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HomeMy WebLinkAboutCD Village at Loch Lomond Marina Development____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: April 20, 2020
Disposition: Resolutions 14789, 14790 & 14791
Agenda Item No: 7.a
Meeting Date: April 20, 2020
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Community Development & Public Works
Prepared by: Paul Jensen, Community
Development Director &
Bill Guerin, Public Works Director
City Manager Approval: ______________
TOPIC: VILLAGE AT LOCH LOMOND MARINA DEVELOPMENT
SUBJECT: 110 Loch Lomond Drive (Loch Lomond Marina) - Request for City Council review
and approval of the following for the Village at Loch Lomond Marina development:
a) New Consolidated Subdivision Improvement Agreement to cover and provide
securities for construction of the remaining project infrastructure improvements
including flooding improvements at the playground on the central jetty and
access path area near the marina breakwater;
b) Memorandum of Understanding; and
c) Amendment to the Below Market Rate (BMR) Housing Agreement, which would
permit the property owner/applicant to buy-out the remaining six (6),
unconstructed BMR units approved for the second phase of the development.
APN: 016-070-09; Planned Development (PD-1860) District; Marina Village
Associates, LLC, owner/applicant; File No(s).: INF20-006.
EXECUTIVE SUMMARY:
The Village at Loch Lomond Marina mixed-use development was approved by the City in 2007. Grading
and construction commenced in 2014. Much of the project improvements have been installed or built
including the first phase of “The Strand” residential development, Andy’s Market and the publicly
accessible park and recreation areas. However, the second phase of The Strand and most of the marina
support buildings have not been built. Further, portions of the park and recreation areas have
experienced substantial flooding during peak storm events and King Tides, which must be addressed
before these areas are accepted by the City as complete. The two Subdivision Improvement Agreements,
SIA-1 (Phase 1) and SIA-2 (Phase 2) approved in 2014 and 2015, respectively, are expired although the
bonds provided as security for the agreements remain in place.
Marina Village Associates, LLC (MVA), property owner/developer, has been working with City staff to
address the improvements needed in the areas prone to flooding, and to address completion of the
subdivision improvements and building construction. More recently, MVA has reported that the sale of
the marina portion of the development to Safe Harbor Marinas (SHM) is pending. A new Consolidated
Subdivision Improvement Agreement (SIA) has been prepared to cover: a) completion of flooding
improvements for the two impacted areas, as well as other minor, outstanding improvements from Phase
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
1 (SIA-1); and b) completion of Phase 2 (SIA-2) improvements for the second phase of Strand and
required, off-site road and utility improvements along Point San Pedro Road. Public Works Department
staff finds the new SIA, improvement plans, estimated construction costs, and proposed securities for
these improvements (two bonds) to be acceptable, reasonable, and adequate. While there are several
outstanding Bay Conservation and Development Commission (BCDC) permits/clearances required for
specific improvements that are included in the improvement plans, the SIA includes contingencies to
cover potential changes in these specific improvements.
Second, MVA has also reported that it is negotiating a potential sale of the second phase of The Strand
to a local home builder. The terms of this sale are contingent upon MVA receiving City approval to “buy-
out” the six (6) unbuilt below market rate (BMR) for-sale units in the second phase of the development.
Eleven (11) of the seventeen (17) required BMR units have been built and are occupied in the first phase
of The Strand. As outlined in this report, the buy-out amount has been negotiated at $3.6+ million, which,
if approved by the City Council would be a substantial addition to the City’s Affordable Housing Trust
Fund. Staff is in support of this buy-out proposal. A Memorandum of Understanding has also been drafted
documenting the agreed upon terms between MVA, the Marin Housing Authority, and the City to facilitate
the execution of the Subdivision Improvement Agreement and BMR Agreement Amendment.
Lastly, time is of the essence on this project. As noted, the pending sale of the marina and the potential
sale of the residential development are contingent upon the City’s action on the SIA and the BMR
Agreement Amendment. Further, State grant funding opportunities for developing affordable housing
projects are currently available but: a) they include expectations for matching local funds; and b) there
are deadlines for filing such requests. The $3.6+ million contribution to the Affordable Housing Trust
Fund would be significant because it would increase the City’s ability to demonstrate matching local funds
for grant funding requests.
RECOMMENDATION:
Staff recommends City Council take the following actions:
1. Adopt a Resolution authorizing the Mayor and City Manager to execute a Consolidated
Subdivision Improvement Agreement;
2. Adopt a Resolution authorizing the City Manager to execute a Memorandum of Understanding;
and
3. Adopt a Resolution authorizing the City Manager to execute a First Amendment to the Below
Market Rate (BMR) Housing Agreement.
BACKGROUND:
Project History
The Loch Lomond Marina encompasses 131+ acres of tidelands, marina basin and uplands located at
110 Loch Lomond Drive and Point San Pedro Road. In August 2007, the City approved the Village at
Loch Lomond Marina mixed-use development for the marina site. Note, all City approval documents
addressing environmental impacts, property zoning and land use project design and subdivision are
available on the Loch Lomond Marina webpage on the City’s website.
City approvals, which included a property rezoning, Vesting Tentative Map, Environmental and Design
Review Permit and a Master Use Permit authorized the following:
• Retention of and improvements to the existing, full-service marina including public launch, fueling
facilities, harbormaster’s office and boat repair. Of the 517 boat berths, 52 were approved for
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
“liveaboards” allowing permanent residency. Improvements include, among others, a new
harbormaster’s office, new boat repair building, new fuel storage and pump facilities, and re-
skinning the yacht club building.
• Development of a new Andy’s Market, a full-service grocery store, on the west side of the marina
site. North of the market, a new mixed-use building is approved to include neighborhood
commercial uses and services, and five (5) residential units (above commercial).
• Development of 81 residential units in four housing types: detached, single-family residences,
detached residential cottages, townhomes, and the residential condominiums developed in the
mixed-use building (noted above). Of the 81 units, 17 (20%) are required to be sold to owners
that qualify in the “below-market-rate” household income levels of low- and moderate-income.
• Development of an expansive marina green, boardwalk and both active park (playground) and
passive park (walking trails/paths, picnic areas) areas, as well as the installation of a kayak launch
ramp at the east end of the marina and a kayak dock adjacent to the public launch. The City
approvals require that these recreation amenities be retained in private ownership but be open
and accessible to the public.
• As the publicly accessible recreation amenities are to be retained in private ownership the City
approvals require the establishment of a Mello-Roos “Community Facilities District” (“CFD”) to
ensure long-term maintenance of these facilities. The CFD requires that the property owners
within the geographic boundaries of this district (marina property boundaries comprised of the
marina owners, commercial property owners and residential owners) be responsible for the cost
of maintenance. The CFD was formed in 2009.
• Enhancement, expansion and preservation of an existing seasonal wetland, which is located at
the eastern edge of the marina site.
Subsequent to City approvals, permits were issued by the Bay Conservation and Development
Commission (BCDC), US Army Corps of Engineers and Regional Water Quality Control Board.
Following the initial City entitlements, the City approved and recorded two (2) Final Subdivision Maps
and approved accompanying Subdivision Improvement Agreements for Phase 1 (SIA-1) and Phase 2
(SIA-2). The Phase 1 Final Map, improvement plans, SIA-1 and posted securities (over $5 million) cover
the construction of the subdivision ‘backbone’ infrastructure (roads, utilities), park improvements and site
grading for the entire marina development area. The Phase 2 Final Map, improvement plans, SIA-2 and
posted securities (over $1.9 million) exclusively cover the residential development area (The Strand) and
required off-site road and utility improvements along Point San Pedro Road.
Current Status of Village at Loch Lomond Marina Development
Grading and construction on the Village at Loch Lomond Marina commenced in 2013. The status of the
project improvements and facilities is as follows:
• Nearly all subdivision improvements and utilities have been installed.
• The publicly accessible marina green, boardwalk, park/playground facilities, and public restrooms
are complete and open for public use. In addition, the upgrades to the marina breakwater have
been completed, which includes a paved path that is accessible to the public. The public access
improvements in the center plaza area are not complete and the new kayak dock and launch
ramp are not installed.
• The seasonal wetland restoration has been completed and fenced to prohibit access to the area
and to ensure protection of wildlife. The bird viewing area and interpretive signage have not been
installed.
• Forty-four (44) of the homes in the residential development (“The Strand”) are constructed and
occupied. Five of the market rate homes in this first phase are not built. The building permits for
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
these home sites have expired. The second phase of The Strand (32 homes) is not built. This
area (formerly occupied by Andy’s Market) has been graded and is being surcharged.
• A new Andy’s Market has been constructed and is open for business.
• The mixed-use building is not built. A building permit has been filed and reviewed by the City.
The permit has been ready to be issued since April 2019.
• The marina day use parking is installed and the public boat launch is open.
• The new harbormaster’s office (with small restaurant) is not built. A building permit was issued
and extended several times but is now expired.
• The boat repair building is not built but the building pad area has been graded for construction. A
building permit application has been filed, is being processed and near ready to be issued.
• The yacht club building has not been re-skinned. A building permit application has been filed but
is not complete.
• The fuel storage and pumping facilities have not been installed. A building permit is required for
these improvements, but an application has not been filed with the City. Further, BCDC approval
is required for improvements within its jurisdiction.
• SIA-1 and SIA-2 have expired although the bonds securing the agreements are still in place.
Several key factors have influenced the slow pace of the construction schedule and overall project
progress. First, within the last four-five years, two areas of the site have experienced extensive flooding
during peak storm events and King Tides: a) the publicly accessible path and picnic area entrance to the
breakwater; and b) the playground located on the central jetty When flooding is experienced, these areas
are inaccessible for use. Further, the flooding has caused damage to the infrastructure/improvements.
MVA has hired a marine engineering consultant to develop flooding improvement plans for these two
areas (described below under Project Description and presented in Attachment 1) to remedy the
condition. Second, the flooding improvement plans and other changes to approved improvements have
required the approval BCDC, which has several permit and permit amendment processes that are time
consuming.
To boost construction progress, the City staff has provided several incentives to MVA such as: 1)
providing continual extensions to issued building permits to keep them active; 2) offering to reactivate
expired building permits without new fees; and 3) approving minor changes to approved plans and to
proposed improvements at an administrative level.
Current Proposal
Within the past several months, staff has been coordinating with MVA to address the outstanding
construction and other measures to promote build-out of the marina development project. MVA made a
management change and the new Senior Manager has enhanced communication with the City, which
has been beneficial. During this time, there has been a breakthrough on several key actions and
activities, which are presented in detail in MVA’s March 9, 2020 letter to the City (see Attachment 4). The
following is a summary of the key actions and activities outlined in the letter:
1. MVA has announced that that it has entered into an agreement to potentially sell the marina
portion of the development to Safe Harbor Marinas (SHM), a well-known marina operator/owner
in the US. Locally, SHM operates marinas in Emeryville and Alameda. If the purchase is
successful, SHM would construct a portion of the remaining building improvements including the
new harbormaster’s office/restaurant building, the new boat repair building and the re-skinning of
the yacht club building. Under this purchase agreement, MVA would be responsible for
completing the flooding improvements in the two areas of the marina site (described below), and
installation of both the kayak dock and kayak launch. MVA would be responsible for securing the
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
permits for these improvements (BCDC and City building permits) and assisting SHM in securing
the permits for the fuel storage and pumping facilities. There are several other conditions of the
purchase which are described below. As presented in the attached letter from MVA, SHM has
stated that their intent is to build the marina facilities described above over a projected eight (8)
month period commencing this summer. The work would be completed for a planned grand
opening in early summer 2021. If successful, escrow on the sale would close in late April/early
May 2020.
2. MVA has reported that it is currently working with a local residential builder that has a strong
interest in purchasing the second phase of The Strand and the mixed-use building that is
approved for the site north of Andy’s Market. At present, the discussions have been confidential,
and the builder’s name has not been disclosed. One of the terms of the potential purchase is for
MVA to obtain City approval to release the six (6) unbuilt BMR units (two BMR units in the mixed-
use building and four BMR units in the second phase of The Strand) so that these units are
available to the builder for construction and sale as market rate units. As reported in the MVA
letter, a commitment on a construction schedule cannot be made as such a schedule is driven by
the market. However, it is the intent of the potential residential builder to start construction as
soon as possible following close of escrow.
3. The MVA letter also provides a detailed status report on the timing of a list of specific
improvements, including the status of the BCDC permitting.
In response to the above actions and activities, MVA is requesting City approval of the following:
New Subdivision Improvement Agreement (SIA) for Completing Flooding Improvements and
Remaining Phase 1 and 2 Improvements
As indicated above, SIA-1 and SIA-2 are expired. Most of the improvements required under SIA-1 have
been completed and the City is ready to accept that they are completed, however the improvements
required under SIA-2 are mostly incomplete. The remaining improvements to be completed and covered
under a new Consolidated SIA are described as follows:
1. Phase 1 ‘rework’ of previously completed areas. This work includes the flooding improvements
for the entrance to the breakwater (path and picnic area) and the central jetty (playground).
Broadly described, the City and BCDC-approved flooding improvement plans prepared by Noble
Consultants/GEC, dated August 2, 2019 (attached as an Exhibit to Attachment 1.a) propose the
following:
a. Breakwater connector. Raising the grade at the west end and east end of the connector, thus
maintaining a lower depressed area at the center of the connector. This depressed area
would allow tidewater from the marina basin to flow into the adjacent seasonal wetland. This
flow is necessary to maintain the viability for the seasonal wetland to properly function as a
biological resource. To maintain permanent flood-free access in the depressed area, a wood
bridge/boardwalk would be installed, which would include the required bird viewing area. The
flooding improvement plans for this area require adjustments in the location of current facilities
(benches, picnic tables, fish cleaning area and parking lot terminus) and reconfiguring planned
improvements (required kayak launch).
b. Playground on Central Jetty. Raising the grade along the eastern and western edges of the
jetty to create a wall or physical barrier which would partially encircle and protect the
playground area from high tides. Further, lowering the southern tip of the jetty and creating a
nature-based barrier.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 6
BCDC has approved a permit amendment (Permit Amendment #5), which authorizes and requires
the above flooding improvements. Permit Amendment #5 requires that MVA commence the
flooding improvements before December 31, 2020 and complete the improvements prior to
December 31, 2021.
Outstanding Phase 1 improvements beyond those included in BCDC Permit Amendment #5
include removing the temporary harbormaster’s office, connecting the boardwalk to the public
path on the adjacent San Pedro Cove open space, fencing along the western property boundary,
signage at the public restrooms, the kayak launch near the entrance to the breakwater, and the
installation of the required kayak dock and access ramp to be located between the public boat
launch and the yacht club building.
2. Remaining Phase 2 improvements. Remaining Phase 2 improvements covered under expired
SIA-2 include: a) completion of the second phase of “The Strand” area surcharge, Bayharbor Way
improvements, utilities and infrastructure in this area; and b) completion of required off-site road
and utilities improvements along Point San Pedro Road.
MVA has provided an Opinion of Probable Construction Costs that estimates the construction costs of
building the remaining improvements and flood improvements shown on these plans.
A new Consolidated Subdivision Improvement Agreement (SIA) has been drafted and is presented as an
exhibit to Attachment 1 of this report (Resolution). In addition to covering the above, the SIA includes the
following terms:
City release of the $5,000,000 security (bond) that is currently being held for expired SIA-1.
City release of the $1,947,000 security (bond) that is currently being held for expired SIA-2.
Posting new securities for the new SIA in the amount of $2,400,000 (improvement bond) and
$1,200,000 (payment bond).
Requiring a completion date of all improvements of December 31, 2021 consistent with
completion date required by BCDC Permit Amendment #5.
Below Market Rate (BMR) Housing Agreement Amendment
MVA is requesting that the City approve an amendment to their existing recorded Below Market Rate
(BMR) Housing Agreement. This amendment would reduce the on-site BMR ownership units currently
required from seventeen (17) units to eleven (11) units. In exchange for amending the BMR agreement,
MVA will buy-out the remaining six (6) units for $3.6+ million to be allocated to the City’s affordable
housing trust fund.
ANALYSIS:
New Consolidated Subdivision Improvement Agreement (SIA) (Attachment 1)
Staff has worked closely with MVA in developing the new SIA to ensure it adequately covers the flooding
improvements, outstanding Phase 1 improvements and the completion of Phase 2 improvements. As
noted, the new SIA requires completion of the work by December 31, 2021, consistent with the completion
date for flooding improvements required by BCDC Permit Amendment #5. In view of the current state of
emergency due to COVID-19, the proposed SIA includes a provision allowing tolling of the agreement
term during any period work is stopped by governmental order due to COVID-19. The current State and
County stay-at-home orders do not preclude work on this development since it has an affordable housing
component.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 7
Regarding the costs and securities (bond amounts), the Public Works Department has reviewed these
costs and is in agreement that they are reasonable and adequate. Further, Public Works staff has
requested MVA to provide new performance and payment bonds, in the amount of $2,400,000 and
$1,200,000 respectively, to assure the City that the improvements shown on the plans will be constructed.
Lastly, it should be noted that there are several design details in the improvement plans subject to change
as they require yet-to-be secured permits and/or clearances from BCDC. Specifically, the design and
scope of the kayak dock that is to be installed adjacent to the public boat launch has changed since the
initial project approval. While City staff has approved an updated kayak dock design, it is subject to
BCDC approval and could change through their review process. Further, the kayak launch that is
included in the flooding improvement plan for the breakwater access is narrower than initially permitted
(initially designed and approved at a width of 20 feet; 14 feet now proposed). Both BCDC and the City
may require adjustments to the plans to achieve a wider launch. As these issues are not worked out at
this time, the SIA allows for minor adjustments and contingencies in the event there are plan changes.
First Amendment to BMR Housing Agreement (Attachment 3)
Staff has worked closely with MVA to develop an amendment to their existing Below Market Rate (BMR)
Housing Agreement. This amendment would reduce the on-site BMR ownership units currently required
from seventeen (17) units to eleven (11) units. In exchange for amending the BMR agreement, MVA will
buy-out the remaining six (6) units for $3,686,400 to be allocated to the City’s affordable housing trust
fund. Staff and MVA determined the buyout amount utilizing the formula outlined in Section 8 of the
amendment to the BMR agreement and agreed upon sales amounts used in that formula. The details of
this buyout and formula are outlined in Memorandum of Understanding section below.
To date, MVA has built and sold eleven (11) for-sale BMR units in the first phase of The Strand. These
units represent two-thirds of the inclusionary housing requirement for providing first time buyer housing
for households in the low- and moderate-income level. The remaining six (6) units required to be built
under the BMR agreement include:
The $3.6+ million buyout would provide a significant boost to the City’s affordable housing trust fund.
Adding to the fund would be timely because of other affordable housing projects under development in
need of local housing funding. Further, approval of this buyout would set precedent for Staff to pursue
similar policy and development opportunities to reduce the constraints to housing development consistent
with the housing policy priorities approved by the City on January 21st, 2020. These opportunities include
revisiting the City’s inclusionary housing and affordable in-lieu fee requirements and making adjustments
informed by the process conducted with MVA.
Memorandum of Understanding (Attachment 2)
Staff is requesting that the City Council approve a Memorandum of Understanding (MOU) documenting
the agreed upon terms between MVA, the Marin Housing Authority, and the City to facilitate the execution
BMR Unit Type Bed/Bath AMI Affordability Level
Townhome 3/2.5 120%
Townhome 3/2.5 120%
SFH- Detached 3/2.5 80%
SFH- Detached 3/2.5 120%
Flat 3/2.5 80%
Flat 3/2.5 120%
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 8
of the Subdivision Improvement Agreement and BMR Agreement Amendment. A key element of this
MOU is agreeing to the main terms used in the formula determining the BMR buyout amount. These
factors are outlined in Section 8 of the First Amendment to the BMR Agreement and include: the below
market rate sale price of the units, the sale price of the units on the open market without restrictions, and
the normal selling and closing costs. The buyout amount was then determined using the below formula:
𝐵𝐵𝐵𝐵𝐵𝐵𝐵𝐵𝐵𝐵𝐵𝐵 𝐴𝐴𝐴𝐴𝐵𝐵𝐵𝐵𝐴𝐴𝐵𝐵=75%× [(𝑂𝑂𝑂𝑂𝑂𝑂𝐴𝐴 𝑀𝑀𝑀𝑀𝑀𝑀𝑀𝑀𝑂𝑂𝐵𝐵 𝑆𝑆𝑀𝑀𝑆𝑆𝑂𝑂 𝑃𝑃𝑀𝑀𝑃𝑃𝑃𝑃𝑂𝑂−𝑆𝑆𝑂𝑂𝑆𝑆𝑆𝑆𝑃𝑃𝐴𝐴𝑆𝑆 𝑀𝑀𝐴𝐴𝑎𝑎 𝐶𝐶𝑆𝑆𝐵𝐵𝐶𝐶𝑃𝑃𝐴𝐴𝑆𝑆 𝐶𝐶𝐵𝐵𝐶𝐶𝐵𝐵𝐶𝐶)−𝐵𝐵𝑀𝑀𝐵𝐵 𝑆𝑆𝑀𝑀𝑆𝑆𝑂𝑂 𝑃𝑃𝑀𝑀𝑃𝑃𝑃𝑃𝑂𝑂]
Section 8 of the BMR Agreement was initially designed to be used if the applicant was unable to sell the
BMR units. These units would have then been sold on the open market. In such case, the actual sale
prices and selling and closing costs would have been used to determine the buyout payment. However,
given these six (6) units are not completed and available for sale, MVA and the City mutually agreed to
set these amounts through the MOU. Per the MOU, MVA and the City mutually agreed to set the total
below market rate sale price at $2,359,800 and the sale price of the units on the open market without
restriction at $7,500,000. The normal selling and closing costs were mutually agreed to be set at three
percent (3%) of the open market sale price, or $225,000. This normal selling and closing cost is within
the industry standard.
Using these mutually agreed upon amounts (presented in the table below) MVA would pay a total buyout
of $3,686,400. The Marin Housing Authority will also be a party to the MOU and has agreed to accept a
payment of 1%, or $36,864, of this buyout amount from the City in lieu of the 10% required by the original
BMR Agreement. The remaining $3,649,536 would then be allocated to the City’s affordable housing
trust fund.
Table X. Loch Lomond Marina Buyout
Building Construction Schedule
The new Subdivision Improvement Agreement and the BMR Agreement Amendment do not cover, nor
do they regulate home or marina building/facility construction. As reported by MVA, should SHM
purchase the marina as planned, it is SHM’s intent to commence with construction of the marina buildings
over a projected eight (8) month period commencing this summer. MVA also reports that the local
residential builder that is interested in purchasing the second phase of The Strand and the mixed-use
BMR Unit Type Bed/Bath AMI Affordability
Level
BMR Sales
Price
Open Market
Sale Price
Townhome 3/2.5 120%$446,700 $1,250,000
Townhome 3/2.5 120%$446,700 $1,250,000
SFH- Detached 3/2.5 80%$286,500 $1,500,000
SFH- Detached 3/2.5 120%$446,700 $1,500,000
Flat 3/2.5 80%$286,500 $1,000,000
Flat 3/2.5 120%$446,700 $1,000,000
$2,359,800 $7,500,000
$3,649,536
$608,256 Average Buyout Per Unit
Selling and Closting Costs (3%)
Sub-Total
$225,000
Total MVA Buyout $3,686,400
MHA Remittance (1%)
Affordable Housing Trust Fund Allocation
$36,864
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 9
building would commence with construction following close of escrow. However, construction is dictated
by the market and the state of the economy.
Staff has assessed measures to incentivize construction and other possible mandates in order to
address concerns with the slow progress of the build out of the development. However, the City has little
leverage to impose or require a specific building construction schedule. The Village at Loch Lomond
Marina approvals did not include a Development Agreement, which would have afforded the City the
opportunity to impose a building construction schedule and/or deadline. The sole construction schedule
mandate in the City approvals for the marina development project requires that the grocery store (Andy’s
Market) be permitted, built and in operation prior to the demolition of the former Andy’s Market. As to the
remaining structures, the City approvals provide an entitlement (a right) to build, but these approvals are
not structured as a mandate (obligation) that any one or all the buildings or uses must be constructed by
the property owner. This particular issue has been raised relative to the marina fueling facilities. The
marina has been without fueling facilities for over five years. The right to build new fueling facilities has
been approved by the City, but permits are required by the City and BCDC. MVA has stated that the
permit plans are in process. While the City approved a “full service” marina, the approvals do not
mandate that the fueling facilities must be installed and provided.
Environmental Review
As required by the California Environmental Quality Act (CEQA), the Village at Loch Lomond Marina
Development was subject to environmental review. A comprehensive Environmental Impact Report (EIR)
was prepared in 2006 and the Final EIR was certified by the City Council in 2007. The project activities
and actions that are being currently considered and summarized in this staff report have been reviewed
for compliance with the CEQA Guidelines. While the new Consolidated Subdivision Improvement
Agreement is linked to the Final Subdivision Map, which is exempt under CEQA, the flooding
improvements that propose physical changes to two areas of the site must be assessed. It was
determined that the flooding improvements are adequately assessed by the 2007-certified FEIR. An EIR
Addendum was prepared to confirm this finding and is on file with the Department of Community
Development. This EIR Addendum was also accepted and used by BCDC in its permit actions on the
flooding improvements. The BMR Agreement Amendment would not result in a physical change in the
environment and therefore subject to the general rule that such actions are exempt from environmental
review pursuant to CEQA Guidelines Section 15061.
COMMUNITY OUTREACH:
Notice of the public hearings has been given in accordance with the public review period and noticing
requirements contained in Chapter 29 of the Zoning Ordinance. Notice of public hearing was mailed to
all property owners and occupants within a 400-foot radius of the site and the representing neighborhood
groups at least 15 days prior to the hearing date. In addition, notice of each meeting/hearing was posted
at one location on the site at least 15 days prior to each meeting or hearing.
Over the past several years, staff has been meeting monthly with the Marina Oversight Committee; this
Committee tracks the actions and activities on this project. The Committee is informal and is comprised
of representatives from the Strand, the immediately surrounding neighborhood groups, as well as the
Point San Pedro Road Coalition. Correspondence from the Committee representatives is attached.
FISCAL IMPACT:
Adopting a resolution approving the BMR Agreement Amendment and the MOU would authorize a
buyout amount of $3,686,400. This buyout amount would be paid by MVA to the City within forty-five
(45) days following execution of the Amendment but prior to its recordation (with tolling allowed due
COVID-19 as provided in the new SIA). The City would then remit 1%, or $36,864, of this buyout
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 10
amount to the Marin Housing Authority. The remaining $3,649,536 would be allocated to the City’s
affordable housing trust fund (Fund #214).
Additionally, the release of the six (6) BMR units from the BMR restrictions would increase the number
of properties paying into existing Mello-Roos CFD for the Loch Lomond Marina. Currently, BMR units are
exempted from paying into this CFD. An increase in the number of units paying into this CFD could be
used either to marginally lower the CFD per property payments made by property owners within the CFD
or to provide additional funding to replace the flooding improvements over time. Staff recommends adding
those payments to the capital fund to help maintain the flooding improvements, as those improvements
were not included in costs estimated at the time of formation of the CFD. Staff does not expect any other
ongoing fiscal impact related to this CFD associated with the release of these BMR units.
There is no fiscal impact to adopting a resolution approving the Subdivision Improvement Agreement.
OPTIONS:
The City Council has the following options to consider on this matter:
• Adopt the attached Resolutions to approve the Subdivision Improvement Agreement, BMR
Agreement Amendment and Memorandum of Understanding as recommended by staff:
• Adopt the attached Resolutions with modifications;
• Deny the requests; or
• Take no action and direct staff to return with additional information.
ATTACHMENTS:
1. Resolution authorizing City Manager to sign the Consolidated Subdivision Improvement
Agreement, with attached Exhibit A: Agreement with attached exhibits
2. Resolution authorizing the City Manager to sign the Memorandum of Understanding (MOU),
with attached Exhibit A: MOU (not including Exhibit)
3. Resolution authorizing the City Manager to sign an Amendment to BMR Housing Agreement,
with attached Exhibit A: Amendment
4. Letter to City of San Rafael from Marina Village Associates, LLC, March 9, 2020
5. Public Meeting Notice
6. Correspondence
1
RESOLUTION NO. 14789
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE MAYOR
AND CITY MAN AGER TO SIGN AND EXECUTE A NEW CONSOLIDATED
SUBDIVISION IMPROVEMENT AGREEMENT (SIA) FOR THE VILLAGE AT LOCH
LOMOND MARINA DEVELOPMENT AT 110 LOCH LOMOND DRIVE
WHEREAS, on August 7, 2007, the City approved the Village at Loch Lomond Marina
development. This approval permits a mixed-use development that includes enhanced and
upgraded marina facilities, a new grocery store and neighborhood commercial uses,
development of 81 residential units and publicly accessible shoreline park and recreation
improvements; and
WHEREAS, the August 7, 2007 City approvals include adopted City Council Resolution
No. 12332 covering the approval of a Vesting Tentative Map for the mixed-use development.
Conditions of approval for the Vesting Tentative Map require that the subdivider (property
owner) file for a Final Subdivision Map, which is to be accompanied by subdivision improvement
plans. This condition also requires that the property owner enter into a Subdivision
Improvement Agreement, which sets the timing for construction of improvements and requires
the posting of securities to ensure that the improvements are completed; and
WHEREAS, in 2014, a Final Subdivision Map and improvement plans were filed and
recorded covering the first phase of the improvements (Final Map Phase 1). The Final Map
Phase 1 divided the marina property into large parcels and included the basic “backbone”
improvements such as the site grading, road and utility construction, publicly accessible park,
playground and marina green improvements, and the restoration of a seasonal wetland. A
Subdivision Improvement Agreement (SIA-1) was approved and securities were posted by the
Subdivider; and
WHEREAS, in 2015, a Final Subdivision Map and improvement plans were filed and
recorded covering the second phase of the improvements (Final Map Phase 2). The Final Map
Phase 2 divided the residential area into lots for the “The Strand” development. The
improvement plans under this phase covered site grading for the residential area, road and
utility construction for Bayharbor Way, and required off-site roadway and utility improvements
along Point San Pedro Road. A Subdivision Improvement Agreement (SIA-2) was approved
and securities were posted by the Subdivider; and
WHEREAS, nearly all the improvements covered under SIA-1 have been completed.
Regarding SIA-2, the first phase of “The Strand” residential development has been constructed.
The off-site improvements along Point San Pedro Road are not completed. Both SIA-1 and
SIA-2 have expired but the securities (over $5 million) have not been released by the City; and
WHEREAS, over the past four years, two publicly accessible park areas of the site have
experienced flooding during extreme storm events and King Tides. These effected areas are:
a) the access path and picnic area between the terminus of the marina parking lot and the
marina breakwater; and b) the playground area on the central jetty. Flooding improvement
plans for these two areas have been developed and approved by the City and the Bay
Conservation and Development Commission (BCDC); and
2
WHEREAS, as SIA-1 and SIA-2 have expired it has been determined that a new
Subdivision Improvement Agreement is necessary to cover: a) completion of minor outstanding
improvements addressed in SIA-1; b) the second phase of improvements for The Strand and
off-site improvements addressed in SIA-2; and c) completion of the flooding improvement plans
approved by the City and BCDC. A new Consolidated Subdivision Improvement Agreement has
been prepared to cover the completion of the above described improvements and the posting of
new securities; and
WHEREAS, on April 20, 2020, the City Council held a duly noticed public hearing to
consider the Consolidated Subdivision Improvement Agreement, the report of the Community
Development and Public Works Departments and public testimony.
NOW THEREFORE BE IT RESOLVED that the Mayor and City Manager are hereby
authorized to execute, on behalf of the City of San Rafael, the Consolidated Subdivision
Improvement Agreement for the Village at Loch Lomond Marina, located at 110 Loch Lomond
Drive, subject to final approval as to form by the City Attorney. The Consolidated Subdivision
Improvement Agreement and accompanying exhibits are attached hereto as Exhibit A and
incorporated herein by reference.
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 City
Council held on the 20th day of April 2020, by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
______________
LINDSAY LARA, City Clerk
Exhibit A: Consolidated Subdivision Improvement Agreement with accompanying exhibits
City of San Rafael • California
Consolidated Subdivision Improvement Agreement
THIS AGREEMENT is made and entered into by and between the City of San Rafael (hereafter, the
"City"), and Marina Village Associates, LLC, a Delaware limited liability company (hereafter, the
"Subdivider").
RECITALS:
A. Subdivider is the developer of a subdivision and mixed-use development known as the Village at
Loch Lomond Marina in the City of San Rafael, County of Marin, State of California (the
"Development").
B. In January 2014, as part of Subdivider's applications to the City for approval of the Development,
Subdivider presented to City for approval a final map entitled: "MAP OF THE VILLAGE AT
LOCH LOMOND MARINA PHASE 1" (hereafter, the "Phase 1 Final Map"). The City approved
the Phase 1 Final Map conditioned, in part, upon Subdivider entering into a Subdivision
Improvement Agreement with the City to ensure timely installation of required subdivision
improvements after recordation of the map. Thereafter, Subdivider and City entered into that
certain "Subdivision Improvement Agreement" dated January 21, 2014 (hereafter, the "Phase 1
SIA"), agreeing to construct certain specified subdivision improvements and to post bonds in the
amount of Five Million Dollars ($5,000,000) as security for the agreement.
C. In February 2015, as part of Subdivider's applications to the City for approval of the Development,
Subdivider presented to City for approval a final map entitled: "MAP OF THE VILLAGE AT
LOCH LOMOND MARINA PHASE 2" (hereafter, the "Phase 2 Final Map"). The City approved
the Phase 2 Final Map conditioned, in part, upon Subdivider entering into a Subdivision
Improvement Agreement with the City to ensure timely installation of required subdivision
improvements after recordation of the map. Subdivider and City entered into that certain
"Subdivision Improvement Agreement" dated January 21, 2014 (hereafter, the "Phase 2 SIA"),
agreeing to construct certain specified subdivision improvements and to post bonds in the amount
of One Million, Nine Hundred Forty -Seven Thousand Dollars ($1,947,000) as security for the
agreement.
D. Subdivider has now completed a substantial portion of the Phase 1 subdivision improvements, and
the City is willing to accept those completed improvements. To facilitate the completion of the
Development, City and Subdivider have agreed to enter into this new Consolidated Subdivision
Improvement Agreement ("Agreement") that will supersede the Phase I SIA and the Phase 2 SIA
and will cover all of the Phase 1 and Phase 2 subdivision improvements remaining to be
constructed. City has also agreed to allow Subdivider to replace the securities currently securing
the Phase l SIA and the Phase 2 SIA with new securities in a reduced amount still sufficient to
secure construction of the remaining subdivision improvements covered by this Agreement.
E. This Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of
California and Title 15 of the San Rafael Municipal Code.
NOW, THEREFORE, the parties agree as follows:
1. Performance of Work
Subdivision Agreement • 1
All of the work and improvements and materials shall be done, performed and installed in strict
accordance with the approved plans and specifications for said work on file in the office of the City
Engineer of City, which said plans and specifications and standards are hereby referred to and adopted
and made part of this agreement. In case there are not any standard specifications of City for any of said
work, it is agreed that the same shall be done and performed in accordance with the standards and
specifications of the State of California department of Transportation. Subdivider will do and perform, or
cause to be done and performed, at Subdivider's own expense, in a good workmanlike manner, and
furnish all required materials, all under the direction and to the satisfaction of the City Engineer of City,
who shall endorse his approval thereon, all of the following work and improvements related to the
Subdivision as shown on the attached improvements plans and drawings, incorporated herein by
reference, entitled: "PHASE 1 REWORK PREVIOUSLY COMPLETED AREAS EXHIBIT" for Phase
1 "PHASE 2 REMAINING IMPROVEMENTS EXHIBIT" for Phase 2, and "PROJECT DRAWINGS
FOR LOCH LOMOND MARINA SITE IMPROVEMENTS" by Noble Consultants for the additional
work required by BCDC (collectively hereafter, "the Subdivision Improvements"), all subject to the
conditions, requirements and recommendations as set forth by the San Rafael City Council Resolution
Nos. 12332 adopted at the San Rafael City Council on the 6" of August, 2007. Subdivider shall also do
all work and furnish all materials which, in the opinion of the City Engineer and on his order, are
necessary to complete the improvements in accordance with the plans and specifications on file as
hereinbefore specified, or with any changes required or ordered by said Engineer, which in his opinion are
necessary or required to complete the work.
2. Soils Engineering Contractor
It is mutually agreed that the City shall determine the soils engineering firm to perform required soils testing
and investigation, at the Subdivider's sole expense, during the construction of the Subdivision
Improvements.
3. Work. Places and Grades to be fixed by Engineer
All of said work is to be done at the places, of the materials, in the manner, and at the grades, all as shown
upon the Improvement Plans and to the satisfaction of the City Engineer.
4. Work. Time for Performance
City hereby fixes the time for the completion of the Subdivision Improvements to be December 31, 2021.
At least fifteen (15) calendar days prior to commencement of work hereunder, Subdivider shall notify City
Engineer in writing of the date fixed by Subdivider for commencement thereof, so that the City Engineer
shall be able to provide services for inspection. Note the City of San Rafael and Marina Village Associates,
LLC are closely monitoring any governmental actions in response to the ongoing COVID-19 pandemic.
The Judicial Council of California has adopted temporary emergency rules in response to the COVID-19
pandemic affecting statutes of limitations among other things, time allotment and potential tolling of
conditions of approval, time sensitive work and performance agreements and for completion of map
conditions. In the event Subdivider is required, as a result of a governmental order, to stop work
being performed pursuant to this Agreement then the time for performance under this Agreement
will be extended by a period equal to the duration of the work stoppage, i.e. from the date of work
stoppage; until such governmental order is lifted as to Subdivider and work can restart.
5. Time is of Essence - Extension
Time is of the essence of this agreement; provided that in the event good cause is shown therefore, the City
Council may extend the time for completion of the Subdivision Improvements hereunder pursuant to San
Rafael Municipal Code Section 15.11.130. Any such extension may be granted without notice to the
Subdivider's surety, and extensions so granted shall not relieve the surety's liability on the bond to secure
Subdivision Agreement • 2
the faithful performance of this agreement. The City Council shall be the sole and final judge as to whether
or not good cause has been shown to entitle Subdivider to an extension.
6. Repairs and Replacements
Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, all pipes and
monuments shown on the Phase I Final Map and the Phase 2 Final Map which have been destroyed or
damaged, as the case may be, or shall pay to the owner(s) thereof, the entire cost of replacement or repairs,
of any and all pipes and monuments damaged or destroyed by reason of any work done hereunder, whether
such pipes and monuments be owned by the United States or any agency thereof, or the State of California,
or any public agency or political subdivision thereof, or by the City or by any person whomsoever, or by
any combination of such owners. Any such repair or replacement shall be to the satisfaction, and subject
to the approval of the City Engineer.
7. Utility Deposits. Provision
Subdivider shall make all deposits legally required by each public utility corporation involved in the
provision of services for the Subdivision for the connection of any and all public utilities to be supplied by
such public utility corporation within the Subdivision, and shall ensure that utilities are available to said
Subdivision prior to final occupancy thereof.
8. Permits. Compliance with Law
Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of
the Subdivision Improvements, and shall give all necessary notices and pay all fees and taxes required by
law, as outlined within this agreement in Section 21 Cost of Engineering, Inspection and Other Fees.
9. Superintendence by Subdivider
Subdivider shall give personal superintendence to the work on the Subdivision Improvements, or have a
competent foreman or superintendent, satisfactory to the City Engineer, on the work at all times during
progress, with authority to act for Subdivider.
10. Inspection by City
Subdivider shall at all times maintain proper facilities and provide safe access for inspection by City to all
parts of the work and to the shops wherein the work is in preparation. The Subdivider shall pay overtime
incurred by City inspectors whenever the Subdivider elects to work on Saturday, Sundays, and holidays,
and he shall also pay overtime incurred by any City inspector when Subdivider works any overtime hours.
The inspection of work shall not relieve the Subdivider of any of his obligations to complete the Subdivision
Improvements as prescribed. Defective work shall be made good and unsuitable materials may be rejected,
notwithstanding the fact that such defective work and unsuitable materials may have been previously
overlooked and accepted by the City Engineer.
11. Improvement Security
As the Subdivider is requesting to reduce the security currently held by the City in the amount of Five
Million Dollars ($5,000,000) for the Village at Loch Lomond Marina --Phase 1 and One Million, Nine
Hundred Forty Seven Thousand Dollars ($1,947,000) for the Village at Loch Lomond Marina -Phase 2
for the work substantially completed through March 1, 2020 and the City has accepted the completed
improvements of said Phase I and Phase 2, the Subdivider shall present to and file with the City of San
Rafael a surety company bond in the sum Two Million Four Hundred Thousand Dollars ( $2,400,000)
issued by a company duly and regularly authorized to do a general surety business in the State of
California conditioned upon the faithful performance of this agreement and by its terms made to inure to
the benefit of the City of San Rafael. The surety on said bond and form thereof shall be satisfactory to the
City Attorney.
Subdivision Agreement • 3
12. Alternate Improvement Security
Subdivider may deposit at the time for submission of the bonds mentioned in paragraph 1 I above, in lieu
of a surety bond, cash in the amount of said required bond with the City Finance Director of the City as a
guarantee for the faithful performance of this agreement. The City Finance Director may disburse progress
payments to the Subdivider on his order as the work progresses; provided first that the Subdivider shall
submit a demand for a progress payment and the demand for payment and the amount is approved, in
writing, by the City Engineer of the City. No progress payment allowable hereunder shall be made for
more than ninety percent (90%) of the value of any installment of work and not before each installment of
work shall have been completed to the satisfaction of the City Engineer.
The final payment for the work to be performed under this agreement shall be made 35 days after formal
acceptance of the subdivision by the City upon determination of the City Engineer that all improvements
required by this agreement have been completed to his full and complete satisfaction. As the hereinabove -
mentioned deposit is a guarantee for the faithful performance of this agreement, the City may, upon a
breach, default, or violation of any of the provisions of this agreement resort to the hereinabove -mentioned
deposit for the purposes of taking over the work and prosecuting the same to completion. Upon breach,
default or other violation of this agreement requiring the City to take over the work, the City Finance
Director shall release, to the City Engineer, upon written demand of the City Engineer, such amount or
amounts of the deposit remaining as the City Engineer estimates is reasonably necessary to complete the
work.
In lieu of the surety bond or cash as required by Title 15 of the San Rafael Municipal Code, an instrument
or instruments of credit in the amount of said required bond may be deposited with City upon condition the
financial institution fumishing the credit pledges to the City it has the funds necessary, that they are on
deposit as guarantee for payment of the public improvements required and that the said funds are held in
trust for the purposes set forth in this agreement.
13. Payment Bond (50% of Improvement Cost)
The Subdivider shall present to and file with the City of San Rafael a surety company bond in the sum of
One Million Two Hundred Thousand Dollars ($1,200,000) issued by a company duly and regularly
authorized to do a general surety business in the State of Califomia securing payment to the contractors,
subcontractors, persons renting equipment or furnishing labor or materials for the Subdivision
Improvements. The security may be cash, surety bond, or instrument of credit as permitted by the
Subdivision Map Act of the State of California. Such security shall be retained by the City for a period of
ninety (90) days following acceptance of the Subdivision Improvements by the City or for such other period
as may be required or permitted pursuant to Government Code provisions goveming the release of labor
and material bonds for subdivision improvements. The surety on said bond and form thereof shall be
satisfactory to the City Attorney.
14. Monumentation Bond N/A
15. Maintenance Bond
The Subdivider shall maintain all infrastructure installed but not limited to the items shown on the
attached plans titled "PHASE 1 REWORK PREVIOUSLY COMPLETED AREAS EXHIBIT" for Phase
1, "PHASE 2 REMAINING IMPROVEMENTS EXHIBIT" for phase 2, and "PROJECT DRAWINGS
FOR LOCH LOMOND MARINA SITE IMPROVEMENTS" by Noble Consultants for the additional
work required by BCDC. The Subdivider shall be responsible for all utility cost for the improvements
and maintenance including, but not limited to, water and electricity until such time as, in the opinion of
the Public Works Director, there is sufficient funding in the Mello -Roos District for Community Facilities
District No. 2 (Loch Lomond Marina Development, 1 10 Loch Lomond Drive) to support all maintenance
costs.
Subdivision Agreement • 4
16. Hold Harmless Agreement
To the fullest extent permitted by law, Subdivider must indemnify, defend, and hold harmless City, its
Council, officers, officials, employees, agents, volunteers, and consultants (individually, an "Indemnitee,"
and collectively the "Indemnitees") from and against any and all liability, loss, damage, claims, causes of
action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert
witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, "Liability") of
every nature (including death or injury of persons, or destruction of or damage to property) arising out of
or in connection with the acts or omissions of Subdivider, its employees, Contractors and Subcontractors,
representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation
of Subdivider under this Agreement, except such Liability caused by the active negligence, sole
negligence, or willful misconduct of an Indemnitee. Subdivider's failure or refusal to timely accept a
tender of defense pursuant to this Agreement will be deemed a material breach of the Agreement. City
will timely notify Subdivider upon receipt of any third -party claim relating to this Agreement, as required
by Public Contract Code § 9201. Subdivider waives any right to express or implied indemnity against any
Indemnitee. Subdivider's indemnity obligations under this Agreement will survive the expiration or any
early termination of the Agreement.
A. City does not, and shall not, waive any rights against Subdivider which it may have by reason of
the aforesaid hold harmless agreement, because of the acceptance by City of any of the insurance
policies described in paragraph 18 hereof.
B. The aforesaid hold harmless agreement by Subdivider shall apply to all damages and claims for
damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid
operations, regardless of whether or not City has prepared, supplied or approved of plans,
specifications, or either, for the Subdivision, and regardless of whether or not any insurance policies
shall have been determined to be applicable to any of such damages or claims for damages.
C. Subdivider agrees that the use of any and all streets and public improvements hereinabove required
to be constructed shall be, at all times prior to the final acceptance of the subdivision by the City,
at the sole and exclusive risk of the Subdivider. The City may, at its sole option, issue permission
to occupy all or a portion of the Subdivision Improvements prior to final acceptance of said
Subdivision Improvements. The issuance of any permission to occupy the Subdivision
Improvements located within the Subdivision shall not be construed in any manner to be an
acceptance and approval of any or all of the streets and improvements in Subdivision, or that stage
of development of said streets and improvements represented by their conditions at the time of
issuance of said occupancy permit or permits, or any stage of their development reached between
the period commencing with the issuance of any occupancy permit, and the final acceptance of the
Subdivision.
17. Protection of Public Safety
Subdivider is obligated to protect the public safety during all phases of the work, and shall erect and
maintain all necessary barricades, signs and warning devices necessary to ensure public protection. In the
event that City discovers a condition on the site which in its determination constitutes an immediate danger
to public safety, and Subdivider cannot respond at once, City may erect any barriers, signs and warning
devices it deems necessary. In such event, Subdivider shall pay for the labor of City's crews as specified
on the latest fully -burdened rate schedule at the time the work is performed, per worker; plus, the cost of
any materials used and a reasonable fee for use of any barricades found necessary. In no event shall
Subdivider pay less than one hour minimum per worker assigned if City acts pursuant to this paragraph.
18. Insurance
Subdivision Agreement • 5
A. During the term of this Agreement, Subdivider shall maintain, at no expense to City, the following
insurance policies:
1. A commercial general liability insurance policy in the minimum amount of two million dollars
($2,000,000) per occurrence/four million dollars ($4,000,000) aggregate, for death, bodily injury,
personal injury, or property damage.
2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum
amount of two million dollars ($2,000,000) dollars per occurrence.
3. Worker's 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. Subdivider's worker's compensation insurance shall
be specifically endorsed to waive any right of subrogation against City.
B. The insurance coverage required of the Subdivider in subparagraph A above shall also meet the
following requirements:
1. The commercial general liability insurance and automobile policies shall be specifically endorsed
to include the City, its officers, agents, employees, and volunteers, as additional insureds under the
policy.
2. The additional insured coverage under Subdivider's insurance policies shall be "primary and
noncontributory" with respect to any insurance or coverage maintained by City and shall not call
upon City insurance or self-insurance coverage for any contribution. The "primary and
noncontributory" coverage in Subdivider's policies shall be at least as broad as ISO form CG20
0104 13.
3. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not
cancel, terminate or otherwise modify the terms and conditions of said insurance policies except
upon ten (10) days written notice to the City.
4. 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.
5. The insurance policies shall provide for a retroactive date of placement coinciding with the
effective date of this Agreement.
6. 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.
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.
Subdivision Agreement • 6
C. Any deductibles or self-insured retentions in Subdivider's insurance policies must be declared to and
approved by the City Attorney 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
Subdivider shall procure a bond guaranteeing payment of losses and related investigations, claims
administration, attorney's fees and defense expenses.
D. Subdivider shall provide to the City Attorney 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 the Subdivider. 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 Attorney.
19. Repair or Reconstruction of Defective Work
If, within a period of two years after final acceptance of the work performed under this agreement, any
structure or part of any structure furnished or installed or constructed, or caused to be installed or
constructed by Subdivider, or any of the work done under this agreement fails to fulfill any of the
requirements of this agreement or the specifications referred to herein, Subdivider shall without delay and
without cost to City, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts
of the work or structure. Liability under the contracts of surety or guarantee referred to in paragraphs 11
and 12 of this agreement shall be released upon the completion of all work and public improvements to the
satisfaction of the City Engineer as provided and permitted by the Subdivision Map Act of the State of
California. Should Subdivider fail to act promptly or in accordance with this requirement, or should the
exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City
may, at its option, make the necessary repairs or replacements or perform the necessary work, and
Subdivider shall pay to the City the actual cost of such repairs plus fifteen percent (15%).
20. Subdivider Not Agent of City
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of
City in connection with the performance of Subdivider's obligations under this agreement.
21. Cost of Engineering, Inspection and Other Fees
Subdivider shall pay to the City all costs as required by Section 15.1 1.040 of the San Rafael Municipal
Code and condition numbers 44 and 49 of City Council Resolution No. 12332. Subdivider shall also pay
overtime incurred by the City's inspector whenever the Subdivider elects to work overtime or on Saturday,
Sunday and Holidays.
Final Map and Improvement Plan Check Fees $ 0.00
City Fees for Project Oversite and Processing $ 28,000.00
Construction Inspection Fees (Estimated) 1 108,000.00
Total $ 136,000.00
22. Notice of Breach and Default
If Subdivider refuses or fails to obtain prosecution of the work, or any severable part thereof, with such
diligence as will ensure its completion within the time specified, or any extensions thereof, or fails to obtain
completion of said work within such time, or if Subdivider should be adjudged a bankrupt, or Subdivider
Subdivision Agreement • 7
should make a general assignment for the benefit of Subdivider's insolvency, or if Subdivider, or any of
Subdivider's contractors, subcontractors, agents or employees, should violate any of the provisions of this
agreement, City Engineer may serve written notice upon Subdivider and Subdivider's surety of breach of
this agreement, or of any portion thereof, and default of Subdivider.
23. Breach of Agreement. Performance by Surety or City
In the event of any such notice, Subdivider's surety shall have the duty to take over and complete the work
and improvements herein specified; provided however, that if the surety, within thirty (30) days after the
serving upon it of such notice of breach, does not give City written notice of its intention to take over the
performance of the agreement and does not commence performance City may elect to take over the work
and prosecute the same to completion, by contract or by any other method City may deem advisable, for
the account and at the expense of Subdivider, and in such event, City without liability for so doing, may
take possession of and utilize in completing the work, such materials, appliances, plant and other property
belonging to Subdivider as may be on the site of the work and necessary therefore. The Subdivider shall
be liable to the City for any excess costs, claims, damages, liability, or expenses of whatever nature or kind,
direct or indirect, including reasonable attorney fees which are directly or indirectly caused by the execution
and enforcement of this agreement.
24. Binding of Agreement
This agreement shall bind, and the benefits inure to, the respective parties thereto, their legal
representatives, executors, administrators, successors in office or interest, and assigns.
25. Legal Fees
In the event that legal action is necessary to enforce any provision of this agreement, the prevailing party
shall be entitled to reasonable attorney fees and legal costs.
ft
Dated this I day of , 20
CITY OF S N RAF SUBDIVIDER:
Marina Village s/a��ny
A Delaware 'mit
Mayor
ATTEST:
.4�- Nam..,
n Lindsay Lara
% City Clerk
AP ROVED AS TO FORM:
Robert F. Epstein
City Attorney
By:
Name and Title/- Rosenfeld, Manager
Subdivision Agreement • 8
APPROVED AS TO CONTENT:
Bill Guerin, Director of Public Works
Subdivision Agreement • 9
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LEXON INSURANCE COMPANY
12890 Lebanon Road, Mt. Juliet, TN 37122
Performance Bond
KNOW ALL MEN BY THESE PRESENTS:
BOND NO. LICX1193403
That MaiimVfllaoAm o atee LLC, 1999AVemleoftheStazs.#2 %.LoeAupromCA 990067 "Principal,
and LesionInsuranos Companv 12890IebanunRnad Mi. Juhek TN 371.2E a Telae corporation authorized to do
business in the State ofCalifimm a as surety, are held and firmly bound unto Citya#' SanEgf1gL 1400 514Ave w.
San RafadCA 949111 as Obligee, in the penal sum of Two Million Four Hundred Thousand &001100 U.S.
Dollars ($2,400,000.00)lawful money of the United States of America, for which payment will and truly to be
made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally firmly
by these presents_
SIGNED, SEALEDANDDATED THIS 2nd day ofNovember. 2020.
Whereas, the Principal has entered into an agreement with g!t [af SanRa:�tel 1400 504venue, San
Rafael, CA 94916 as Obligee, guaranteeing only that the Principal will complete improvements for
ConohucdGnLmproyementoatTheVMageofL*&!! mondMuina-LPhaaeI,San&kel CA all of which
improvements shall be completed on or before the date set forth in the agreement.
Now, therefore, the condition of this obligation is such, that if the Principal shall carry out all the terms
of said agreement relating to the improvements only and perform all the work as set forth therein said
agreement, then this obligation shall be null and void, otherwise to remain in full force and effect. This
bond is not transferable or assignable.
No party other than the Obligee shall have any rights hereunder as again a ety.
The aggregate liability of the Surety of the Bond Obligation set# h here' shall not exceed the penal
sum hereof for any cause or reason whatsoever, inclusive of attorney's fe or othe costs.
Bond No. LICX1193403 M c ' LLC'
a) ility Company
Attest: By
3M' ael Rosenfeld, Manager
Attest= $
(CO-PRINCIPAL/PARTNER)
Attest- By
yayy"Auce� (CO-PRINCIPAL/PARTNER)
G°A� '0 y Lexon snranae CoA_v
SEAL*
:���CFI 76• •e %
Attest= �� By.,
Deborah L. Guido r� �F T Leonard E. Callahan, Attorney -in -Fact
LEXON INSURANCE COMPANY
12890 Lebanon Road, Mt. Juliet, TN 37122
Payment Bond
KNOW ALL MEN BY THESE PRESENTS: BOND NO. LICX1193403
BY THIS BOND, WE Marina Viilsee Aseacistes„ LLC 1999 Avenue a£ the Stm. Suite 2850. Los
Ames. CA 900fi7 as Principal, and 1exon 1IIsuranae Company, 12890 Lebanon Road, Mt- Juliet, TN.
37122 a Teancorporation, as surety, are bound unto City of San Rafae 1400 51h Avenue, San Rafal
CA 94916 herein called Owner, in the sum of One Million Two Hundred Thousand & 001100U.S.
Dollars ($1.200,000.00], for the payment of which we bind ourselves, our heirs, personal representatives,
successors, and assigns, jointly and severally.
THE CONDITIONS OF THIS BOND is that if Principal:
1. Promptly makes payment to all lienors supplying labor, material, and supplies used directly or
indirectly by Principal in the prosecution of the work provided in the contract dated the day of
'20 .
2. Pays Owner all loss, damage, expenses, costs, and attorney's fees, including appellate proceedings that
Owner sustains because of default by Principal under paragraph 1 of this bond; then this bond is void;
otherwise it remains in full force.
Any changes in or under the subdivision improvement agreement and compliance or noncompliance with
formalities connected with the contract or with the changes do not affect Surety's obligation under this bond.
DATED ON 2nd day of Novembm, 2020.
By (Seal)
Michael vsenfeld, Manager
Le1LOII In831rance CgmR&IIY
(Surety)
dragu"Nec�
SEAL
>3 (Seal)
y, r
'�wre OF ��
Leonard +_ allahan, Attorney -in -Fact
Bond Number LICX1193403
Acknowledgement of Principal (s)
State of Cstiti t'nti�
Countyof
is in and for the State and County
aforesaid, do hereby certify that
whose name is signed to the foregoing bond, this day personally appeared before me in my State and County aforesaid
and acknowledged the same.
Given under my hand this 11'"N day of NkWer )ib�� 20 .
My Commission expires: 5Qf t 225
Notary Public
J1HH IHI11pill 111WIP 111111111Hlllli 1111111111111111 HIiIIIIIIIII 1111111111 111111 IC:
._ o• SHARON COHEN
v
Notary Public - California z z Los Angeles County >
° Commission N 2304353
My Comm. Expires Sep 8, 2023
�I1111*11111111111411111i11 NIIIIilt111Y 11-Ili11Milli Pill Ilk lflilil�
Acknowledgement of Corporate Surety (s)
State of Maryland
County of Baltimore
I, Deborah B. Hill Notary Public in and forthe State and County of
aforesaid, do hereby certify that Leonard E. Callahan.
Attorney -in -Fact for the . Lexon Insuranoe Comjuany, _
whose name is signed to the foregoing bond, this day personally appeared before me in my State and County aforesaid
and acknowledged the same.
Given under my hand this 2nd day of November 20 20
My Commission expires: 12/11/2021
D barah . Hill Notary tlblic
POWER OF ATTORNEY 11378
Bond Number LICX1193403
Lexon Insurance Company
KNOW ALL MEN BY THESE PRESENTS, that LEXON INSURANCE COMPANY, a Texas Corporation, with its statutory home office in
Austin, Texas, does hereby constitute and appoint: Leonard E. Callahan, James F. Jones its true and lawful Attorney(s)-In-Fact to make,
execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond.
This authority is made under and by the authority of a resolution which was passed by the Board of Directors of LEXON INSURANCE
COMPANY on the 1st day of July, 2003 as follows:
Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other
person or persons as Attorney -In -Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other
writings obligatory in nature of a bond not to exceed $5,000,000.00, Five Million Dollars, which the Company might execute through its duly
elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fact shall be as binding
upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney -In -
Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney.
Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney
granted, and the signature of the Assistant Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such
power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such
power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached,
continue to be valid and binding on the Company.
IN WITNESS THEREOF, LEXON INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate
Seal to be affixed this 22nd day of June, 2018.
LEXON INSURANCE COMPANY
ACKNOWLEDGEMENT
BY
Brian Beggs
President
On this 22nd day of June, 2018, before me, personally came Brian Beggs to me known, who be duly sworn, did depose and say that he
is the President of LEXON INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed
said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation.
,7-x, ,r ��!tqP'+.� AMY TAYLOR
Notary Public- State of Tennessee BY &"q0aw
Davidson County Amy ylor
My Commission Expires 05-09-23
NotaryPublic
CERTIFICATE
I, the undersigned, Assistant Secretary of LEXON INSURANCE COMPANY, A Texas Insurance Company, DO HEREBY CERTIFY
that the original Power of Attorney of which the forgoing is a true and correct copy, is in full force and effect and has not been revoked and the
resolutions as set forth are now in force.
Signed and Seal at Mount Juliet, Tennessee this 2nd Day of November , 20 20
���ro�Q
k{ rY i'r�
BY
5 E A
*
�'n....'
Andrew Smith
} r
*ra <W Y¢t
Assistant Secretary
"WARNING: Any person who knowingly and with intent to defraud any insurance company or other person, files and application for insurance of
claim containing any materially false information, or conceafs for the purpose of misleading, information concerning any fact material thereto,
commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties."
Page 1 of 2
RESOLUTION NO. 14790
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE CITY MAN AGER
TO EXECUTE A MEMORANDUM OF UNDERSTANDING FOR THE VILLAGE AT LOCH
LOMOND MARINA DEVELOPMENT AT 110 LOCH LOMOND DRIVE
WHEREAS, on August 7, 2007, the City approved the Village at Loch Lomond Marina
development. This approval permits a mixed-use development that includes enhanced and
upgraded marina facilities, a new grocery store and neighborhood commercial uses,
development of 81 residential units and publicly accessible shoreline park and recreation
improvements; and
WHEREAS, the August 7, 2007 City approvals included adoption of City Council
Resolution No. 12332 covering the approval of a Vesting Tentative Map for the mixed-use
development. Vesting Tentative Map Condition 36 requires that 17 of the 81 approved
residential units be reserved for sale to low- and moderate-income households (the “BMR for-
sale units”); and
WHEREAS, on July 1, 2008, a Below Market Rate (“BMR”) Housing Agreement was
executed between the City, property owner/developer and Marin Housing Authority (MHA)
memorializing the affordability restriction of the 17 BMR for-sale units for 55 years; and
WHEREAS , since 2008, the first phase of “The Strand” residential development has
been constructed. Eleven of the 17 BMR for-sale units were built in this first phase and have
been sold to qualifying households by MHA. The remaining six, unbuilt BMR for-sale units
remain in the second phase of The Strand and in the mixed-use building; and
WHEREAS , in mid-2019, Marina Village Associates, LLC (MVA), property
owner/developer, initiated discussions with the City to “buy-out” the remaining unbuilt BMR for-
sale units. Staff negotiated a buy-out of these unbuilt units for an amount of $3,686,400. An
amendment to the BMR Housing Agreement was prepared, which included instructions on
when and how the buy-out payment would be made to the City for deposit into a special
account to be used solely for housing for persons of low or moderate income (the City’s
Affordable Housing Trust Fund # 243); and
WHEREAS, the BMR unit buy-out amount was derived based on the terms specified in
the executed BMR Agreement. As the BMR Agreement is among three parties, MHA, the
property owners/developer and the City, it was determined that a Memorandum of
Understanding is necessary to ensure that the buy-out terms are clear and understandable; and
WHEREAS, on April 20, 2020, the City Council held a duly noticed public hearing to
consider the Memorandum of Understanding, the report of the Community Development and
Public Works Departments and public testimony.
NOW THEREFORE BE IT RESOLVED that the City Manager is hereby authorized to
execute, on behalf of the City of San Rafael, the Memorandum of Understanding for the Village
at Loch Lomond Marina, located at 110 Loch Lomond Drive, attached hereto as Exhibit A and
incorporated herein by reference, subject to final approval as to form by the City Attorney.
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 City
Council held on the 20th day of April 2020, by the following vote, to wit:
Page 2 of 2
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk
Exhibit A: Memorandum of Understanding
MEMORANDUM OF UNDERSTANDING
AMONG THE CITY OF SAN RAFAEL, THE HOUSING AUTHORITY OF THE COUNTY OF
MARIN, AND MARINA VILLAGE ASSOCIATES, LLC
REGARDING DEVELOPMENT OF THE
VILLAGE AT LOCH LOMOND MARINA
Tr MEMORANDUM OF UNDERSTANDING ("MOU") is entered into thiso?-71ay of
2020 ("Effective Date") by and among the City of San Rafael (hereinafter referred to
as ` 'ity") the Housing Authority of the County of Marin ("Marin HousingAuthority") and Marina Village
h) g
Associates, LLC, a Delaware limited liability company (hereinafter referred to as the "Developer"),
collectively referred to herein as the "Parties".
RECITALS
A. Developer is the developer of a mixed-use development known as the Village at Loch Lomond
Marina in the City of San Rafael, County of Marin, State of California (the "Development"). The
City granted approval of the Development on August 6, 2007, approving the construction of eighty-
one (8 1 ) residential units and numerous other structures and amenities.
B. Marin Housing Authority is authorized by law to participate in programs that provide housing for
households of very low, low, and moderate income and is by experience qualified to screen and
determine the eligibility of applicants for very low, low, and moderate -income housing.
C. The City has adopted affordable housing requirements contained in the Zoning Ordinance Section
14.16.030 of the San Rafael Municipal Code. Pursuant to Section 14.16.030, and as a condition
of approval of the Development, the City required, and the Parties entered into, that certain
"Below Market Rate Housing Agreement" dated July 1, 2008 and subsequently recorded in the
Official Records of the County of Marin on August 14, 2008, as Document No. 2008-003836 (the
"BMR Agreement").
D. The BMR Agreement requires Developer to construct seventeen (17) of the eighty-one (81)
residential units in the Development as below market rate ("BMR") units. In order to facilitate
completion of the Development, Developer has requested and City and Marin Housing have
agreed to an amendment of the BMR Agreement to reduce the number of required BMR units
from seventeen (17) to eleven (11), in consideration of Developer's payment of a mutually
agreeable buyout price, on the terms set forth herein.
E. Pursuant to San Rafael City Council Resolution No. 13665, City and Developer entered into a
Subdivision Improvement Agreement dated January 21, 2014 for Phase 1 of the Development
(hereafter, the "Phase 1 SIA").
F. Pursuant to San Rafael City Council Resolution No. 13878, City and Developer entered into a
Subdivision Improvement Agreement dated January 21, 2014 for Phase 2 of the Development
(hereafter, the "Phase 2 SIA").
G. Developer has commenced construction of the Development and has completed the majority of
Phase 1 including subdivision improvements, and portions of Phase 2 including subdivision
improvements. In order to reduce Developer's outstanding construction and payment bonds and
thereby facilitate completion of the Development, the Parties now wish to consolidate and make
amendments to the Phase I SIA and the Phase 2 SIA, and the security therefor, to reflect the
completed improvements and to provide for the completion of those improvements that still remain
to be constructed.
NOW THEREFORE, the Parties agree as follows:
AGREEMENT
ARTICLE I. AMENDMENTS TO THE BMR AGREEMENT
I. The Parties will execute a "First Amendment to Below Market Rate Housing Agreement"
(hereafter, the "First Amendment") that will include the following substantive amendments to the BMR
Agreement:
a. Paragraph I of the BMR Agreement and the Exhibits to the BMR Agreement will be
amended to reduce the number of onsite BMR units required in the Development from
seventeen (17) to eleven (11), The following units will be released from the affordability
restrictions of the BMR Agreement:
VILLAGE @ LOCH LOMOND MARINA
Below Market Rate (BMR) Units to be Released
_ _Address —�-
APN.
IA)t No. & Subdivision
25 Loch Lomond Drive
016-070-14
Lot #2, Village LL Marina Sub Phase 1
25 Loch Lomond Drive
016-341-04
Lot #2. Village LL Marina Sub Phase 1
36 Ba harbor Way
016-341-68
Lot #4, Villa e a7 LL Marina Sub, Phase 2
54 Ba harbor Way
016-341-68
Lot #68, Village LL Manna Sub, Phase 2
58 Ba harbor Way
016-341-06
Lot #6, Village 'a7 LL Marina Sub. Phase 2
64 Ba rharbor Way
016-341-75
Lot #75, Village Ll_ Marina Sub, Phase 2
b. The required types of BMR units specified in Paragraph 2 of the BMR Agreement will be
amended to a requirement of nine (9) attached townhouses and two (2) detached cottages.
c. Paragraph 8 of the BMR Agreement, concerning the Marin Housing Authority's
declination to purchase a for -sale BMR unit, will be amended as follows, shown with
additions underlined and deletions struck out:
In the event that Marin Housing Authority or its assignee declines to purchase the
Unit, it may be sold by the Developer on the open market without restrictions as to
the price, affordability, or future re -sale, and no deed restrictions will be placed on
the property. In the event that the declination of the purchase of the Unit is the result
of a separate memorandum of understanding("MOU") between the City, the Marin
Housing Authority and the Developer, such agreement shall include a mutually
anreed to sale price of the units on the open market without restrictions In such
event, the Developer shall pay to the City from the sale price of the Unit seventy-five
percent (75%) of the difference between the net price achieved after normal selling
2
and closing costs and the below -market -rate sales prices specific in Exhibit "B". Said
sum shall be paid to the City upon close of escrow on the sale of such Unit or, if the
sale is pursuant to a contract of sale, upon execution of such contract, or. if the sale
price is set by a separate MOU Nkithin forty-five (45) days of execution of such an
agreement, whichever shall first occur (the "Payment Date"). Notwithstanding the
foregoing, in recognition of the COVID-19 pandemic's effects on the financial
markets and Executive Order N-33-20 issued by the Governor of the State of
California on March 19 2020 (the "Stay At Home Order") the Payment Date shall
be extended until forty-five (45) days after the Stay At Home Order has been lifted
for Marin County if such date is later than the Payment Date. The City shall pay to
Marin Housing Authority ten pefeent (10%) one percent (1%) of this sum for Marin
Housing Authority's use in administering Below Market Rate projects, including, but
not limited to, on-going BMR monitoring, legal fees and future BMR re -sales. Any
such payments made to the City shall be retained by the City in a special account to
be used solely for activities which it deems will facilitate the provision of housing for
persons of low or moderate income.
2. In exchange for the elimination of six BMR units from the Development, Developer will pay to the
City the sum of $3,686,400 (hereafter, the "Buyout Amount"). Pursuant to the amendment to be made to
Paragraph 8 of the BMR Agreement as described in ].c. of this MOU, the Parties hereby agree that the
Buyout Amount is calculated based upon an agreed sales prices as follows:
a. Total below market sale price for six (6) affordable units: $2,359,800;
b. Total below market sale price for six (6) affordable units on the open market without
restrictions: $7,500,000;
c. Normal selling and closing costs of $225,000, representing three percent (3%) of the sale
price of the six (6) units combined on the open market without restrictions;
d. Buyout Amount = 75% ($7,500,000 - $225,000 - $2,359,800) = $3,686,400
The Developer will make a 50% partial payment of $1,843,200.00 ("First Instalment") of the
Buyout Amount to the City within forty-five (45) days following execution by all the Parties of
the First Amendment and or by September 30, 2020 The remaining 50% balance and or Final
Payment of $1,843,200.00 would be made no later than the end of first quarter of 2021 or by
March 31, 2021, irrespective of any future, State of California Executive Orders from the
pandemic.
4. Upon receipt of the complete Buyout Amount, City will cause the First Amendment to be recorded
in the Office of the Marin County Recorder and City will pay to the Marin Housing Authority the sum of
$36,864 from the Buyout Amount, representing one percent (I%) of the Buyout Amount.
5. Once the First Amendment has been recorded, the BMR Agreement as amended by the First
Amendment will be fully transferable and/or assignable to all successors or assignee(s) of the Development.
6. Following recordation of the First Amendment, the City will record a release notice for the lots
described in Section 1(a) above, in a form approved by Developer,
3
ARTICLE II. CONSOLIDATED SUBDIVISION IMTROVEMENT AGREEMENT
7. City and Developer will enter into a Consolidated Subdivision Improvement Agreement for
completion of the unconstructed subdivision improvements required by the Phase 1 SIA and the Phase 2
SIA, including the work required by Amendment No. 5 to Permit No. 2006.010.05 , issued by the San
Francisco Bay Conservation and Development Commission ("BCDC") on December 12, 2019. The
Consolidated Subdivision Improvement Agreement will be in the form attached hereto as Exhibit A and
incorporated herein, subject to final approval as to form and substance by the City Attorney and the Director
of Public Works.
ARTICLE III. GENERAL PROVISIONS
8. No Third -Party Beneficiaries. The Parties do not intend, by any provision of this MOU, to create in
any third party, any benefit or right owed by one Party, under the terms and conditions of this MOU, to the
other Parties.
9_ Entire Agreement — Amendments.
a. The terms and conditions of this MOU, all exhibits attached, and all documents expressly
incorporated by reference, represent the entire Agreement of the parties with respect to the
subject matter of this Agreement.
b. The terms and conditions of this MOU shall not be altered or modified except by a written
amendment signed by all of the Parties.
10. Costs And Attorney's Fees. The prevailing party in any action brought to enforce the terms and
conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable
costs (including claims administration) and attorney's fees expended in connection with such action.
11. Applicable Law. The laws of the State of California shall govern this Agreement.
12. Counterparts And Electronic Signature. This MOU may be executed by electronic signature and in
any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute
one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic
transmission.
IN WITNESS ViKEREOF, the parties have executed this MOU as of
above written. 11-1
CITY OF SARI RAFAEL
�!:_;_-1W.
and year first
TES, LLC
A Delawr I' ility company
By: — limited By. --- ----
J S HUTZ, City ager
Name: Michael Rosenfeld
Title: Manager
ATTEST:
,. /
fly LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
ROBERT F. EPSTEIN, Cio Attorney
HOUSING AUTHOR] I" OF MARIN COUNTY
By
LEWIS JOR N, Executive Director
Attachment: Exhibit "A"- Consolidated Subdivision Improvement Agreement
City of San Rafael • California
Consolidated Subdivision Improvement Agreement
THIS AGREEMENT is made and entered into by and between the City of San Rafael (hereafter; the
"City"), and Marina Village Associates, LLC, a Delaware limited liability company (hereafter, the
"Subdivider").
RECITALS:
A. Subdivider is the developer of a subdivision and mixed-use development known as the Village at
Loch Lomond Marina in the City of San Rafael, County of Marin, State of California (the
"Development").
B. In January 2014, as part of Subdivider's applications to the City for approval of the Development,
Subdivider presented to City for approval a final map entitled: "MAP OF THE VILLAGE AT
LOCH LOMOND MARINA PHASE I" (hereafter, the "'Phase I Final Map"). The City approved
the Phase 1 Final Map conditioned, in part, upon Subdivider entering into a Subdivision
Improvement Agreement with the City to ensure timely installation of required subdivision
improvements after recordation of the map. Thereafter, Subdivider and City entered into that
certain "Subdivision Improvement Agreement" dated January 21, 2014 (hereafter, the "Phase I
SIA"), agreeing to construct certain specified subdivision improvements and to post bonds in the
amount of Five Million Dollars ($5,000,000) as security for the agreement.
C. In February 2015, as part of Subdivider's applications to the City for approval of the Development,
Subdivider presented to City for approval a final map entitled: "MAP OF THE VILLAGE AT
LOCH LOMOND MARINA PHASE 2" (hereafter, the "Phase 2 Final Map"). The City approved
the Phase 2 Final Map conditioned, in part, upon Subdivider entering into a Subdivision
Improvement Agreement with the City to ensure timely installation of required subdivision
improvements after recordation of the map. Subdivider and City entered into that certain
"Subdivision Improvement Agreement" dated January 21, 2014 (hereafter, the "Phase 2 SIA"),
agreeing to construct certain specified subdivision improvements and to post bonds in the amount
of One Million, Nine Hundred Forty -Seven Thousand Dollars ($1,947,000) as security for the
agreement.
D. Subdivider has now completed a substantial portion of the Phase I subdivision improvements, and
the City is willing to accept those completed improvements. To facilitate the completion of the
Development, City and Subdivider have agreed to enter into this new Consolidated Subdivision
Improvement Agreement ("Agreement") that will supersede the Phase I SIA and the Phase 2 SIA
and will cover all of the Phase I and Phase 2 subdivision improvements remaining to be
constructed. City has also agreed to allow Subdivider to replace the securities currently securing
the Phase 1 SIA and the Phase 2 SIA with new securities in a reduced amount still sufficient to
secure construction of the remaining subdivision improvements covered by this Agreement.
E. This Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of
California and Title 15 of the. San Rafael Municipal Code.
NOW, THEREFORE, the parties agree as follows:
1. Performance of Work
Subdivision Agreement . I
All of the work and improvements and materials shall be done, performed and installed in strict
accordance with the approved plans and specifications for said work on file in the office of the City
Engineer of City, which said plans and specifications and standards are hereby referred to and adopted
and made part of this agreement. In case there are not any standard specifications of City for any of said
work, it is agreed that the same shall be done and performed in accordance with the standards and
specifications of the State of Califomia department of Transportation. Subdivider will do and perform, or
cause to be done and performed, at Subdivider's own expense, in a good workmanlike manner, and
furnish all required materials, all under the direction and to the satisfaction of the City Engineer of City,
who shall endorse his approval thereon, all of the following work and improvements related to the
Subdivision as shown on the attached improvements plans and drawings, incorporated herein by
reference, entitled: "PHASE 1 REWORK PREVIOUSLY COMPLETED AREAS EXHIBIT" for Phase
I "PHASE 2 REMAINING IMPROVEMENTS EXHIBIT" for Phase 2, and "PROJECT DRAWINGS
FOR LOCH LOMOND MARINA SITE IMPROVEMENTS" by Noble Consultants for the additional
work required by BCDC (collectively hereafter, "the Subdivision improvements"), all subject to the
conditions, requirements and recommendations as set forth by the San Rafael City Council Resolution
Nos. 12332 adopted at the San Rafael City Council on the 6`h of August, 2007. Subdivider shall also do
all work and furnish all materials which, in the opinion of the City Engineer and on his order, are
necessary to complete the improvements in accordance with the plans and specifications on file as
hereinbefore specified, or with any changes required or ordered by said Engineer, which in his opinion are
ry
necessaor required to complete the work.
2. Soils Engineering Contractor
It is mutually agreed that the City shall determine the soils engineering firm to perform required soils testing
and investigation, at the Subdivider's sole expense, during the construction of the Subdivision
Improvements.
3. Work. Places and Grades to be fixed by Engineer
All of said work is to be done at the places, of the materials, in the manner, and at the grades, all as shown
upon the Improvement Plans and to the satisfaction of the City Engineer.
4. Work. Time for Performance
City hereby fixes the time for the completion of the Subdivision Improvements to be December 31, 2021.
At least fifteen (15) calendar days prior to commencement of work hereunder, Subdivider shall notify City
Engineer in writing of the date fixed by Subdivider for commencement thereof, so that the City Engineer
shall be able to provide services for inspection. Note the City of San Rafael and Marina Village Associates,
LLC are closely monitoring any governmental actions in response to the ongoing COVID-19 pandemic.
The Judicial Council of California has adopted temporary emergency rules in response to the COVID-19
pandemic affecting statutes of limitations among other things, time allotment and potential tolling of
conditions of approval, time sensitive work and performance agreements and for completion of map
conditions. In the event Subdivider is required, as a result of a governmental order, to stop work
being performed pursuant to this Agreement then the time for performance under this Agreement
will be extended by a period equal to the duration of the work stoppage, i.e. from the date of work
stoppage; until such governmental order is lifted as to Subdivider and work can restart.
5. Time is of Essence - Extension
Time is of the essence of this agreement; provided that in the event good cause is shown therefore, the City
Council may extend the time for completion of the Subdivision Improvements hereunder pursuant to San
Rafael Municipal Code Section 15.11.130. Any such extension may be granted without notice to the
Subdivider's surety, and extensions so granted shall not relieve the surety's liability on the bond to secure
Subdivision Agreement - 2
the faithful performance of this agreement. The City Council shall be the sole and final judge as to whether
or not good cause has been shown to entitle Subdivider to an extension.
6. Repairs and Replacements
Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, all pipes and
monuments shown on the Phase 1 Final Map and the Phase 2 Final Map which have been destroyed or
damaged, as the case may be, or shall pay to the owner(s) thereof, the entire cost of replacement or repairs,
of any and all pipes and monuments damaged or destroyed by reason of any work done hereunder, whether
such pipes and monuments be owned by the United States or any agency thereof, or the State of California,
or any public agency or political subdivision thereof, or by the City or by any person whomsoever, or by
any combination of such owners. Any such repair or replacement shall be to the satisfaction, and subject
to the approval of the City Engineer.
7. Utility Deposits. Provision
Subdivider shall make all deposits legally required by each public utility corporation involved in the
provision of services for the Subdivision for the connection of any and all public utilities to be supplied by
such public utility corporation within the Subdivision, and shall ensure that utilities are available to said
Subdivision prior to final occupancy thereof.
g. Permits. Compliance with Law
Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of
the Subdivision Improvements, and shall give all necessary notices and pay all fees and taxes required by
law, as outlined within this agreement in Section 21 Cost of Engineering, Inspection and Other Fees.
9. Superintendence by Subdivider
Subdivider shall give personal superintendence to the work on the Subdivision Improvements, or have a
competent foreman or superintendent, satisfactory to the City Engineer, on the work at all times during
progress, with authority to act for Subdivider.
10. Inspection by City
Subdivider shall at all times maintain proper facilities and provide safe access for inspection by City to all
parts of the work and to the shops wherein the work is in preparation. The Subdivider shall pay overtime
incurred by City inspectors whenever the Subdivider elects to work on Saturday, Sundays, and holidays,
and he shall also pay overtime incurred by any City inspector when Subdivider works any overtime hours.
The inspection of work shall not relieve the Subdivider of any of his obligations to complete the Subdivision
Improvements as prescribed. Defective work shall be made good and unsuitable materials may be rejected,
notwithstanding the fact that such defective work and unsuitable materials may have been previously
overlooked and accepted by the City Engineer.
11. Improvement Security
As the Subdivider is requesting to reduce the security currently held by the City in the amount of Five
Million Dollars ($5,000,000) for the Village at Loch Lomond Marina ---Phase 1 and One Million, Nine
Hundred Forty Seven Thousand Dollars ($1,947,000) for the Village at Loch Lomond Marina --Phase 2
for the work substantially completed through March 1, 2020 and the City has accepted the completed
improvements of said Phase 1 and Phase 2, the Subdivider shall present to and file with the City of San
Rafael a surety company bond in the sum Two Million Four Hundred Thousand Dollars ( $2,400,000)
issued by a company duly and regularly authorized to do a general surety business in the State of
California conditioned upon the faithful performance of this agreement and by its terms made to inure to
the benefit of the City of San Rafael. The surety on said bond and form thereof shall be satisfactory to the
City Attorney.
Subdivision Agreement • 3
12. Alternate Improvement Security
Subdivider may deposit at the time for submission of the bonds mentioned in paragraph I I above, in lieu
of a surety bond, cash in the amount of said required bond with the City Finance Director of the City as a
guarantee for the faithful performance of this agreement. The City Finance Director may disburse progress
payments to the Subdivider on his order as the work progresses; provided first that the Subdivider shall
submit a demand for a progress payment and the demand for payment and the amount is approved, in
writing, by the City Engineer of the City. No progress payment allowable hereunder shall be made for
more than ninety percent (90%) of the value of any installment of work and not before each installment of
work shall have been completed to the satisfaction of the City Engineer.
The final payment for the work to be performed under this agreement shall be made 35 days after formal
acceptance of the subdivision by the City upon determination of the City Engineer that all improvements
required by this agreement have been completed to his full and complete satisfaction. As the hereinabove -
mentioned deposit is a guarantee for the faithful performance of this agreement, the City may, upon a
breach, default, or violation of any of the provisions of this agreement resort to the hereinabove -mentioned
deposit for the purposes of taking over the work and prosecuting the same to completion. Upon breach,
default or other violation of this agreement requiring the City to take over the work, the City Finance
Director shall release, to the City Engineer, upon written demand of the City Engineer, such amount or
amounts of the deposit remaining as the City Engineer estimates is reasonably necessary to complete the
work.
In lieu of the surety bond or cash as required by Title 15 of the San Rafael Municipal Code, an instrument
or instruments of credit in the amount of said required bond may be deposited with City upon condition the
Financial institution furnishing the credit pledges to the City- it has the funds necessary, that they are on
deposit as guarantee for payment of the public improvements required and that the said funds are held in
trust for the purposes set forth in this agreement.
13. Payment Bond (50% of Improvement Cost)
The Subdivider shall present to and file with the City of San Rafael a surety company bond in the sum of
One Million Two Hundred Thousand Dollars ($1,200,000) issued by a company duly and regularly
authorized to do a general surety business in the State of Califomia securing payment to the contractors,
subcontractors, persons renting equipment or furnishing labor or materials for the Subdivision
Improvements. The security may be cash, surety bond, or instrument of credit as permitted by the
Subdivision Map Act of the State of California. Such security shall be retained by the City for a period of
ninety (90) days following acceptance of the Subdivision Improvements by the City or for such other period
as may be required or permitted pursuant to Government Code provisions governing the release of labor
and material bonds for subdivision improvements. The surety on said bond and form thereof shall be
satisfactory to the City Attorney.
14. Monumentation Bond N/A
15. Maintenance Bond
The Subdivider shall maintain all infrastructure installed but not limited to the items shown on the
attached plans titled "PHASE 1 REWORK PREVIOUSLY COMPLETED AREAS EXHIBIT" for Phase
1, "PHASE 2 REMAINING IMPROVEMENTS EXHIBIT" for phase 2, and "PROJECT DRAWINGS
FOR LOCH LOMOND MARINA SITE IMPROVEMENTS" by Noble Consultants for the additional
work required by BCDC. The Subdivider shall be responsible for all utility cost for the improvements
and maintenance including, but not limited to, water and electricity until such time as, in the opinion of
the Public Works Director, there is sufficient funding in the Mello -Roos District for Community Facilities
District No. 2 (Loch Lomond Marina Development, 1 10 Loch Lomond Drive) to support all maintenance
costs.
Subdivision Agreement • 4
16. Hold Harmless Agreement
To the fullest extent permitted by law; Subdivider must indemnify, defend, and hold harmless City, its
Council, officers, officials, employees, agents, volunteers, and consultants (individually, an "Indemnitee,"
and collectively the "Indemnitees") from and against any and all liability, loss, damage, claims, causes of
action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert
witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, "Liability") of
every nature (including death or injury of persons, or destruction of or damage to property) arising out of
or in connection with the acts or omissions of Subdivider, its employees, Contractors and Subcontractors,
representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation
of Subdivider under this Agreement, except such Liability caused by the active negligence, sole
negligence, or willful misconduct of an Indemnitee. Subdivider's failure or refusal to timely accept a
tender of defense pursuant to this Agreement will be deemed a material breach of the Agreement. City
will timely notify Subdivider upon receipt of any third -party claim relating to this Agreement, as required
by Public Contract Code § 9201. Subdivider waives any right to express or implied indemnity against any
Indemnitee. Subdivider's indemnity obligations under this Agreement will survive the expiration or any
early termination of the Agreement.
A. City does not, and shall not, waive any rights against Subdivider which it may have by reason of
the aforesaid hold harmless agreement, because of the acceptance by City of any of the insurance
policies described in paragraph 18 hereof.
B. The aforesaid hold harmless agreement by Subdivider shall apply to all damages and claims for
damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid
operations, regardless of whether or not City has prepared, supplied or approved of plans,
specifications, or either, for the Subdivision, and regardless of whether or not any insurance policies
shall have been determined to be applicable to any of such damages or claims for damages.
C. Subdivider agrees that the use of any and all streets and public improvements hereinabove required
to be constructed shall be, at all times prior to the final acceptance of the subdivision by the City,
at the sole and exclusive risk of the Subdivider. The City may, at its sole option, issue permission
to occupy all or a portion of the Subdivision Improvements prior to final acceptance of said
Subdivision Improvements. The issuance of any permission to occupy the Subdivision
Improvements located within the Subdivision shall not be construed in any manner to be an
acceptance and approval of any or all of the streets and improvements in Subdivision, or that stage
of development of said streets and improvements represented by their conditions at the time of
issuance of said occupancy permit or permits, or any stage of their development reached between
the period commencing with the issuance of any occupancy permit, and the final acceptance of the
Subdivision.
17. Protection of Public Safety
Subdivider is obligated to protect the public safety during all phases of the work, and shall erect and
maintain all necessary barricades, signs and warning devices necessary to ensure public protection. In the
event that City discovers a condition on the site which in its determination constitutes an immediate danger
to public safety, and Subdivider cannot respond at once, City may erect any barriers, signs and warning
devices it deems necessary. In such event, Subdivider shall pay for the labor of City's crews as specified
on the latest fully -burdened rate schedule at the time the work is performed, per worker; plus, the cost of
any materials used and a reasonable fee for use of any barricades found necessary. In no event shall
Subdivider pay less than one hour minimum per worker assigned if City acts pursuant to this paragraph.
18. Insurance
Subdivision Agreement • 5
A. During the term of this Agreement, Subdivider shall maintain, at no expense to City, the following
insurance policies:
1. A commercial general liability insurance policy in the minimum amount of two million dollars
($2,000,000) per occurrence/four million dollars ($4,000,000) aggregate, for death, bodily injury,
personal injury, or property damage.
2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum
amount of two million dollars ($2,000,000) dollars per occurrence.
3. Worker's 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. Subdivider's worker's compensation insurance shall
be specifically endorsed to waive any right of subrogation against City.
B. The insurance coverage required of the Subdivider in subparagraph A above shall also meet the
following requirements:
I. The commercial general liability insurance and automobile policies shall be specifically endorsed
to include the City, its officers, agents, employees, and volunteers, as additional insureds under the
policy.
2. The additional insured coverage under Subdivider's insurance policies shall be "primary and
noncontributory" with respect to any insurance or coverage maintained by City and shall not call
upon City insurance or self-insurance coverage for any contribution. The "primary and
noncontributory" coverage in Subdivider's policies shall be at least as broad as ISO form CG20
O1 04 13.
3. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not
cancel, terminate or otherwise modify the terms and conditions of said insurance policies except
upon ten (10) days written notice to the City.
4. 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.
5. The insurance policies shall provide for a retroactive date of placement coinciding with the
effective date of this Agreement.
6. 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.
7. 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.
Subdivision Agreement ° 6
C. Any deductibles or self-insured retentions in Subdivider's insurance policies must be declared to and
approved by the City Attorney 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
Subdivider shall procure a bond guaranteeing payment of losses and related investigations, claims
administration, attorney's fees and defense expenses.
D. Subdivider shall provide to the City Attorney 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 the Subdivider. 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 Attorney.
19. Repair or Reconstruction of Defective Work
If, within a period of two years after final acceptance of the work performed under this agreement, any
structure or part of any structure furnished or installed or constructed, or caused to be installed or
constructed by Subdivider, or any of the work done under this agreement fails to fulfill any of the
requirements of this agreement or the specifications referred to herein, Subdivider shall without delay and
without cost to City, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts
of the work or structure. Liability under the contracts of surety or guarantee referred to in paragraphs I 1
and 12 of this agreement shall be released upon the completion of all work and public improvements to the
satisfaction of the City Engineer as provided and permitted by the Subdivision Map Act of the State of
California. Should Subdivider fail to act promptly or in accordance with this requirement, or should the
exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City
may, at its option, make the necessary repairs or replacements or perform the necessary work, and
Subdivider shall pay to the City the actual cost of such repairs plus fifteen percent (15%).
20. Subdivider Not Agent of City
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of
City in connection with the performance of Subdivider's obligations under this agreement.
21. Cost of Engineering, Inspection and Other Fees
Subdivider shall pay to the City all costs as required by Section 15.1 1.040 of the San Rafael Municipal
Code and condition numbers 44 and 49 of City Council Resolution No. 12332. Subdivider shall also pay
overtime incurred by the City's inspector whenever the Subdivider elects to work overtime or on Saturday,
Sunday and Holidays.
Final Map and Improvement Plan Check Fees $ 0.00
City Fees for Project Oversite and Processing $ 28,000.00
Construction Inspection Fees (Estimated) _ 108,000.00
Total $ 136,000.00
22. Notice of Breach and Default
If Subdivider refuses or fails to obtain prosecution of the work, or any severable part thereof, with such
diligence as will ensure its completion within the time specified, or any extensions thereof, or fails to obtain
completion of said work within such time, or if Subdivider should be adjudged a bankrupt, or Subdivider
Subdivision Agreement • 7
should make a general assignment for the benefit of Subdivider's insolvency, or if Subdivider, or any of
Subdivider's contractors, subcontractors, agents or employees, should violate any of the provisions of this
agreement, City Engineer may serve written notice upon Subdivider and Subdivider's surety of breach of
this agreement, or of any portion thereof, and default of Subdivider.
23. Breach of Agreement. Performance by Surety or City
In the event of any such notice, Subdivider's surety shall have the duty to take over and complete the work
and improvements herein specified; provided however, that if the surety, within thirty (30) days after the
serving upon it of such notice of breach, does not give City written notice of its intention to take over the
performance of the agreement and does not commence performance City may elect to take over the work
and prosecute the same to completion, by contract or by any other method City may deem advisable, for
the account and at the expense of Subdivider, and in such event, City without liability for so doing, may
take possession of and utilize in completing the work, such materials, appliances, plant and other property
belonging to Subdivider as may be on the site of the work and necessary therefore. The Subdivider shall
be liable to the City for any excess costs, claims, damages, liability, or expenses of whatever nature or kind,
direct or indirect, including reasonable attorney fees which are directly or indirectly caused by the execution
and enforcement of this agreement.
24. Binding of Agreement
This agreement shall bind, and the benefits inure to, the respective parties thereto, their legal
representatives, executors, administrators, successors in office or interest, and assigns.
25. Legal )Fees
In the event that legal action is necessary to enforce any provision of this agreement, the prevailing party
shall be entitled to reasonable attorney fees and legal costs.
Dated this I day of
CITY OF SAN RAFAEL:
Gary O.
Mayor
ATTEST:
.,e, / V64A u4 -
Lindsay Lara
City Clerk
APPROVED AS TO FORM:
Robert F. Epslein
City Attorney
+P -,e' , 20
SUBIDIVEDER:
Marina Village
A Delaware Lir
By:
Name and Title
Usocia s, LLC,
ited abili pony
Michael Rosenfeld, Manager
Subdivision Agreement 8
APPROVED AS 'T€3 CONTENT:
N
Bill Guerin, Director of Public Works
Subdivision Agreement • 9
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1
RESOLUTION NO. 14791
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE CITY MAN AGER
TO EXECUTE AN AMENDMENT TO THE BELOW MARKET RATE HOUSING AGREEMENT
FOR THE VILLAGE AT LOCH LOMOND MARINA DEVELOPMENT AT 110 LOCH LOMOND
DRIVE
WHEREAS, on August 7, 2007, the City approved the Village at Loch Lomond Marina
development. This approval permits a mixed-use development that includes enhanced and
upgraded marina facilities, a new grocery store and neighborhood commercial uses,
development of 81 residential units and publicly accessible shoreline park and recreation
improvements; and
WHEREAS, the August 7, 2007 City approvals included adoption of City Council
Resolution No. 12332 covering the approval of a Vesting Tentative Map for the mixed-use
development. Vesting Tentative Map Condition 36 requires that 17 of the 81 approved
residential units be reserved for sale to low- and moderate-income households (the “BMR for-
sale units”); and
WHEREAS, on July 1, 2008, a Below Market Rate (“BMR”) Housing Agreement was
executed between the City, property owner/developer and Marin Housing Authority (MHA)
memorializing the affordability restriction of the 17 BMR for-sale units for 55 years; and
WHEREAS, since 2008, the first phase of “The Strand” residential development has
been constructed. Eleven of the 17 BMR for-sale units were built in this first phase and have
been sold to qualifying households by MHA. The remaining six, unbuilt BMR for-sale units
remain in the second phase of The Strand and in the mixed-use building; and
WHEREAS, in mid-2019, Marina Village Associates, LLC (MVA), property
owner/developer, initiated discussions with the City to “buy-out” the remaining unbuilt BMR for-
sale units. Staff negotiated a buy-out of these unbuilt units for an amount of $3,686,400. An
amendment to the BMR Housing Agreement was prepared, which included instructions on
when and how the buy-out payment would be made to the City for deposit into a special
account to be used solely for housing for persons of low or moderate income (the City’s
Affordable Housing Trust Fund # 243); and
WHEREAS, on April 20, 2020, the City Council held a duly noticed public hearing to
consider the proposed amendment to the BMR Housing Agreement, the report of the
Community Development and Public Works Departments and public testimony.
NOW THEREFORE BE IT RESOLVED that the City Manager is hereby authorized to
execute, on behalf of the City of San Rafael, the First Amendment to BMR Housing Agreement
for the Village at Loch Lomond Marina, located at 110 Loch Lomond Drive, attached hereto as
Exhibit A and incorporated herein by reference, subject to final approval as to form by the City
Attorney.
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 City
Council held on the 20th day of April 2020, by the following vote, to wit:
2
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
LINDSAY LARA, City Clerk
Exhibit A: First Amendment to Below Market Rate Housing Agreement
No recording fee per G.C. 27383
Recording Requested b);.-
City
y:City of San Rafael
lfrherr Recorded Return to:
City of San Rafael
Attn: Lindsay Lara, City Clerk
1400 Fifth Avenue
San Rafael, CA 94901
FIRST AMENDMENT TO
BELOW MARKET RATE HOUSING AGREEMENT
(Ownership Units)
Development Name:
Village at Loch Lomond Marina
Affordable Unit Property Address: Loch Lomond Marina, San Rafael, California
DEC 0 2 2,920
FYDEVELOEMJ.
CITY OF SAN RAFAEL
Developer: Marina Village Associates, LLC, a Delaware limited liability
company, as successor -in -interest to San Rafael Marina
LLC, a California Limited Liability Company, or any future
successor -in -interest
THIS FIRST AMENDMENT to Below Market Rate Housing Agreement is made and entered
into this dl Y day of &Su4r , 2020, among the CITY OF SAN RAFAEL, a municipal
corporation ("City"), the DOUSING AUTHORITY OF THE COUNTY OF MARIN, a public body,
corporate and politic, created under the Housing Authority Law of the State of California ("Marin
Housing Authority"), and MARINA VILLAGE ASSOCIATES, LLC, a Delaware limited liability
company, as successor -in -interest to San Rafael Marina, LLC, a California limited liability company
("SRM"), or any future successor -in -interest ("Developer"), collectively the "Parties," with reference to
the following:
A. Developer is the developer of a mixed-use development known as the Village at Loch Lomond
Marina in the City of San Rafael, County of Marin, State of California (the "Development"). The
City granted approval of the Development on August 6, 2007, approving the construction of
eighty-one (8 1 ) residential units and numerous other structures and amenities.
B. Marin Housing Authority is authorized by law to participate in programs that provide housing for
households of very low, low, and moderate income and is by experience qualified to screen and
determine the eligibility of applicants for very low, low, and moderate -income housing.
C. The City has adopted affordable housing requirements contained in the Zoning Ordinance
Section 14.16.030 of the San Rafael Municipal Code (the "Affordable Housing Requirements").
Pursuant to Section 14.16.030, and as a condition of approval of the Development, the City
required, and the City, Marin Housing Authority. and SRM entered into, that certain "Below
Market Rate Housing Agreement" dated July 1, 2008 and subsequently recorded in the Official
Records of the County of Marin on August 14, 2008, as Document No. 2008-003 83 6 (the BMR
Agreement").
D. Pursuant to the BMR Agreement, the Developer agreed to provide seventeen (17) of the allowed
residential units on the site as below market rate ("BMR") units.
E. The Developer has commenced construction of the Development in two phases. As of the date
of this First Amendment, Developer has completed construction of forty-four (44) of the
residential units, including eleven (11) of the seventeen (17) BMR units required by the BMR
Agreement.
F. The Parties hereto desire, by this First Amendment, to modify the terms of the BMR Agreement
as set forth herein.
NOW THEREFORE, it is hereby agreed by and between the Parties hereto as follows.
AGREEMENT
Section 1. Paragraph 1 of the BMR Agreement is hereby amended to read in its entirety as follows:
The Developer agrees that eleven (11) dwelling units within the project approved by the City
for the property described in Exhibit "A" to this BMR Agreement will be sold to low- and
moderate- income households in accordance with the terms and pursuant to the procedures
set forth in this Agreement. Said dwelling units are identified in Exhibit "I" attached to this
First Amendment and incorporated herein by reference, subject to the amendments provided
in Section 4 of this First Amendment. Said dwelling units are hereafter referred to as "the
Affordable Units".
Section 2. Paragraph 2 of the BMR Agreement is hereby amended to read in its entirety as follows:
2. The Developer agrees that the Affordable Units, consisting of nine (9) attached townhouses
and two (2) detached cottages, shall be dispersed throughout Phase 1 of the Development as
shown in Exhibit 2 attached to this First Amendment and incorporated herein by reference.
The Affordable Units shall be of the same general design and exterior appearance as the
Market Rate Unit, of comparable quality of construction and with the same number of
averaged bedrooms as the Market Rate Units. Interior features of the Affordable Units shall
be durable and of good quality. The Affordable Units shall include one, two, or three-
bedroom units in the numbers and with the square footage indicated in Exhibit B to this
Agreement.
Section 3. Paragraph 8 of the BMR Agreement is hereby amended to read in its entirety as follows:
In the event that Marin Housing Authority or its assignee declines to purchase the Unit, it
may be sold by the Developer on the open market without restrictions as to the price,
affordability, or future re -sale, and no deed restrictions will be placed on the property. In the
event that the declination of the purchase of the Unit is the result of a separate memorandum
of understanding ("MOU") between the City, the Marin Housing Authority and the
Developer, such agreement shall include a mutually agreed to sale price of the units on the
2
open market without restrictions In such events, the Developer shall pay to the City from the
sale price of the Unit seventy-five percent (75%) of the difference between the net price
achieved after normal selling and closing costs and the below -market -rate sales prices
specific in Exhibit "B". Said sum shall be paid to the City upon close of escrow on the sale
of such Unit or, if the sale is pursuant to a contract of sale, upon execution of such contract
or, if the sale price is set by a separate MOU within forty-five (45) days of execution of such
an agreement, whichever shall first occur (1& "Payment Date"). Notwithstandirno the
fbrenaiR9. in recognition o the COVID-19 pandemic's effects on the financial tnarkete anti
2020 (the "Stay At Home Order")_ the Payment Trate Shall be erten ed until f,.M-five (es)
d_ays after the Stu At Home Order has-b=11iftcdfor Marin County if such date is tater than
_ ent Date. The City shall pay to Marin Housing Authority 4m one
percent 0%) of this sum for Marin Housing Authority's use in administering Below Market
Rate projects, including, but not limited to, on-going BMR monitoring, legal fees and future
BMR re -sales. Any such payments made to the City shall be retained by the City in a special
account to be used solely for activities which it deems will facilitate the provision of housing
for persons of tow or moderate income.
Section 4. The Exhibits to the BMR Agreement are hereby amended and shall be interpreted so as to
exclude from the affordability requirement of the BMR Agreement, the following properties:
VILLAGE @ LOCH LOMOND MARINA
Below Market Rate (BMR) Units to be Released
Address
APRs
Lot No. &Subdivision
Unit
25 Loch Lomond Drive
016-070-14
Lot #2, Village
LL Marina Sub Phase 1
Flat
25 Loch Lomond Drive
016-341-04
Lot 42, Village
LL Marina Sub Phase 1
Flat
36 Ba harbor Way
016-341-68
Lot #4, Villa &e
LL Marina Sub, Phase 2
Cottage
54 Ba harbor Way
016-341-68
Lot #68, Village
@ LL Marina Sub, Phase 2
Townhome
58 Ba arbor Way
016-341-06
Lot #6, Village
LL Marina Sub, Phase 2
Cottage
64 Ba harbor Way
016-341-75
Lot #75, Village
P. LL Marina Sub, Phase 2
Townhome
Section 5. Except as specifically amended in this First Amendment, all terms of the BMR Agreement
shall remain in full force and effect.
IN WITNESS WIEII>ER}EOF, the Parties hereto have caused this Agreement to be executed as of the day
and year first above written.
DEV"ELOPER:
Marisa Vill
A Delaware
LLC
y company
Michafel Rosenfeld, Manger
CITY:
Chty of San Rafael
By:
J S utz, Ci ager
Name
Title
MARIN HOUSING AUTHORITY: ATTEST:
By: p .
LeW1S Jordan; cutive Director Lindsay
Lara, City Clerk
APPROVED AS TO FORM:
Robert F. Epstein, City Attor#y
CALIFORNIA-• •. •D
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
documentto which this certificate is attached, and not the truthfulness, accuracy, orvalidity of that document.
State of California )
County of Mart %A "")
On 2a ZO before me, c,��o T
Date Here Insert Name and Title of the Officer
personally appeared _Le,14.;! _5
Name�4 of Signert4
who proved to me on the basis of satisfactory evidence to be the person(4 whose name(') is/afe
subscribed to the within instrument and acknowledged to me that he/sha44ey executed the same in
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or the entity upon behalf of which the person(4 acted, executed the instrument.
CAROL J. KAZARIAN
_ s Notary Public - California
Marin County
= Commission # 2243153
My Comm. Expires Jun 15, 2022
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
S -
Signature le
Si ature o r
ry Public
Place Notary Seal Above
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Description of Attached Document r-ec1_el�
Title or Type of Document:f'f—&ela.tncerX--f& 01AI2 `4ocument Date: 71920
Number of Pages: SignerO Other Than Named Above:
Capacity(,ies) Claimed y Signer(*
Signer's Name: A,�� Signer's Name:
Corporate Officer — Title(s): ❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact
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©2014 National Notary Association- www. NationalNotary.org•1-800-USNOTARY (1-800-876-6827) Item#5907
SEE ATTACHED LIMITED LIABILITY COMPANY AGREEMENT AND CERTIFICATE OF FORMATION
FOR BLYTHEWOOD PARTNERS, LLC
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document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
State of California )
County of Los Angeles )
On August 24, 2020 before me,
Sharon Cohen Notary Public (here insert name and title of the officer),
personally appeared Michael Rosenfeld
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature (Seal)
(notary)(10-03 )(Rev. 10-14)
JIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIt111111111111L
5 °... SHARON COHEN
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Los Angeles County
Commission p 2304353 =
My Comm. Expires Sep 8, 2023
�unnnnnunnwuuunuuuuunnuuuuununuuunuuuuuunuuuc
ACKNOWLEDGMENT
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who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
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State of California
County of Marin
On �� f�T� before me, Brenna Kathleen Nurmi, Notary Public
(insert name and title of the officer)
personally appeared / (/
who proved to me on the basis of satisfactory evidence to be the person whose name
bscribed to the within instrument and acknowle d to me tha� i /ti 4y executed he same in
his r/th� authorized capacity(i, and that by is �thpir signature on the instrument the
person or the entity upon behalf of which the personofacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
�.� BRENNA KATHLEEN NURM I
Notary Public . California
a �� = Marin County F.
Signature �• ,(��A (Seal) Commission # 2297544
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ATTACHMENT 4
Letter to the City of San Rafael from Marina Village Associates, LLC,
dated March 9, 2020
VIA E-MAIL
March 9, 2020
Mr. Paul Jensen
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
Community Development Director
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
Re: Village at Loch Lomond, Below Market Rate (BMR) Housing Agreement, Buyout
Dear Paul,
Thank you for your valuable time in meeting with us on Thursday March 5, 2020 . I wanted to
follow up with you on the items we discussed in order to help finalize the Memorandum of
Understanding with respect to Marina Village Associates, LLC (MVA) request to enter into an
agreement with the City of San Rafael to buyout the six remaining Below Market rate (BMR)
housing units within the Marin Housing Authority Agreement.
Since two thirds of the 17 BMR units (approximately 11 units) have already been built and sold,
this buyout provides an excellent opportunity for the City of San Rafael to utilize the
$3,686,400.00 of revenue generated from the buyout to substantially increase the number of
affordable housing units beyond the remaining 6 units (through other affordable housing
programs/projects in the City), and will assist MVA in expediting the remaining subdivision
improvements .
As mentioned in our meeting, MVA has entered into an agreement to potentially sell the Marina
portion of the Loch Lomond project, to Safe Harbor Marinas (SHM) https://shmarinas .com/.
SHM is one of the premier Marina operators in the US, with 70 home ports across the country,
stretching from New England to s~n Francisco .
With location in Alameda and Emeryville CA, SHM knows the San Francisco Bay area waters
extremely well.
SHM would bring to Loch Lomond decades of marina operating experience, financial strength,
exceptional management, and a Marina operator with an environmentally mindful focus and
dedication to their marinas, and the water services they provide for their members.
As part of this transaction, Safe Harbor Marinas will construct a portion of the remaining
improvements, including the New Harbormaster and Boat Repair buildings, as well as the
reskin/resurfacing improvements to the existing Yacht club . MVA will complete the construction
of both the Kayak Dock and Kayak Launch Ramp , as well as the marina site improvements for
flooding repairs at the east jetty, trail , and playground area.
1 Re : Village at Loch Lomond, BMR Buyout
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
Furthermore, MVA will assist SHM up through the approval and permit process for the fuel dock
with the Bay Conservation Development Commission (BCDC), at which time, should SHM
determine the fuel dock is a viable asset to the marina, SHM will then be responsible for the
permits and construction of the fuel dock. ·
SHM would like to expeditiously start these improvements upon their Close of Escrow. Based
on the window left within the BCDC permits (2006.010.05 & 2006.010.08 Time Extension), MVA
and SHM met on Wednesday March 4 1 2020 with Bay Conservation Development Commission
staff to review the status of the BCDC permits, the following are my notes from that meeting:
We first discussed with BCDC, the proposed yacht club refacing work which BCDC originally
thought would not require a permit, however, based on a recent onsite review with BCDC
inspectors, they now feel since the majority of this work will involve construction within the
Bay, and since the revised scope was not covered under the current BCDC permit, rather than
amend the larger permit (which we all know would be a very lengthy process), BCDC agreed
this could be handled through an Abbreviated Regionwide Permit, which is BCDC 1s most
expedited permitting process, thus potentially adding this work to Amendment 9.
BCDC felt that this Abbreviated Regionwide Permit could be obtained within 30-60 days after
receipt of the application and review of the approved plans. MVA, has already started this
process.
While discussing the Yacht club work, BCDC reminded all in attendance that prior to starting
any of the work authorized under Amendment No. 5, MVA and or SHM would need to submit all
the City's final approved plans and · permit to BCDC for their final review and approval,
through BCDC's plan review process. That being said, it would be extremely helpful if the City
could work with MVA on this submittal to avoid any further delays for these improvements.
Currently as agreed, all of these plans are on hold by the City, until MVA completed design and
pulled a permit for the Kayak launch ramp (which unfortunately continues be delayed by
continual requests for design changes from our local Kayak enthusiasts), and is now
jeopardizing the start and completion of the aforementioned Harbormaster and Boat Repair
buildings, as well as the reskin/~esurfacing improvements to the existing Yacht club.
During our meeting with BCDC SHM asked if BCDC would be willing to extend the permit
should SHM be unable to complete the improvements by the December 1, 2020 expiration.
BCDC said they may be willing to extend the permitto accommodate the completion, provided
MVA could complete in the next 60-90 days the remaining public access work within the permit,
and assuming SHM started the construction as proposed, shortly after their Close of Escrow in ·
late June or early July.
Safe Harbor told BCDC based on their projected 8 month build cycle, and their assumed ability
to start construction by mid-June of this year, they should be in position to have a grand opening
by early summer of 2021 .-This would be right within the timing you and I have been discussing.
As you are aware from your recent site visit, MVA has been making preparation for completing
the public access over the past few months ..
2 Re: Village at Loch Lomond, BMR Buyout
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
MVA has now completed the demolition of the old boat repair building, has completed the
parking lot paving and striping in this area, built the new pad for the boat repair building, and is
currently constructing the Bioswale(s}, which will then allow for the majority of the remaining
public access work to be completed within the timeframe BCDC requested.
Next, we discussed the Kayak Launch Ramp and Dock, BCDC thanked MVA for our continued
exploration of whether it would be feasible to install a 20-foot-wide kayak launch ramp at the
breakwater area, addressing the public comments about usability of the proposed ramp.
BCDC expressed hope that the change in ramp design wouldn't result in significant
additional bay fill, and preliminary felt the change could be net neutral depending on what the fill
for the expanded ramp would be ultimately be replacing, this is critical since additional fill
mitigation is not available.
MVA is currently reviewing this with our engineering team, and assured BCDC we would keep
them informed of what the revised design would require in terms of bay fill, and additionally
would examine whether the ramp width expansion could potentially replace some of the
shoreline protection (riprap) that had been proposed adjacent to the ramp.
Lastly, BCDC specifically noted that a permit amendment for the Kayak launch ramp will be
required regardless of the ultimate design, as the ramp originally authorized in the permit
(2006.010.05) was changed by the new el.evations for the breakwater area, and since the most
recent ramp design and adjacent riprap (and associated plans) were not authorized under
Amendment No. 5.
Based on all this detail from our BCDC meeting, the timing for the completion of design for the
Kayak launch ramp and to ensure the other improvements continue to expeditiously move
forward, we need to start providing BCDC with the approved plans and permits for the New
Harbormaster & Boat Repair building, and the reskin/resurfacing of the existing Yacht club , in
order to not further delay these improvements, and most importantly, to avoid the risk should the
BCDC permit expire, and not be renewed, we did not jeopardize the ability for these
improvements to ever get built.
With the formation of our new Subdivision Improvement Agreement (SIA), we can now address
the Kayak Launch Ramp, Dock design and construction within that document.
Likewise, MVA would like to be in position to start the flooding repairs by summers end,
however, a key challenge will be the restrictions for vegetation removal occurring within the
project footprint, which must occur outside of the nesting bird season (March -August).
consequently, here too, we need to immediately start providing BCDC with the approved plans
and permit for approval, to avoid delaying this work .
Next, I would like to address our discussion on the status for starting and completing the
balance of the homes. As mentioned, while searching for a potential builder partner to help
construct the remaining homes, MVAwas approached by a local home builder to potentially
purchase from MVA, the remaining housing units/homesites and plans .
3 Re: Village at Loch Lomond, BMR Buyout
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
MVA is currently working with the aforementioned builder on the potential sale of the remaining
housing development, unfortunately, due to joint executed confidentially agreements, I
unfortunately am not at liberty to disclose very many details, or the builder' name.
However, I can share with you that the builder has expressed a desire to quickly start and move
through all the housing units upon a successful close of escrow. Their plan would be to start
between 9-10 homes (4 + 1 of previously started Single family home foundations and one
Townhome building of 5 units) as soon as possible, with aspirations for having some home
deliveries by yearend. This purchase is predicated upon our successful completion of the BMR
buyout.
With respect to a setting timing, and a construction schedule for housing, there are so many
factors that have to be considered as to when all the homes could be completed, all of which
are ultimately determined by market conditions, stability and sales pace.
As a point of note, all builders work off of some form of construction funding, unlike the
commercial components of the Loch Lomond, home building funding has strict limitations for the
number of homes under construction at any one time, and total expenditure disbursements .
Since there are very few new home communities in San Rafael, a builder would have to rely
upon the resale market for home sales to best determine sales pace. They would then evaluate
the average sales price of a Loch Lomond home(s) in comparison with resale homes in the
area, comparing sales trends by home price, home size, location etc. I am sure your well
aware, higher priced homes typically absorb/sale at a much slower pace than medium priced
homes.
Next the builder would consider the market sales pace for all home sales (new and resales in
the area) and the existing inventory, weighing that against the total months of supply in any
month and quarter, factoring in the seasonality, current market trends, average lot size,
views/location etc. Lastly, they have to review the comparable sales price and the average days
on market per month, by each product price point (while factoring in other additional costs like,
CFO and HOA expenses) in order to try and establish a precise sales pace , all of which can
quickly change through a buyer's confidence in the market and the economy.
As you can see, due to sci many factors and ever-changing market conditions, it's nearly
impossible to precisely lock in a sales pace, without the City guaranteeing zero changes in any
of these factors.
Based on the past and current performance for new homes sales and resale at Loch Lomond,
and resales homes in adjacent and Marin County (for similar price points with respect to their
days on the market), the projected sales pace for a detached Single-Family Home (SFH) would
be roughly, one home sale per every two months, or .5 sale a month.
The builder would also account for the build/construction cycle time, which for the SFD homes is
approximately 8-9 months. When you consider there are four different product lines, and no
models, a builder will have to have a home completely framed home before starting their sales
program, in order to improve the ability for a future homebuyer to best understand the floor plan
room depth and the homes layout.
4 Re : Village at Loch Lomond, BMR Buyout
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
Based on the typical expenditure disbursement in most builder's loans, a builder would be
required at minimum, 50% of their started homes be sold before they could start the next group
of 2 -3 homes, thus putting the next home starts some six to eight months out in the beginning.
In a conventional approach, if you assumed the market and all home sales remained strong and
steady from the beginning to the end, (allowing 2-3 homes to start every 6 -8 months
(seasonally adjusted), all the SFD homes would be completed by May of 2023.
If you then took the same assumptions for the Townhomes and Mixed-Use building, factoring in
a 10-11 Month build cycle on the Townhomes, and 12+ months on the mixed-Use building, and
worked with the previous sales pace of 1 home per month for this product type (which is exactly
what the past sales pace was at Loch Lomond), and assumed we did not experience any
market fluctuations, both these product lines would be completed around the same time as the
SFD homes, by May of 2023.
With all that under consideration, unless we all had a crystal ball to forecast a stable housing
market, and could guarantee interest rates and material supplies/availability (which has now
come into concern for some forecasted shortages due to the COVID-19 crisis) it would be very
difficult, if not impossible to insure the new homes sales pace and completion dates ..
This is the very reason City's and or County's don't condition sales starts, sales pace and
closing, all we can do is make an educated projection. However, with the BMR buyout in place,
it greatly enhances the ability to meet and or beat the projected sales pace as outlined .
Since, the timing of construction for the remaining residential units will be dependent on all the
outlined market demand for the housing product and pace, all of which cannot be guaranteed,
MVA unfortunately would not be amenable to locking in any housing starts or closing dates,
without the City willing to guarantee stable market conditions throughout the balance of the
project.
Lastly as we discussed, MVA would be amenable to creation of a replacement Subdivision
Improvement Agreement (SIA) replacing the Phase 1 & 2 improvement agreement, to ensure
the timely completion of the balance of items outlined in Mr. Cornwell's letter dated December,
20, 2019 and per MVA's notations in our response letters dated January 21, 2020. As
considered, the original Payment and Performance Bonds for Phase 1 & 2 improvement would
be accepted by the City and exonerated, and simultaneously replaced by MVA with a new
Payment and Performance Bond(s) for the new SIA scope of work, based on the bulleted items
below:
5
• Parking Area Adjacent to West Jetty-Removal of Harbormaster's Office: This
work is in progress and should complete by the end of March 1, 2020. The Harbormaster
trailer is being relocated to the North, on the Marina's parcel parking lot.
• Pathway between the West Jetty and Marina Green: This work was not included in
the Phase 1 or 2 agreements and occurs on the Marina's property, as shown on the
Improvement Plans Loch Lomond Market/Mixed-Use Project prepared by Ruggeri-
Jensen-Azar and not the parcels for the Phase 1 improvements.
Re: Village at Loch Lomond, BMR Buyout
6
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
However, the pathway has been completed in front of the future Harbormaster Building
and is continuous from the West Jetty to the Marina Green. The only missing component
is the lighting, which is powered form the future Harbormaster Building electrical panel
and will be installed and completed as part of the construction of that building.
• New Kayak Dock in V icinity of Boat Ramp, and Kayak Launch at End of Loch
Lomond Drive: A separate agreement has been reached with the City on construction
of a larger kayak dock in exchange for the proposed reskinning of the Yacht Club that is
currently in plan check. However, as previously noted, the ultimate design will be
subject to BCDC approval.
This work cannot start until permits are issued. At the request from BCDC, MVA is
currently investigating with our engineering team, and will inform BCDC and the City
should the revised design would require additional bay fill, and whether the ramp width
expansion could replace some of the shoreline protection (riprap) that had been
proposed adjacent to the ramp . ·
BCDC made it very clear that a permit amendment for the kayak launch ramp will be
needed regardless of the ultimate design, as the ramp originally authorized in the permit
(2006.010.00) will change based on the new elevations for the breakwater area, and the
more recent ramp design and adjacent riprap (and associated plans) were not
authorized under Amendment No. 5 .
As previously mentioned, we can now account for the Kayak Launch Ramp and Dock
design and construction as part of the Subdivision Improvement Agreement, however, all
final design will be subject to BCDC approval of the plans before these improvements
can start.
• Flood Protection Improvements at Central Jetty in accordance with BCDC
Amendment.No. 5: The existing improvements were constructed in accordance with
the approved Phase 1 plans. However, the Flood Protection Improvements will now be
part of the new SIA. The Engineers Opinion of Probable Costs prepared by Noble
Consultants ($756, 155 +10% mark-up + 10% contingency) was provided to the City with
the January 21, 2020 letter. Completion of this work is memorialized in BCDC
Amendment No . 5. The design and construction will now become part of the Subdivision
Improvement Agreement ·
• Flood Protection Improvements at Breakwater Access Trail in accordance with
BCDC Amendment No. 5: The majority of the existing improvements were not included
in Phase 1 or 2 agreements.
However, the Flood Protection Improvements at Breakwater Access Trail will now be
part of the new SIA.
These improvements are covered by a separate set of plans, and are already under an
agreement in the BCDC Amendment No. 5., The approved plans still need final approval
by BCDC, MVA will need to submit to BCDC the permit and approved plans before work
can start.
Re : Village at Loch Lomond, BMR Buyout
Marina Village Associates, LLC
1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
The Engineer's Opinion of Probable Costs prepared by Noble Consultants ($6,738
removal+ $42,863 replacement +10% mark-up+ 10% contingency) was provided with
the MVA January 21, 2020 letter.
As previously mentioned, MVA would like to be in position to have the flooding repairs
completed once approved by BCDC. The key timing challenge will be the restrictions for
vegetation removal occurring within the project footprint (as part of this project) which
must occur outside of the nesting bird season (March-August). However, there may be
an opportunity to work within the nesting bird season if a qualified biologist performs a
pre-construction nesting bird survey and no nests are found.
Most importantly, MVA needs the City to issue the permit and stamped plans ASAP so
that MVA could start the final approval process with BCDC, a_nd be in position to start the
work directly after the busy summer season. ·
• Interpretative Signage at Wetlands Area: This work is not included in the Phase 1 or
2 agreements; however, this work is memorialized in BCDC Amendment No. 5. And will
now be part of the new SIA. ·
• Median Work and Frontage Improvements on Point San Pedro Road: This work will
now be included in the new SIA. The plan is to complete this work once we have a final
determination on the deletion of the old light pole in conflict with the new median nosing.
The Engineer's Opinion of Probable Costs prepared by Ruggeri-Jensen-Azar ($71,900)
provided with the MVA January 21, 2020 letter.
• Work at Point San Pedro Road and Loch Lomond Drive Intersection, Complete
Paving of Point San Pedro Road: We understand these items include repaving a
portion of Point San Pedro Road from where the future median work will occur to the
West end of the intersection.
This work was not included in the Phase 1 or 2 agreements and needs to be finalized on
the agreed scope of work so we can include in the Engineer's Opinion of Probable Costs
for off-site work from Ruggeri-Jensen-Azar.
MVA would be amenable to this reque·st, should we be able to eliminate the light pole in
the median, previously noted.
• Complete Other Minor Connections and Transitions form District Maintained
Improvement's to Private lmprovements:_We understand this work to include the
stamped asphalt walkway transitions. This work has been completed.
• Remaining Construction Schedule: BCDC Amendment No. 5 provides for revised
completion dates of December 31, 2021 for the work authorized under their permit.
In order to start the aforementioned work this .year, and not require additional extensions, MVA
will need the City to issue the final approved plans and permit(s) so we can forward them for
approval by BCDC through the BCDC plan review process, ASAP.
7 Re: Village at Loch Lomond, BMR Buyout
Marina Village Associates, LLC
.1999 Avenue of the Stars, Suite 2850
Los Angeles, CA 90067
(310) 824-7093
As previously discussed and noted, the timing of construction for the remaining residential units
will be dependent on market demand for the housing product.
I believe this coveres all of the items we discussed, as always, I would be happy to meet with
you or any other City officials to discuss the enclosed items and provide more specific and direct
details.
In closing, I would like to thank you and the City for consideration for Marina Village Associates,
LLC, request to enter into an agreement with the City of San Rafael to buyout the six remaining
Below Market rate (BMR) housing units
MVA is very confident that through successful conclusion of this agreement, the revenue
generated for the City of San Rafael through the buyout will both substantially increase the
number of affordable units beyond the remaining 6 units, through new affordable
programs/projects in the City, and will assit MVA to help expedite the completion of the .
Subdivision Improvements.
9L y:aL
Thomas DiPrima
Senior Vice President of Development
Marina Village Associates, LLC
CC: Lisa Goldfien Assistant City Attorney City of San Rafael
Al Cornwell Consulting Engineer
Ethan Guy Senior Analyst City of San Rafael
Daryl Cruser Marina Village Associates, LLC
Rick Arambulo Marina Village Associates, LLC
8 Re: Village at Loch Lomond, BMR Buyout
ATTACHMENT 5
~S _A_N_R_A_FA_E_L ~ THE CITY WITH A MISSION
NOTICE OF ONLINE PUBLIC MEETING -CITY COUNCIL
You are invited to view and participate online for the City Council meeting on the following proposed project:
PROJECT: 110 Loch Lomond Drive (Loch Lomond Marina) -Request for City Council review and approval of the following for the Village @
Loch Lomond Marina development: a) a Subdivision Improvement Agreement to cover and provide securities for construction of the remaining
project infrastructure improvements including flooding improvements at the playground on the central jetty and access path area near the marina
breakwater; and b) an amendment to the Below-Market-Rate (BMR) Agreement, which would permit the applicant to buy-out the remaining, six
(6), unconstructed BM R units approved for the second phase of development. APN : 016-070-09; Planned Development (PD-1860) District;
Marina Village Associates, LLC, owners/applicant; File No(s).: INF20-006.
As required by State Jaw (California Environmental Quality Act), the Village @ Loch Lomond Marina Development is subject to environment review. A Final
Environmental Impact Report (FEIR) was prepared and certified by the City Council in 2007. The flooding improvements referenced above were reviewed and
determined to be adequately assessed under the FEIR. An EIR Addendum was prepared to confirm this finding, which is on file with the Department of Community
Development. The amendment to the BMR Agreement would not result in a physical change in the environment and is therefore subject to the general rule that
such actions are exempt from environmental review pursuant to CEQA Guidelines Section 15061.
MEETING DATE/TIME/LOCATION: Monday, April 20, 2020, 7:00 p.m. COVID-19 ADVISORY NOTICE Consistent with Executive Orders No.-
25-20 and No . N-29-20 from the Executive Department of the State of California and the Marin County March 16. 2020 Shelter in Place Order.
the San Rafael City Council meeting of April 20. 2020 will not be physically open to the public and the meeting will be streamed live to YouTube
at https ://www .youtube .com/channel/UCaQDIHi5fD6sByZUw5FOq9A. Instructions on how to participate online . will be available on the You Tube
channel.
FOR MORE INFORMATION: Contact Paul Jensen, Community Development Director at (415) 485-5064 or paul.jensen@cityofsanrafael.org .
City offices are currently closed to public walk in, but you can contact the planner for more information. You can also view the staff report
after 5:00 p .m. on the Friday before the meeting at http ://www .cityofsanrafael.org/meetings .
WHAT WILL HAPPEN: The City Council will consider public comment/testimony and decide whether to approve or deny the request by the
applicant.
IF YOU WANT TO COMMENT: Yo'u can send written correspondence by email to the address above prior to the meeting. you can comment
online in reaHime on YouTube . If you don't have access to internet, contact the City Clerk to discuss alternative options for remote participation
at 415-485-3066.
Any records relating to an agenda item, received by a majority or more of the Council less than 72 hours before the meeting, shall be available for inspection on line.
Sign Language interpreters may be requested by calling (415) 485-3066 (voice), emailing Lindsa y.lara @citvofsanrafael.org or using the California Telecommunications_
Relay Service by dialing "711 ", at least 72 hours in advance of the meeting. Copies of documents are available in accessible formats upon request.
ATTACHMENTS
Correspondence
POINT SAN PEDRO
ROAD COALITION
Coalition Directors
Co-Presidents
Denise Lucy
Bonn ie Marmor
Secretary
Kati Miller
Treasurer
Dave Crutcher
Directors
Kevin Hagerty
Alan Schaevitz
Standing Committee
Chairs
Disaster
Preparedness
John Lenser
Loch Lomond Marina
Alan Schaevitz
Pt. San Pedro
Roadway
Kevin Hagerty
S .R. Rock Quarry
Dave Crutcher
Wetlands
-open
POINT SAN PEDRO ROAD COALITION ·
April 9, 2020
"Promoting Quality of Life in our Community"
Loch Lomond Marina Committee
San Rafael City Council
San Rafael City Hall
1400 Fifth Avenue, Room 203
San Rafael, CA
Via email attachment
To City Council Members:
· ECEIVED
APR U t; L0L0
PLANNING
First, on behalf of the Point San Pedro Road Coalition, I want to thank the City of San Rafael
and particularly the Community Development Department (CDD) and Department of Public
Works (DPW) for working with our Loch Lomond Marina Oversight Committee on a regular
basis over the past several years on the development project at the Loch Lomond Marina.
This cooperative and open relationship has resulted in excellent community involvement and
transparency as well as expeditious resolution of several issues. Director Paul Jensen,
especially, has _been at the forefront of this project and his efforts have been greatly
appreciated.·
We understand that two items will be presented to the San Rafael City Council at their April
20, 2020 meeting related to this project. The first is a revised Subdivision Improvement
Agreement (SIA) and the second is a Below Market Rate (BMR) Agreement between San
Rafael and Marina Village Associates (MVA), the project owners. While we have not seen the
actual texts of these documents, we have reviewed what we understand is their substance
with COD and DPW and would like to provide our input below to the Council's deliberations.
In regard to the BMR, we understand that in return for the Council's approval removing the
requirement for the remaining six on-site BMR residences, MVA has agreed to make a sizable
contribution to the City's low-income housing fund. We further understand that these funds
will support the creation of many more low-income housing units than the six BMRs that
would have been built in The Strand at Loch Lomond Marina. We feel that this would be a
win-win-win-win-win situation in that: (1) MVA would be able to sell those six units at
market rate, (2) San Rafael will be able to collect property tax revenue on the completed
residences, (3) the City would be able to create more low-income housing, ( 4) residents of
The Strand could finally look forward to not living in the middle of a development project, and (5) our surrounding
communities could look forward to having this development project finally completed. While we understand that
no requirement can be imposed on MVA actually building out this development, it appears that they are
n·egotiating the sale of the residential portion of the development property to_ a potential developer who would
complete the project assuming they were unencumbered by the BMR requirement.
Regarding the revised SIA to cover the remaining work to be done, the City holds bonds to ensure the completion
of the infrastructure and public access areas that are covered by the SIA. This includes among other things the
marina, marina green and boardwalk, public access pathways, jetties, the breakwater and areas of Pt. San Pedro
Road requiring construction work in conjunction with the marina property. We understand that MVA is in final
negotiations with Safe Harbor Marinas (SHM) for the purchase of these properties which also includes the Yacht
Box 449 3698 Third Street San Rafael, CA 94901
www.sprcoalition.org BoardofDirectors@sprcoalition.org
Club building and the planned Kayak Dock, Kayak Launch Ramp, Harbormaster's Office, Boat Repair Facility and
Fuel Dock Facility. We view this potential transaction very favorably. However, we do have concerns regarding the
timely completion of some of the outstanding work yet to be done in these areas and San Rafael's ability to hold the
owner, whether it is MV A or SHM, to a reasonable time frame to do so.
Some of this work yet to be done is directly related to items within the SIA purview (as well as BCDC's purview)
and some deal with what are often called "sticks and bricks" construction such as the refacing of the Yacht Club
building and construction of the Harbormaster's Office and Boat Repair Facility. A completion schedule for these
items, like the residential units, cannot be mandated by City authority, but it is hoped that a new owner, such as .
SHM, would be more likely to complete these projects in a timely manner than MVA has.
For items that fall under the SIA, the P·oint San Pedro Road Coalition does have some concerns that it would like to
see addressed as part of the SIA conditions (these are not in any priority order nor are they exhaustive):
1. Flooding Repairs at the Connector to the _Breakwater and Playground Jetty: This work is governed by
BCDC permits (BCDC Permit Amendment #5) as well as CDD permits. Our understanding of the potential SHM
purchase agreement is that this work would remain the responsibility-of MVA even after purchase. While. some
delay has been due to administrative and bureaucratic processes within BCDC, MV A bears their share of
responsibility with slow responses to BCDC requirements and changes. BCDC is now waiting for MVA to submit
construction plans. We would like to see emphasis within the SIA on this work being completed with as little
delay as possible and well before the December 1, 2021 deadline mandated by BCDC. The delays in rectifying·
the flooding problems have already gone on far too long and continue to cause damage.
2. Kayak Launch Ramp: As a result of changes to the connector topology generated by the final plans in BCDC
Permit Amendment #5, MVA chose to submit a revised plan for this launch ramp on the east end of the
development at the parking lot end of the connector that deviated from the original plans in· significant ways.
Originally, the ramp in the 2014 BCDC-apprnved permits was to be 20' wide and extend to the tidal lower low-
water mark. The MVA-revised plan calls for the ramp to be only 12' wide and extend only to the tidal high-
water mark. This is unacceptable and must be address appropriately. BCDC has stated that MVA must submit
revised plans, but MVA has not yet done so nor has it indicat_ed it is actively working to do so . This issue must
be addressed clearly in the SIA The MVA-proposed width is too narrow to make efficient and safe use of the
ramp and the proposed length only to the high-water mark is inadequate and would require users to wade into
. bay mud at any tidal point lower than the high-water mark. ·
3. Kayak Dock: After extensive negotiations among CDD, the Yacht Club and the kayak advocate representative
on our Marina Committee, a revised plan was drawn up for the dock at the west end of the development
between the Yacht Club building and the boat launch ramp. This revised design depicted a dock with a
somewhat larger square-foot area than the original design, a barrier to prohibit users from entering the yacht
club property, and with an ADA-compliant slip. As agreed between COD and MVA, MVA is to draw up official
plans to be submitted to BCDC for review and approval. Thus far, no apparent activity in this regard has taken
place. As with the Kayak Launch Ramp, this must be clearly addressed in the SIA
4. Fuel Dock: In some ways, this is a "sticks and bricks" item but we feel it should be treated with more stringent
requirements than typical. It more resembles a service similar to water, power and pump-out services
provided to the those who live aboard their boats, all of which is mandated by the SIA The CDD permits call for
a "full-service marina" ·and both our Committee and COD have always considered that to mean the inclusion of
a fuel dock. This is an exceedingly important issue for the boating community. The nearest fuel dock currently
is in Sausalito, necessitating long trips to refuel, consuming fuel in the process. Some boat owners have taken to
refilling their tanks using portable cans, a very unsafe practice and contributing to water pollution from spilled
fuel. A letter from MVA to COD dated_ March 9, 2020 on this matter clearly states that the new owner may
2
choose not to implement a fuel dock if it determines that it is not a "viable asset to the marina." The SIA should
make it very clear that a fuel dock is a servjce similar to water and power, a requirement of a full-service
marina and that the City, not the developer, must determine if it is not "viable" and can be eliminated.
5. Harbormaster's Office: While this is a "sticks and bricks" building, it has a direct tie to an element of the SIA.
The pedestrian path that is part of the BCDC-mandated Bay Pathway runs between Andy's Market and the
proposed Harbormaster's Office. Under existing permits, that pathway is planned to have lighted bollards for
safety reasons. The electrical source for those bollards is planned to be coupled with the electrical service of
the Harbormaster's Office. To the extent that building is not built or is significantly delayed, there is no lighting
on this pathway. This has already proven to be a safety problem, and it will continue and possibly get worse as
time elapses. This issue must be addressed by the SIA for safety reasons. Possibly some temporary lighting,
such as solar LEDs, could be installed pending the final solution or an alternative power source could be
identified.
6. Pedestrian Access Path: A public access pedestrian path is specified in the existing permit which extends
between Pt. San Pedro Road and the eastern end of the marina along the wetlands and inlet at the east end of
the developm~nt. MVA has tied the timeframe for this path to the completion of the residential units that
border the path. With no mandate to complete this construction and certainly no timeframe, this public access
path is in permanent limbo. The SIA should address the completion of this path, set a defined timeframe that is
reasonably short and provide some conditions for its completion in lieu of the residential construction being
completed within that timeframe.
The Pt. San Pedro Road Coalition's Loch Lomond Marina Oversight Committee hopes that this input contribute to a
strong SIA Amendment and meaningful BMR Agreement and the ability of the developer to rapidly proceed with
the successful completion of this project. That is in everyone's best interest.
Regards,
0-.L-~ . J J__~
Alan Schaevitz
Member, Point San Pedro Road Coahtion Board and
Chair, Loch Lomond Marina Committee
www.sprcoalition.org
webmaster@sprcoalition.org
cc: Lindsay Lara, City Clerk
Paul Jensen, Community Development Department Director
Pt. San Pedro Road Coalition Board of Directors
Coalition Marina Oversight Committee
3