a Takeout Food delivery service may include lids, spill plugs, and sleeves without request for Non-Reusable Cups for delivery; and (e) Food Vendors shall provide plastic straws only On Request, to accommodate any person's access needs.

10.92.050 - City facilities and city-sponsored events.

The following regulations apply to Food Vendors at city facilities, and city-sponsored events:
(a) Food Vendors shall use Reusable Foodware and Compliant Foodware Accessories at city facilities and city-sponsored events.
(b) The city shall prohibit the use of EPS/Polystyrene Foam and Non-Reusable plastic foodware by Food Vendors at all city facilities. Prohibited products include, but are not limited to, EPS/Polystyrene Foam and Non-Reusable plastic food containers, straws, bowls, plates, trays, utensils, clamshells, and cups which are not intended for reuse, on or in which any foods or beverages are placed or packaged. (c) As of the Effective Date, all city departments that hold contracts, lease agreements, permits, or other agreements that involve food service shall incorporate this prohibition into all new and renewed contracts, leases, permits, agreements, etc. (d) The use or distribution of EPS/Polystyrene Foam, and Non-Reusable plastic foodware by Food Vendors at special events at city facilities that are sponsored or co-sponsored by the city shall be prohibited. This prohibition shall apply to the event organizers, agents of the event organizers, event vendors, and any other party (including non-profit organizations) who have an agreement with one or more of the co-sponsors of the event to sell goods or beverages at the event or otherwise provide an event-related service. (e) Written agreements with Food Vendors, including non-profit organizations, to sell food or beverages at an event that is sponsored or co-sponsored by the city, shall specifically prohibit the usage and distribution of EPS/Polystyrene Foam and Non-Reusable plastic foodware.

10.92.060 - Non-Reusable cup charge.
(a) All Food Vendors shall charge customers twenty-five cents ($0.25) at the point of sale for every Non-Reusable cup provided unless they are exempt under this chapter. (b) Income from the Non-Reusable cup charge shall be retained by the Food Vendor. 6 (c) Charges for Non-Reusable cups shall be identified separately on any post-sale receipt provided and, pre-sale, shall be clearly identified for the customer on media such as menus, ordering platforms, and/or menu boards. Customers placing orders by telephone shall be informed verbally of Non-Reusable cup charges. (d) All customers demonstrating, at the point of sale, a payment card or voucher issued by the California Special Supplemental Food Program for Women, Infants, and Children (WIC) pursuant to Article 2 (commencing with section 123275) of Chapter 1 of Part 2 of Division 106 of the California Health and Safety Code and as amended, or an electronic benefit transfer card (EBT) issued pursuant to section 10072 of the California Welfare and Institutions Code, and individuals with disabilities shall be exempt from the Non-Reusable cup charge.

10.92.070 - Separate waste receptacles required.
(a) All Food Vendors who provide solid waste containers for customer use, must provide separate receptacles for solid waste, recyclables, and organics. Receptacles shall be colored black or grey for garbage, blue for recycling, and green for compost/organics. (b) To the extent possible given space constraints, all receptacles for solid waste, recyclables, and organics should be placed adjacent to one another.
(c) Graphic-rich signage must be posted on or above each receptacle following the waste hauler’s guidelines.

10.92.080 - Exemptions.
(a) Entities packaging Prepared Foods outside Marin County are exempt from the provisions of this chapter; provided, however, such entities are urged to follow the provisions of this chapter.
(b) Non-Reusable Foodware and Foodware Accessories composed entirely of aluminum are exempt from the provisions of this chapter.
(c) Should Foodware or Foodware Accessories made of Compliant compostable Natural Fiber not be commercially available, as determined by the Director or their designee, the County of Marin may approve temporary exemption of specific nonreusable Foodware or Foodware Accessories items until they are made commercially available. The County of Marin shall maintain a list, updated annually, with Foodware or Foodware Accessories deemed not available commercially.
(d) For the immediate preservation of the public peace, health, or safety due to an emergency or natural disaster, the city council, or designee, may exempt Food Vendors, persons operating city facilities and agents, contractors, and vendors doing business with the city, from the provisions of this chapter.

10.92.090 - Enforcement.
(a) Compliance with this ordinance is required as of the Effective Date. 7 (b) Enforcement shall include written notice of non-compliance and a reasonable opportunity to correct, prior to issuance of any penalty.
(c) It is found and determined to by the city council that the public interest, health, safety, and welfare of the residents of the city require that the Marin County Environmental Health Services Division be designated as the enforcement agency of and within city and as such enforcement agency it is authorized with the enforcement of the provisions of this chapter and the Marin County Environmental Health Services division is vested, for the purposes of enforcing this chapter within city, with all of the jurisdiction and powers vested in or available to said division by this Chapter and said health and safety code. (d) Enforcement of this chapter will begin on November 10, 2023. Enforcement will be then delegated to the County of Marin’s Environmental Health Services. Enforcement will progress on the regular inspection schedule of all covered Food Vendors in the County as described in this chapter.

10.92.100 - Violations
On behalf of the city, the County of Marin may choose to undertake the following legal actions to correct and/or abate nuisances and violations of this ordinance. The Director of Environmental Health Services or their designee is authorized to promulgate regulations and take any and all other actions reasonable and necessary to enforce the provisions of this Chapter, including but not limited to, entering the premises of any food provider during regular business hours to verify compliance, and by the issuance of administrative citations. The remedies and penalties provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. (a) Administrative Citations.

Administrative citations may be issued for violations of this Chapter at the discretion of the Director. The issuance of an administrative citation under this chapter shall not supersede or limit the remedies provided elsewhere in this Code or California law, including other administrative citation remedies. Issuance of an administrative citation may be exercised in place of, but shall not be considered a waiver of, the use of any other available enforcement remedy.
(b) Process and Service of Citation.

1. Prior to issuance of citation penalty, the County of Marin shall issue a violation warning letter to the facility operator and provide the facility operator thirty (30) days to correct the violation(s).

2. The violation warning letter and/or citation shall be mailed to the food facility operator named in the facility’s permit.

3. The failure of any interested person to receive the violation warning letter and/or citation shall not affect the validity of the proceedings. (c) Administrative Citation Penalty Schedule.

Following the violation warning letter described in Section 10.92.100(b)(1) above and thirty (30) day cure period, if the violations remains, the County of Marin may issue the following administrative penalties:

1. A fine not exceeding $100.00 for the first violation;

2. A fine not exceeding $200.00 for a second violation of the same Code provision within one year; and
8 3. A fine not exceeding $500.00 for each additional violation in excess of two, of the same Code provision within one year.
(d) Response to Citation Penalty
Following receipt of citation penalty, food facility operator shall have thirty (30) days to pay the fine as indicated on the citation, or to request a waiver of payment of the penalty due to unique undue hardship. This waiver may be granted by the Director upon demonstration by a food facility operator to the satisfaction of the Director that strict application of the requirements would cause undue hardship. An “undue hardship” includes but is not limited to the following: 1. A situation unique to the food facility where a suitable alternative that conforms with the requirements of this chapter does not exist for a specific application. 2.

Imposing the provisions of this Chapter would cause significant economic hardship. “Significant economic hardship” may be based on, but not limited to, demonstrating that suitable Foodware or Foodware Accessories made of Compliant compostable Natural Fiber is not available at a commercially reasonable price and the additional cost associated with providing the Compliant Foodware or Foodware is particularly burdensome to the food facility based on the type of operation(s) affected, the overall size of the business/operation, the number, type and location of its facilities, the impact on the overall financial resources of the food facility, and other factors. Reasonable added cost for a suitable item as compared to a similar item that the food facility can no longer use shall not by itself constitute adequate grounds to support an exemption for such item. In determining whether a significant economic hardship has been established, the Director or designee shall consider the following information: ability of the food facility to recover the additional expense by increasing its prices; the availability of tax credits and deductions; outside funding; and other options.
(e) Nonpayment of Citation for More than One Year Deemed Nuisance.

Nonpayment of any assessed violation for longer than one year shall constitute a nuisance and be subject to the nuisance abatement procedures in Marin County Code Chapter 1.05, including payment of civil penalties of up to $2,500 per violation per day and enforcement and other abatement costs incurred by the County of Marin.

SECTION 3. This Ordinance was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the city. The city council hereby finds that under section 15061(b)(3) of the State CEQA Guidelines, this Ordinance is exempt from the requirements of CEQA because it can be seen with certainty that the provisions contained herein would not have the potential for causing a significant effect on the environment. It also finds the Ordinance is exempt from the requirements of CEQA pursuant to CEQA Guidelines sections 15307 and 15308 as an action by a regulatory agency taken to protect the environment and natural resources.

SECTION 4: SEVERABILITY
Every section, paragraph, clause, and phrase of this Ordinance is hereby declared to be severable. If for any reason, any section, paragraph, clause, or phrase is held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, clauses or phrases, and the remaining portions or this ordinance shall continue in full force and effect unless amended or modified by the city.

SECTION 5: EFFECTIVE DATE AND PUBLICATION
This Ordinance shall be published once, in full or in summary form, before its final passage, in a newspaper of general circulation, published and circulated in the City of San Rafael and shall be in 9 full force and effect 30 days after its adoption. If published in summary form, the summary shall also be published within fifteen (15) days after the adoption, together with the names of those Council members voting for or against same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California.

Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for and against the Ordinance.

THE FOREGOING ORDINANCE was first read and introduced at a regular meeting of the San Rafael City Council on the 1st day of May 2023, and was passed and adopted at a regular meeting of the San Rafael City Council on the 15th day of May 2023 by the following vote, to wit:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:
______________________________
Kate Colin, Mayor
Attest:
_____________________________
LINDSAY LARA, City Clerk

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AGREEMENT BETWEEN

COUNTY OF MARIN AND CITY OF SAN RAFAEL

REGARDING ENFORCEMENT OF THE FOODWARE ORDINANCE
This AGREEMENT (AGREEMENT), made and entered into this _____ day of ______________, 2023, by and between the COUNTY OF MARIN, hereinafter referred to as “COUNTY”, and CITY OF SAN RAFAEL, hereinafter referred to as “CITY”, both in the State of California, collectively the “PARTIES”, and individually a “PARTY”, for participation in the County Environmental Health Services (EHS) Reusable Foodware Ordinance Implementation and Enforcement Program (the “PROGRAM”).

SECTION 1: RECITALS

1.1 PARTIES have the mutual desire and responsibility to protect the health, welfare, and safety of its citizens and economy. The proliferation of non-reusable (or disposable) foodware, packaging, and plastics has contributed to street litter, ocean pollution, marine, and other wildlife harm along with the greenhouse gas emissions from the production of the disposable materials.

1.2 Using reusable foodware significantly reduces the generation of unnecessary waste, and in most applications saves money, reduces disposal costs, and improves customer experience.

1.3 Non-reusable foodware threatens public health because many types contain fluorinated chemical additives that are known or suspected carcinogens or endocrine disruptors. These additives are known to leach from foodware into the food and beverages being consumed, and into compost, soil, and water.

1.4 On May 10, 2022, COUNTY adopted a local Reusable Foodware Ordinance, and which includes language offering enforcement services via COUNTY’S Environmental Health Services for cities and towns in the County of Marin adopting substantially the same ordinance for the food vendors in their jurisdictions.

1.5 CITY (has/is) adopting a local Reusable Foodware Ordinance and wishes to utilize the enforcement services offered by COUNTY through COUNTY’S Environmental Health Services.

1.6 CITY and COUNTY have determined that the public interest would be best served by the performance of these functions as provided in the Reusable Foodware Ordinance and as provided in this AGREEMENT.

SECTION 2: PURPOSE OF THE AGREEMENT
This AGREEMENT is entered into by and between the PARTIES to define the responsibilities of the PARTIES for the implementation and enforcement of Reusable Foodware Regulations as defined in CITY’S Municipal Code Chapter 10.92 within the City of San Rafael.

SECTION 3: PROGRAM DEFINITION AND SCOPE

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COUNTY shall act as the enforcement agency for the Reusable Foodware Ordinance, as detailed in CITY’S Municipal Code Chapter 10.92. As detailed in CITY’S Municipal Code Chapter 10.92 enforcement of CITY’s Reusable Foodware Regulations will begin on November 10, 2023.

CITY participation in the PROGRAM is encouraged but completely voluntary. However, development and implementation of such a program requires staff time and resources which would be exacerbated if jurisdictions joined the PROGRAM piecemeal over the course of several years. To address these potential cost impacts, there will be a one-time fee to join the PROGRAM. However, to encourage and incentivize jurisdictions to join during the initial development phase, COUNTY will waive the on-boarding fee for any jurisdiction that opts into the program within twelve (12) months of the COUNTY’S adoption of the ordinance.

The one-time on-boarding fee was calculated based on the time and resources needed to revise COUNTY’S EHS Division systems to include additional businesses after the initial development period (estimated as 0.5 hours per food facility). The fee is scaled based on the number of food facility operators within the jurisdiction (see Table 1).

Table 1: Environmental Health Division One-Time Enforcement Program Fee for Reusable Foodware Ordinance
Jurisdiction Number of
Food Facilities
One-Time
On-Boarding Fee
Belvedere 3 $311
Corte Madera 58 $6,003
Fairfax 45 $4,658
Larkspur 49 $5,072
Mill Valley 70 $7,245
Novato 198 $20,493
Ross 6 $621
San Anselmo 56 $5,796
San Rafael 322 $33,327
Sausalito 70 $7,245
Tiburon 31 $3,209
If jurisdictions adopt or introduce the ordinance after the twelve (12) month period following COUNTY adoption, the EHS Division can still provide enforcement, but the fee would no longer be waived for those jurisdictions.

SECTION 4: RESPONSIBILITIES

4.1 CITY SHALL:
a. CITY has or shall adopt a Reusable Foodware Ordinance in compliance with and mirroring the Reusable Foodware Ordinance adopted by the COUNTY on May 10, 2022.
b. Pay the onboarding fee as detailed in Section 4 above within 30 (thirty) days of written request for payment by COUNTY, unless otherwise waived.

4.2 COUNTY SHALL:

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a. Act as enforcement agency for the Reusable Foodware Ordinance for the CITY as detailed in its Reusable Foodware Ordinance and in this AGREEMENT. b. Provide updates to CITY of any modifications to its Ordinance or modifications to the enforcement PROGRAM.

SECTION 5: TERM OF AGREEMENT AND TERMINATION.

5.1 This AGREEMENT shall remain in force unless terminated by either PARTY. Either PARTY may terminate this AGREEMENT by giving three (3) months written notice to the other PARTY.

5.2 In the event of termination of this AGREEMENT, any amendments may also be terminated in accordance with the termination provisions contained in such agreements.

5.3 If CITY amends its Reusable Foodware Ordinance which, in the COUNTY’S sole determination and discretion, does not comport with the COUNTY’s Reusable Foodware Ordinance and PROGRAM, COUNTY may terminate this AGREEMENT at any time.

SECTION 6: COMPLIANCE WITH LAW.

In the performance of its obligations pursuant to this AGREEMENT, PARTIES shall comply with all applicable federal, state and local laws, ordinances and regulations in any manner affecting the performance of this AGREEMENT, and must at all times comply with such laws, ordinances, and regulations as they may be amended from time to time.

SECTION 7. INDEMNIFICATION AND GENERAL LIABILITY
CITY shall indemnify, hold harmless, release and defend COUNTY, its officers, agents and employees from any and all liability, actions, claims, damages, costs or expenses, including attorneys' fees and the costs and expenses of suit which may be asserted by any complainant, arising in any respect, out of CITY’s negligent or intentional acts or omissions arising under or related to this AGREEMENT.

COUNTY shall indemnify, hold harmless, release, and defend CITY, its officers, agents, and employees from any and all liability, actions, claims, damages, costs or expenses, including attorneys' fees and the costs and expenses of suit which may be asserted by any complainant, arising in any respect, out of COUNTY’s negligent or intentional acts or omissions arising under or related to this AGREEMENT.

SECTION 8. INSURANCE.

Each PARTY, at its sole cost and expense shall maintain insurance or shall self-insure its activities in connection with this AGREEMENT and obtain, keep in force, and maintain insurance or equivalent programs or self-insurance for general liability, worker’s compensation, property, professional liability, environmental liability, and business automobile liability adequate to cover its potential liabilities hereunder. Each PARTY agrees to provide the other PARTY thirty (30) days advance written notice of any cancellation, termination, or lapse of any of the insurance or self-insurance coverage. Failure to maintain insurance as required in this AGREEMENT is a material breach of this AGREEMENT and may be grounds for termination of this AGREEMENT.

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SECTION 9. OBLIGATIONS.

Termination of this AGREEMENT will not invalidate the indemnification obligations of the PARTIES and/or obligations properly incurred by the PARTIES before the termination date to the extent those obligations cannot be canceled.

SECTION 10. INTEGRATION.

This AGREEMENT represents the entire AGREEMENT of the PARTIES with respect to the subject matter thereof. No representations, warranties, inducements or oral agreements have been made by any of the PARTIES except as expressly set forth herein.

SECTION 11. AMENDMENT.

Except as otherwise provided herein, this AGREEMENT may not be changed, modified or rescinded except in writing and approved by all PARTIES hereto.

SECTION 12. INDEPENDENT AGENCY.

Each PARTY performs the terms and conditions of this AGREEMENT as an entity independent of the other PARTY. Each PARTY’s agents or employees shall not be agents or employees of the other PARTY to this AGREEMENT.

SECTION 13. ASSIGNMENT.

This AGREEMENT may not be assigned, transferred, hypothecated, or pledged by any PARTY without the express written consent of the other PARTY.

SECTION 14. BINDING ON SUCCESSORS, ASSIGNEES OR TRANSFEREES.

This AGREEMENT shall be binding upon the successor(s), assignee(s) or transferee(s) of the PARTIES. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this AGREEMENT other than as provided above.

SECTION 15. SEVERABILITY.

Should any part of this AGREEMENT be declared unconstitutional, invalid, or beyond the authority of either PARTY to enter into or carry out, such decisions shall not affect the validity of the remainder of this AGREEMENT, which shall continue in full force and effect provided that the remainder of this AGREEMENT can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the PARTIES.

SECTION 16. SUCCESSORS; NO THIRD-PARTY BENEFICIARIES.

Nothing in this AGREEMENT, whether express or implied, shall be construed to give any person or entity (other than the PARTIES hereto and their respective successors and assigns) any legal or equitable right, remedy or claim under or in respect of this AGREEMENT or any covenants, conditions or provisions contained herein.

SECTION 17. CONTACTS AND NOTICES.

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All notices under this AGREEMENT shall be in writing (unless otherwise specified) delivered to the PARTIES by hand, by commercial courier service, or by United States mail, postage prepaid, addressed to the PARTIES at the addresses set forth below or such other addresses as the PARTIES may designate by notice.

For COUNTY:

Greg Pirie, Deputy Director, Environmental Health Services County of Marin – Community Development Agency
3501 Civic Center Drive, Room 236
San Rafael, CA 94903
For CITY:

City Manager
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
SECTION 18. HEADINGS.

The headings and captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this AGREEMENT.

Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the language of the section or paragraph shall control and govern in the construction of this AGREEMENT.

SECTION 19. WAIVER.

Waiver by either PARTY to this AGREEMENT of any term, condition, or covenant of this AGREEMENT shall not constitute a waiver of any other term, condition or covenant. Waiver by either PARTY to any breach of the provisions of this MOU shall not constitute a waiver of any other provision, nor a waiver of any subsequent breach or violation of any provision of this AGREEMENT.

SECTION 20. GOVERNING LAW.

This AGREEMENT shall be governed and construed under California law. If a dispute occurs or claim arising out of this AGREEMENT, venue shall be in Marin County.

SECTION 21. NO PRESUMPTION AGAINST DRAFTER.

Each PARTY had an opportunity to consult with an attorney in reviewing and drafting this AGREEMENT. Any uncertainty or ambiguity shall not be construed for or against any PARTY based on attribution of drafting to any PARTY.

SECTION 22. COUNTERPARTS; ELECTRONIC SIGNATURES.

This AGREEMENT may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument. The PARTIES acknowledge and agree that this AGREEMENT may be executed by electronic signature, which shall be construed as an original signature for all purposes and shall have the same force and effect as an original signature.

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TO EFFECTUATE THIS AGREEMENT, the PARTIES have caused their duly authorized representatives to execute this AGREEMENT on the dates set forth below.

COUNTY: CITY:

By: _________________________ By: _________________________ ____________________________ ____________________________ Print Name Print Name
____________________________ ____________________________ Print Title Print Title
APPROVED AS TO FORM: APPROVED AS TO FORM:

By: By:
_____________________________ ___________________________ COUNTY Counsel CITY Attorney
Reusable Foodware Ordinance: Outreach Update
November 19, 2021
The County of Marin has continued its efforts to develop a Reusable Foodware Ordinance and provide outreach to residents and businesses across Marin County. The goal of the Reusable Foodware Ordinance is a consistent, countywide ordinance to be adopted by Marin jurisdictions. If the model ordinance is adopted by all Marin cities and towns, the County will conduct enforcement on behalf of the cities and towns through its food service inspectors. Various outreach efforts were conducted by the County to garner feedback from residents and businesses in Marin County. Highlights from each of these efforts are listed below.

Food Vendor Grant
Program and Technical
Assistance
75 businesses called and 56 site visits completed across all jurisdictions. During site visits, businesses were informed of the ordinance features, provided outreach materials, and offered the opportunity to apply for the grant program and receive free technical assistance. 6 out of the 40 businesses visited were provided in-language Spanish assistance.
11 businesses have been approved and are currently in the grant program. 3 out of the 6 Spanish speaking businesses are interested and have applied for the grant.

Food Vendor
Survey Results
(provided in English + Spanish)
97 responses
Vendors are mostly concerned with cost, supply, and customer behavior change Vendors see the biggest benefits of this ordinance as less landfilled waste, reduced waste overall, and having more sustainable options for customers Over 50% of businesses support a $0.25 charge
68% do not think it would be difficult to switch to all reusables for dine in (of which 18% would want help from the County or cities)
Resident
Survey Results
(provided in English + Spanish)
338 responses
95% are in favor of reducing plastic materials from going to landfill 91% support Marin County requiring all food vendors use foodware that is either reusable or compostable
79% support a County-wide cup charge
Business
Workshop Meeting
Held on 9/15/2021 with over 45 attendees. Spanish translation services were offered at the meeting. The meeting was recorded and is publicly available on the County’s website.

Resident
Community Meeting
Held on 7/14/2021 with over 28 attendees. The meeting was recorded and is publicly available on the County’s website.
20+ Meetings with
Stakeholders
Stakeholders from across the County, including restaurant owners, various chamber of commerce groups (including the Council of Chambers), Latinx business leaders, disability advocates, haulers and processors, food inspectors, advocacy groups, etc. 1 Letter Sent to all food vendors with information about the proposed ordinance, survey link, outreach flyer, and invitation to attend the business workshop meeting. 33 Public Comments County received 33 public comments on the publicly available draft ordinance. Public comments on the ordinance have been accepted since February 2020.

The County Board of Supervisors will consider the ordinance in February 2022. Marin cities and towns must adopt the ordinance within 6 months of County adoption if they wish to benefit from County enforcement of the ordinance. Food Vendors covered by the ordinance would have 18 months after the Board of Supervisors adopt the ordinance before any enforcement would begin.

City of San Rafael 2021 Business Outreach– Key Findings Over 50 surveys were conducted in fall 2021 throughout San Rafael, including in-person engagements at restaurants and other food service providers in the Canal, downtown, and in Terra Linda. A summary of findings can be found below.

Feedback Responses
Compostables are
expensive
• Depending on the product, compostables on average
are an additional $0.1-$0.25 per unit, which can be
included in the cost of the order. In some cases,
compostable products are the same or slightly less
expensive than plastic.
• The County has created a purchasing guide for
compliant takeout products.
• The County is providing grants of up to $599.00 to help businesses with the transition to reusable and
compostable foodware.
• Exemptions are available for items with no current
alternatives. (see Marin County Foodware Ordinance
Temporary Exempt Products List )
$0.25 cup charge only
being applied to certain
businesses could create
unfair competition
• Almost all jurisdictions in Marin are adopting the Model Ordinance, ensuring fair competition.
• The ordinance will require that all cup charges be
itemized, across all food vendor types which will reduce competition concerns.
• Adequate enforcement: Reliable enforcement across the City and County for all businesses to implement the
charge on an itemized receipt.

Additional $0.25 cup
charge may
disproportionally affect
vulnerable communities
• There are exemptions for WIC, EBT, and individuals with disabilities.
• Customers can bring their own cups.
$0.25 cup charge may not
encourage reuse
• Provide point-of-sale signage for customers to best
understand the charge and why it is being implemented.
• Numerous behavior-change studies cite the success of
charges like this.

Timing (COVID-19) • COVID-19 restrictions and emergency order have been rescinded
Businesses are concerned
with the performance of
compostable foodware
• The County has established a list of temporary exempt products for items that don’t perform well. (ex: cups,
hot bowls, and lids)
• Takeout food container manufacturers are developing
new products based on this new demand.
• Encourage customers to bring reusables (when
applicable).
• Businesses can establish reusable container offerings or partner with third party reusable providers such as
Sparkl Reusables.

Health concerns around
encouraging customers to
bring their own containers
• State Assembly Bill 619 allows customers to bring their own reusables and limits liability for food vendors.
• The County provided a “Best Practices for Reusable
Products Guide” with health and safety guidelines.

Supply Chain Concerns • As demand increases, more suppliers are developing compliant materials, which will bring down costs.
• Exemptions are available for items with no feasible
alternative. (see Marin County Foodware Ordinance
Temporary Exempt Products List )
Branding/Marketing for
take-out containers
• As the fiber-based product industry grows there will be more options for those who wish to have branded
takeout containers.

Additional Findings from Outreach
Observation Options
Businesses need one-on-one
assistance to comply with the
ordinance.

The County has partnered with a consultant team to
develop resources and provide direct outreach,
education, and technical assistance to food facility
operators.

Need for business staff education on
compliance and waste management.

Education and Outreach for SB 1383 can, and will, be
paired with Ordinance outreach and education.

There is a need for clear signage for
customers and residents to prevent
contamination in the waste stream.

The County has provided several forms of outreach
materials and sign resources for Food Facilities. In
addition, Marin Sanitary Service offers a variety of
signage on their website for print.

Enforcement must be consistent
across the city and county to reduce
competition between local
businesses.

The County is offering Countywide enforcement for
all Marin jurisdictions that have adopted the
ordinance, including San Rafael.

____________________________________________________________________________________

FOR CITY CLERK ONLY
Council Meeting:

Disposition:

Agenda Item No: 5.c
Meeting Date: May 1, 2023

SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Community Development Department
Prepared by: Alicia M Giudice, AICP
Community Development Director
City Manager Approval: ______________
TOPIC: BIOMARIN DEVELOPMENT AGREEMENT
SUBJECT: ACCEPT THE 3rd ANNIVERSARY ANNUAL REPORT FOR THE EXECUTED DEVELOPMENT AGREEMENT (ORDINANCE NO. 1982) BETWEEN BIOMARIN

PHARMACEUTICAL AND THE CITY OF SAN RAFAEL FOR THE DEVELOPMENT OF AN EXPANDED SAN RAFAEL CORPORATE CENTER (750-790 LINDARO STREET AND 781-791 LINCOLN AVENUE AND 999 3RD STREET); CASE NO.: P23- 004
RECOMMENDATION:

Accept the 3rd Anniversary Annual Report for the Executed Development Agreement (Ordinance No. 1982) Between BioMarin Pharmaceutical and the City of San Rafael for the Development of An Expanded San Rafael Corporate Center (750-790 Lindaro Street and 781-791 Lincoln Avenue and 999 3rd Street).

EXECUTIVE SUMMARY:

On March 23, 2020, the City Council adopted Ordinance No. 1982 approving a Development Agreement (DA) between BioMarin Pharmaceutical (BioMarin) and the City of San Rafael. This DA permits the phased development and expansion of the San Rafael Corporate Center and the 999 3rd Street property with laboratory and research and development (R&D) buildings. The DA vests the land use and development entitlements/approvals for 10 years.

The procedures and requirements for reviewing and approving DAs are prescribed by City Resolution No. 6089. The procedures require periodic review to ensure that the project is proceeding in good faith and that the terms of the DA are being met. Ordinance No. 1982 specifically requires an annual review for this DA. This report presents the 3rd anniversary annual review, and a public hearing is required to solicit comments on the review of the DA. BioMarin has submitted an Annual Report (Attachment 1) which demonstrates progress and compliance with the terms of the DA.

BACKGROUND:

In 2012, BioMarin purchased the San Rafael Corporate Center (SRCC), a 15.54-acre campus of office buildings located south of Second Street. Since the initial purchase, BioMarin has built-out the original campus of buildings (five office buildings and two parking garages) and now occupies the campus with corporate office, R&D, and laboratory uses. In 2015, BioMarin was granted entitlements to expand the SRCC campus to develop a sixth office/lab building on the surface parking lot west of Lindaro Street SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
(755 Lindaro Street), and to expand the existing parking garage located east of Lincoln Avenue. This expansion has not been built.

In 2018, BioMarin purchased the three-acre site at 999 3rd Street, formerly owned and occupied by PG&E. This property, which also fronts on Lindaro Street and 2nd Street is contiguous to the SRCC.

This three-acre site previously underwent a two-phased soils remediation project administered by both PG&E and BioMarin. The fully remediated site is now vacant and paved with asphalt.

BioMarin & Vivalon/EDEN Housing Development Approvals
On March 23, 2020, the City Council approved entitlements to redevelop the 999 3rd Street site and append this site to the SRCC for an expanded campus. BioMarin intends to develop the properties over a phased period to maintain its corporate campus and increase laboratory and research and development space. The City Council actions for this approval included the following:
• Certification of a Final Environmental Impact Report (FEIR). • Expansion of the Planned Development (PD) zoning District adopted for the SRCC to encompass/incorporate the 999 3rd St. property. Within the expanded PD District, a General Plan Amendment was granted to allow for a new floor area ratio allowance (development intensity) to govern the expanded SRCC as one project site. The approvals also extended and incorporated the previously approved expansion of the SRCC campus, which, as noted above is the development of an office/lab building at 755 Lindaro Street and expanded parking garage. • Approval of a Master Use Permit, Environmental and Design Review Permit, and Tentative Parcel Map. The Vesting Parcel Map divides the three-acre, 999 3rd Street into two parcels: a large parcel (116,680 square feet), and a small parcel (15,000 square feet) at the northwestern portion of the site.
• Approval of most of the 999 3rd Street site (large parcel reference above) for development of the expanded BioMarin campus with 207,000 sq. ft. of laboratory/research and development (R&D) and office space (split about equally between the two uses). This development consists of two, 72-ft tall, four-story buildings. The ground floor is designed to provide amenities to support the BioMarin campus, which may include lobbies; an auditorium; conference rooms; a small café; and dining space. A useable roof top deck (above the ground floor between the two buildings) is proposed for employee use as noted in the concept drawing package.
• Approval of a senior center and senior housing on northwest portion of the property (15,000 square foot small parcel reference above) was allocated to Vivalon (formerly Whistlestop) and EDEN Housing was approved for development of a six-story building for a new senior center and senior housing (67 low-income rental units). The expanded PD District does not apply to this parcel. • Approval of a Development Agreement (DA) (adopted on April 6, 2020) to vest the approvals for an extended period (10 years). The DA freezes the City’s development fees at the current fee schedule rates in exchange for BioMarin providing certain public benefits (discussed below). The DA is applicable to the expanded BioMarin campus development only. Vivalon and EDEN Housing are not party to this DA, so the vesting does not apply to the senior center and senior housing.

A complete and detailed Background and Project Description discussion can be found in the January 28, 2020 Planning Commission staff report and the March 23, 2020 City Council staff report. The Planning Commission and City Council meetings can also be viewed on the Meeting Agendas & Videos page, online at: http://www.cityofsanrafael.org/meetings. Referenced application material exhibits are also included within FEIR attachments, also online at: https://www.cityofsanrafael.org/999-3rd.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
Terms of the Development Agreement
The DA afforded the City and the developer (BioMarin) the opportunity to negotiate terms and conditions, as well as public benefits, in exchange for the 10-year vesting of the project approvals. The executed DA, which can be accessed here includes the following list of the public benefits, as well as other obligations and requirements:

1. Northwestern Portion Donation. BioMarin is required to donate the 15,000 square foot northwestern parcel on the 999 3rd Street site to Vivalon (formerly Whistlestop). The donation is part of a land exchange; based on the final appraisals of the two properties exchanged and the delta in value reflected in those appraisals, BioMarin’s donation to Vivalon is One Million Three Hundred and Thirty Thousand Dollars ($1,330,000).

2. Remediation. For the benefit of development of a healthy aging campus and affordable senior housing, BioMarin is required to complete the second phase of the soil remediation for the 999 3rd Street Property by performing an investigation and cleanup under the State Department of Toxic Substance Control (DTSC) Voluntary Cleanup Program. BioMarin is responsible to fund this remediation ($2,000,000). The total remediation costs for the entire three-acre site are over $16,000,000.

3. Retail Space. BioMarin agreed to provide 3,500 square feet of retail space on a portion of the 999 3rd Street property (the actual layout and location of such space to be determined by BioMarin). The retail space is required to be open to the public during BioMarin’s business hours (from 9 a.m. to 5:00 p.m.).

4. Public Plaza. BioMarin agreed to provide an approximately 6,000 square feet of landscaped plaza “Front Porch” located at the corner of 3rd Street and Lindaro Street (the actual layout of such plaza to be determined by BioMarin). This plaza is required to be open to the public from dawn to dusk.

5. Striping for Bike Lane. BioMarin is required to add striping for Class II Bike Lane on Lindaro Street from 3rd Street to Andersen Drive or up to one mile of an equivalent section of roadway in San Rafael that is determined by the City to meet the City’s Bicycle & Pedestrian Master Plan.

6. Restriping for Pedestrian Safety. BioMarin is required to improve pedestrian safety with restriping at the corner of Lindaro Street and 3rd Street.

7. Contribution for Traffic Light Synchronization. BioMarin is required to contribute $500,000 to the City towards the synchronization of traffic lights along the 2nd and 3rd Street corridors to improve traffic flow or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This obligation may be payable in full at the first anniversary of the Effective Date, or $125,000 each year for four (4) years (commencing on the first anniversary of the Effective Date), at the option and sole discretion of BioMarin.

8. Contribution for Shuttle Service. BioMarin is required to contribute $400,000 to the City for purposes of implementing a first mile/last mile shuttle service or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This obligation shall be payable in increments of $100,000 each year for four (4) years (commencing on the first anniversary of the Effective Date).

9. City’s Use for Public Parking and Ancillary Uses. Upon the effective date of the DA and until BioMarin submits any construction related permit (grading, building, etc.) for either Building A or SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
B, BioMarin is required to allow the City to utilize up to 70% of the surface area of the 999 3rd Street property (the exact layout to be reasonably negotiated and agreed to by the parties so as to maximize the utility of the portion to be used by the City and the remaining portion) for public parking and ancillary uses (such as food truck market, etc.) until such time as commencement of construction activities for either building on this property.

10. Donation of Lease to Vivalon. Upon BioMarin’s acquisition of the Vivalon property at 648 Lindaro Avenue (land exchanged referenced above), BioMarin is required to donate to Vivalon a leaseback of 930 Tamalpais Avenue for three (3) years. The property continues to be leased back to Vivalon and is expected to be leased back through Jan. 2025 (beyond the 3 years) Additional Obligations. BioMarin agreed to the following additional obligations if certain timing milestones in the DA are not met:
• If construction on the 999 3rd Street property (now 801/815 Lindaro (APN011-265-02) has not commenced by the sixth (6th) anniversary (2026) of the effective date of this DA, then BioMarin is required to construct the Class II Bike Lane along Lindaro Street from 3rd Street to Andersen Drive (Item #5 Above) and required improvements to the 2nd Street and Lindaro Street intersection; and
• If construction of the second building at the 999 3rd Street property (now 801/815 Lindaro (APN011-265-02) has not commenced by the eighth (8th) anniversary (2028) of the effective date of the DA, then the vesting of the entitlements for the SRCC expansion (approved office/lab building at 755 Lindaro Street) shall expire.

Continuing Obligations Relating to the Original SRCC Development Agreement. The 1998 DA executed for the SRCC campus (initially executed between Fair Isaac and the City of San Rafael) included the following ongoing obligations (in perpetuity), which were carried over into the current DA between the City and BioMarin:

1. Public Parking on Nights and Weekends. The Project shall continue to make available to the public parking on the western SRCC surface parking lot and garage (west of Lindaro Street) during evening and weekend hours.

2. Park Area. The Project shall continue to provide the publicly accessible park located along the south side of the SRCC campus (south of and between Building A at 750 Lindaro Street and Building B at 781 Lincoln Avenue). This park area shall be open to the public from dawn to dusk. The public’s use of the park area shall be subject to the Reservation Rules and Policies on file with the City.

3. Conference Facility. The Project will continue to offer an after-business-hours publicly accessible, interior conference facility consisting of 2,500 square feet. At the sole option of BioMarin, this facility may be relocated from the current location on the SRCC property to a location within the 999 3rd Street property that provides substantially equivalent amenities and space, as determined upon the completion of the retail and plaza portions of the R&D Development Property. The public’s use of the Conference Facility shall be subject to the scheduling, fee, priority use and rules, regulations and guidelines provisions set forth in the Reservation Rules and Policies on file with the City.

Annual Reporting. Upon the City’s request, BioMarin is required to report to the City, no more frequently than once per calendar year, on the status of its development plans related to the DA.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
ANALYSIS:

Annual Report on Development Agreement
Per City Resolution No. 6089, periodic review is required to ensure that the project is proceeding in good faith and that the terms of the DA are being met. Per the terms of the DA, BioMarin has submitted an Annual Report (Attachment 2), which represents the 3rd year anniversary status of the project. While the Annual Report states that there are no updates on the start of the project construction, it reports on the status of the DA terms and obligations. The following is the status of the key terms and obligations (listed above) that are pertinent to this 3rd anniversary annual review:
 Item #1-Northwestern Portion Donation [COMPLETED IN 2022]- BioMarin and Vivalon (previously Whistlestop) negotiated and executed a Charitable Contribution and Exchange Agreement on September 14, 2020, to effectuate BioMarin’s donation of the northwest portion of the property for the benefit of development of a healthy aging campus and affordable senior housing. Parcel separation and transfer to Vivalon was completed on January 21, 2022. Based on the final appraisals of the two properties exchanged and the difference in value reflected in those appraisals, BioMarin’s donation to Vivalon is One Million Three Hundred and Thirty Thousand Dollars ($1,330,000).
 Item #2-Remediation [COMPLETED 2021]. BioMarin has completed the remediation of the western portion of the 999 3rd Street property. Final site certification for the completed remediation (for the entire three-acre site) was provided by DTSC on March 24, 2021.  Item #7-Contribution for Traffic Light Synchronization [75% COMPLETE]. BioMarin submitted a check in the amount of $125,000 to the City of San Rafael in April 2023 as contribution towards the synchronization of traffic lights along the 2nd and 3rd Street corridors to improve traffic flow or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This is the third of 4 annual payments. The total amount paid to date is $375,000 of the required $500,000.
 Item #8-Contribution to Shuttle Service [75% COMPLETE]. BioMarin submitted a check in the amount of $100,000 to the City of San Rafael in April 2023. This contribution is to support the City of San Rafael implementing a first mile/last mile shuttle service or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This is the third of 4 annual payments. The total amount paid to date is $300,000 of the required $400,000.
 Item #9-City’s Use for Public Parking and Ancillary Uses [COMPLETED AGREEMENTS IN 2022]. BioMarin negotiated a license agreement with the City San Rafael for temporary public parking and ancillary uses and the agreement was fully executed on February 2, 2022.  Item #5-Striping for Bike Lane [NOT COMPLETED]. BioMarin is required to add striping for Class II Bike lane on Lindaro Street from 3rd Street to Anderson Drive or up to one mile of an equivalent section of roadway in San Rafael that is determined by the City to meet the City’s Bicycle & Pedestrian Plan. This obligation will commence upon issuance of the certificate of occupancy for either building A or B.

Staff has concluded that BioMarin has demonstrated good faith in meeting the terms and obligations of the DA. Through the City Council’s acceptance of BioMarin’s Annual Report, the Council will find and determine on the basis of substantial evidence that the property owner has complied in good faith with SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6
the terms and conditions of the agreement during the period under review, and that the 3rd anniversary annual review is concluded.

Status of Vivalon/EDEN Housing Senior Center and Senior Housing As discussed above, the Vivalon/EDEN Housing Senior Center and Senior Housing project was entitled concurrent with the BioMarin project approvals. However, Vivalon/EDEN Housing is not party to the DA. This project has progressed through the City building permit process. Building permits have been issued and the project is currently under construction.

Environmental Review
As discussed above, the BioMarin and Vivalon/EDEN Housing development projects were subject to environmental review and a Final Environmental Impact Report was prepared and certified. As required by State law (California Environmental Quality Act), action on the annual review of the Development Agreement must be reviewed to determine if it is subject to environmental review. As the Annual Review is an informational report, it will have no physical impact on the environment, and is therefore exempt from environmental review per CEQA Guidelines under 14 CRR Section 15061(b).

FISCAL IMPACT:

This project is a private development and does not have a negative impact on the City budget given that the planning review and processing of these applications are subject to 100% cost recovery fees, paid for by the applicant.

As discussed above, the DA for the project will be subject to the City’s development fees but the required fees and fee amounts are locked-in at the time the DA is executed. In exchange for the vesting of the fees, the DA obligates BioMarin to other financial contributions to the City which are discussed above.

OPTIONS:

The City Council has the following options to consider on this matter:

1. Accept the Annual Report as recommended by staff;

2. Accept the Annual Report with modifications; or

3. Continue the public hearing and require additional information, study, or analysis.

ATTACHMENTS:

1. BioMarin Annual Report, March 30, 2023
BioMarin Annual Report
Obligations Relating to the R&D Development Agreement
March 30, 2023
BioMarin Annual Report
Obligations Relating to the R&D Development Agreement
San Rafael, CA
March 30, 2023
As required by the Development Agreement (“DA”), BioMarin is pleased to submit this annual report to provide an update on the status of the new projects and compliance with the DA’s terms and obligations, due on each anniversary of the Effective Date. While there are no updates on the start of construction of new R&D projects, the following addresses compliance with the obligations to date.

Northwestern Portion Donation. Developer shall donate the Northwestern Portion to Whistlestop as part of a land swap through which the delta in value of the swapped properties, as of a June 2018 appraisal, results in a One Million Two Hundred Thousand Dollars ($1,200,000) donation. Developer shall donate the Northwestern Portion in its then current as-is condition, for development of a healthy aging campus and affordable senior housing.

BioMarin and Vivalon (previously Whistlestop) negotiated and executed a Charitable Contribution and Exchange Agreement on September 14, 2020 to effectuate BioMarin’s donation of the northwest portion of the property for the benefit of development of a healthy aging campus and affordable senior housing.

The agreement was completed in 2021 and Parcel separation was completed.

Remediation. For the benefit of development of a healthy aging campus and affordable senior housing, Developer shall complete the second phase of the soil remediation for the 999 3rd Street Property by performing an investigation and cleanup under the DTSC’s Voluntary Cleanup Program. Developer shall complete such second phase of remediation prior to commencement of construction and development activities for the R&D Development Property, resulting in out-of-pocket costs for Developer of over Two Million Dollars ($2,000,000) and total remediation costs of over Sixteen Million Dollars ($16,000,000).

BioMarin completed the remediation of the west portion of the property and received DTSC’s final site certification for the entire property on March 24, 2021.

Retail Space: Developer agrees that a portion of the R&D Development Property consisting of approximately 3,500 square feet of retail space (the actual layout and location of such space to be determined by Developer) (the “Retail Space”) shall be open to the public during Developer’s business hours (from 9 a.m. to 5:00 p.m.). This obligation shall commence upon the issuance of the certificate of occupancy for the Retail Space and when the Retail Space is open for business and continue until such time as the Retail Space is vacant because a tenant cannot be found despite commercially reasonable efforts to market the space at a commercially reasonable rent for three years.

This obligation will commence upon the issuance of the certificate of occupancy for retail space.

BiOMARIN.

Public Plaza: Developer agrees to provide an approximately 6,000 square feet of landscaped plaza “Front Porch” located at the corner of 3rd Street and Lindaro Street (the actual layout of such plaza to be determined by Developer) that will be open to the public from dawn to dusk. This obligation shall commence upon the issuance of the certificate of occupancy for such plaza.

This obligation will commence upon the issuance of the certificate of occupancy for retail space.

Striping for Bike Lane: Developer shall add striping for Class II Bike lane on Lindaro Street from 3rd Street to Anderson Drive or up to one mile of an equivalent section of roadway in San Rafael that is determined by the City to meet the City’s Bicycle & Pedestrian Plan. This obligation shall be required at the time of the issuance of the first certificate of occupancy for either Building A or B, unless otherwise required by Section 4.11.1.

This obligation will commence upon issuance of the certificate of occupancy for either building A or B.

Contribution for Traffic Light Synchronization: Developer shall contribute $500,000 to the City towards the synchronization of traffic lights along the 2nd and 3rd Street corridors to improve traffic flow or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This obligation may be payable in full at the first anniversary of the Effective Date, or $125,000 each year for four (4) years (commencing on the first anniversary of the Effective Date and continuing for the next three (3) anniversaries of the Effective Date), at the option of Developer, in Developer’s sole discretion.

In exchange for this $500,000 contribution and in light of significant concerns about pedestrian safety and the fact that a parallel public path already exists, the City is eliminating a prior requirement that the Lindaro and Parking Expansion Project develop and maintain a trail along the backside of the Lincoln Avenue garage which is along southern edge of the campus abutting Mahon Creek.

BioMarin submitted checks in the amount of $125,000 to the City of San Rafael in April 2021 and 2022 as contribution towards the synchronization of traffic lights along the 2nd and 3rd Street corridors to improve traffic flow or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This is the 3
rd of four annual payments for a total of $500,000.

Contribution for Shuttle Service: Developer shall contribute $400,000 to the City for purposes of implementing a first mile/last mile shuttle service or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This obligation shall be payable in increments of $100,000 each year for four (4) years (commencing on the first anniversary of the Effective Date and continuing for the next three (3) anniversaries of the Effective Date).

BioMarin submitted two checks each in the amount of $100,000 to the City of San Rafael in April 2021 & 2022. This contribution is to support the City of San Rafael implementing a first mile/last mile shuttle service or for other traffic/circulation/parking improvement measures as reasonably determined by the City. This is the 3rd of four annual payments for a total of $400,000.

BiOMARIN.

City’s Use for Public Parking and Ancillary Uses. As of the Effective Date of this Agreement and until Developer submits any construction related permit (grading, building, etc.) for either Building A or B, the Developer shall allow the City to utilize up to 70% of the surface area of the R&D Development Property (the exact layout to be reasonably negotiated and agreed to by the parties so as to maximize the utility of the portion to be used by the City and the remaining portion) for public parking and ancillary uses (such as food truck market, etc.) (the “Temporary Public Parking Parcel”) until such time as commencement of construction activities for either building on the R&D Development Property. City shall be financially and legally responsible for (i) any improvements or modifications to the R&D Development Property that
BioMarin entered into the License Agreement for a Right of Entry for Temporary Use with the City of San Rafael on February 2, 2022. This License Agreement, which was amended in November 2022, allows for temporary public parking and ancillary uses, including construction lay down activities. City has been using the area for construction layout to support the 3rd street improvements and Eden Housing and Vivalon’s construction activities.

BiOMARIN.
____________________________________________________________________________________

FOR CITY CLERK ONLY
File No.: _______________________________
Council Meeting: _______________________
Disposition: ___________________________
Agenda Item No: 6.a
Meeting Date: May 1, 2023

SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Economic Development and Innovation
Prepared by: Micah Hinkle,
Economic Development Director
City Manager Approval: ______________
TOPIC: DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT SUBJECT: APPROVAL OF ACTIONS SUPPORTING THE DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT CAPACITY BUILDING AND MANAGEMENT:

I. RESOLUTION APPROPRIATING FUNDS AND AUTHORIZING THE CITY

MANAGER TO NEGOTIATE AND EXECUTE A DOWNTOWN BUSINESS

IMPROVEMENT DISTRICT MANAGEMENT AND ENHANCEMENT

AGREEMENT WITH THE SAN RAFAEL CHAMBER OF COMMERCE IN AN AMOUNT OF $100,000
ii. RESOLUTION APPOINTING DOWNTOWN BUSINESS IMPROVEMENT

DISTRICT ADVISORY BOARD MEMBERS
iii. RESOLUTION AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND

EXECUTE A DOWNTOWN BUSINESS IMPROVEMENT DISTRICT

TRANSITION AGREEMENT WITH THE DOWNTOWN SAN RAFAEL

BUSINESS IMPROVEMENT DISTRICT (BID CORPORATION) IN AN AMOUNT OF $5,000
IV. RESOLUTION ADOPTING THE DOWNTOWN BUSINESS IMPROVEMENT

DISTRICT ADMINISTRATIVE GUIDELINES
RECOMMENDATION:

It is recommended that the City Council take the following actions:

1. Adopt Resolution Appropriating Funds and Authorizing the City Manager to Negotiate and Execute a Downtown Business Improvement District Management and Enhancement Agreement with the San Rafael Chamber of Commerce in an Amount of $100,000

2. Adopt Resolution Appointing Downtown Business Improvement District Advisory Board Members

3. Adopt Resolution Authorizing the City Manager to Negotiate and Execute a Downtown Business Improvement District Transition Agreement with the Downtown San Rafael Business Improvement District (BID Corporation) in an Amount of $5,000

4. Adopt Resolution Adopting the Downtown Business Improvement District Administrative Guidelines
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
EXECUTIVE SUMMARY:

Since 1979, the Downtown San Rafael business district has supported assessments to support economic vitality. The assessment has been collected through the provisions of the California Streets and Highways Code and are authorized by City Council on an annual basis. Business Improvement District funds are collected through the City’s annual business license process and passed through to the San Rafael Business Improvement District, a California non-profit mutual benefit corporation (BID Corporation) for management, marketing, and support of business activities within the district boundaries.

The impacts of the COVID-19 pandemic have significantly reduced the businesses and collections of BID assessments in Downtown and have triggered the BID Corporation to modify operations and use reserve funds. With the uncertainty of business recovery from the pandemic and the shifting needs of the Downtown San Rafael, the BID Corporation, San Rafael Chamber of Commerce (Chamber), and the City have been working together to support a transition pathway for long-term growth of Downtown San Rafael.

For the next two years, the identified pathway to support Downtown BID operations and support the business community is to enter into a BID management and enhancement agreement with the Chamber.

The Chamber would be able to provide management, fiscal oversight, operations, and annual reporting, build business support capacity, and explore BID enhancements through a contractual agreement with the City. The intent is to continue the Downtown BID program operations over the next two years and to evaluate the business and property owner needs and recommend modifications to the BID Program for long-term sustainability.

To retain BID programmatic consistencies, it is recommended that the current BID Corporation Board of Directors be appointed as the City’s BID Advisory Board with an additional Board appointee recommended by the Chamber of Commerce and, if the agreement with the Chamber is approved, the City’s BID Advisory Board would be supported by the Chamber. While there is a recommended change in the BID management entity, the business community stakeholders and interested parties would remain the same.

BACKGROUND:

Section 36500 of the California Streets and Highways Code allows for the creation of a business improvement district (BID) within a municipality, whereby businesses within the district self-assess an annual fee to pay for improvements and activities which benefit the overall business district. The intent of the state law is to provide a funding mechanism for business districts to promote economic vitality.

In 1979, businesses in Downtown San Rafael first voted to set up a business improvement district. This original district included approximately 125 businesses along Fourth Street between Lincoln Avenue and E Street. In 2013, the BID was expanded and now includes approximately 700 businesses along the downtown core anchored along the Fourth Street corridor (See Attachment with map of the BID district).

The BID Corporation was created to receive the collected BID assessments and implement and manage programs supporting businesses within the district boundaries. Funds have been spent on program administration, marketing, physical improvements, and special events. Historically, special events have been the core program focus of collected assessment funds.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
The BID Corporation is comprised of volunteer board of directors made up of primarily small business owners or business representatives within the BID boundaries. The BID Corporation currently employs a part-time executive director. The City Council has typically appointed the BID Corporation Board of Directors as the BID Advisory Board that is required by the San Rafael Municipal Code Section 10.09 (Downtown BID Ordinance).

On December 5, 2022, City Council authorized the 2023 annual business assessment for the Downtown BID pursuant to the Downtown BID Ordinance. As part of the 2022 BID annual report, the BID fiscal operations and underlying BID Corporation operations and structure were identified as areas for exploration for operational efficiencies and strategic partnership between the BID Corporation, Chamber, and the City. This expanded partnership exploration is a direct result of business recovery from the COVID-19 pandemic, evolving business needs, and resources available in Downtown San Rafael. The BID Corporation and Chamber have already moved toward some shared operational efficiencies with office space. Over the past four months, the BID Corporation, Chamber, and City staff have worked on developing a framework for operational efficiencies, continuance of Downtown BID programming, and exploration of a pathway for long-term feasibility to enhance Downtown San Rafael.

ANALYSIS:

After collaborating with the BID Corporation and Chamber representatives about shared goals, City staff have developed the following actions to support the downtown and utilize the synergies of the BID Corporation, Chamber and City:

Business Improvement District Management and Enhancement Agreement – San Rafael Chamber of Commerce:

The San Rafael Chamber of Commerce is the premier business organization in Marin County and has been a key partner supporting economic recovery and development initiatives, including small business support, economic development strategic planning, and support of economic vitality through business expansion, attraction, and retention. The cross-memberships and existing partnerships with downtown businesses and property owners allow the Chamber to have an in-depth understanding of business needs and growth opportunities. The Chamber’s organizational capacity would allow them to step into BID management and implementation and allow a transitional partnership with the BID Corporation and the City. If approved by the Council, it is envisioned that the Chamber would be able to support the Council appointed BID Advisory Board, continue BID programming for the downtown business community and explore programmatic BID enhancements. Tasks would include engagement of property owners and business outreach associated with feasibility and needs analysis of a property-based improvement district or rate modifications to the business improvement district to establish a sustainable fiscal model for an enhanced San Rafael Downtown. The contract would be for an amount of $100,000 ($50,000 annually) for a two-year term, funded using City COVID-19 relief funds.

Appointment of 2023 Business Improvement District Advisory Board:

The City Council is required to appoint a BID Advisory Board. Listed below is the relevant text from the San Rafael Municipal Code:

10.09.080 - Advisory board and annual report.

The city council shall appoint an advisory board pursuant to Streets and Highways Code Section 36501 et seq. to administer the affairs of the BID. Members of the advisory board must own or represent a business in the BID, or be a voluntary member. The advisory board shall prepare an annual report for each year for which assessments are to be levied. The report shall be filed with the city clerk and shall comply with all requirements as stated in Streets and Highways Code Section 36501 et seq.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
The City Council-appointed BID Advisory Board has historically been the same as the Board of Directors for the BID Corporation. The last City Council appointed BID Advisory Board was in 2017 with terms that expired during the COVID-19 Pandemic. The City has not appointed an updated 2023 BID Advisory Board as members of the BID Corporation Board have changed since the last Council BID Advisory Board appointments. It is recommended that the City Council appoint the current BID Corporation Board of Directors with an addition of a Chamber of Commerce recommended appointment to the Business Improvement District Advisory Board to maintain programmatic consistency, meet required membership, and serve as the Board advisors for the Business Improvement District. The recommended BID Advisory Board Members for 2023 are:

Name Business
Terrance Thornton San Rafael Martial Arts
Adam Dawson Mike’s Bikes
Erika Bowker Pleasures of the Heart
Jeff Brusati T & B Sports
Amy & Bishlam Bullock Salon B Style Lab (1 Vote)
Joe McCallum Newmark*
Jed Greene Five Corners Consulting Group
Tobi Lessem Bodywise Massage
Kelly Phu Vin Antico
Morgan Schauffler Youth in Arts
Elisabeth Setten Artworks Downtown
*Chamber Recommendation
The BID Advisory Board term is recommended to be for the calendar year 2023. This would allow the BID Board oversight to remain in place during the proposed transition and allow for the BID Board and Chamber of Commerce to query interested and eligible businesses owners, representatives, and volunteers to make recommendations to the City Council for the 2024 BID Board as part of the Annual reporting for the BID, which would return to City Council in November/December of 2023.

BID Corporation Transition Agreement:

The exploration of BID program enhancement, capacity building, and support has been over the past few years a focus of City staff given the growing and changing needs of the Downtown business community.

The BID Corporation has been adapting to the pandemic impacts by evaluating and implementing operational efficiencies and seeking partnerships to strengthen shared targeted outcomes.

Unfortunately, sustainable revenue generation continues to erode BID viability. The Chamber and BID Corporation share a cross membership of businesses and have aligned goals for supporting and enhancing the San Rafael downtown and business community. As a pathway for transitioning the administrative and operational burden of the BID program, the City, Chamber, and BID Corporation have developed a transition framework between the City and BID Corporation to shift administrative and operational responsibilities and complete financial reporting requirements. It is anticipated that the transition activities would be completed by June 2023. Transition tasks include completion of Special Events: 1) May Madness and Dining Under the lights for May and June 2023. In addition, a financial close out report will be provided. This timeframe would correspond with the proposed start of the Chamber Agreement for BID Management.

BID Administrative Guidelines:

Lastly, staff recommends the Council adopt BID Administrative Guidelines. The administrative guidelines provide the rules and procedures for the BID Advisory Board and the BID management entity to SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
administer and operate the affairs of the BID, including how the City Council appoints members of the Advisory Board, how meetings of the BID Advisory Board are conducted in conformance with the Brown Act, and requirements for the BID Advisory Board to submit an annual report and spend BID funds in conformance with law. These guidelines will provide clarity to the Chamber of Commerce, the BID Board, and the City on roles and responsibilities in administering assessments and affairs of the BID, and will be incorporated into the Management and Enhancement Agreement with the Chamber.

FISCAL IMPACT:

Chamber BID Management/Enhancement Agreement: To support the transition and enhancement of the Downtown BID, staff is recommending General Fund support of an amount of $100,000 ($50,000 annually) for a two-year term for the BID Management and Enhancement Agreement with the San Rafael Chamber of Commerce. Staff is requesting an appropriation of $100,000 from the General Fund, using COVID-19 relief funds, to support the downtown economic vitality.

BID Corporation Transition Agreement: Prior to the COVID-19 pandemic, typical BID collected funds were approximately $83,000 annually. In 2022, the BID received approximately 25% less in assessment collections in the amount of $61,600 and is projecting $60,000 for 2023. The BID Corporation is operating at a deficit and has limited operational fund reserves. The transition agreement with the BID Corporation would be funded using $15,000 from 2023 BID assessment funds for operational expenses and $5,000 from the Economic Development Department Professional Services budget to support financial closeout reporting. The remaining 2023 BID funds will be held by the City until a BID Management and Enhancement Agreement is authorized and executed with the Chamber of Commerce.

BID Advisory Board and BID Administrative Guidelines: There is no fiscal impact associated with appointing the BID Advisory Board and adopting administrative guidelines.

OPTIONS:

The Downtown BID is a longstanding program supported by the business community and City for over 40 years. The staff recommended actions support community partnership opportunities to achieve shared goals and outcomes and build business capacity with the business/community and partners.

The City Council has the following options to consider on this matter:

1. Approve staff’s recommended actions.

2. Adopt resolutions with modifications.

3. Direct staff to return with more information.

4. Take no action.

RECOMMENDED ACTION:

It is recommended that the City Council take the following actions:

2. Adopt Resolution Appointing Downtown Business Improvement District Advisory Board Members

4. Adopt Resolution Adopting the Downtown Business Improvement District Administrative Guidelines
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6
ATTACHMENTS:

1. Resolution Approving BID Management and Enhancement Agreement with San Rafael Chamber of Commerce

2. Draft BID Management and Enhancement Agreement with San Rafael Chamber of Commerce

3. Resolution Appointing BID Advisory Board

4. Resolution Approving BID Transition Agreement with BID Corporation

5. Draft BID Transition Agreement with BID Corporation

6. Resolution Adopting BID Administrative Guidelines

7. BID Map
RESOLUTION NO.

RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROPRIATING FUNDS AND

AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A

DOWNTOWN BUSINESS IMPROVEMENT DISTRICT MANAGEMENT AND

ENHANCEMENT AGREEMENT WITH THE SAN RAFAEL CHAMBER OF COMMERCE IN AN AMOUNT OF $100,000
WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys.

Code § 36500 et seq. (“1989 Act”), authorizes cities to establish parking and business improvement areas for the purpose of promoting economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses and prevent erosion of business districts; and
WHEREAS, pursuant to the 1989 Act, in June 2013 the City Council of San Rafael adopted Ordinance No. 1912 (“Ordinance”), codified in the San Rafael Municipal Code (“SRMC”) Chapter 10.09, establishing the Downtown San Rafael Business Improvement District (“District”) to replace a former Parking and Business Improvements Area Business Improvement District established in 1979; and
WHEREAS, the Ordinance provides for the City’s collection of assessments on approximately 700 businesses that operate within the District’s boundaries; and WHEREAS, the revenues derived from the assessments are used for the general promotion of business activities, public events, and other activities that provide a specific benefit to the assessed businesses; and the acquisition, construction, installation and maintenance of tangible property that provide a specific benefit to the assessed businesses; and
WHEREAS, pursuant to section 36530 of the 1989 Act and SRMC Section 10.09.080, the Council appoints a District Advisory Board consisting of members that own or represent a business in the District or voluntary members; and WHEREAS, the District Advisory Board administers the affairs of the District and prepares an annual report each year describing which assessments are to be levied and files the report with the City Clerk; and
WHEREAS, the District Advisory Board is subject to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part I of Division 2 of Title 5 of the Government Code) at all times when matters within the subject matter of the District are heard, and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title I of the Government Code), for all records relating to activities of the District; and
WHEREAS, each year, the District Advisory Board administers those revenues and uses them for authorized purposes that benefit the assessed businesses and to prepare and to submit the annual report to the City Clerk reporting activities and finances of the District; and
WHEREAS, the Chamber is a California nonprofit mutual benefit corporation that is a member-based business advocacy organization supporting local businesses of San Rafael; and
WHEREAS, the COVID-19 pandemic significantly reduced the businesses and collections of District assessments and the District has operated with reserve funds; and WHEREAS, with the uncertainty of business recovery from the pandemic and improvement of economic conditions, the City believes that the District would benefit from assistance of the Chamber to create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and
WHEREAS, the City and the Chamber desire to enter into an Agreement for the Chamber to provide management and enhancement services for the District.

NOW, THEREFORE BE IT RESOLVED, that the City Council hereby appropriates $100,000 from the General Fund COVID-19 relief funds and authorizes the City Manager to negotiate and execute a downtown business improvement district management and enhancement agreement with the San Rafael Chamber of Commerce in an amount of $100,000, subject to form approved by the City Attorney.

I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on Monday, the 1st day of May 2023, by the following vote, to wit:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
_________________
Lindsay Lara, City Clerk

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AGREEMENT FOR THE MANAGEMENT AND ENHANCEMENT

OF THE DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT This Agreement (“Agreement”) is entered into as of ___________________ (the “Effective Date”), between the CITY OF SAN RAFAEL, a municipal corporation of the State of California ("City") and the SAN RAFAEL CHAMBER OF COMMERCE, a California nonprofit mutual benefit corporation (“Chamber”).

RECITALS
WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys. Code § 36500 et seq. (“1989 Act”), authorizes cities to establish parking and business improvement areas for the purpose of promoting economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses and prevent erosion of business districts; and
WHEREAS, pursuant to the 1989 Act, in June 2013 the City Council of San Rafael adopted Ordinance No. 1912 (“Ordinance”), codified in the San Rafael Municipal Code (“SRMC”) Chapter 10.09, establishing a reorganized Downtown San Rafael Business Improvement District (“District”) to replace a former Parking and Business Improvements Area Business Improvement District established in 1979; and WHEREAS, the Ordinance extended the collection boundaries beyond ground floor retail and provides for the City’s collection of assessments on approximately 700 businesses that operate within the District’s boundaries including offices and financial institutions; and WHEREAS, the revenues derived from the assessments are used for the general promotion of business activities, public events, and other activities that provide a specific benefit to the assessed businesses; and the acquisition, construction, installation and maintenance of tangible property that provide a specific benefit to the assessed businesses; and WHEREAS, pursuant to section 36530 of the 1989 Act and SRMC Section 10.09.080, the Council appoints a District Advisory Board consisting of members who own or represent a business in the District or voluntary members; and
WHEREAS, the District Advisory Board primary function is to administer the affairs of the District and prepare an annual report each year describing which assessments are to be levied and files the report with the City Clerk; and
WHEREAS, the District Advisory Board is subject to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part I of Division 2 of Title 5 of the Government Code) at all times when matters within the subject matter of the District are heard, and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title I of the Government Code), for all records relating to activities of the District; and WHEREAS, a separate California nonprofit mutual benefit corporation - the San

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Rafael Business Improvement District – was established by representatives of businesses in the District in 2012. This private corporation is referred to herein as the “BID Corporation” and its Board of Directors is the “BID Corporation Board”; and
WHEREAS, the City Council from time to time has updated its appointments to the District Advisory Board to be the same as the members of the BID Corporation Board; and WHEREAS, each year, the City has distributed the District’s assessment revenues to the BID Corporation, and the District Advisory Board administers those revenues to ensure that the BID Corporation uses them for authorized purposes that benefit the assessed businesses and to prepare and to submit the annual report to the City Clerk reporting activities and finances of the District; and
WHEREAS, the Chamber is a California nonprofit mutual benefit corporation that is a member-based business advocacy organization supporting local businesses of San Rafael; and WHEREAS, the Chamber has been operating and serving the business community for over one hundred years; and
WHEREAS, the Chamber staff has proven management skills, strong leadership and financial acumen and has worked closely with City staff and BID Corporation staff for over 30 years; and
WHEREAS, the BID Corporation now operates in the Chamber’s offices and has a close working relationship with the Chamber; and
WHEREAS, the COVID-19 pandemic significantly reduced the businesses and collections of District assessments and the BID Corporation has operated with reserve funds; and
WHEREAS, with the uncertainty of business recovery from the pandemic and improvement of economic conditions, the City believes that the District would benefit from assistance of the Chamber to create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and
WHEREAS, the Chamber can provide leadership, governance and administrative services in the execution of the District’s activities; and WHEREAS, the City and the Chamber desire to enter into this Agreement for the Chamber to support City staff by providing fiscal oversight, operations, and annual reporting of the District, and build capacity and explore District enhancements; and WHEREAS, the Chamber is the best organization suited to provide this support during a time of transition and help create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and

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WHEREAS, coincident with this Agreement, the City and the BID Corporation are entering into a separate transition agreement under which the BID Corporation will transition its affairs related to administration of the District and transfer all remaining District Funds back to the City.

NOW, THEREFORE, in consideration of the above recitals and for other good and sufficient consideration, the City and the Chamber agree as set forth herein.

AGREEMENT

1. The Chamber’s Duties.

The Chamber will furnish all technical and professional services, including labor, material, office space, equipment, transportation, supervision, and expertise to perform the following duties:
a. District Management Services. The Chamber will perform the following management services to the District (collectively, the “District Management Services”):
i. Provide administrative oversight of the District and ensure that the affairs and duties of the District Advisory Board are conducted in conformance with the 1989 Act, Chapter 10.09 of the San Rafael Municipal Code (a copy of which is attached hereto as Exhibit A), and the District Administrative Guidelines (attached hereto as Exhibit B);
ii. Receive, hold and distribute District Funds, pursuant to paragraph 4 of this Agreement;
iii. Develop the Annual Report and Budget for review and approval by the District Advisory Board, and submit to the City Clerk;
iv. Monitor the Budget and ensure monthly financial reports are prepared and presented to the District Advisory Board (including income statement, balance sheet and budget performance);
v. Assist with annual planning calendar and preparation and implementation of the District’s meetings, District Advisory Board member selection recommendations to the City Council, and annual reports; vi. Schedule, plan and host meetings of the District Advisory Board, including a meeting of the District Advisory Board within one (1) month of the Chamber’s receipt of the first payment of District Funds; vii. Provide special event marketing support, as outlined in the annual scope of work;
viii. Provide administrative services and support to the District to implement District program activities within the approved budget as needed; ix. Provide District member support related to District program activities as business issues may arise;
x. Award and administer contracts on behalf of the District for District activities;
xi. Market and promote the District’s events and activities within budget;

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xii. Maintain a webpage dedicated to, promoting, and marketing the District, and events and activities of the District; and
xiii. Mail one delinquent notice annually to each business who has not paid the annual assessment, with instructions on how to pay the annual assessment.

City will provide the Chamber with a list of delinquent businesses and their addresses for the notice.
b. District Enhancement Services. The Chamber will provide the following enhancement services to the City related to the District (collectively, “District Enhancement Services”):
i. Identify strategic partners, resources, and programs that could benefit San Rafael Downtown businesses and property owners for improved physical upgrades, safety, and marketing;
ii. Provide leadership training and orientation for hired staff supporting District activities;
iii. With City staff, liaison to the District to keep members informed of City issues and construction that may affect the District and its members; iv. Building upon the Economic Development Strategic Plan Draft and Downtown Precise Plan, conduct needs assessment outreach to businesses and property owners within the downtown on desired programming and needs to enhance economic vitality with specific focus on safety, cleanliness, marketing, and physical upgrades; and
v. Develop a database of property, business owner, and representative contact information including mailing addresses, phone numbers, and emails; and vi. Conduct outreach and host informational sessions with property owners and businesses to assist the City feasibility analysis of a property-based improvement district or modifications to the District business assessment rate structure to enhance economic vitality.

2. The City’s Duties.
a. Collection of assessments. The City will bill and collect assessments from businesses within the boundaries of the District annually in conjunction with the City’s annual business license.
b. Distribution of District Funds to the Chamber. The City will distribute to the Chamber the assessment funds actually collected by the City, with any interest that actually accrues upon such funds while in the City's possession and control, plus interest and penalties actually received by the City with respect to delinquent District assessment payments (collectively, the “District Funds”). The City will disburse the District Funds held by the City for the 2023 assessments in a lump sum payment by no later than June 1, 2023; except that $15,000 of the 2023 assessments will be disbursed to the BID Corporation to support their transition activities. Any District Funds collected by the City thereafter, including any remaining District Funds of the BID Corporation, will be disbursed to the Chamber when reasonably practical thereafter. Notwithstanding the forgoing, in the event of a legal challenge

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against any District assessments, or threat thereof, the City will have the right to delay disbursement or impound the District Funds, so that the assessments are available for refunds or satisfaction of judgments. Such right shall extend through the expiration of the legal challenge or threat thereof. c. Annual renewal for levy of assessments. The City Council will adopt a Resolution of Intention to Levy an Annual Assessment and hold a public hearing to confirm the District’s annual report and renew the assessments for the next calendar year. The public hearing is expected to occur in December each year, following the District Advisory Board’s submission of its annual report, as provided in the Administrative Guidelines (Exhibit B).
3) Compensation. For performance of District Management Services and District Enhancement Services by the Chamber described in paragraph 1a-b, the Chamber will be compensated by the City in the amount of $100,000, in two annual payments as follows:
i. $50,000 for the period of the Effective Date of this Agreement through June 30, 2024, payable within 30 days of receipt of invoice from the Chamber; and
ii. $50,000 for the period of July 1, 2024 through June 30, 2025, payable within 30 days of receipt of invoice to be submitted by the Chamber after March 31, 2024.

The compensation described in this paragraph is not considered District Funds under this Agreement and upon payment by the City will be separate funds of the Chamber. 4) District Funds Budgetary, Auditing, and Financial Obligations. a. District Funds Held in Restricted Funds Account. All District Funds in the possession/control of the Chamber hereunder are the property of the District and shall be held in a separate bank account by the Chamber solely for the benefit of the District. Such District Funds shall only be expended as outlined in the annual report approved by the City Council at the direction of the District Advisory Board. b. Chamber’s Use of District Funds. If the Chamber’s actual costs exceed $50,000 for each annual period listed above in paragraph 3, the Chamber will then be entitled to deduct its actual costs, to include overhead and staffing expenses, from any remaining District Funds, not to exceed 15% of the total amount of District Funds collected each year (based on 2023 assessments for the 2023-2024 period and 2024 assessments for the 2024-2025 period). The Chamber will provide an accounting of its costs to the District Advisory Board and the City to support such deductions. c. Budget Compliance. The Chamber will act as the fiscal agent of the District to administer District Funds in compliance with each annual report approved by the City Council and resolution adopted by the City Council levying the annual District assessment (collectively referred to as the “Budget”). All District Funds will be

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separately accounted for by the Chamber, and segmented from other revenue collected by the Chamber in its accounting and financial records. d. Records/Audit. During the term of this Agreement, and for four years after this Agreement’s term expires or terminates, the Chamber will maintain detailed financial records pertaining to District administration sufficient to provide the basis for an unqualified opinion by an independent auditor, including but not limited to records concerning budgeting, expenditures, subcontracts, insurance, permits, administrative expenses, and overhead. The Chamber agrees to make all such records available to the City upon request at all reasonable times. e. Confidentiality. The Chamber will comply with all laws governing the confidentiality of District assessment records, reports, and related information that may be provided to the Chamber by the City. A record of the total assessment of an individual business, or the fact that said business has allowed the assessment payment to become delinquent, is not deemed to be confidential. f. Compensation for District Management and Enhancement Services. The $100,000 compensation paid by the City to the Chamber for District Management Services and District Enhancement Services described in paragraph 3 will not be considered District Funds and are not subject to the terms of this paragraph 4. 5) Term and Termination.
a. Term. The term of this Agreement (the “Term”) will be from the Effective Date through June 30, 2025, unless mutually extended by the parties in writing. b. Termination for cause. If the City determines that the Chamber has misappropriated District Funds, committed malfeasance, or violated any law in providing the activities identified in the approved Budget or otherwise conducted by or on behalf of the District, or in otherwise administering the District, the City will have the right to immediately terminate this Agreement via written notice to the Chamber. c. Termination for convenience. Either party will have the right to terminate this Agreement for any reason with 90 days’ written notice to the other party. d. Obligations on Termination. Immediately following the expiration or earlier termination of this Agreement, the Chamber will do all of the following:
i. Terminate all activities of the Chamber covered by this Agreement; ii. Pay all obligations it incurred on behalf of the District; iii. Return to the City all remaining District Funds and all assets acquired with District Funds, together with an accounting thereof; and iv. Reimburse the City the total amount of compensation paid to the Chamber for District Management Services and District Enhancement Services prorated for the period of time after the effective date of termination.

Immediately following any early termination of this Agreement, the City will pay

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the Chamber any amount of compensation it may owe for District Management Services and District Enhancement Services pro-rated for the period of time up to the effective date of termination.

This provision will survive termination of this Agreement. 6) Indemnity and Insurance.
a. Indemnity.
i. All work done and performed by the Chamber pursuant to this Agreement, and all events held or conducted pursuant hereto shall be solely the responsibility of the Chamber and in this connection the Chamber agrees to indemnify and hold the City and each of its officers, officials, employees, agents and volunteers harmless of and from all claims of any kind and character for injuries to person or property, the Chamber's use of the District Funds disbursed to it or debts which may be incurred arising out of or, in anywise connected, directly or indirectly, with the Chamber's performance under the terms of this Agreement. In this connection, it is understood that the City is solely a disbursing agency of the District Funds, for the account of the District, and said District Funds will not become a part of any general fund or any other special fund of the Chamber or the City of San Rafael.
ii. Any and all obligations incurred by the Chamber hereunder, or otherwise, will be the sole obligation of the Chamber, and the Chamber shall have no authority to incur any obligations in the name of, or on behalf of, the City of San Rafael, or any department thereof. The City's obligations will be solely those described in paragraph 2.
iii. The Chamber shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the City, the District Advisory Board, the District members, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of any of the terms of this Agreement or performance of this Agreement. The Chamber’s obligations under the preceding sentence will not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of the City or any of its officers, officials, employees, agents or authorized volunteers.
iv. If the Chamber subcontracts all or any portion of the services to be provided by the Chamber under this Agreement, the Chamber shall require each

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subcontractor to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
v. This subsection shall survive termination or expiration of this Agreement. 7) Insurance. The Chamber will maintain insurance and comply with the insurance requirements provided in Exhibit C on forms approved by the City. 8) General Provisions
a. Notice. To be effective, any notice concerning this Agreement must be served by placing it in the U.S. Mail with postage prepaid to the following addressees. Either party may change the addressee by providing written notice to the other party.

Notice will be considered delivered two business days after the date of deposit in the U.S. Mail.

To City:

City of San Rafael
Director of Economic Development
1400 Fifth Avenue
San Rafael, CA 94901
[email protected]
To Chamber:

Chamber of Commerce
President and CEO
817 Mission Avenue
San Rafael, CA 94901
[email protected]
b. Independent Contractor Status. The Chamber will perform under this Agreement as an independent contractor and will be responsible for any federal, state, or local taxes or fees that apply to compensation the Chamber receives from the City under this Agreement. The Chamber’s employees and subcontractors will not be employees of the City and will not be eligible for any benefits provided through the City, including but not limited to social security, health, workers' compensation, unemployment compensation, or retirement benefits. Neither the District nor any of its officers, employees, agents, volunteers, or subcontractors are or will be considered to be agents of the City in connection with the Chamber's performance under this Agreement.
c. General Fund Not Liable for District Funds. Neither the taxing authority, nor the bonding capacity, nor the general fund, nor any other fund or monies of the City other than actual District Funds received from businesses located within the District will be liable for payment of any obligations in connection with the District Funds arising from this Agreement. Obligations of the District Funds are not a debt of the City, nor are they a legal or equitable pledge, charge, lien, or encumbrance upon any of the City's property, income, receipts, or revenues. This Agreement embodies all of the Chamber’s reimbursement rights with respect to the District Funds, and the City is not required to execute any additional note or document. d. Attorneys' Fees. The prevailing party in any litigation or arbitration brought to enforce this Agreement will be entitled to recover reasonable attorneys' fees and

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costs (including the reasonable costs of City Attorney staff) incurred in connection with the litigation or arbitration, through final resolution. e. Interpretation and Venue. This Agreement is to be interpreted in accordance with California law. Any litigation concerning this Agreement must be brought and prosecuted in the Marin County Superior Court.
f. Waiver. A party's failure to insist on strict performance of this Agreement or to exercise any right or remedy upon the other party's breach of this Agreement will not constitute a waiver of the performance, right, or remedy. A party's waiver of the other party's breach of any term or provision in this Agreement will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other term or provision. A waiver is binding only if set forth in writing and signed by the waiving party.
g. Entire Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement sets forth the parties' entire understanding regarding the subjects covered. It supersedes all prior or contemporaneous agreements, representations, and negotiations regarding those subjects (whether written, oral, express, or implied) and may be modified only by another written agreement signed by both parties.
h. Counterparts. The parties may execute this Agreement in counterparts, each of which will be considered an original, but all of which will constitute the same agreement.
i. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment.
j. Amendment. This Agreement may be modified only by written instrument duly authorized and executed by all the parties.
k. Successors and Assigns. Subject to limitations on assignment provided herein, this Agreement shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. The Chamber may not assign its rights or obligations under this Agreement without the prior written consent of City, which consent may be withheld at City's sole and absolute discretion. Any attempted assignment by the Chamber, its successors or assigns, shall be null and void unless approved in writing by the City.

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l. Authority to Sign. Each individual executing this Agreement, or its counterpart, warrants that they are authorized to do so and that this Agreement constitutes the legally binding obligation of the entity which they represent. [Signatures are on the following page.]

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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.

CITY OF SAN RAFAEL:
______________________________
JIM SCHUTZ, City Manager
APPROVED AS TO FORM:

Office of the City Attorney
______________________________
By: GENEVIEVE COYLE,
Assistant City Attorney
ATTEST:

City Clerk
______________________________
LINDSAY LARA, City Clerk
CHAMBER OF COMMERCE:
_____________________________
JOANNE WEBSTER, President
and CEO
_____________________________
[Other Corporate Officer]
Exhibits (incorporated by this reference):

Exhibit A: Chapter 10.09 of the San Rafael Municipal Code Exhibit B: San Rafael Improvement District Administrative Guidelines Exhibit C: Insurance Requirements

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Exhibit A
San Rafael Municipal Code, Chapter 10.09
Title 10 - BUSINESSES, PROFESSIONS, OCCUPATIONS, INDUSTRIES AND TRADES Chapter 10.09 DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT (Current through March 10, 2023)
Chapter 10.09 DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT

10.09.010 Purpose.

The purpose of this chapter is to authorize the city to impose assessments on business within a parking and business improvement area which are in addition to any assessments, fees, charges, or taxes imposed in the city, and to use such proceeds for the benefit of businesses within such area. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.020 Definitions.

For the purposes of this chapter and for identifying businesses in the Downtown San Rafael Business Improvement District and for calculating and applying the assessments owed, the following definitions shall apply:

A. "Financial institutions"—Banks (retail and full service), savings and loans, credit unions as allowed in the underlying zoning district.

B. "Non-Profit organizations"—Organizations registered as a non-profit corporation with the State of California and fine artists.

C. "Fine artists"—Artists that produce art that is intended primarily for beauty rather than utility or commercial purposes.

D. "Offices"—Businesses providing administrative or business services such as company headquarters, employment agencies, management services as allowed in the underlying zoning district.

E. "Personal services"—Businesses that sell services such as hair salons, nail salons and day spas as allowed in the underlying zoning district, and may combine some retail sales with product services, and may be associated with sole practitioners.

F. "Personal services, not on ground floor"—Personal service businesses that are not located on the ground floor of a building and do not have a retail presence on the street.

G. "Personal services sole practitioner"—Businesses that are sole practitioners in personal services businesses, including barbershop chairs, manicurists chairs, beauty shop chairs and miscellaneous personal care chairs.

H. "Professionals"—Businesses that require advanced and/or specialized licenses and/or advanced academic degrees, such as architects, engineers, attorneys, accountants, therapists, counselors, realtors, mortgage brokers as allowed in the underlying zoning district. Professionals working as sole practitioners are in this category.

I. "Restaurant"—Businesses that sell prepared foods and drinks as allowed in the underlying zoning district.

J. "Retail"—Businesses that buy and sell goods, such as clothing stores, shoe stores, office supplies as allowed in the underlying zoning district.

Created: 2023-03-14 09:10:26 [EST]
(Supp. No. 35)

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(Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.030 District established.

Pursuant to the provisions of Streets and Highways Code Section 36501 et seq., a parking and business improvement district is hereby established, named "Downtown San Rafael Business Improvement District" (the "BID").
(Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.040 Boundaries of district and benefit zones.

The parking and business improvement area created herein includes businesses situated within the boundaries described as follows:

Those businesses situated on parcels fronting on the north side of Fourth Street from Second Street to E Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 010-291-57, 35, 34, 33, 49, 69; 011-192-18, 08, 07; 011-194-11, 13, 08, 07; 011-196-12, 11, 10, 09, 08, 07; 011-202-13, 12, 11, 14; those businesses situated on parcels bound by Fourth Street, Second Street and Ida Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-231-24, 25, 03, 04, 05, 06, 21, 17, 16; those businesses situated on parcels fronting on the south side of Fourth Street from Ida Street to E Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-232-01, 02, 03; 011-241-01, 30, 31, 32, 33; 011-242-01, 02, 03, 04, 05, 06, 07, 08, 09, 10, 11; 011-245-26; those businesses situated on parcels bound by E Street, Hetherton Street, Fifth Avenue and Third Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-204-01, 16, 15, 14, 13, 17, 09, 08, 20, 18, 19; 011-205-01, 15, 14, 13, 12, 11, 10, 09, 08, 16, 05, 04, 17; 011-212-15, 14, 16, 11, 06, 05, 04, 03; 011-214-10; 011-215-01, 02, 04, 05; 011- 216-01; 011-222-08, 05; 011-224-01, 18, 17, 20, 15, 14, 13, 12, 11, 10, 19, 08, 06, 05, 04, 03, 02, 21; 011-227-01, 08, 07, 06, 05, 04, 10, 09, 02; 011-251-01, 13, 12, 11, 10, 09, 08, 07, 06, 05, 04, 03, 02; 011-253-01, 09, 08, 07, 06, 11, 10, 04, 03, 02; 011-255-27, 15, 14, 13, 18, 10, 29, 33, 19, 20, 07, 31, 30, 32, 23, 28, 03; 011-261-01, 13, 12, 20, 26, 29, 30, 17, 31; 011-263-20, 21, 02, 19, 04, 16, 22, 13, 11, 10, 09, 08, 07, 06, 05, 02; 011-271-01, 16, 15, 14, 13, 12, 11, 17, 07, 06, 05, 04, 03, 02, 01; 011-273-01, 17, 18, 12, 11, 10, 09, 08, 24, 06, 05, 04, 23, 02; 011-275-01, 12, 11, 10, 09, 13, 05, 04, 03, 02; 011-277-01; 014-084-13, 14, 02; 014-121-14; those businesses situated on parcels fronting on B Street from Third Street to Second Street, more particularly assessor's parcels as shown on the 2012 Assessor's Maps as follows: 011-256-26, 07, 08, 09, 32, 12; 011-262-01, 21, 22, 16, 15, 14, 23.

The standard benefit zone is that portion of the Downtown San Rafael Business Improvement District located to the west of E Street, that portion to the east of Lincoln Avenue, and that portion fronting on B Street from Third to Second Street.

The premium benefit zone is the remainder of the Downtown San Rafael Business Improvement District; specifically that portion located the east of E Street and west of Lincoln Avenue, between Fifth Avenue and Third Street.

Said area zones are reflected on a graphic, Exhibit A, attached to the ordinance codified in this chapter and incorporated in this chapter by reference.
(Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.050 Calculation of assessments.

All businesses in the BID shall, commencing on January 1, 2015 pay an annual benefit assessment to the BID in the amounts shown in Table 10.09.050-1.

Created: 2023-03-14 09:10:26 [EST]
(Supp. No. 35)

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Table 10.09.050-1
Annual Assessment
Type of Business Standard Premium
Retail on the ground floor, restaurant, personal
services on ground floor
$175 $225
Retail on the ground floor, restaurant, personal
services on ground floor—Businesses with less
than $100,000 in gross receipts
$150 $175
Offices, professional, personal services, not on
ground floor, retail, not on ground floor
$75 $100
Personal services sole practitioner $25 $50
Non-profit organization and fine artists $50 $50
Financial institution $375 $425
Assessments based upon 'gross receipts' shall be based upon the previous year's annualized gross receipts.

An individual who has multiple business licenses in their name at a single address shall only pay one assessment fee. No person or business shall be required to pay an assessment for residential uses, residential businesses or home occupations. Any business outside the BID may voluntarily pay the standard zone assessment. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.060 Use of revenue.

The revenues derived from the assessments shall be used for the purposes as stated in Streets and Highways Code Section 36501 et seq. for the specific benefit of assessed businesses which may include:

A. General promotion of businesses activities which provide a specific benefit to assessed businesses within the BID;
B. Promotion of public events which provide a specific benefit to assessed businesses within the BID and which take place on or in public places within the BID; C. The acquisition, construction, installation and maintenance of any tangible property including but not limited to benches, trash receptacles, decorations and landscaping which provide a specific benefit to assessed businesses within the BID;
D. Activities which provide a specific benefit to assessed businesses located and operating in the BID. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.070 Collection of assessments.

The benefit assessment shall be billed annually by the city in conjunction with the city's annual business license. Any business exempt from paying city business license fees shall be assessed in January of each year. All assessments collected shall be held in a separate account and expended in accordance with this chapter and any subsequent resolutions and funds management agreement.
(Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 ) Created: 2023-03-14 09:10:26 [EST]
(Supp. No. 35)

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10.09.080 Advisory board and annual report.

10.09.090 District proceeds do not offset city services.

Funds derived from the BID assessments shall not be used to offset or diminish current maintenance or capital improvement programs, including but not limited to public property and sidewalk cleaning and maintenance, street cleaning and maintenance, tree maintenance. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

10.09.100 Boundary and assessment modifications.

The city council may, at the advisory board's recommendation, modify the boundaries or assessments. Such modifications shall be made pursuant to the requirements of Streets and Highways Code Section 36501 et seq. (Ord. No. 1912, § 3, 6-3-2013; Ord. No. 1926, § 2, 12-1-2014 )

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Exhibit B
Downtown San Rafael Business Improvement District
Administrative Guidelines

1. District. The Downtown San Rafael Business Improvement District (“District”) is a parking and business improvement district established pursuant to the provisions of Streets and Highways Code Section 36501 et seq., and codified in Chapter 10.09 of the San Rafael Municipal Code.

2. Appointment of District Advisory Board. The City Council, in its sole and absolute discretion, will appoint the District Advisory Board, pursuant to the Streets and Highways Code Section 36501 et seq. and San Rafael Municipal Code section 10.09.080, to administer the affairs of the District. The City Council will review and update the District Advisory Board appointments as it deems appropriate. The City Council may, but is not required to, appoint any members of the Board of Directors of the San Rafael Chamber of Commerce (“Chamber”) to the District Advisory Board, provided that such members meet the eligibility requirements under San Rafael Municipal Code section 10.09.080. a. District Advisory Board Nominations. The District Advisory Board will conduct an annual meeting to select the nominations for District Advisory Board. The District Advisory Board nominations will be provided to the City Clerk at the time of the submittal of the District Annual Report. The Advisory Board nominations should reflect a balance of downtown business representation including retail businesses, non-retail businesses, and at least one district eligible Chamber business recommended by the Chamber.

3. Management and Enhancement Services of the Chamber of Commerce. The City has contracted with the Chamber to provide District management and enhancement services to the District, and act as the fiscal agent of District Funds. The Advisory Board will conduct all of its affairs consistent with the City’s agreement with the Chamber.

4. Governance; meetings. The District Advisory Board is a separate, standalone advisory board appointed by the City Council to administer the affairs of the District. To the extent determined necessary by the District Advisory Board, it will develop its own bylaws or operating rules, separate from the Chamber Board of Director’s bylaws. The District Advisory Board will conduct its meetings, and meet separately and at a different time than the Chamber Board of Directors. If these meeting are to occur on the same date, before or after each other, the meeting agendas will be clearly delineated to specify which organization is meeting at which time. In noticing and conducting its meetings as the District Advisory Board, the District Advisory Board will, in all respects, comply with the Brown Act, as specified below.

5. Compliance with Brown Act and Public Records Act. The District Advisory Board must comply with all federal, state, and local laws, including The Ralph M. Brown Act (Government Code § 54950 et seq.) ("Brown Act") whenever matters within the subject matter of the District are heard, discussed, or deliberated, and the California Public Records Act (Government Code § 6250 et seq.) for all documents relating to activities of the District. See Exhibit B-1 for more information on the Brown Act.

6. Conflicts of interest. Members of the District Advisory Board will serve without compensation and may not have any interest in any agreement for compensation entered into by or on behalf of the District.

7. District Funds. District Funds (revenues derived from the assessments and transferred from the City to the Chamber) shall be used solely for the purposes as stated in Streets and Highways Code section

Page 20 ends

36501 et seq. and San Rafael Municipal Code section 10.09.060.

8. Annual Reports. The District Advisory Board will submit annual reports to the City, no later than October 15 of each year. The annual report contents and filing will conform with the 1989 Act, Streets and Highways Code section 36533, as follows:
§ 36533. Annual report; contents; filing
(a) The advisory board shall cause to be prepared a report for each fiscal year for which assessments are to be levied and collected to pay the costs of the improvements and activities described in the report. The report may propose changes, including, but not limited to, the boundaries of the parking and business improvement area or any benefit zones within the area, the basis and method of levying the assessments, and any changes in the classification of businesses, if a classification is used.
(b) The report shall be filed with the clerk and shall refer to the parking and business improvement area by name, specify the fiscal year to which the report applies, and, with respect to that fiscal year, shall contain all of the following:
(1) Any proposed changes in the boundaries of the parking and business improvement area or in any benefit zones within the area.
(2) The improvements and activities to be provided for that fiscal year. (3) An estimate of the cost of providing the improvements and the activities for that fiscal year. (4) The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year.
(5) The amount of any surplus or deficit revenues to be carried over from a previous fiscal year. (6) The amount of any contributions to be made from sources other than assessments levied pursuant to this part.
(c) The city council may approve the report as filed by the advisory board or may modify any particular contained in the report and approve it as modified. The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessments.

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Exhibit B-1
Summary of The Brown Act Provisions
The Advisory Board of the Downtown San Rafael Business Improvement District (“District”) issubject to the Ralph M. Brown Act when matters within the subject matter of the District are heard, discussed, or deliberated and shall comply with the California PublicRecords Act. The California Public Records Actrequires that non-exempt records of the District be accessible by the public. The Brown Act isintended to ensure that “actions be taken openly and that deliberations be conducted openly” by boards who are created by formal action of city councils. Some of the more important requirements of the Brown Act are listed below.

The Advisory Board and any standing committees and committees comprised of at least a majority of the Board members are subject to the following requirements:
 Except for closed sessions which are expressly permitted under the Brown Act, all meetings must be open to the public and must allow public comment;  Some closed sessions are allowed based on limited exceptions (litigation, employment issues, etc.);
 A meeting is defined as a congregation of a majority of Board members, or serial individual meetings involving a majority or more of the Board members wherein District business is discussed or conducted;
 Agendasfor upcoming, regular meetings must be posted at least 72 hoursin advance; and  Action can only be taken on items listed on the posted agenda.

The above list provides a simple overview. The Brown Act is updated routinely by the State of California and has more requirements. City staff should be contacted for current Brown Act resources, information and training.

Exhibit C
Insurance Requirements
During the term of this Agreement, and for any time period set forth below, the CHAMBER OF COMMERCE (as CONSULTANT) shall procure and maintain in full force and effect, at no cost to CITY insurance policies with respect to employees and vehicles assigned to the performance of Services under this Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage verifications as defined in this Exhibit B.

A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maintain, at no expense to CITY, the following insurance policies:

1. Commercial general liability. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage.

2. Automobile liability. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence.

3. Professional liability. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section.

4. Workers’ compensation. If it employs any person, CONSULTANT shall maintain workers’ compensation insurance, as required by the State of California, with statutory limits, and employer’s liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONSULTANT’s workers’ compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY.

B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements:

1. Except for professional liability insurance or workers’ compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies.

2. The additional insured coverage under CONSULTANT’s insurance policies shall be “primary and noncontributory” with respect to any insurance or coverage maintained by CITY and shall not call upon CITY'sinsurance or self-insurance coverage for any contribution. The “primary and noncontributory” coverage in CONSULTANT’S policies shall be at least as broad as ISO form CG20 01 04 13.

3. Except for professional liability insurance or workers’ compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury.

4. By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer.

5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years.

6. The insurance policies shall provide for a retroactive date of placement coinciding with the Effective Date of this Agreement.

7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY’S own insurance or self-insurance shall be called upon to protect it as a named insured.

8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the CONSULTANT under this Agreement.

9. CONSULTANT agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by CONSULTANT, provide the same minimum insurance coverage required of CONSULTANT, except as with respect to limits. CONSULTANT agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement.

CONSUTLANT agrees that upon request by CITY, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the performance of Services will be submitted to CITY for review.

10. CONSULTANT agrees to be responsible for ensuring that no contract used by any party involved in any way with the Services reserves the right to charge CITY or CONSULTANT for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to CITY. It is not the intent of CITY to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against CITY for payment of premiums or other amounts with respect thereto.

C. Deductibles and SIR’s. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the CITY and shall not reduce the limits of liability.

Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney’s fees and defense expenses.

D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by the CITY.

RESOLUTION NO.

RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPOINTING DOWNTOWN

BUSINESS IMPROVEMENT DISTRICT (BID) ADVISORY BOARD MEMBERS WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys.

Terrence Thornton San Rafael Martial Arts
Erika Bowker Pleasures of the Heart
Adam Dawson Mike’s Bikes
Jed Greene Five Corners Consulting Group
Tobi Lessem Bodywise Massage
Jeff Brusati T&B Sports
Amy & Bishlam Bullock (1 vote) Salon B Style Lab
Morgan Schauffler Youth in Arts
Elisabeth Setten Artworks Downtown
Kelly Phu Vin Antico
Joe McCallum Newmark
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on Monday, the 1st day of May 2023, by the following vote, to wit:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
_________________
Lindsay Lara, City Clerk
RESOLUTION NO.

RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE CITY

MANAGER TO NEGOTIATE AND EXECUTE A DOWNTOWN BUSINESS

IMPROVEMENT DISTRICT TRANSITION AGREEMENT WITH THE DOWNTOWN SAN

RAFAEL BUSINESS IMPROVEMENT DISTRICT (BID CORPORATION) IN THE AMOUNT OF $5,000
WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys.

Code § 36500 et seq. (“1989 Act”), authorizes cities to establish parking and business improvement areas for the purpose of promoting economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses and prevent erosion of business districts; and
WHEREAS, pursuant to the 1989 Act, in June 2013 the City Council of San Rafael adopted Ordinance No. 1912 (“Ordinance”), codified in the San Rafael Municipal Code (“SRMC”) Chapter 10.09, establishing the Downtown San Rafael Business Improvement District (“District”) to replace a former Parking and Business Improvements Area Business Improvement District established in 1979; and
WHEREAS, the Ordinance provides for the City’s collection of assessments on approximately 700 businesses that operate within the District’s boundaries; and WHEREAS, the revenues derived from the assessments ( “District Funds”) are used for the general promotion of business activities, public events, and other activities that provide a specific benefit to the assessed businesses; and the acquisition, construction, installation and maintenance of tangible property that provide a specific benefit to the assessed businesses; and
WHEREAS, pursuant to section 36530 of the 1989 Act and SRMC Section 10.09.080, the Council appoints a District Advisory Board consisting of members that own or represent a business in the District or voluntary members; and WHEREAS, the District Advisory Board administers the affairs of the District and prepares an annual report each year describing which assessments are to be levied and files the report with the City Clerk; and
WHEREAS, the District Advisory Board is subject to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part I of Division 2 of Title 5 of the Government Code) at all times when matters within the subject matter of the District are heard, and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title I of the Government Code), for all records relating to activities of the District; and
WHEREAS, the BID Corporation, which operates as a separate California nonprofit mutual benefit corporation under direction of its Board of Directors (the “BID Corporation Board”) was established by representatives of businesses in the District in 2012; and WHEREAS, each year, the City has distributed the District Funds to the BID Corporation, and the District Advisory Board administers those revenues to use them for authorized purposes that benefit the assessed businesses and to prepare and to submit the annual report to the City Clerk reporting activities and finances of the District; and WHEREAS, all District Funds in the possession/control of the BID Corporation are the property of the District and are held in trust by the BID Corporation solely for the benefit of the District; and
WHEREAS, the San Rafael Chamber of Commerce (“Chamber”) is a California nonprofit mutual benefit corporation that is a member-based business advocacy organization supporting local businesses of San Rafael; and
WHEREAS, the BID Corporation now operates in the Chamber’s offices and has a close working relationship with the Chamber; and
WHEREAS, the COVID-19 pandemic significantly reduced the businesses and collections of District assessments in 2022 and the District, in 2022, reduced its operations and operated with reserve funds; and
WHEREAS, with the uncertainty of business recovery form the pandemic and improvement of economic conditions, the City believes that the District would benefit from administration by the Chamber to create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and
WHEREAS, the City and the Chamber are entering into a separate agreement under which the Chamber will provide District management and enhancement services; and WHEREAS, the City and the BID Corporation desire to enter into an Agreement for the BID Corporation to winddown its affairs related to administration of the District and transfer all remaining District Funds in its possession or control back to the City.

NOW, THEREFORE BE IT RESOLVED, that the City Council hereby authorizes the City Manager to negotiate and execute a downtown business improvement district transition agreement with the Downtown San Rafael Business Improvement District (BID Corporation) in an amount of $5,000, subject to form approved by the City Attorney.

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
_________________
Lindsay Lara, City Clerk

AGREEMENT FOR TRANSITION

OF THE DOWNTOWN SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT This Agreement (“Agreement”) is entered into as of ___________________ (the “Effective Date”), between the CITY OF SAN RAFAEL, a municipal corporation of the State of California ("City") and the SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT, a California nonprofit mutual benefit corporation (“BID Corporation”).

RECITALS
WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys.

10.09, establishing a reorganized Downtown San Rafael Business Improvement District (“District”) to replace a former Parking and Business Improvements Area Business Improvement District established in 1979; and
WHEREAS, the Ordinance extended the collection boundaries beyond ground floor retail and provides for the City’s collection of assessments on approximately 700 businesses that operate within the District’s boundaries including offices and financial institutions; and WHEREAS, the revenues derived from the assessments (defined herein as “District Funds”) are used for the general promotion of business activities, public events, and other activities that provide a specific benefit to the assessed businesses; and the acquisition, construction, installation and maintenance of tangible property that provide a specific benefit to the assessed businesses; and WHEREAS, pursuant to section 36530 of the 1989 Act and SRMC Section 10.09.080, the Council appoints a District Advisory Board consisting of members who own or represent a business in the District or voluntary members; and
WHEREAS, the District Advisory Board’s primary function is to administer the affairs of the District and prepare an annual report each year describing which assessments are to be levied and files the report with the City Clerk; and
WHEREAS, the District Advisory Board is subject to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part I of Division 2 of Title 5 of the Government Code) at all times when matters within the subject matter of the District are heard, and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title I of the Government Code), for all records relating to activities of the District; and WHEREAS, the BID Corporation, which operates as a separate California nonprofit mutual benefit corporation under direction of its Board of Directors (the “BID Corporation Board”) was established by representatives of businesses in the District in 2012; and WHEREAS, the City Council from time to time has updated its appointments to the District Advisory Board to be the same as the members of the BID Corporation Board; and WHEREAS, each year, the City has distributed the District Funds to the BID Corporation, and the District Advisory Board administers those revenues to ensure that the BID Corporation uses them for authorized purposes that benefit the assessed businesses and to prepare and to submit the annual report to the City Clerk reporting activities and finances of the District; and WHEREAS, all District Funds in the possession/control of the BID Corporation are the property of the District and are held in trust by the BID Corporation solely for the benefit of the District; and
WHEREAS, the San Rafael Chamber of Commerce (“Chamber”) is a California nonprofit mutual benefit corporation that is a member-based business advocacy organization supporting local businesses of San Rafael; and
WHEREAS, the Chamber has been operating and serving the business community for over one hundred years; and
WHEREAS, the Chamber staff has proven management skills, strong leadership and financial acumen and has worked closely with City staff and the BID Corporation staff for over 30 years; and
WHEREAS, the BID Corporation now operates in the Chamber’s offices and has a close working relationship with the Chamber; and
WHEREAS, the COVID-19 pandemic significantly reduced the businesses and collections of District assessments in 2022 and the BID Corporation, in 2022, reduced its operations and operated with reserve funds; and
WHEREAS, with the uncertainty of business recovery form the pandemic and improvement of economic conditions, the City believes that the District would benefit from administration by the Chamber to create capacity building and pathways for long-term sustainability to support Downtown San Rafael; and
WHEREAS, the Chamber can provide leadership, governance and administrative services in the execution of the District’s activities; and
WHEREAS, coincident with this Agreement, the City and the Chamber are entering into a separate agreement under which the Chamber will provide management and enhancement services for the District; and
WHEREAS, the City and the BID Corporation desire to enter into this Agreement for the BID Corporation to transition its affairs related to administration of the District and transfer all remaining District Funds back to the City.

NOW, THEREFORE, in consideration of the above recitals and for other good and sufficient consideration, the City and the BID Corporation agree as set forth herein.

AGREEMENT

1. The BID Corporation’s Duties.
a. Transition of District Activities. Until such date that it returns the District Funds to the City in accordance with subparagraph (b), the BID Corporation will continue to administer ongoing activities of the District but will not enter into any new contracts or obligations on behalf of the District. The BID Corporation will complete the following District improvements and activities that are currently obligated:
i. Special Event Activities: 1) May Madness may 6, 2023 and 2) Dinning Under the Lights May 12, 2023 and June 12, 2023.

The BID Corporation will not perform, schedule or obligate any other District improvements or activities.
b. Termination of District Activities. No later than June 30, 2023, the BID Corporation will:
i. Terminate all administration, improvements and activities of the District; ii. Pay all obligations and administration costs it incurred on behalf of the District; and
iii. Return to the City all remaining District Funds, including reserves, and all assets acquired with District Funds, together with an accounting thereof. b. Closure Report. No later than June 30, 2023, prepare and submit to the City a closure report (“Closure Report”) detailing the activities and finances of the District, including:
i. The District improvements and activities completed or partially completed since the date of its 2022 annual report submitted to the City;
ii. Planned and scheduled improvements and activities of the District for the remainder of 2023; and
iii. Budget and accounting records pertaining to the District administration sufficient to provide the basis for an unqualified opinion by an independent auditor, including but not limited to budget, expenditures, subcontracts, insurance, permits, administrative expenses, overhead, and any contributions to District Funds made from sources other than assessments.
c. Supplemental Post-Closure Report and Payment. No later than August 31, 2023, prepare and submit to the City a supplemental post-closure report (“Post-Closure Report”) detailing any additions or changes to the information reported in the Closure Report. Said report will cover the time period of the date of the Closure Report through the date of the Post-Closure Report.

The BID Corporation will further return to the City any remaining District Funds not previously accounted for.

2. The City’s Duties.
a. Compensation. In exchange for the BID Corporation’s performance of services for the City in this Agreement, the City will compensate the BID Corporation in the amount of $5,000, payable in one lump sum within ten (10) days of the Effective Date of this Agreement. This compensation is separate from the District Funds and is intended to compensate the BID Corporation directly for its services provided under this Agreement. b. Distribution of District Funds. The City will distribute $15,000 of District Funds collected by the City through assessments levied in 2023 to the BID Corporation for District activities to be performed through June 30, 2023, payable in one lump sum within ten (10) days of the Effective Date of this Agreement. The BID Corporation may only use the District Funds for the purposes authorized under the 1989 Act and the Ordinance.
3) Term. The term of this Agreement (the “Term”) will be from the Effective Date through August 31, 2023.
4) Obligations of the BID Corporation. Any and all obligations incurred by the BID Corporation hereunder, or otherwise, will be the sole obligation of the BID Corporation, and the BID Corporation shall have no authority to incur any obligations in the name of, or on behalf of, the City of San Rafael, or any department thereof, or the District, except where expressly stated in paragraph 1 regarding obligations of the District.
5) General provisions
a. Notice. To be effective, any notice concerning this Agreement must be served by placing it in the U.S. Mail with postage prepaid (registered or certified mail, return receipt requested) to the following addressees. Either party may change the addressee by providing written notice to the other party. Notice will be considered delivered two business days after the date of deposit in the U.S. Mail.

To City:

City of San Rafael
Director of Economic Development
1400 Fifth Avenue
San Rafael, CA 94901
[email protected]
To BID Corporation:

San Rafael Business Improvement District
Terrence Thornton, President
P.O. Box 151050
San Rafael, CA 94915
[email protected]
b. Independent Contractor Status. The BID Corporation will perform under this Agreement as an independent contractor and will be responsible for any federal, state, or local taxes or fees that apply to compensation the BID Corporation receives from the City under this Agreement. The BID Corporation’s employees and subcontractors will not be employees of the City and will not be eligible for any benefits provided through the City, including but not limited to social security, health, workers' compensation, unemployment compensation, or retirement benefits. Neither the District nor any of its officers, employees, agents, volunteers, or subcontractors are or will be considered to be agents of the City in connection with the BID Corporation's performance under this Agreement. c. General Fund Not Liable. Neither the taxing authority, nor the bonding capacity, nor the general fund, nor any other fund or monies of the City other than actual District Funds received from businesses located within the District will be liable for payment of any obligations in connection with the District Funds arising from this Agreement. Obligations of the District Funds are not a debt of the City, nor are they a legal or equitable pledge, charge, lien, or encumbrance upon any of the City's property, income, receipts, or revenues. This Agreement embodies all of the BID Corporation’s reimbursement rights with respect to the District Funds, and the City is not required to execute any additional note or document.
d. Attorneys' Fees. The prevailing party in any litigation or arbitration brought to enforce this Agreement will be entitled to recover reasonable attorneys' fees and costs (including the reasonable costs of City Attorney staff) incurred in connection with the litigation or arbitration, through final resolution.
e. Interpretation and Venue. This Agreement is to be interpreted in accordance with California law. Any litigation concerning this Agreement must be brought and prosecuted in the Marin County Superior Court.
f. Waiver. A party's failure to insist on strict performance of this Agreement or to exercise any right or remedy upon the other party's breach of this Agreement will not constitute a waiver of the performance, right, or remedy. A party's waiver of the other party's breach of any term or provision in this Agreement will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other term or provision. A waiver is binding only if set forth in writing and signed by the waiving party. g. Entire Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement sets forth the parties' entire understanding regarding the subjects covered. It supersedes all prior or contemporaneous agreements, representations, and negotiations regarding those subjects (whether written, oral, express, or implied) and may be modified only by another written agreement signed by both parties.
h. Counterparts. The parties may execute this Agreement in counterparts, each of which will be considered an original, but all of which will constitute the same agreement. i. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment.
j. Amendment. This Agreement may be modified only by written instrument duly authorized and executed by all the parties.
k. Successors and Assigns. Subject to limitations on assignment provided herein, this Agreement shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. The BID Corporation may not assign its rights or obligations under this Agreement without the prior written consent of City, which consent may be withheld at City's sole and absolute discretion. Any attempted assignment by the BID Corporation, its successors or assigns, shall be null and void unless approved in writing by the City. l. Authority to Sign. Each individual executing this Agreement, or its counterpart, warrants that they are authorized to do so and that this Agreement constitutes the legally binding obligation of the entity which they represent.
[Signatures are on the following page.]
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.

CITY OF SAN RAFAEL:
______________________________
JIM SCHUTZ, City Manager
APPROVED AS TO FORM:

Office of the City Attorney
______________________________
By: GENEVIEVE COYLE,
Assistant City Attorney
ATTEST:

City Clerk
______________________________
LINDSAY LARA, City Clerk

SAN RAFAEL BUSINESS
IMPROVEMENT DISTRICT:
_____________________________
Terrance Thornton, President
_____________________________
Jed Greene, Acting Treasurer

RESOLUTION NO.

RESOLUTION OF THE SAN RAFAEL CITY COUNCIL ADOPTING THE DOWNTOWN

SAN RAFAEL BUSINESS IMPROVEMENT DISTRICT ADMINISTRATIVE

GUIDELINES
WHEREAS, the Parking and Business Improvement Area Law of 1989, Cal. Strs. & Hwys.

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
_________________
Lindsay Lara, City Clerk

Page 1 ends

Exhibit 1
Downtown San Rafael Business Improvement District
Administrative Guidelines
(May 2023)

10.09.080, to administer the affairs of the District. The City Council will review and update the District Advisory Board appointments as it deems appropriate. The City Council may, but is not required to, appoint any members of the Board of Directors of the San Rafael Chamber of Commerce (“Chamber”) to the District Advisory Board, provided that such members meet the eligibility requirements under San Rafael Municipal Code section 10.09.080.
a. District Advisory Board Nominations. The District Advisory Board will conduct an annual meeting to select the nominations for District Advisory Board. The District Advisory Board nominations will be provided to the City Clerk at the time of the submittal of the District Annual Report. The Advisory Board nominations should reflect a balance of downtown business representation including retail businesses, non-retail businesses, and at least one district eligible Chamber business recommended by the Chamber.

The Advisory Board will conduct all of its affairs consistent with the City’s agreement with the Chamber.

Page 2 ends

California Public Records Act (Government Code § 6250 et seq.) for all documents relating to activities of the District.

8. Annual Reports. The District Advisory Board will submit annual reports to the City, no later than October 15 of each year. The annual report contents and filing will conform with the 1989 Act, Streets and Highways Code section 36533, as follows:
§ 36533. Annual report; contents; filing
(a) The advisory board shall cause to be prepared a report for each fiscal year for which assessments are to be levied and collected to pay the costs of the improvements and activities described in the report. The report may propose changes, including, but not limited to, the boundaries of the parking and business improvement area or any benefit zones within the area, the basis and method of levying the assessments, and any changes in the classification of businesses, if a classification is used. (b) The report shall be filed with the clerk and shall refer to the parking and business improvement area by name, specify the fiscal year to which the report applies, and, with respect to that fiscal year, shall contain all of the following:
(1) Any proposed changes in the boundaries of the parking and business improvement area or in any benefit zones within the area. (2) The improvements and activities to be provided for that fiscal year. (3) An estimate of the cost of providing the improvements and the activities for that fiscal year.
(4) The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year. (5) The amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
(6) The amount of any contributions to be made from sources other than assessments levied pursuant to this part.
(c) The city council may approve the report as filed by the advisory board or may modify any particular contained in the report and approve it as modified. The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessments. 4th
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Hwy 101 NWP RR
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Document Path: X:\Finance\BID\BID_Edits_20180802.mxd ZBaron Print Date: 8/13/2018 San Rafael Business Improvement District (BID) PREMIUM BID -

STANDARD BID -
____________________________________________________________________________________

FOR CITY CLERK ONLY
Council Meeting:

Disposition:

Agenda Item No: 6.b
Meeting Date: May 1, 2023

SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Community Development
Prepared by: Alicia Giudice, Director
Chris Hess, Assistant Director
Alexis Captanian, Housing Analyst City Manager Approval: ____

TOPIC COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG)

SUBJECT RESOLUTION RECOMMENDING COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROJECT FUNDING FOR THE FISCAL YEAR 2023-24 TO

THE MARIN COUNTY BOARD OF SUPERVISORS

RECOMMENDATION
Adopt a resolution recommending CDBG project funding for Fiscal Year 2023-24 to the Marin County Board of Supervisors.

BACKGROUND
The Community Development Block Grant (CDBG) is a federally funded program of the U.S.

Department of Housing and Urban Development (HUD) that provides funding for local community-based projects including affordable housing, community infrastructure and capital projects, and public support services. Examples of CDBG-funded projects in San Rafael include the soon to be completed Vivalon Healthy Aging Center at 999 Third Street, which will provide 66 low- and very low-rent apartments to income-qualifying individuals and couples age 62 or older. Other examples include the recent Pickleweed Park play structure replacement as well as a wide range of public services, including free or low-cost legal services for renters.

In 2020, the City entered into a cooperation agreement with the County of Marin to manage the CDBG funding allocations. Under this agreement, Marin County is divided into three local planning areas (Countywide, City of San Rafael, and City of Novato). Funding recommendations for the three areas are overseen by a Countywide Priority Setting Committee (PSC) made up of City and Town Council members, a County Supervisor, and community residents representing members of the protected classes (race, color, national origin, religion, sex, familial status, or disability) under fair housing laws.

Under the cooperative agreement, the City is responsible for allocating CDBG funding for projects serving the San Rafael planning area. The City Council provides its recommendations to the PSC, which in turn provides the San Rafael recommendation along with recommendations for the two other planning areas to the Board of Supervisors (BOS).

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
In June 2023, the BOS will hold a public hearing and act on the funding recommendations from the City and the PSC. Following BOS action, the recommendations will be submitted to HUD.

ANALYSIS
The CDBG program uses a two-year application cycle, with the option to open a limited midcycle application as needed. There is a minimum grant size of $15,000 per project per year, and Countywide projects may receive funding from each planning area to bring their grant amount up to $15,000. While organizations only submit applications every two years, funding must be awarded annually based on the project’s past performance and expected funding allocation from HUD.

Evaluation Guidelines
All applications received by the County were evaluated based on the criteria listed below:

HUD National Objective Thresholds:
• Benefit low- and moderate-income persons.
• Prevent or eliminate blight or meet other community development needs for low- and moderate-income persons.

PSC Enhanced Thresholds:
• Support projects that affirmatively further fair housing and have the commitment and capacity to engage in affirmative marketing.
1 • Prioritize projects that serve members of the protected classes as defined by HUD. • Prioritize projects that serve low-income persons.

Project Evaluation Criteria:
• Readiness—can awarded funds be completely expended during the grant year? • Sustainability—does the organization have the capacity to sustain a project or program beyond this federal funding period?
• Effectiveness and Accountability—does the organization have the capacity and track record to effectively execute the project and administer federal funds? • Prioritize projects with the greatest impact.

In addition to the criteria set forth by HUD, the PSC approved establishing two additional priorities for funding CDBG and HOME housing projects:
• Family Housing2
• Land trust model in eastern Marin that provides home ownership opportunities (In this context, Eastern Marin is defined as all areas in Marin except West Marin).

The PSC also established the following priorities for public services projects:
1 Affirmative Marketing is targeted outreach about program opportunities to groups of people otherwise least likely to apply for or receive those opportunities. Given Marin’s history of segregation, the protected class populations typically included in Affirmative Marketing are Black/African American, Asian/Pacific Islander, and Latinx. Programs that do not conduct broad Affirmative Marketing are less competitive in the allocation process.
2 Family Housing is identified as a need in both the County’s Consolidated Plan and Analysis of Impediments. In addition, HUD requires that Marin’s CDBG and HOME grants contribute to the creation of new family housing units.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
• Basic Health Services – includes services that prevent or treat medical conditions for individuals who are un-insured, under-insured, or people with low incomes who cannot afford their deductible. Programs and services include but are not limited to preventative health such as immunizations, well-child from birth, periodic health evaluations for adults, voluntary family planning services, children’s eye and ear examinations to determine the need for vision and hearing correction, and hygiene services. Services may also include medically necessary emergency health care, inpatient and outpatient treatment, diagnostic laboratory and diagnostic and therapeutic radiologic services, and provision of prescription drugs.
• Children, Youth, and Parent Support Services – includes services that target lowincome families and address disparities in access to early childhood education, high costs of childcare county-wide, and family self-sufficiency. Programs and services include but are not limited to supporting childcare scholarships, student extracurricular activities, parent engagement and training, case management, therapeutic services, transportation, home visitations, and family legal supports. • Food Security – includes services that provide physical and/or economic access to food to meet dietary needs for a productive and healthy life. Programs and services include but are not limited to free meal sites, food banks, grocery subsidies, home-delivered meals, and other programs that provide food to people in need. • Housing Support Services – includes services that assist individuals in accessing stable housing, prevent discrimination in housing choice, and aid renters in maintaining stable housing. Programs and services include but are not limited to fair housing counseling, legal support, housing locators, and down payment and rental assistance.

CDBG Funding – City of San Rafael Planning Area
The charts beginning on the following page provide funding recommendations based on the evaluation criteria above. The San Rafael Planning Area allocations are in bold. Following each chart is a brief description of the project(s) recommended for funding.

The overall 2023-24 CDBG program allocation has been reduced from the prior year’s funding levels by 2.5% to $1,589,600. The CDBG funding available for the San Rafael planning area, as determined by the HUD formula included in the cooperative agreement, is $475,673. The County has identified additional one-time sources to fill this year’s funding cut and maintain the San Rafael allocation at the previous year’s level of $485,000 (sum of “San Rafael Recommended Funds” in Attachment 2). Per HUD regulation, a maximum of $70,000 can be used for public services, a minimum of $205,000 must be spent on housing, and the remaining $210,000 can be spent on either housing or community infrastructure/capital projects.

A list of the applications received for the San Rafael Planning Area and for Countywide projects serving the San Rafael Planning Area is provided as Attachment 2. The recommendations for allocating the San Rafael planning area CDBG funds and total expected allocations, including funding from the other planning areas, are also included. The list of all applications received by the County for funding in the current round can be accessed online via the links below. The links include applications for all planning areas: Community Infrastructure/Capital Projects, Housing Projects, and Public Services Projects.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
Housing Projects
Six (6) housing projects submitted applications for funding from the San Rafael Planning Area.

The six (6) projects have a funding request of $2,167,357. • Five (5) of those projects are countywide, which will result in units or services available to current San Rafael residents.
• One (1) project is based in San Rafael with a total funding request of $200,000 (153 Novato St. Rehab Project, Canal Alliance).

In accordance with CDBG guidelines, a minimum of $205,000 must be spent on housing projects. The funding recommendation totaling $265,000 is as follows:

Housing Project Funding
Applications CDBG Request San RafaelRecommendation
Expected Total
CDBG Allocation
Canal Alliance *
153 Novato Street Rehabilitation $ 200,000 $ 180,000 $ 180,000 Eden Housing, Inc. (CHDO)
Point Reyes Coast Guard
$ 600,000 $ - $ -
Episcopal Community Services
1251 S. Eliseo
$ 500,000 $ - $ -
Habitat for Humanity Greater San
Francisco
Residential Rehab Loan Program
$ 259,357 $ 85,000 $ 210,000
Homeward Bound of Marin
Novato Veterans and Workforce
Housing
$ 600,000 $ - $ -
Marin Center for Independent Living
Residential Access Modification
Program
$ 18,000 $ - $ -
* San Rafael-only request $ 1,967,357 $ 265,000 $ 390,000 153 Novato Street Rehabilitation (Canal Alliance) consists of 12 affordable units, owned by Canal Alliance, in a 64-unit condominium complex in the Canal Neighborhood of San Rafael. As proposed, the project will renovate two units with considerable capital improvement needs and enhance the health and safety of residents.

Point Reyes Coast Guard (Eden Housing, Inc.) is a decommissioned Coast Guard housing site that will be renovated and developed to provide 54 affordable homes for seniors and families.

The housing units will be available to the regional population throughout Marin County, including San Rafael.
1251 S. Eliseo (Episcopal Community Services) is a former skilled nursing facility that will be renovated into 43 units of supportive housing for chronically homeless adults, plus one manager’s unit. When completed, the project will provide housing for the regional homeless population throughout Marin County, including San Rafael.

Residential Rehabilitation Loan Program (Habitat for Humanity Greater San Francisco) offers affordable low-interest, deferred loans to low-income qualifying homeowners to complete needed home repairs.

SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
Novato Veterans and Workforce Housing (Homeward Bound of Marin) is a future housing community providing 24 affordable 1-bedroom apartments of supportive housing for formerly homeless veterans and 26 1-bedroom apartments for formerly homeless adults and small families who are re-entering the workforce. When completed, the project will provide housing for the regional homeless population throughout Marin County, including San Rafael.

Residential Access Modification Program (Marin Center for Independent Living) offers home access modifications including ramps, grab bars, and other improvements to increase housing accessibility for people with disabilities, allowing them to remain in their homes.

Capital Projects
Two (2) community infrastructure and capital projects submitted applications from the San Rafael Planning Area. County staff recommends funding the following capital allocations totaling the $150,000:

Capital Project Funding Applications CDBG Request San Rafael Recommendation
Expected Total
CDBG Allocation
City of San Rafael Department of Public
Works*
Canal Area Pathway Projects $ 350,000 $ 120,000 $ 120,000 Community Action Marin*
Renovation of the De Colores Children’s
Center & Safety Net Services Hub to
Increase Childcare for Families of Low
Income $ 50,000 $ 30,000 $ 30,000
* San Rafael-only request $ 400,000 $ 150,000 $ 150,000 Canal Area Pathway Projects (City of San Rafael) The City of San Rafael’s Public Works Department requests CDBG funding to support three walkway improvement projects, including ADA accessibility, in the Canal neighborhood of San Rafael. Two of the pathways are critical thoroughfares for families to access school and the local market.

De Colores Children’s Center and Safety Net Services Hub (Community Action Marin) currently provides childcare and healthy meals to 33 children Monday through Friday. As proposed, the renovations will increase the capacity of the center to provide services and healthy meals for 17 additional children in San Rafael.

Public Services
The chart on the following page provides funding recommendations for public services. The County expects an allocation of approximately $70,000 for public services in 2023-24 for the San Rafael Planning Area. This allocation is based on 15% of the total entitlement available through CDBG for public services and additional one-time resources that the County has identified to keep project funding whole in Year 2 of the 2-year application cycle. The overall allocation to each planning area is a percentage of the total, less the allowed administration costs and required fair housing service funds. No more than the amount indicated in this staff report may be spent on public services, which is capped countywide at 15% of funds. The City Council has the option to reduce its public services percentage on an annual basis. However, it cannot increase it.

There are a total of five (5) projects applying for public services funding—four (4) Countywide projects with a portion of services going to San Rafael residents, and one (1) serving San SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6
Rafael only. Staff recommends funding for all five (5) public services projects totaling $70,000 in CDBG monies, the maximum allowed by HUD.

Public Service Funding Applications CDBG Request San Rafael Recommendation
Expected Total
CDBG Allocation
City of San Rafael/Pickleweed
Preschool *
Preschool/Pickleweed Preschool $ 23,000 $ 23,000 $ 23,000 Covia Foundation
Home Match Marin $ 15,000 $ 7,500 $ 15,000
ExtraFood.org
Building an Equitable and Sustainable
Food Safety Net in Marin County $ 15,335 $ 7,750 $ 15,335 Fair Housing Advocates of Northern
California **
Fair Housing Counseling and
Education (HUD required funding) $ 65,000 $ - $ 65,000
Family & Children's Law Center
Domestic Violence Legal Services for
Low Income Families $ 15,346 $ 9,750 $ 15,346
Legal Aid of Marin
Keeping Marin Residents in their
Homes $ 34,500 $ 22,000 $ 34,500
*San Rafael-only request
**Required Fair Housing Services $ 168,181 $ 70,000 $ 168,181 Preschool/Pickleweed Preschool (City of San Rafael, Pickleweed Preschool) provides preschool programming for 68 children in the Canal Neighborhood.

Home Match Marin (Covia Foundation) provides a roommate matching service. The program is mainly used by older adults. Benefits of the program include providing a means for older residents to remain in their homes and supplement incomes while avoiding isolation.

Building an Equitable and Sustainable Food Safety Net in Marin County (ExtraFood.org) distributes unused fresh foods from local participating businesses to lower income families. The program supports access to healthy foods while reducing food waste.

Domestic Violence Legal Services for Low Income Families (Family and Children’s Law Center) supports victims of domestic violence. The requested funding will assist an anticipated 70 lower income individuals and their children.

Keeping Marin Residents in their Homes (Legal Aid Marin) provides free legal assistance to extremely low-income renters experiencing eviction or threat of eviction. The requested funding will assist an anticipated 75 renters.

FISCAL IMPACT:

There is no direct cost or revenue impact from the recommended action.

The City is directing HUD funds to specific projects. Allocating federal funds to potential City projects may allow City general and capital funds to be allocated to other priorities.

Funds for the County of Marin’s 2023-24 CDBG program funding cycle come from the Fiscal Year 2023 federal budget, which runs from October 1, 2022, to September 30, 2023. The SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 7
funding is allocated formulaically to entitled cities and counties. Three factors are included in the San Rafael Planning Area allocation formula: population, overcrowding, and poverty. The planning area percentages are consistent with previous years because the 2020 Census data that is required to update the calculation has not yet been released. The recommendations shall be adjusted proportionately as necessary, subject to program guidelines, if the 2023-24 allocation differs.

OPTIONS:

1. Approve the CDBG funding allocations as recommended.

2. Make different allocations of CDBG funding. (Funds may be shifted within categories, but the Public Services category cannot exceed $70,000.)

3. Let the Countywide Priority Setting Committee provide a recommendation for the San Rafael Planning Area funding requests.

4. Provide direction to staff.

ACTION REQUIRED:

Adopt a resolution recommending CDBG funding for Fiscal Year 2023-24 to the Marin County Board of Supervisors.

ATTACHMENTS
Attachment 1 Resolution
Attachment 2 Exhibit A to Resolution: 2023-24 CDBG Project Allocations Attachment 3 2023-24 PSC Roster
Attachment 4 2022-24 CDBG Application Guidelines
RESOLUTION NO.

RESOLUTION OF THE SAN RAFAEL CITY COUNCIL RECOMMENDING

COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROJECT FUNDING FOR THE FISCAL YEAR 2023-24 TO THE MARIN COUNTY BOARD OF SUPERVISORS BE IT RESOLVED by the Council of the City of San Rafael as follows:

WHEREAS in June 1999, the City Council revised the Cooperation Agreement with the County of Marin for Community Development Block Grant (CDBG) funds whereby the City remained in the County system; and
WHEREAS in December 1999, the City devised a project selection process for CDBG projects; and
WHEREAS on May 1, 2023, in accordance with the adopted project selection process the City Council reviewed the submitted applications; NOW, THEREFORE IT IS HEREBY RESOLVED that the City Council recommends to the Marin County Board of Supervisors that the $485,000 in CDBG funds available for allocation by the City of San Rafael be distributed to the projects and in the amounts shown on the included Attachment 2, subject to adjustments necessary to accommodate any changes in the final allocation given to the County of Marin by the federal Department of Housing and Urban Development (HUD).

I, LINDSAY LARA, City Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on the 1st day of May 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

Lindsay Lara, City Clerk
Type Project Sponsor Project Name Applicants
Request
San Rafael
Recommendation
Total CDBG
Allocation
Housing Canal Alliance * 153 Novato St. Rehab $ 200,000.00 $ 180,000.00 $ 180,000.00 Eden Housing, Inc (CHDO) Point Reyes Coast Guard $ 600,000.00 $ - $ - Episcopal Community Services 1251 S. Eliseo $ 500,000.00 $ - $ - Habitat for Humanity Greater San
Francisco Residential Rehab Loan Program $ 249,357.00 $ 85,000.00 $ 210,000.00 Homeward Bound of Marin Novato Veterans and Workforce
Housing $ 600,000.00 $ - $ 100,000.00
Marin Center for Independent Living Residential Access Modification Program $ 18,000.00 $ - $ -
Housing subtotal $ 2,167,357.00 $ 265,000.00 $ 490,000.00 Capital City of San Rafael Department of
Public Works * Canal Area Pathway Projects $ 350,000.00 $ 120,000.00 $ 120,000.00 Community Action Marin *
Renovation of the De Colores Children’s
Center & Safety Net Services Hub to
Increase Childcare for Families of Low
Income
$ 50,000.00 $ 30,000.00 $ 30,000.00
Capital subtotal $ 400,000.00 $ 150,000.00 $ 150,000.00 Public
Services
City of San Rafael/Pickleweed
Preschool * Preschool/Pickleweed Preschool $ 23,000.00 $ 23,000.00 $ 23,000.00 Covia Foundation Home Match Marin $ 15,000.00 $ 7,500.00 $ 15,000.00 ExtraFood.org Building an Equitable and Sustainable
Food Safety Net in Marin County $ 15,335.00 $ 7,750.00 $ 15,335.00 Fair Housing Advocates of Northern
California ** Fair Housing Counseling and Education $ 65,000.00 $ 65,000.00 Family & Children's Law Center Domestic Violence Legal Services for Low Income Families $ 15,346.00 $ 9,750.00 $ 15,346.00
Legal Aid of Marin Keeping Marin Residents in their Homes $ 34,500.00 $ 22,000.00 $ 34,500.00 Public Services subtotal $ 168,181.00 $ 70,000.00 $ 168,181.00 Total funding recommendation $ 485,000.00
SAN RAFAEL PLANNING AREA 2023-24
Attachment 2: Exhibit A - 2023-24 CDBG Project
*San Rafael only project
**Required Fair Housing Services allocated off the top

COMMUNITY DEVELOPMENT AGENCY
............................................................................................................................. HOUSING AND FEDERAL GRANTS DIVISION ...................... 2023 Countywide Priority Setting Committee
Name Affiliation
Cathy Cortez At-Large Community Representative
Valeria Sasser Lower Ross Community Representative
Jaime Yan Faurot Novato Community Representative
Darlene Goins San Rafael Community Representative
Ida Green Southern Marin Community Representative
PJ Feffer Upper Ross Community Representative
Jennifer Kerrigan West Marin Community Representative
Peter Mark City of Belvedere Councilmember
Kevin Carrol City of Larkspur Councilmember
Stephen Burke City of Mill Valley Councilmember
Mark Milberg City of Novato Councilmember
Eli Hill City of San Rafael Councilmember
Melissa Blaustein City of Sausalito Councilmember
Eric Lucan County of Marin Supervisor
Rosa Thomas Town of Corte Madera Councilmember
Barbara Coler Town of Fairfax Councilmember
Eileen Burke Town of San Anselmo Councilmember
Holli Their Town of Tiburon Councilmember
2022-24 COMMUNITY DEVELOPMENT BLOCK GRANT AND

HOME INVESTMENT PARTNERSHIPS PROGRAM APPLICATION GUIDELINES County of Marin 2022-24 CDBG/HOME APPLICATION GUIDELINES Page 1 of 8 Housing & Federal Grants Division
Application logistics:

Application Process and Timing
• Applications will be open on Monday, January 3, 2022. • Bidders Conference: Tuesday, January 11th, 2022 via Zoom. Registration is required. o 11:00 am to 12:00 pm - Public Service Projects:
https://us06web.zoom.us/meeting/register/tZ0qd-yqrTgtHdPnC7alxakdQGoDnJg47-6A o 1:00 to 2:00 pm - Community Infrastructure/Capital and Housing Projects:
https://us06web.zoom.us/meeting/register/tZUofu6pqDkqE9LDPyuqfuEw8p6jPr8n5wJr • Application Office Hours via Zoom - January 4 through January 24. Registration is required. o Tuesday – January 4, 11, and 18 from 3-4 pm:
https://us06web.zoom.us/meeting/register/tZcrdOGqrzgjGd32GYsIxMGQ2gDENckO4fgs o Wednesday – January 5, 12, and 19 from 1-2 pm:
https://us06web.zoom.us/meeting/register/tZIqcO2qrT8tE9HudS8R6UDKlVJ-CnIw3klV o Thursday – January 6, 13, and 20 from 12-1 pm:
https://us06web.zoom.us/meeting/register/tZAoceGppzosEtK-C2PRY_crFv-Y3zuqQtis o Friday – January 7, 14, and 21 from 10-11 am:
https://us06web.zoom.us/meeting/register/tZ0lf-GhqjMjH9HvKMKr_yOuWV2LyKJdj9h9 o Monday – January 24 from 3-5pm, LAST DAY to Submit.
https://us06web.zoom.us/meeting/register/tZIkcO6qrD0uGNXDSaFGG1Cb77Y--_gBYfEi • Applications will be due on Monday, January 24, 2022, no later than 5:00 PM. Authorized hardcopy submissions must be in hand - POSTMARKS WILL NOT BE ACCEPTED. • Federal Grants staff will review applications between January and March. • Public hearings to determine recommendations will be held March-April 2022. • The Board of Supervisors will hold the final public hearing to approve final recommendations in May. • County of Marin will submit approved recommendations to HUD on May 15.

Application submittal
Submissions should be made through the online application form available on the Federal Grants webpage at www.marincounty.org/federalgrants.

It is recommended that applicants complete the application questions in a document saved to a local computer prior to completing the online form for submission.

Under certain circumstances emailed and mailed hard copy applications will be accepted. Please contact staff at [email protected] for a reasonable accommodation if you are unable to submit the application using the online form.

Applications submitted in Spanish or Vietnamese will be accepted via email or hardcopy.

County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 2 of 8 Average Annual Grant Size
• Public service grants are typically awarded between $15,000 and $65,000. • Community Infrastructure/Capital improvement grants range from $30,000 to $200,000, depending on the project scope.
• Housing grants vary from $30,000 to $500,000, depending on the project scope.

Eligible Applicants and Projects
• Applicants must either be a nonprofit, government entity, or have a fiscal sponsor that is a nonprofit or government entity. Individuals are not eligible for funding. • To ensure affordable housing is dispersed throughout the county, CDBG and HOME funds cannot be used for housing projects in the Canal Neighborhood of San Rafael or Marin City. • To learn more about eligible and ineligible activities, review these guides to eligible CDBG activities and eligible HOME activities.
• Projects cannot be located in a Floodway and projects in a Special Flood Hazard Zone must have flood insurance. Use this to verify if your project is in a floodway/zone: https://msc.fema.gov/portal/home.

Important Points to Keep in Mind for Applications and Project Planning • Applications are for a 2-year cycle. This application will be used to fund projects in program years 2022- 23 and 2023-241
.
• Minimum grant size is $15,000 per year.
• Organizations may only apply for one project in each category of funding. (Eg. an organization may apply for funding under the Public Service category and the Community Infrastructure/Capital category.) • Only complete applications submitted on-time will be considered for funding. • Complete applications include the application document, project budget, and organization budget. • Housing funding will first prioritize projects that provide Family Housing and/or a Land trust model in eastern Marin that provides home ownership opportunities, with specific inclusion for African Americans.
• CDBG public service funds will first prioritize projects that provide Basic Health Services; Children, Youth, and Parent Support Services; Food Security; and Housing Support Services. Detailed descriptions are available on page 4.
• Housing projects built before 1978 will require lead testing or proof of past testing/treatment in accordance with the Lead Safe Housing Rule. Project scopes should consider this and include these costs.
• Staff will pursue reprogramming of funds for projects that do not make substantial progress in the initial funding year.

Notice of Funding Availability: Community Development Block Grant (“CDBG”) and Home Investment Partnership Program (“HOME”) For 2022-24 application cycle The Marin County Community Development Agency’s Housing and Federal Grants Division is pleased to announce the opening of the application period for the CDBG and HOME programs. 1 Staff reserve the right to open the application in 2023-24, if deemed necessary.

County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 3 of 8 Overview
Federal funding through the Community Development Block Grant (CDBG) program provides communities with resources to address a wide range of unique community development needs. The CDBG entitlement program allocates annual grants to larger cities and urban counties to develop thriving communities by providing funding to assist in the creation of affordable housing, a suitable living environment, and expanded economic opportunities for low and moderate-income persons. The Home Investment Partnerships Program (HOME) funds the creation, preservation, and rehabilitation of affordable housing for low income households.

The programs are managed by the Federal Department of Housing and Urban Development (HUD).

National objectives for funding
Each activity funded by CDBG must meet one of the following national objectives for the program. Each application must clearly state which objective the proposed project addresses. • Benefit low and moderate-income persons.
• Prevention or elimination of slums or blight.
• Address community development needs having a particular urgency because existing conditions pose a serious and immediate threat to the health or welfare of the community for which no other funding is available.

Priority Setting Committee local thresholds for funding All applications are assessed using the following as thresholds for funding:
• Support projects that Affirmatively Furthering Fair Housing and have the commitment and capacity to engage in Affirmative Marketing.
• Prioritize projects that serve members of the protected classes as defined by HUD (race, color, religion, national origin, sex, disability, and familial status). • Prioritize projects that serve low-income persons.

Evaluation Criteria:

All applications are assessed on the following baseline criteria:
• Readiness—can awarded funds be completely expended during the grant year. • Sustainability—does the organization have capacity to sustain a project or program beyond this federal funding period?
• Effectiveness and Accountability—does the organization have the capacity and track record to effectively conduct the project and administer federal funds? Are there current or upcoming organizational leadership transitions?
• Prioritize greatest impact.

The Countywide Priority Setting Committee has approved funding priorities for Housing and Public Services dollars that consider projects in the following categories first:

Funding priorities for Housing funds:
• Family Housing
• Land trust model in eastern Marin2 that provides home ownership opportunities, with specific inclusion for African Americans.
2 Eastern Marin in this case is defined as all of the areas of Marin, except for West Marin County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 4 of 8 Funding priorities for Public Service funds:
• Basic Health Services – includes services that prevent or treat medical conditions for individuals who are un-insured, under-insured, or people with low incomes who cannot afford their deductible. Programs and services include but are not limited to preventative health such as immunizations, well-child care from birth, periodic health evaluations for adults, voluntary family planning services, children’s eye and ear examinations conducted to determine the need for vision and hearing correction, and hygiene services. Services may also include medically necessary emergency health care, inpatient and outpatient treatment, diagnostic laboratory and diagnostic and therapeutic radiologic services, and provision of prescription drugs.
• Children, Youth, and Parent Support Services – includes services that target low-income families and address disparities in access to early childhood education, high costs of childcare county wide, and family self-sufficiency. Programs and services include but are not limited to supporting childcare scholarships, student extracurricular activities, parent engagement and training, case management, therapeutic services, transportation, home visitations, and family legal supports. • Food Security – includes services that provide physical and/or economic access to food to meet dietary needs for a productive and healthy life. Programs and services include but are not limited to free meal sites, food banks, grocery subsidies, home delivered meals, and other programs that provide food to people in need.
• Housing Support Services – includes services that assist individuals in accessing stable housing, prevent discrimination in housing choice, and aid renters in maintaining stable housing. Programs and services include but are not limited to fair housing counseling, legal support, housing locators, and down payment and rental assistance.

While this priority list does not preclude the funding of other types of projects, it provides staff with further direction when evaluating applications that meet both the national and local baseline thresholds.

Project budgets:

Detailed project budgets including sources and uses of funds to complete the project are required.

Public Services:

Project budgets for all public service project applications should cover a 1-year time period only. Year two funding allocations will be based on the 1-year budget in relation to outcomes achieved and HUD funding levels.

Community Infrastructure/Capital and Housing:

Project budgets for community infrastructure/capital and housing project applications should be developed spanning a two-year time period, with specific outcomes and line items associated with each year. If your project has received planning approvals, has an environmental review on file, and is ready to move forward in a 1-year time frame please indicate so.

Income verifying clients:

All applicants are required to income qualify beneficiaries of services provided with CDBG and HOME funds.

Under CDBG regulations HUD presumes the following groups to be low-income and income verification is not required: abused children, battered spouses, the elderly, adult persons with serious disabilities, individuals who are homeless, illiterate persons, and migrant farm workers. Removal of architectural barriers to assist seniors and adults with severe disabilities would fall under this category of Presumed Benefit.

County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 5 of 8 Marin County Federal Grants Program Overview
All of the eleven cities and towns in Marin County and the County of Marin participate in the Federal Grants program through a cooperation agreement. The cooperation agreement establishes a Countywide Priority Setting Committee to oversee the Federal Grants program and is renewed every three years. The cooperation agreement allows Marin County to be defined as an “urban county” for CDBG and enables it to receive a direct CDBG funding allocation. Novato and San Rafael are eligible to receive CDBG funding as entitlement cities because their populations exceed 50,000 persons. However, both cities have chosen to continue with the cooperation agreement to assure that Marin meets the population standard for urban counties and to streamline funding processes for applicants.

The County is divided into three (3) planning areas: Novato, San Rafael, and County Other. Each planning area receives a portion of the overall allocation based on an analysis of the most recent Census Data looking at population, the extent of poverty, and the extent of housing overcrowding, with the provision that the extent of poverty be counted twice.

The total CDBG allocation for Marin County has been about $1.5 Million dollars annually and HOME is about $800,000 annually. Staff will make funding recommendations based on these previous allocations.

Marin County Allocation Formula:

The Federal Grants program is administered by staff in the Marin County Community Development Agency.

Federal regulations for CDBG limit the amount of administrative costs to 20% of the available grant funds. In addition, public services are limited to 15% of available grant funds. 40% of funds are allocated to housing and the remaining 25% of funding is available for community infrastructure/capital improvement projects and/or housing.

HOME funds are used exclusively for affordable housing serving low and very low-income. Federal regulations limit the amount of administrative costs to 10% of the available grant funds.

Selection Process:

The Novato City Council and San Rafael City Council hold public hearings on all CDBG applications for their respective planning areas and make a funding recommendation to the Board of Supervisors.

The Countywide Priority Setting Committee makes funding recommendations for the County Other planning area and HOME Program funding to the Board of Supervisors.

Requirements for Grant Disbursement:

All recipients will be required to enter into a contract with the County of Marin. This contract will include:
• Scope of service and use of funds.
• Expected outcomes.
• Compliance with certain administrative requirements and accounting records. • Agreement to affirmatively further fair housing and conduct affirmative marketing. • Non-discrimination.

All projects will require Federal environmental review clearance (NEPA). This is required even for projects that are not subject to CEQA. The Housing and Federal Grants Division is responsible to conduct the environmental review. Awardees should note that project funds may not be spent until the environmental review has been completed.

County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 6 of 8 All community infrastructure/capital projects and some housing projects will be subject to the Federal DavisBacon Act regarding prevailing wages for construction workers. Davis Bacon often has standards that differ from California prevailing wage standards.

A lien is placed on all community infrastructure/capital and housing improvement projects. This lien must be repaid if the property is ever sold. The lien amount is not fixed and will be calculated as the amount of funding to the current value. The lien will increase as the value of the property rises. This lien has no time limit. The lien can be assumed by another nonprofit.

HOME will establish regulatory agreements dictating the affordability of the property and/or HOME units.

Commonly Used Terms
Affirmatively Furthering Fair Housing: Taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. Public service projects can affirmatively further fair housing by providing access to opportunities and by transforming racially and ethnically concentrated areas of poverty into areas of opportunity.

Affirmative Marketing: Through an affirmative marketing plan, a housing and service provider indicates what special efforts they will make to reach out to potential tenants or applicants who might not normally seek housing or services in their project and identify those least likely to apply and market to them.

Community Housing Development Organization (CHDO), is a private nonprofit, community-based organization that has staff with the capacity to develop affordable housing for the community it serves. To qualify for designation as a CHDO, the organization must meet certain requirements pertaining to their legal status, organizational structure, and capacity and experience. At least 15% of HOME funds must be allocated to CHDOs. A minimum requirement to be a CHDO is that at least one-third of the board membership are either low-income, residents of low-income neighborhoods, or are elected as representatives of low-income neighborhood organizations.

Community Development Block Grant (CDBG): funds local community development activities such as affordable housing, anti-poverty programs, and infrastructure development.

Construction of Housing: Under this category, CDBG funds may be used in certain specified circumstances to finance the construction of new permanent residential structures. Eligible uses include acquisition of sites, site improvements to publicly-owned land to enable the property to be used for the new construction of housing (provided the improvements are undertaken while the property is still in public ownership) and the cost of disposing of real property acquired with CDBG funds, which will be used for new construction of housing.

Countywide Priority Setting Committee (PSC): oversees the distribution of federal funds through the Community Development Block Grant program (CDBG) and HOME Investment Partnerships Program (HOME) County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 7 of 8 to support a variety of community-based projects, including affordable housing, community facilities, and public services such as childcare scholarships and services for individuals with disabilities. The PSC establishes funding priorities and reviews applications from local nonprofit and public agencies. The PSC includes a member of the Board of Supervisors, 10 city/town council members, as well as seven (7) community members representing six (6) regions spanning Marin and an at-large member representing the County.

Davis-Bacon: The Davis–Bacon Act of 1931 is a United States federal law that establishes the requirement for paying the federally established prevailing wages on construction projects for laborers and mechanics.

Demographics: HUD changed the data collection requirements regarding race/ethnicity categories during program year 2002-2003. These changes reflect Office of Management and Budget 1997 standards establishing that “Hispanic” is not a race category, but an ethnic category that cuts across all races. Those who are White, Black, Asian, Pacific Islander, American Indian, or a multi-race may also be counted as being of Hispanic ethnicity. As such, when asking the individual/household to select a race category, the individual/household must also state whether they are of Hispanic ethnicity. For example, an individual/household of Mexican descent would likely state their race as either American Indian or White, and would also fall under the category of “also Hispanic.”
Housing and Federal Grants Division: Staffed by the Marin County Community Development Agency, Housing and Federal Grants provides Marin communities with resources to address a wide range of unique community development needs and Housing Policy.

HOME Investment Partnerships Program (HOME): funds a wide range of activities including building, buying, and/or rehabilitating affordable housing for low-income people. HOME projects must match every dollar of HOME funds used with 25 cents from nonfederal sources, which may include donated materials or labor, the value of donated property, proceeds from bond financing, and other resources.

HUD: US Department of Housing and Urban Development
Protected classes: Under federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic. The following characteristics are protected by the Federal Fair Housing Act: race, color, religion, national origin, sex, disability, and familial status (this last term refers to the presence of at least one child under 18 years old, and also protects prospects and tenants who are pregnant or in the process of adopting a child).

Public Services: CDBG funds can be used for activities that benefit low- and moderate-income people, such as childcare, health care, job training, recreation programs, education programs, public safety services, fair housing activities, services for senior citizens, services for homeless persons, drug abuse counseling and treatment, energy conservation counseling and testing, and homebuyer down payment assistance. To be eligible for funding, public services must be either a new service or provide a quantifiable increase in the level of a service. No more than 15% of CDBG funds can be used for public services.

Rehabilitation: CDBG funds may be used to finance the costs of rehabilitation as shown below.

Residential—Residential property, whether privately or publicly owned. This includes manufactured housing when such housing constitutes part of the community’s housing stock.

Commercial/industrial—Commercial or industrial property, but where such property is owned by a for-profit, rehabilitation under this category is limited to exterior improvements of the building and the correction of code violations.

County of Marin 2022-24 CDBG/HOME FUNDINGAPPLICATION Page 8 of 8 Other—Nonprofit-owned, nonresidential buildings and improvements that are not considered to be public facilities or improvements under §570.201(c) of the CDBG program regulations.

NEPA: The National Environmental Policy Act (NEPA) is a United States environmental law that promotes the enhancement of the environment and established the President's Council on Environmental Quality (CEQ).

Staff must complete an environmental review for all CDBG and HOME funded projects.

Income Limits - 2021 HUD INCOME LIMITS
Household
Size
Extremely Low
(0-30%)
Very-Low
(30+-50%)
Low
(50+-80%)
Moderate
(80+-120%) Median
1 $38,400 $63,950 $102,450 $125,650 $104,700
2 $43,850 $73,100 $117,100 $143,650 $119,700
3 $49,350 $82,250 $131,750 $161,600 $134,650
4 $54,800 $91,350 $146,350 $179,500 $149,600
5 $59,200 $98,700 $158,100 $193,850 $161,550
6 $63,600 $106,000 $169,800 $208,250 $173,550
7 $68,000 $113,300 $181,500 $222,600 $185,500
8 $72,350 $120,600 $193,200 $236,950 $197,450
SOURCE: U.S. Department of Housing and Urban Development

San Rafael City CouncilMay 1, 2023

San Rafael City Council
May 1, 2023