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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. 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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. 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Ip�' 63- 4 io -C' E % k � GL i - E 1G-P c u 11 r,r1i G,.E 6l.. s fi { {pA 1 au W: 5Lr12 GbE o z 0= - - Gc G I 4 Al Sd.iz'Gis _ e rr I a Oj � e I e i14o = - I gw t B17 ZI•� js � _ < w zo Ju l9j .P Be - Z P]o P •]o � o �J ZU ol Wo o I 1 1 � �i a Atlnd Nlry Z I — — F P _ s e ? d z _ Z - Z J �a _ a � �w Y � Q Y CD E - � j 6 k S Y ' e s'£c eF= LJ {A w: J = �a Z8 n �\ —• o o` <F / <`�z o oo / I - ----- 7 I I I s o > L I r� (BBOnvN !33e} ND11Yn31- 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 .A �1S _'di.'.1i.AS�.'� .A . 9� A .A .. oi�7 :� .7 G�I.A A of . A� :a .1 A A .A Ati•1 :1 i] .].�.A 4�1.G.�ti6� .A :��.Vai..A . �.."R �. \S 'CS '�"�bh\s' C: �s,'X� �5��. 'Vr\s�b 'Csn�,'2�: `Ct-�\. \'•: V' '•. �: � �. C: � V '� Cs'-rC� C�. �. v Ca 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 his/her/their authorized capacity(.i®s}, and that by his/beri#he+r signatureW on the instrument the person(sj, 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 OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. 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 ❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: _ ©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 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California ) County of 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 Notary Public - California Los Angeles County Commission p 2304353 = My Comm. Expires Sep 8, 2023 �unnnnnunnwuuunuuuuunnuuuuununuuunuuuuuunuuuc ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 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 My Comm, Expires Jul 18, 2023 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