CITY OF BUELLTON
CITY COUNCIL AGENDA
Regular Meeting of April 25, 2024 – 6:00 p.m.
City Council Chambers, 140 West Highway 246
Buellton, California
Council meetings will be conducted in person and the public is welcome to attend.
Written comments will not be read aloud but can be sent to the City Council via email at [email protected] (please reference agenda item number/subject matter, and include your name and address). The public can observe Council meetings via City TV Live Stream at:
http://www.cityofbuellton.com/government/cityTV.php
CALL TO ORDER
Mayor Dave King
PLEDGE OF ALLEGIANCE
ROLL CALL
Council Members, Hudson Hornick, Elysia Lewis, John Sanchez, Vice Mayor David Silva, and Mayor Dave King
REORDERING OF AGENDA
PUBLIC COMMENTS Speaker Slip to be completed and turned in to the City Clerk prior to commencement of meeting. Any person may address the Council on any subject pertaining to City business, including all items on the agenda not listed as a Public Hearing, including the Consent Agenda and Closed Session. Limited to three (3) minutes per speaker. By law, no action may be taken at this meeting on matters raised during Public Comments not included on this agenda. Public Speakers using a translator are allotted a total of six (6) minutes to speak, unless simultaneous translation equipment is used.
CONSENT CALENDAR (ACTION)
The following items are considered routine and non-controversial and are scheduled for consideration as a group. Any Council Member, the City Attorney, or the City Manager may request that an item be withdrawn from the Consent Agenda to allow for full discussion. Members of the Public may speak on Consent Agenda items during the Public Comment period.
1. Minutes of April 11, 2024 Regular City Council Meeting
2. List of Claims to be Approved and Ratified for Payment to Date for Fiscal Year 2023/2024
City Council Meeting Agenda Page 2 April 25, 2024
3. Monthly Treasurer’s Report – March 31, 2024
(Staff Contact: Finance Director Shannel Zamora)
4. Acceptance of Public Trail Easement and Offer to Dedicate Easement for Street and Road (Buellton Garden Apartments)
(Staff Contact: Public Works Director Rose Hess)
5. Award of Bid for Replacement Fleet Vehicles
(Staff Contact: Public Works Director Rose Hess)
6. Authorize Execution of Deed of Trust, Promissory Note, and Related Subordination Agreements for Cabrillo Economic Development (Village Senior Apartments) Project
(Staff Contact: City Manager Scott Wolfe)
7. Joint Grant Management Agreement between the Santa Ynez Band of Mission Indians, the County of Santa Barbara, City of Solvang, and City of Buellton for a Joint Submission for the Caltrans 2024-25 Active Transportation Program Cycle 7 Infrastructure Grant
(Staff Contact: City Manager Scott Wolfe)
8. Acceptance of Public Improvements and Termination and Release of Village Specific Plan Subdivision Agreement
(Staff Contact: Public Works Director Rose Hess)
PRESENTATIONS
PUBLIC HEARINGS (POSSIBLE ACTION)
9. Resolution No. 24-08 - “A Resolution of the City Council of the City of Buellton, California, Approving the Summary Vacation of Easement and Terminating the Offer of Dedication for Freeway Access Use on 175 McMurray Road (APN: 137- 200-096) and Finding Approval Categorically Exempt Under CEQA Guidelines Section 15305”
(Staff Contact: Public Works Director Rose Hess)
COUNCIL MEMBER COMMENTS/ITEMS
WRITTEN COMMUNICATIONS Written communications are included in the agenda packets. Any Council Member, the City Manager, or City Attorney may request that a written communication be read into the record.
COMMITTEE REPORTS This Agenda listing is the opportunity for Council Members to give verbal Committee Reports on any meetings recently held for which the Council Members are the City representatives thereto.
City Council Meeting Agenda Page 3 April 25, 2024
BUSINESS ITEMS (POSSIBLE ACTION)
10. Consideration of Arts and Culture Project Application:
5th Annual Juneteenth SYV Celebration
(Staff Contact: Recreation Coordinator Allison Firey)
11. Consideration of a New Contract with Metro Ventures Ltd. for Irma L. Tucker to Provide Professional Planning Services
(Staff Contact: Planning Director Andrea Keefer)
12. Buellton Urban Growth Boundary (UGB) Initiative City Council Workshop (Staff Contact: City Manager Scott Wolfe)
13. Discussion Regarding Potential Parking Restrictions on McMurray Road and Valley Vineyard Circle
(Staff Contact: Public Works Director Rose Hess)
CITY MANAGER’S REPORT
ADJOURNMENT
The next regular meeting of the City Council will be held on Thursday, May 9, 2024 at 6:00 p.m.
City Manager Review: SW
Council Agenda Item No.: 1
CITY OF BUELLTON
CITY COUNCIL MEETING MINUTES
Regular Meeting of April 11, 2024
City Council Chambers, 140 West Highway 246
Buellton, California
CALL TO ORDER
Vice Mayor Silva called the meeting to order at 6:05 p.m.
PLEDGE OF ALLEGIANCE
ROLL CALL
Present: Council Members Hudson Hornick, Elysia Lewis and John Sanchez, and Vice Mayor David Silva
Absent: Mayor Dave King
Staff: City Manager Scott Wolfe, City Attorney Greg Murphy (Via Zoom), Public Works Director Rose Hess, Finance Director Shannel Zamora (Via Zoom), Planning Director Andrea Keefer, Contract City Planner Irma Tucker (Via Zoom) and Staff Assistant Clare Barcelona
REORDERING OF AGENDA
City Manager Wolfe suggested and the City Council agreed by consensus to reorder Item 9 to the end of the agenda, due to the recusal of Vice Mayor Silva regarding Item 9.
PUBLIC COMMENTS
Cristina Carreno, Buellton, spoke about growth and traffic in the City.
A.J. Tarman, Buellton, spoke about traffic and public safety in the City.
Rose Deters, Buellton, stated that North McMurray Road is torn up with potholes and requested that it be repaired.
City Council Meeting Minutes Page 2 April 11, 2024
CONSENT CALENDAR
1. Minutes of March 28, 2024 City Council Meeting
2. List of Claims to be Approved and Ratified for Payment to Date for Fiscal Year 2023/2024
3. Resolution No. 24-06 – “A Resolution of the City Council of the City of Buellton, California, Authorizing the Filing of a Claim with the Santa Barbara County Association of Governments for Allocation of Transportation Development Act Funds for Fiscal Year 2024-25”
4. Resolution No. 24-07 – “A Resolution of the City Council of the City of Buellton, California, Approving a 3.94% Cost of Living Adjustment (COLA) for all Regular Full-Time Employees, Effective, July 1, 2024”
5. Approval of Lease for New Heavy Equipment
MOTION:
Motion by Council Member Lewis, seconded by Council Member Sanchez, approving Consent Calendar Items 1-5 as listed.
VOTE:
Motion passed by a roll call vote of 4-0.
Council Member Hornick – Yes
Council Member Lewis – Yes
Council Member Sanchez – Yes
Vice Mayor Silva – Yes
PRESENTATIONS
6. Proclamation Recognizing National Donate Life Month
Vice Mayor Silva read the proclamation recognizing April 2024 as National Donate Life Month and thanked Scott Burns for his dedication to this cause. Mr. Burns discussed the importance of organ donation and thanked the Council for their support.
PUBLIC HEARINGS
None
COUNCIL MEMBER COMMENTS/ITEMS
Council Member Sanchez thanked Public Affairs Deputy Director John Dillon at Vandenberg Space Force Base for the invitation to attend the recent launch.
City Council Meeting Minutes Page 3 April 11, 2024
Vice Mayor Silva thanked staff and the Santa Barbara County Sheriff’s Department for removing the Mexican “pop-up” taco stand on McMurray Road.
WRITTEN COMMUNICATIONS
None
COMMITTEE REPORTS
Council Member Sanchez announced that he attended the Arts & Culture Committee meeting and provided an oral report for the record.
Council Member Hornick announced that he attended a Green Team meeting and provided an oral report for the record.
Vice Mayor Silva called a five-minute recess from 6:25 to 6:30 p.m.
BUSINESS ITEMS
7. Conceptual Review of “Highway 246 Commercial Center” 20 East Highway 246 and 220 Avenue of Flags
APNs: 137-190-022,-024,-030,-013,-033,-015, & -007
Council Member Hornick recused himself from Item 7 due to the proximity of his residence to the proposed project location and left the dais.
RECOMMENDATION:
That the City Council review the conceptual project plans and provide comments to the Applicant regarding the project.
STAFF REPORT:
Contract City Planner Tucker presented the staff report.
DOCUMENTS:
Staff report with attachments as listed in the staff report.
SPEAKERS/DISCUSSION:
Ed St. George, Applicant discussed the project and answered questions from the Council.
John Dorwin, Buellton, discussed the project’s impacts on Zaca Creek and requested a review by the California Department of Fish and Wildlife to protect the Southern Steelhead Trout.
The City Council discussed the proposed project and provided comments and suggestions to the Applicant regarding the design concept.
Council Member Hornick returned to the dais following the discussion of Item 7.
City Council Meeting Minutes Page 4 April 11, 2024
8. Discussion Regarding Potential Truck Parking and Restriping of South Avenue of Flags
RECOMMENDATION:
That the City Council discuss the need for truck parking and restriping of South Avenue of Flags and authorize a budget adjustment of $10,000 in the Public Works Fund and authorize the purchase of two speed limit/radar feedback signs.
STAFF REPORT:
Public Works Director Hess presented the staff report.
DOCUMENTS:
Staff report with attachments as listed in the staff report.
SPEAKERS/DISCUSSION:
The City Council discussed the following issues:
• The pros and cons of truck parking on the Avenue of Flags • Possibly removing existing parking spaces
• Potential liability to the City
• Identifying a long term solution for truck parking
• Slowing down traffic with proposed restriping
Nancy Dorwin, Buellton, stated the current striping configuration is preferable and asked the Council to consider a crosswalk between Rancho de Maria to Flying Flags RV Resort.
Kirk Nordgren, Buellton, submitted written comments regarding this item, which was provided to the City Council and added to the record.
DIRECTION:
The City Council agreed by consensus to have staff return to Council with new exhibits based on the Council’s comments and suggestions and to move forward with the speed limit/radar feedback signs.
10. Amendment to the Joint-Use Agreement with Buellton Union School District RECOMMENDATION:
That the City Council review and approve the First Amended Joint Use Agreement.
STAFF REPORT:
City Manager Wolfe presented the staff report.
DOCUMENTS:
Staff report with attachments as listed in the staff report.
City Council Meeting Minutes Page 5 April 11, 2024
SPEAKERS/DISCUSSION:
Council Member Lewis stated that she appreciates the relationship between the City Council and the Buellton Union School District and the intentions behind the joint-use agreement.
MOTION:
Motion by Council Member Sanchez, seconded by Council Member Lewis approving the First Amended Joint Use Agreement for signature by the Mayor.
VOTE:
Motion passed by a roll call vote of 4-0.
Council Member Hornick – Yes
Council Member Lewis - Yes
Council Member Sanchez – Yes
Vice Mayor Silva – Yes
9. Discussion Regarding Potential Parking Restrictions on McMurray Road and Valley Vineyard Circle
Council Member Silva recused himself from Item 9 due to the proximity of his residence to the proposed project location and left the meeting at 8:20 p.m. Council Member Lewis took over running the meeting in Vice Mayor Silva’s absence.
RECOMMENDATION:
That the City Council review and discuss the parking restriction options and provide staff with further direction.
STAFF REPORT:
Public Works Director Hess presented the staff report.
DOCUMENTS:
Staff report with attachments as listed in the staff report.
SPEAKERS/DISCUSSION:
Buellton residents listed below submitted written comments for the record, which were distributed to the City Council prior to the Council meeting. • Susan Perry
• Anne and Michael Hey
• Justin Greene
Sarah Daski, Buellton, spoke about the number of construction vehicles parking on site and that excessive red curbing limits visitor parking.
Justin Greene, Buellton, submitted public comment that was read into the record by City Manager Scott Wolfe.
City Council Meeting Minutes Page 6 April 11, 2024
Jeff Farmer, Goleta, spoke about the parking at Valley Vineyard Circle.
The City Council discussed the following issues:
• How to keep construction parking away from the townhomes, possibly via signage of “No oversize vehicle parking”
• Adding temporary red curbing through the construction phase • How red curbs could affect businesses in the area
• Creating a permit parking area
CITY MANAGER’S REPORT
City Manager Wolfe provided an informational report for the record.
ADJOURNMENT
Council Member Lewis adjourned the regular meeting at 9:05 p.m. The next regular meeting of the City Council will be held on Thursday, April 25, 2024 at 6:00 p.m. __________________________
David Silva
Vice Mayor
ATTEST:
_____________________________
Linda Reid
City Clerk
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 2
To: The Honorable Mayor and City Council
From: Shannel Zamora, Finance Director
Meeting Date: April 25, 2024
Subject: List of Claims to be Approved and Ratified for Payment to Date for Fiscal Year 2023/2024
______________________________________________________________________________
BACKGROUND
Staff is required to submit a check register to the City Council for approval every Council meeting for the most recently completed check register (Attachment 1).
The check register for the period 03/30/2024 through 04/12/2024 has been prepared in accordance to Government Code section 37202 and Buellton Municipal Code section
3.08.070. The check register lists all vendor payments for the specified period above, along with claimant’s name, a brief description of the goods or service purchased, amount of demand, check number, check date and the account number(s) associated with each payment.
The total amount of checks and electronic fund transfers issued for the period of 03/30/2024 through 04/12/2024 was $658,209.33.
FISCAL IMPACT
Payments made to the various vendors were consistent with the approved City’s Budget for FY 2023/24. Cash is available for the payment disbursements of the above liabilities.
RECOMMENDATION
That the City Council review and accept the check register for the period 03/30/2024 through 04/12/2024.
ATTACHMENTS
Attachment 1 – Claims
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 3
To: The Honorable Mayor and City Council
From: Shannel Zamora, Finance Director
Meeting Date: April 25, 2024
Subject: Monthly Treasurer’s Report – March 31, 2024
______________________________________________________________________________
BACKGROUND
California Government Code Section 53646(b)(3) provides mandatory investment reporting requirements for California public agencies. The attached Treasurer’s Report complies with the State’s reporting requirement.
On June 8, 2023, Council adopted the current Investment Policy per Resolution 23-13 which states the City Finance Director, as the investment officer, must submit monthly reports to City Council to demonstrate that sufficient cash flow liquidity is available to meet the succeeding month’s estimated expenditures.
This Treasurer’s Report is for March 31, 2024. Treasurer’s Reports are presented on a monthly basis.
FISCAL IMPACT
There is no fiscal impact; this report is intended to show the City Council the financial performance of the City’s investment portfolio of idle funds.
RECOMMENDATION
That the City Council receives and files the Treasurer’s Report for the month ending March 31, 2024.
ATTACHMENTS
Attachment 1 – Monthly Treasurer’s Report – March 31, 2024
[Type text]
A
City of Buellton
Monthly Treasurer’s Report
For the month ending in March 31, 2024
April 25, 2024
This report presents the City’s cash activity and investment portfolio as of March 31, 2024. The report includes:
1) Cash and investments at March 31, 2024 compared to the prior month;
2) A reconciliation of cash and investments to City ledger balances; 3) All investments managed by the City on its own behalf; 4) Beginning of year fund balance, revenues, expenditures and ending fund balance for each fund at March 31, 2024
The following schedule is a summary of the City’s cash and investments based on recorded value as of March 31, 2024 compared with the prior month.
February 29, 2024 March 31, 2024 $ Change
Cash - Pooled $ 7,408,598.88 $ 6,922,615.25 $ (485,983.63) Investments held by the City 17,409,983.06 17,424,610.05 $ 14,626.99 TOTAL CASH AND INVESTMENTS $ 24,818,581.94 $ 24,347,225.30 $ (471,356.64) Summary of activity for the Month and Future Liquidity: The majority of the difference in the recorded value for cash and investments held by the City from last month is mainly due to the receipt of January 2024 sales tax revenue offset with February 2024 and March 2024 sheriff services. The value of investments also changed due to interest earnings on money market fund and Certificate of Deposits (CDs). The portfolio is sufficiently liquid to meet expected expenditures for the coming six months.
City of Buellton
M o n t h l y T r e a s u r e r ’ s R e p o r t
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The following schedule is a reconciliation of Cash and Investments to City ledger:
14,423,407.43
3,325,765.27
(1,886,308.34)
8,365,778.42
(2,734,779.75)
160,567.50
37,631.93
723,122.89
365,852.85
13,273.13
847,859.51
633,639.08
450,067.60
-
-
(378,652.22)
-
24,347,225.30
6,909,866.17
5,460,649.90
12,749.08
2,908,452.41
9,055,507.74
Pooled Cash - Webster Bank Escrow - -
24,347,225.30
999-21000 Wages Payable - -
24,347,225.30
24,347,225.30
24,347,225.30
Per Statements: 3/31/2024
Mechanics General Checking 7,576,548.54
Mechanics Money Market 5,460,649.90
Mechanics FSA 12,749.08
Local Agengcy Investment Fund (LAIF) 9,055,507.74
Multi-Bank Securities Bank 2,908,452.41
Webster Bank - Escrow -
Total Cash Per Statement: 25,013,907.67
Claim on Cash vs Total (666,682.37)
Outstanding Items: (666,682.37)
Difference: (0.00)
Bank Reconciliation - March 2024
City of Buellton, CA
For the Period Ending 3/31/2024
3/1/2024
BALANCE
CURRENT
ACTIVITY
3/31/2024
BALANCE ACCOUNT # ACCOUNT NAME
006-10000 Claim on Pooled Cash (1,886,308.34) -
020-10000 Claim On Pooled Cash 8,268,635.14 97,143.28
CLAIM ON CASH
001-10000 Claim On Pooled Cash 14,737,196.42 (313,788.99) 005-10000 Claim On Pooled Cash 3,355,407.71 (29,642.44) 024-10000 Claim On Pooled Cash 37,603.28 28.65
025-10000 Claim On Pooled Cash 637,691.99 85,430.90
021-10000 Claim on Pooled Cash (2,734,779.75) -
023-10000 Claim On Pooled Cash 160,445.24 122.26
031-10000 Claim On Pooled Cash 803,054.24 44,805.27
032-10001 Claim On Pooled Cash 633,156.61 482.47
027-10000 Claim On Pooled Cash 366,678.09 (825.24)
029-10000 Claim On Pooled Cash 13,686.35 (413.22)
091-10000 Claim On Pooled Cash - -
092-10000 Claim On Pooled Cash (23,609.94) (355,042.28) 075-10000 Claim On Pooled Cash 449,724.90 342.70
090-10000 Claim On Pooled Cash - -
999-10002 Pooled Cash - Money Market 5,442,057.45 18,592.45 999-10003 Pooled Cash - FSA 12,231.72 517.36
TOTAL CLAIM ON CASH 24,818,581.94 (471,356.64)
CASH IN BANK
Cash in Bank
999-10001 Pooled Cash - General Checking 7,396,367.16 (486,500.99) 999-10006 -
TOTAL: Cash in Bank 24,818,581.94 (471,356.64)
-
999-10004 Pooled Cash - Brokerage 2,912,417.87 (3,965.46) 999-10005 Pooled Cash - LAIF 9,055,507.74 -
TOTAL DUE TO OTHER FUNDS 24,818,581.94 (471,356.64)
TOTAL: Cash in Bank 24,818,581.94 (471,356.64)
DUE TO OTHER FUNDS
999-27000 Due To Other Funds 24,818,581.94 (471,356.64)
M o n t h l y T r e a s u r e r ’ s R e p o r t
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City of Buellton
Investment Summary
March 31, 2024
Currently, short-term excess cash is primarily invested in the Local Agency Investment Fund (LAIF) administered by the State Treasurer. This is a high quality investment available in terms of safety, liquidity, and yield. Due to fluctuations in the marketplace, the City may have some investments with a current market value that is greater or less than the recorded value. This difference has no effect on investment yield as the City intends to hold the securities to maturity. However, generally accepted accounting principles require that market gains and losses be reported as interest earnings or losses at year-end.
Percent of
Portfolio Yield
Maturity
Term Maturity Date Par Value Market Value
Local Agency Investment Fund - LAIF 52.69% 4.00% n/a n/a $ 9,055,507.74 $ 9,055,507.74 Comenity Cap Bank 0.93% 2.80% 5 yrs. 4/15/2024 160,000.00 159,792.00 Security Identifier: 20033AU38
Morgan Stanley Bank 0.58% 2.75% 5 yrs. 5/2/2024 100,000.00 99,740.00 Security Identifier: 61760AZR3
Capital One Bank 0.58% 2.00% 5 yrs. 8/21/2024 100,000.00 98,673.00 Security Identifier: 14042TCB1
Morgan Stanley Bank 0.58% 1.90% 5 yrs. 1/23/2025 100,000.00 97,387.00 Security Identifier: 61760A6K0
State Bk India 1.16% 1.60% 5 yrs. 4/29/2025 200,000.00 192,730.00 Security Identifier: 856285TF8
Sallie Mae Bank 0.70% 0.80% 5 yrs. 7/1/2025 120,000.00 113,869.20 Security Identifier: 7954506Q3
Third Fed Savings 1.43% 3.50% 5 yrs. 6/28/2027 245,000.00 237,162.45 Security Identifier: 88413QDL9
Morgan Stanley Bank 0.61% 3.75% 5 yrs. 6/28/2027 104,000.00 101,449.92 Security Identifier: 61773TFC2
Capital One Bank 1.42% 3.75% 5 yrs. 9/30/2027 244,000.00 242,509.16 Security Identifier: 14042RURO
Hickam Federal Credit Union 0.58% 3.75% 4 yr 1/31/2028 100,000.00 99,344.00 Security Identifier: 42869GAB2
Global Federal Credit Union 1.45% 4.60% 5 yrs. 4/17/2028 249,000.00 251,415.30 Security Identifier: 37892MAC8
Optum Bk Draper Utah CTF Dep 0.93% 4.45% 5 yrs. 12/22/2028 160,000.00 160,918.40 Security Identifier: 68405VBV0
United States Treasury Bill 6.10% 5.11% 6 mo. 6/13/2024 1,049,000.00 1,037,901.58 Security Identifier: 912797FS1
Multi-Securities Bank - Cash in Holding 15,560.40
Money Market (Held with Mechanics Bank) 30.26% 4.39% n/a 5,200,000.00 5,460,649.90 Total City Investments 100.00% $ 17,186,507.74 $ 17,424,610.05 Certificates of Deposits (Held with Multi-Securities Bank) U.S. Treasury Securities (Held with Multi-Securities Bank)
M o n t h l y T r e a s u r e r ’ s R e p o r t
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The following is a fund balance schedule showing beginning fund balance at July 1, 2023 plus revenues minus expenditures for the period, resulting in ending fund balance at March 31, 2024.
Fund balance includes total assets and liabilities of the City.
As required by Government Code Section 53646 (b) (3), the chief financial officer for the City declares that there is sufficient funds to meet all obligations for the next six months.
Shannel Zamora
Shannel Zamora
Finance Director
Total Expenses March 31, 2024
Balance
7,117,243.19 6,737,850.49 14,343,276.54
945,035.72 1,129,072.21 2,994,444.86
006 - Wastewater Capital 59,536.40 159,353.09 251,264.04 020 - Water Fund 2,054,979.04 1,829,287.17 8,581,148.70 021 - Water Capital 22,785.00 3,301.69 325,616.43
2,704.84 - 499,186.48
712.48 - 37,419.59
260,459.21 121,376.62 722,232.90
027 - Local Transportation Fund 9,086.77 14,999.94 365,371.72 029 - Transportation Planning 227.48 21,350.81 (123,992.89) 031 - Measure A 278,464.44 269,779.41 876,578.89
032 - American Relief Act Fund 393,798.34 413,694.43 (9,437.08) 075 - Trust & Agency Fund 5,299.71 - 18,482.55
090 - Long-Term Debt - - (2,917,219.67)
091 - General Fixed Assets - - 26,454,746.40
1,486,761.34
12,887,332.46 51,718,614.20
26,454,746.40
092 - Capital Improvement Proj Fund - 2,187,266.60 (700,505.26) 51,968,852.70 12,637,093.96
371,284.89
(102,869.56)
867,893.86
10,459.01
13,182.84
(2,917,219.67)
306,133.12
023 - Housing Fees 496,481.64
024 - Traffic Mitigation Fund 36,707.11
025 - Gas Tax Fund 583,150.31
001 - General Fund 13,963,883.84
005 - Sewer Fund 3,178,481.35
351,080.73
8,355,456.83
Fund Balance Report
City of Buellton, CA 3/31/2024
Fund July 1, 2023
Balance
Total Revenues
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 4
To: Honorable Mayor and City Council
From: Rose Hess, Public Works Director
Meeting Date: April 25, 2024
Subject: Acceptance of Public Trail Easement and Offer to Dedicate Easement for Street and Road (Buellton Garden Apartments) ______________________________________________________________________________
BACKGROUND
On November 17, 2022, the Planning Commission approved Resolution No. 22-12 for the Buellton Garden Apartments Project Final Development Plan and Tentative Parcel Map.
During the approval process, it was determined that the public trail easement would be required for dedication. As part of implementation of the City’s Bicycle and Pedestrian Master Plan, a public trail easement is required to continue the Santa Ynez River Trail. The requirement was incorporated into the project’s Conditions of Approval.
The developer has prepared the Grant of Easements for the public dedications. The public trail easement legal description and exhibit are provided as Attachment 1.
The trail easement runs east/west of the Buellton Garden Apartments’ south parcel and is 20 feet wide (10 feet along each side of the shown centerline). The applicant has worked with both Planning and Engineering staff on viable general location for the easement. As the City moves forward in the future with design and construction of the Santa Ynez River Trail, coordination with the property owner will be necessary to finalize the location.
Another condition of the project involves development and construction of the south McMurray Road cul-de-sac. The applicant has requested alignment of the cul-de-sac to the west in order to maximize development of their property. In order to accommodate that alignment, dedication of McMurray Road cul-de-sac was required from the adjacent property owner, BTP Group LLC. Buellton Garden Apartments representatives worked with and negotiated with BTP Group LLC to grant the necessary land to provide the required cul-de-sac easements. This grant is provided as Attachment 2. The cul-de-sac will be developed by the Buellton Garden Apartments as part of their off-site improvements.
Trail and Street Easements Page 2 April 25, 2024
FISCAL IMPACT
The acceptance of the trail easement and the offer of dedication, in themselves, will not have any fiscal impact on the City.
RECOMMENDATION
That City Council accept the Grant of Easement dedication for public trail and Offer to Dedication Easement for Street and Road Purposes and authorize their recordation.
ATTACHMENTS
Attachment 1 – Grant of Easement – Trail
Attachment 2 – Offer to Dedicate Easement for Street and Road Purposes
CERTIFICATE OF ACCEPTANCE
AND CONSENT TO RECORDATION OF
EASEMENT GRANT DEED
This is to certify that the interest in real property conveyed by the Easement Grant Deed dated _______________________ from ________________________________________________________ to the City of Buellton, a municipal corporation of the State of California, is hereby accepted by the undersigned City Clerk on behalf of the City Council, pursuant to the action of the City Council at its meeting of __________________________ and the grantee consents to recordation thereof by its duly authorized officer.
Dated: __________________________
City of Buellton
by _____________________________
City Clerk
CERTIFICATE OF ACCEPTANCE
AND CONSENT TO RECORDATION OF
OFFER TO DEDICATE EASEMENT FOR STREET AND ROAD PURPOSES This is to certify that the interest in real property conveyed by the Agreement dated _______________________ from ________________________________________________________ to the City of Buellton, a municipal corporation of the State of California, is hereby accepted by the undersigned City Clerk on behalf of the City Council, pursuant to the action of the City Council at its meeting of __________________________ and the grantee consents to recordation thereof by its duly authorized officer.
Dated: __________________________
City of Buellton
by _____________________________
City Clerk
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 5
To: The Honorable Mayor and City Council
From: Rose Hess, Director of Public Works
Meeting Date: April 25, 2024
Subject: Award of Bid for Replacement Fleet Vehicles
______________________________________________________________________________
BACKGROUND
Included in this Fiscal Year’s budget is the procurement of one replacement vehicle for the City’s fleet. The vehicles to be replaced are two 2006 Ford F-150s. We sent out and posted a Notice to Bidders in March 2024 to Rio Vista Chevrolet and Jim Vreeland Ford. The City requested bidders to provide a cost for two full-size pickup trucks (F-150/Silverado equivalents) available that met the required specifications.
The City received bids from Rio Vista Chevrolet and Jim Vreeland Ford. A summary of the bids received are as follows:
Rio Vista Chevrolet Jim Vreeland Ford
Pick-Up Truck New 2024 Silverado 2024 Ford F-150
Each $49,356.47 $41,323.50
Total for 2 $98,712.94 $82,647.00
Delivery End 2024 End 2024
All bids shown here are total cost, including all taxes and fees.
The low bid received is from Jim Vreeland Ford in the amount of $41,323.50 for each vehicle, for a total bid of $82,647.00. Prior to completion of any purchase, Staff will inspect the vehicle to ensure it complies with the requested specifications.
Award of Bid - Fleet Vehicles Page 2 April 25, 2024
FISCAL IMPACT
Staff has allocated $25,000 from the Water Enterprise Fund (020-601-73100) and the Wastewater Enterprise Fund (005-701-73100) within the 2023/24 Fiscal Year budget for fleet vehicle replacement. An additional $16,323.50 within each fund would be needed to cover the vehicle cost. A budget amendment would be required to bring the total budget line items to $41,323.50 for each Fund.
RECOMMENDATION
That the City Council authorize the City Manager to purchase two replacement fleet vehicles from Jim Vreeland Ford in the amount of $82,647.00 and approve the budget amendment for FY 2023/24 Budget to increase the Water Enterprise Fund by $16,323.50 and the Wastewater Enterprise Fund by $16,323.50.
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 6
To: The Honorable Mayor and City Council
From: Scott Wolfe, City Manager
Meeting Date: April 25, 2024
Subject: Authorize Execution of Deed of Trust, Promissory Note, and Related Subordination Agreements for Cabrillo Economic
Development (Village Senior Apartments) Project
______________________________________________________________________________
BACKGROUND
Cabrillo Economic Development Corporation (CEDC) is the applicant and prospective developer of the Village Senior Apartment Project, which was approved in 2014. The project will result in the development of forty-nine (49) units to be affordable at the Very Low Income affordability level, and one market-rate manager’s unit. The project is to be located at 332 & 334 Valley Vineyard Circle (Assessor’s Parcel Number 137-790-008), just south of the Village Townhome neighborhood.
On September 30, 2021, the City Council authorized the use of $150,000.00 of Affordable Housing In-Lieu funds to aid in the construction of the project. The Affordable Housing In-Lieu funds are conveyed to the developer through a residual receipts loan, which is repaid back to the City by the developers over a period of time up to 55 years. The nature of this type of loan is explicitly subordinate to primary financing loans, and is therefore secured by a Loan Note and a Deed of Trust.
The City’s loan is not the only source of financing for the developer. The State has authorized a loan in the amount of $3.96 million. Likewise, a private finance company, Banner Bank, is lending the amount of approximately $25 million dollars in support of the project. As larger loan amounts, these loans require that they be senior to the City’s loan. Therefore, the developer has requested that the City agree to subordinate its loan to allow for this.
Subordination of this loan to the larger loans will give the State and Banner Bank priority in being repaid in the event of a default of the note holder. It will not result in any reduction or delay of repayment to the City, except in the case of default.
Authorize Subordination – CEDC Page 2 April 25, 2024
In order to facilitate the closing of escrow and commencement of construction for this project, staff is recommending that the City Council authorize the City Manager to execute the accompanying agreements on behalf of the City.
FISCAL IMPACT
Action on this is not anticipated to result in an impact on the General Fund. In the event of a loan default, there would be other loans that would have higher priority for repayment, and therefore an indeterminate amount of restricted housing funds (up to $150,000.00) could be lost.
RECOMMENDATION
Staff recommends that the City Council, authorize the City Manager to sign the Short Form Deed of Trust, Promissory Note, and the Subordination Agreements from the State Department of Housing and Community Development and Banner Bank for the Village Senior Apartments Project.
ATTACHMENTS
Attachment 1 - Short Form Deed of Trust
Attachment 2 - Promissory Note
Attachment 3 - Subordination Agreement – HCD
Attachment 4 - Subordination Agreement – Banner Bank
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A.P.N.: 137-790-008
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Buellton
P.O. Box 1819
Buellton, CA 93427
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
(The Village Senior Apartments – City of Buellton In-Lieu Fee Loan) This Deed of Trust, made as of _______, 2024, between The Village Senior LP, a California limited partnership, herein called Trustor,
whose address is: The Village Senior LP
c/o The Village Senior LLC
702 County Square Drive, Suite #200
Ventura, CA 93003
Attention: Chief Executive Officer
Commonwealth Land Title Company, a California corporation, herein called Trustee, and the City of Buellton, a municipal corporation, herein called Beneficiary, Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF SALE, That property located at 332 & 334 Valley Vineyard Circle, Buellton, California 93427 described as follows:
SEE EXHIBIT A, incorporated herein by this reference
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and authority given to and conferred upon Beneficiary by paragraph (10) of the provisions incorporated herein by reference to collect and apply such rents, issues and profits.
For the Purpose of Securing:
1. Performance of each agreement of Trustor incorporated by reference or contained herein. 2.
Payment of the indebtedness evidenced by one promissory note of even date herewith, and any extension or renewal thereof, in the principal sum of $150,000.00 executed by Trustor in favor of Beneficiary or order. 3. Payment of such further sums as the then record owner of said property hereafter may borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so
650\154\3706181.4 2
secured.
To Protect the Security of This Deed of Trust, Trustor Agrees: By the execution and delivery of this Deed of Trust and the note secured hereby, including the provisions set forth in EXHIBIT B of this Deed of Trust, which is incorporated by this reference, and the provisions (1) to (14) inclusive, of the fictitious deed of trust recorded in Santa Barbara County, in the book and at the page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of the county, viz.:
COUNTY BOOK PAGE
Alameda 435 684
Alpine 1 250
Amador 104 348
Butte 1145 1
Calaveras 145 152
Colusa 296 617
Contra Costa3978 47
Del Norte 78 414
El Dorado 568 456
Fresno 4626 572
Glenn 422 184
Humboldt 657 527
Imperial 1091 501
Inyo 147 598
Kern 3427 60
COUNTY BOOK PAGE
Kings 792 833
Lake 362 39
Lassen 171 471
Los AngelesT2055 899
Madera 810 170
Marin 1508 339
Mariposa 77 292
Mendocino 579 530
Merced 1547 538
Modoc 184 851
Mono 52 429
Monterey 2194 538
Napa 639 86
Nevada 305 320
Orange 5889 611
COUNTY BOOK PAGE
Placer 895 301
Plumas 151 5
Riverside 3005 523
Sacramento 4331 62
San Benito 271 383
San Bernardino5567 61
San FranciscoA332 905
San Joaquin 2470 311
San Luis Obispo1151 12
San Mateo 4078 420
Santa Barbara1878 860
Santa Clara 5336 341
Santa Cruz 1431 494
Shasta 684 528
San Diego Series2 Book
1961, Page 183887
COUNTY BOOK PAGE
Sierra 29 335
Siskiyou 468 181
Solano 1105 182
Sonoma 1851 689
Stanislaus 1715 456
Sutter 572 297
Tehama 401 289
Trinity 93 366
Tulare 2294 275
Tuolumne 135 47
Ventura 2062 386
Yolo 653 245
Yuba 334 486
(which provisions, identical in all counties, are printed on attached herewith) hereby are adopted and incorporated herein and made a part hereof as fully as though set forth herein at length; that Trustor will observe and perform said provisions; and that the references to property, obligations and parties in said provisions shall be construed to refer to the property, obligations, and parties set forth in this Deed of Trust.
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to it at its address.
650\154\3706181.4 3
TRUSTOR:
THE VILLAGE SENIOR LP,
a California limited partnership
By: The Village Senior LLC,
a California limited liability company,
its general partner
By: Cabrillo Economic Development Corporation,
a California nonprofit public benefit corporation,
its sole managing member
By: _______________________________
Victoria J. Brady
Chief Financial Officer
650\154\3706181.4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
PROPERTY DESCRIPTION
All that certain real property situated in the County of Santa Barbara, State of California, described as follows:
Lot 4 of Lot Line Adjustment No. 13-LLA-03, recorded September 23, 2014 as Instrument No. 2014-0043409 of Official Records, being a portion of Lots 2 and 5 of Tract 31,052 in the City of Buellton, County of Santa Barbara, State of California, as per map recorded in Book 205, Pages 69 and 70 of Maps, in the Office of the County Recorder of said County.
Excepting all oil, petroleum and other hydrocarbon substance, including natural gas, in and upon said land, as reserved in deeds from Merchants Trust Company, a Corporation, recorded September 5, 1912 in Book 137, Page 165 and September 24, 1913 in Book 141,
APN: 137-790-008
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EXHIBIT B
RIDER
THIS OMNIBUS RIDER, dated as of ____________, 2024, is made by and between City of Buellton, a California municipal corporation (the "Beneficiary”) and The Village Senior LP, a California limited partnership (the "Trustor").
WITNESSETH:
WHEREAS, Trustor has entered into that certain Promissory Note, dated as of even date herewith (the "Note") in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) (the "Loan") for the benefit of the Holder in connection with the construction financing for that certain affordable apartment development known as The Village Senior Apartments, to be located at 332 & 334 Valley Vineyard Circle in the City of Buellton, California (the "Project");
WHEREAS, the Note is secured by that certain Short Form Deed of Trust and Assignment of Rents, dated as of even date herewith (the "Deed of Trust"). The Note and the Deed of Trust shall be referred to as the "Loan Documents;" WHEREAS, in connection with the Project, the City has recorded a First Amended and Restated Affordable Housing Regulatory Agreement, dated as of November 2, 2021, between the City and Trustor's predecessor-in-interest, and recorded in the official records of the County of Santa Barbara on February 14, 2022, as Document No. 2022-0007796 (the "Affordable Housing Agreement").
WHEREAS, the Trustor is operating pursuant to the Trustor's Amended and Restated Limited Partnership Agreement, dated as of ____________ __, 2024 (as the same may be amended from time to time, the "Partnership Agreement"); and WHEREAS, the Holder and the Trustor desire to clarify certain terms on which the Loan will be made.
NOW, THEREFORE, in consideration of the premises and for other valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree, notwithstanding any provision to the contrary in the Loan Documents, as set forth herein.
1. Subordination. The Deed of Trust may be subordinated to other loans for the Project (in each case, a "Senior Loan"), but only on condition that all of the proceeds of the proposed Senior Loan, less any transaction costs, must be used to provide financing for the Project. Upon a determination by the City Manager that the
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conditions in this Section have been reasonably satisfied, the City Manager or his/her designee on behalf of the Holder will be authorized to execute a subordination agreement without the necessity of any further action or approval.
2. Permitted Transfers. The following changes of ownership in the Trustor ("Permitted Transfers") shall be permitted without the consent of Holder and where, except for a transfer described in subsections (a), (b), (c), (d), (f), (g) and (i) below, the person or entity to which such transfer is made expressly and unconditionally assumes in a written assignment and assumption agreement between such transferee and the City that is in a form reasonably acceptable to City (as evidenced by execution of such assignment and assumption agreement by the City Manager), all obligations of Trustor under this Note and the Deed of Trust:
(a) Any transfer to a holder of a Senior Loan.
(b) Any transfer directly resulting from the foreclosure of a Senior Loan. (c) Any transfer of equity in the Trustor that does not change management or operational control of the Project, with no material change in beneficial ownership (with the exception of any conveyance to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit) and which constitutes a tax-free transaction under Federal income tax law and California real estate transfer tax. (d) The lease of residential units in the Project consistent with the Affordable Housing Agreement.
(e) The transfer and sale of limited partnership interests in Trustor and the transfer of any direct or indirect ownership interests in any limited partner in the partnership constituting the Trustor while the Trustor is in the form of a limited partnership.
(f) In the event that any general partner of the Trustor, while the Trustor is in the form of a limited partnership, is removed by the limited partner of such limited partnership for cause following default under the Partnership Agreement, the transfer of the general partner interest to a 501(c)(3) tax exempt nonprofit corporation selected by the limited partner and approved by the City, which approval shall not be withheld unreasonably, delayed or conditioned.
(g) The transfer of the Project from Trustor, while the Trustor is in the form of a limited partnership, to one or more of the general partners of the Trustor or affiliates the general partners of the Trustor at the end of the tax credit compliance period for the Project.
(h) Any dilution of the general partner's interest in the Trustor while the Trustor is in the form of a limited partnership, in accordance with the Partnership Agreement.
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3. General Partner Change. The withdrawal, removal, and/or replacement of a general partner of the partnership that constitutes the Trustor pursuant to the terms of the Trustor's Partnership Agreement shall not constitute a default under any of the Loan Documents, and any such actions shall not accelerate the maturity of the Loan.
4. Default. If an event of default occurs under the terms of any of the Loan Documents or the Affordable Housing Agreement, if the Trustor fails to take corrective action or to cure the default within the time provided in the Note, the Holder shall give the Trustor, the general partners of the Trustor, and the limited partner of the Trustor written notice thereof, whereupon the limited partner may remove and replace one or more general partners of the Trustor with a substitute General Partner who shall effect a cure within a reasonable time thereafter in accordance with the foregoing provisions. In no event shall the Holder be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the first notice of default is given, or such longer period of time as may be specified in the Loan Documents.
5. Right to Cure Loan and Affordable Housing Agreement Defaults.
Each limited partner of the Trustor shall have the right, but not the obligation, to cure any default of the Trustor under any Loan Document and the Affordable Housing Agreement. Any cure by a limited partner in the Trustor shall be deemed to be a cure by the Trustor.
6. Casualty, Condemnation, Etc. In the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project or any part thereof, the Trustor shall have the right to rebuild the Project and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Loan in balance and rebuild the Project in a manner that provides adequate security to the Holder for repayment of the Loan, or if such proceeds are insufficient, then the Trustor shall have funded any deficiency, (b) the Holder shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under the Loan Documents. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Loan in a manner that provides adequate security to the Holder for repayment of the remaining balance of the Loan.
7. Force Majeure. There shall be no default for delays beyond the reasonable control of the Trustor, provided that such delays do not exceed ninety (90) days.
8. Purchase Rights. The execution and delivery of the Purchase Option and Right of First Refusal Agreement between the general partner of the Trustor (or its affiliates), the limited partner of Trustor and the Trustor (the "Option Agreement"), and the consummation of the transactions contemplated therein, shall not constitute a default under the Loan Documents or the Affordable Housing Agreement or accelerate
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the maturity of the Loan thereunder. Any requisite consent of the Holder to (a) the exercise of the rights under the Option Agreement by any general partner of Trustor or its affiliate(s), and to (b) the assumption without penalty of the Loan obligations by any general partner of Trustor or its affiliate(s) and the release of the Trustor from such obligations, shall not be unreasonably withheld. Subject to any such consent requirement, the exercise of rights under such agreement shall not constitute a default or accelerate maturity of the Loan.
9. Loan Assumption. If (a) the right of first refusal and purchase option right in the Option Agreement, or (b) Trustor’s limited partner’s Put Right under the Partnership Agreement, are not exercised and the Project is sold subject to low income housing use restrictions as contained in an existing regulatory agreement or other recorded covenant, then any requisite consent of the Holder to said sale and to the assumption without penalty of the Loan obligations by the purchaser and the release of the Trustor from such obligations shall not be unreasonably withheld.
10. Approvals, Etc. In any approval, consent, or other determination by the Holder required under any of the Loan Documents, the Holder shall act reasonably and in good faith.
11. Tax Credit Compliance. As of the date hereof, Internal Revenue Code (IRC) Section 42(h)(6)(E)(ii) does not permit the eviction or termination of tenancy (other than for good cause) of an existing tenant of any low-income unit or any increase in the gross rent with respect to such unit not otherwise permitted under IRC Section 42 for a period of three (3) years after the date the building is acquired by foreclosure or instrument in lieu of foreclosure. In the event that the regulatory agreement required by the California Tax Credit Allocation Committee is recorded against the Project, the Holder agrees to comply with the provisions set forth in IRC Section 42(h)(6)(E)(ii).
12. Notices. Formal notices, demands, and communications between the Trustor and Holder shall be sufficiently given if, and shall not be deemed given unless, dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or personal delivery with a delivery receipt, as follows:
Holder:
City of Buellton
107 W Hwy 246
PO Box 1819
Buellton, CA 93427
Attn: City Manager
Trustor:
The Village Senior LP
c/o The Village Senior LLC
702 County Square Drive, Suite #200
Ventura, CA 93003
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650\154\3706181.4
Attention: Chief Executive Officer
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected entity may from time to time designate as provided in this Section 12. Receipt shall be deemed to have occurred on the date shown on a written receipt as the date of delivery, refusal of delivery, or the date the notice was returned as undeliverable.
13. Notices to Limited Partner. The Holder will use its best efforts to simultaneously provide the limited partner of the partnership that constitutes the Trustor copies of any notice(s) of monetary or non-monetary default of the Trustor or other notices sent to the Trustor; provided, however, that failure to provide copies of any such notices shall in no way affect the right of the Holder to pursue its remedies under the Loan Documents and Affordable Housing Agreement. The addresses for such notices to the limited partner are as follows:
NEF FRE Affordable Housing Fund II LP
c/o National Equity Fund, Inc.
10 South Riverside Plaza
Suite 1700
Chicago, Illinois 60606
Attention: General Counsel
14. Attorneys' Fees Enforcement. If any attorney is engaged by any party hereto to enforce or defend any provision of this Agreement, then the prevailing party or parties shall be entitled to costs and reasonable attorneys' fees.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. If any court of competent jurisdiction determines any provision of this Agreement or the Loan Documents to be invalid, illegal or unenforceable, then that provision shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable provision had never been a part hereof or of the Loan Documents.
16. Modification. No provision of the Loan Documents, as modified herein, may be changed, discharged, supplemented, terminated, or waived except in a writing signed by the Trustor and the Holder.
17. Binding Effect. The Loan Documents, as modified herein, shall be binding upon, and inure to the benefit of, the Trustor and the Holder and their respective successors and assigns.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered to the Holder shall be deemed to be an original, and all of which, taken together, will be deemed to be one and the same instrument.
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19. Headings. All paragraph headings in this Rider are for convenience of reference only and are not intended to qualify the meaning of any paragraph. For the avoidance of doubt, in the event a conflict between the terms of the Deed of Trust and the terms of this Rider, this Rider shall govern.
20. Self-Subordination. Notwithstanding any other provision of the Loan Documents, Beneficiary hereby acknowledges and agrees that this Deed of Trust and the Note and all rights of Beneficiary thereunder shall be subordinate to the following liens and encumbrances recording concurrently herewith in the Official Records of Santa Barbara County and all modifications, extensions or renewals thereof, provided that there is no increase in the principal of any indebtedness secured thereby:
(a) Senior Regulatory Agreement between the Trustor and the California Department of Housing and Community Development ("HCD"). (b) Construction Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing by Trustor, as trustor, in favor of Banner Bank, a Washington corporation, as beneficiary, securing a loan from Banner Bank to Trustor in the principal amount of $__________________.
(c) Junior Regulatory Agreement between the Trustor and HCD. (d) Deed of Trust securing a loan from HCD to Trustor in the principal amount of $3,960,000.
(e) HOME Regulatory Agreement between the County of Santa Barbara (the "County") and the Borrower.
(f) Deed of Trust securing a HOME loan from the County to Borrower in the principal amount of $2,000,000
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Rider to be executed by their duly authorized officers all as of the date first above written.
TRUSTOR:
THE VILLAGE SENIOR LP,
a California limited partnership
By: The Village Senior LLC,
a California limited liability company,
its general partner
By: Cabrillo Economic Development Corporation,
a California nonprofit public benefit corporation,
its sole managing member
By: _______________________________
Victoria J. Brady
Chief Financial Officer
HOLDER:
CITY OF BUELLTON, a California municipal corporation
By: _______________________________________
Its: _______________________________________
Printed Name: _______________________________
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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650\154\3706181.4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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1 650\154\3705943.3
PROMISSORY NOTE SECURED BY DEED OF TRUST
(City of Buellton- Affordable Housing Fund Loan – Village Senior Apartments) Principal Amount: $150,000.00 Date of Note: _________ ___, 2024 Maker: The Village Senior LP, a
California limited partnership
Holder: City of Buellton, a municipal
corporation
Maturity Date: Fifty-five (55) years
from the date of issuance of a certificate
of occupancy (or functional equivalent)
for the Project (as defined in Section 1)
Interest Rate: Three Percent (3.00%)
1. City Loan.
FOR VALUE RECEIVED, the undersigned THE VILLAGE SENIOR LP, a California limited partnership ("Maker"), with its principal place of business located at 702 County Square Drive, Suite #200, Ventura, CA 93003 promises to pay to the CITY OF BUELLTON, a municipal corporation (the "City" or "Holder") at 331B Park Street, Buellton, CA 93427, or such place as the Holder may, from time to time, designate by written notice to the Maker, the principal sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00), (the "City Loan"), together with any accrued interest, if applicable, as set forth in this Note. Funds for the City Loan are from the City Affordable Housing Fund as set forth in City Municipal Code Section 19.16.018 to assist with the development of affordable housing for seniors (the "Project") on the real property located at 332 & 334 Valley Vineyard Circle in the City of Buellton, California (the "Property"). The City Loan is made to finance the Project's construction costs. In connection with the Project, the City has recorded a First Amended and Restated Affordable Housing Regulatory Agreement, dated as of November 2, 2021, between the City and Maker's predecessor-in-interest, and recorded in the official records of the County of Santa Barbara on February 14, 2022, as Document No. 2022-0007796 (the "Affordable Housing Agreement").
2. Term of Loan and Right of Prepayment.
a. Maturity Date. All accrued interest, if any, and principal shall be due and payable in full without any further demand or notice on the earlier to occur of December 31, 2081, or fifty-five (55) years from the date of issuance of a certificate of occupancy (or functional equivalent) for the Project ("Maturity Date"). b. Prepayment. This Note may be prepaid in whole or in part at any time and from time to time without penalty or premium.
3. Security for Note.
This Note is secured by a Deed of Trust executed by Maker which creates a lien on the Property.
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4. Interest Calculation.
The principal outstanding under this Note shall accrue simple interest at the rate of three percent (3.00%) per annum, except in the case of default as set forth in Section 8 of this Note.
Principal and interest shall be payable in lawful money of the United States of America. If applicable, interest shall be computed based on an actual day year and the actual number of days elapsed. Interest shall commence on amounts disbursed hereunder from the date of disbursement.
5. Annual Payment.
a. Annual Payments from Residual Receipts. Maker shall make payments to Holder of the outstanding principal and accrued interest, if any, due under this Note equal to Eighty-Seven Hundredths Percent (0.87%) of the Residual Receipts (as defined below) from the Project. The payments shall be paid to Holder no later than April 1 each year, with the first payment due on the April 1 following the issuance of a certificate of occupancy for the Project, and continuing each year thereafter until the Maturity Date.
Such annual payments shall be accompanied by the Maker's report of Residual Receipts. The Maker shall provide the Holder with the audited financial statement provided for in Section 6, and any other documentation reasonably requested by Holder to substantiate the Maker's determination of Residual Receipts.
All payments made hereunder shall be credited first to any accrued but unpaid interest (if applicable), then to current interest due and owing and lastly to principal. Interest not paid current each year shall be added to and thereafter be considered additional principal due hereunder.
Notwithstanding the foregoing, the entire outstanding balance of principal and any interest owing under this Note shall be due and payable in full fifty-five (55) years from the Date of this Note.
b. Definition of Residual Receipts. For the purposes of this Note, "Residual Receipts" shall mean the sum of money computed as follows:
(i) All rents, revenues, consideration or income (of any form) received by Maker in connection with or relating to the ownership or operation of the Project, including any net revenue derived from any refinancing of the Project and any revenue from contributions, loans or grants which is not required to meet future Project obligations (but excluding tenants' security deposits, partner capital contributions and similar advances) ("Gross Revenue") less all of the following: all customary and reasonable costs (i.e., mandatory (hard) mortgage payments) and expenses reasonably and actually incurred in connection with the operation and maintenance of the Project, including but not limited to premiums for property and liability insurance; utility services not paid directly by tenants; maintenance and repair; security services and payments for social/supportive services; any adjuster payments to Maker's limited partner
3 650\154\3705943.3
required under Maker's partnership agreement; payment of principal or interest on any indebtedness of Maker to any affiliate of Maker (individual or entity) or partner of Maker to repay completion and operating deficit loans relating to the Project; asset management fee payable to the limited partner of Maker not to exceed the amount required by Maker's limited partner; partnership management fee payable to the general partners of the Maker not to exceed the amount required by Maker's limited partner; reasonable property management fees not to exceed 8% of gross revenue; deferred developer fee not to exceed the amount required by Maker's limited partner; amounts expended to restore the Project after a casualty loss or condemnation; reasonable and customary costs for accounting and auditing the books and records of the Project; taxes; franchise tax filing fees; and any other reserves reasonably required by the investors or the lenders approved by the City for the Project (collectively "Operating Expenses").
(ii) Notwithstanding the generality of the foregoing, the following items are not expenses or deductible in computing Residual Receipts: Depreciation, cost recovery, amortization and similar items which do not involve the expenditure of cash.
6. Audited Financial Statement.
Maker shall annually provide Holder with an audited financial statement documenting the calculation of Residual Receipts for the previous calendar year ending December 31. The audited financial statement shall be provided on or before April 1, together with payment of the Residual Receipts payment due to Holder. Holder shall have the right to inspect and audit Maker's books and records concerning the calculation of the Residual Receipts Payment and to object within ninety (90) days from receipt of Maker's statement. Failure to timely object shall be deemed acceptance. If Holder does object, Holder shall specify the reasons for disapproval. Maker shall have thirty (30) days to reconcile any disapproved item. If Maker and Holder cannot agree on the amount of the Residual Receipts payment, an independent auditor mutually selected by Maker and Holder shall resolve any disputed items. The cost of the auditor shall be shared equally by Maker and Holder.
7. Acceleration Upon Certain Events or Upon Default.
In the event of any default under the terms of this Note, or the Deed of Trust which is the security for this Note, or under any senior loans, notes or deeds of trust, at the option of the Holder and after notice to the Maker, providing Maker with thirty (30) days in which to cure any default, and such default not having been cured within thirty (30) days (or if a greater amount of time is reasonably necessary to effect a cure, if actions to cure such default are not undertaken within said thirty (30) day period and pursued with reasonable diligence thereafter), all principal and interest due under this Note shall immediately become due and payable, upon thirty (30) day written notice from the Holder to the Maker. Failure to exercise such option shall not constitute a waiver of the right to exercise it in the event of any subsequent default.
Should the undersigned Maker agree to or sell, convey, transfer, or dispose of the real property described in the deed of trust securing this Note or any part thereof or interest therein, without first obtaining the prior written consent of the Holder (except for a Permitted Transfer, as defined in Exhibit A, Rider to this Note), then, at the option of the Holder, all principal and
4 650\154\3705943.3
interest due hereunder shall immediately become due and payable upon thirty (30) days written notice from the Holder to the Maker. Consent to one transaction of this type will not constitute a waiver of the right to require consent to future or successive transactions.
Notwithstanding the generality of the foregoing, certain transfers permitted under the Exhibit A, Rider, to this Note shall not constitute a default hereunder, the Affordable Housing Agreement, or the Deed of Trust, and any such action shall not accelerate the maturity of this Promissory Note, provided that any transfer is either a Permitted Transfer as defined in the Exhibit A, Rider, to this Note or is reasonably acceptable to the Holder with reasonable promptness, and any transferee under such a transfer agrees to be bound by any and all instruments in favor of the Holder.
8. Interest on Default.
From and after a default, the entire outstanding principal balance of this Note shall automatically bear an annual interest rate equal to the lesser of: (a) eight percent (8%) compounding annually; or (b) the maximum interest rate allowed by law.
9. Costs Paid by Maker.
Maker agrees to pay the following costs, expenses and attorneys fees paid or incurred by the Holder of this Note, or as adjudged by a court of competent jurisdiction: (a) reasonable costs of collection, costs and expenses and attorneys fees paid or incurred in connection with the collection or enforcement of this Note, whether or not suit is filed; and (b) costs of suit in such sum as the court may adjudge reasonable as attorneys fees in any action to enforce payment of this instrument.
10. Waiver.
Maker hereby waives diligence, presentment, protest and demand, notice of protest, dishonor and nonpayment of this instrument, and expressly agrees that, without in any way affecting the liability of Maker hereunder, the Holder hereof may extend the Maturity Date or the time for payment of any installment due hereunder, accept additional security, release any party liable hereunder or release any security now or hereafter securing this Note. Maker hereby waives, to the fullest extent permitted by law, the right to plead any and all statutes of limitations as a defense to any demand on this instrument or any deed of trust, security agreement, guarantee or other agreement now or hereafter securing this Note.
11. Indemnification.
Maker shall indemnify, defend, protect and hold the Holder harmless from and against any and all loss, damage, liability, action, cause of action, cost or expense, including, without limitation, reasonable attorneys fees and expenses incurred by the Holder hereof, arising as a result of any (i) fraud or material misrepresentation by the Maker under or in connection with this Note or related agreements; or (ii) intentional bad faith waste of the Property or Project.
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12. Nonrecourse.
This Note is a nonrecourse obligation of Maker and the Holder must resort only to the Project or the Property, or both, for repayment should the Maker fail to repay the sums evidenced hereby. Neither Maker nor any of its general and limited partners shall have any personal liability for repayment of the City Loan and no deficiency judgment may be obtained against Maker or any of its general and limited partners except for actual or constructive fraud, material misrepresentation, and intentional bad faith waste of or on the Project.
13. Severability.
If any provision of this Note is determined by a court of competent jurisdiction to be void or unenforceable, such determination shall not affect any other provision of this instrument, and all other provisions hereof shall remain valid and in full force and effect.
14. Non-Waiver.
No delay in demanding or failure to demand performance hereunder shall constitute a waiver by the Holder hereof of its right to subsequently demand such performance or to exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of any of the Holder's rights and remedies hereunder shall be expressed in a writing signed by a duly appointed representative of the Holder hereof. Further, waiver by the Holder hereof of any right hereunder shall not constitute a waiver of any other right, including, but not limited to, the right to exercise any and all remedies for a different or subsequent event of default hereunder.
15. Rider.
Maker and Holder agree that the terms of this Note shall be modified as provided in the Rider attached as Exhibit A, which is incorporated herein by this reference. For the avoidance of doubt, in the event a conflict between the terms of this Note and the terms of the Rider attached as Exhibit A, the Rider shall govern.
[Signatures on Following Page]
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MAKER:
THE VILLAGE SENIOR LP,
a California limited partnership
By: The Village Senior LLC,
a California limited liability company,
its general partner
By: Cabrillo Economic Development Corporation,
a California nonprofit public benefit corporation,
its sole managing member
By: _______________________________
Victoria J. Brady
Chief Financial Officer
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650\154\3705943.3
EXHIBIT A
RIDER
THIS RIDER, dated as of _________ __, 2024, is made by and between the City of Buellton, a California municipal corporation (the "Holder") and The Village Senior LP, a California limited partnership (the "Maker").
WITNESSETH:
WHEREAS, Maker has entered into that certain Promissory Note, dated as of even date herewith (the "Note") in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) (the "Loan") for the benefit of the Holder in connection with the construction financing for that certain affordable apartment development known as The Village Senior Apartments, to be located at 332 & 334 Valley Vineyard Circle in the City of Buellton, California (the "Project"); WHEREAS, the Note is secured by that certain Short Form Deed of Trust and Assignment of Rents, dated as of even date herewith (the "Deed of Trust"). The Note and the Deed of Trust shall be referred to as the "Loan Documents;"
WHEREAS, in connection with the Project, the City has recorded a First Amended and Restated Affordable Housing Regulatory Agreement, dated as of November 2, 2021, between the City and Maker's predecessor-in-interest, and recorded in the official records of the County of Santa Barbara on February 14, 2022, as Document No. 2022-0007796 (the "Affordable Housing Agreement").
WHEREAS, the Maker is operating pursuant to the Maker's Amended and Restated Limited Partnership Agreement, dated as of ____________ __, 2024 (as the same may be amended from time to time, the "Partnership Agreement"); and
WHEREAS, the Holder and the Maker desire to clarify certain terms on which the Loan will be made.
NOW, THEREFORE, in consideration of the premises and for other valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree, notwithstanding any provision to the contrary in the Loan Documents, as set forth herein.
1. Subordination. The Deed of Trust may be subordinated to other loans for the Project (in each case, a "Senior Loan"), but only on condition that all of the proceeds of the proposed Senior Loan, less any transaction costs, must be used to provide financing for the Project.
Upon a determination by the City Manager that the conditions in this Section have been reasonably satisfied, the City Manager or his/her designee on behalf of the Holder will be authorized to execute a subordination agreement without the necessity of any further action or approval.
2. Permitted Transfers. The following changes of ownership in the Maker ("Permitted Transfers") shall be permitted without the consent of Holder and where, except for a transfer described in subsections (a), (b), (c), (d), (f), (g) and (i) below, the person or entity to
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which such transfer is made expressly and unconditionally assumes in a written assignment and assumption agreement between such transferee and the City that is in a form reasonably acceptable to City (as evidenced by execution of such assignment and assumption agreement by the City Manager), all obligations of Maker under this Note and the Deed of Trust:
(a) Any transfer to a holder of a Senior Loan.
(b) Any transfer directly resulting from the foreclosure of a Senior Loan. (c) Any transfer of equity in the Maker that does not change management or operational control of the Project, with no material change in beneficial ownership (with the exception of any conveyance to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit) and which constitutes a tax-free transaction under Federal income tax law and California real estate transfer tax.
(d) The lease of residential units in the Project consistent with the Affordable Housing Agreement.
(e) The transfer and sale of limited partnership interests in Maker and the transfer of any direct or indirect ownership interests in any limited partner in the partnership constituting the Maker while the Maker is in the form of a limited partnership. (f) In the event that any general partner of the Maker, while the Maker is in the form of a limited partnership, is removed by the limited partner of such limited partnership for cause following default under the Partnership Agreement, the transfer of the general partner interest to a 501(c)(3) tax exempt nonprofit corporation selected by the limited partner and approved by the City, which approval shall not be withheld unreasonably, delayed or conditioned. (g) The transfer of the Project from Maker, while the Maker is in the form of a limited partnership, to one or more of the general partners of the Maker or affiliates the general partners of the Maker at the end of the tax credit compliance period for the Project. (h) Any dilution of the general partner's interest in the Maker while the Maker is in the form of a limited partnership, in accordance with the Partnership Agreement.
3. General Partner Change. The withdrawal, removal, and/or replacement of a general partner of the partnership that constitutes the Maker pursuant to the terms of the Maker's Partnership Agreement shall not constitute a default under any of the Loan Documents, and any such actions shall not accelerate the maturity of the Loan.
4. Default. If an event of default occurs under the terms of any of the Loan Documents or the Affordable Housing Agreement, if the Maker fails to take corrective action or to cure the default within the time provided in the Note, the Holder shall give the Maker, the general partners of the Maker, and the limited partner of the Maker written notice thereof, whereupon the limited partner may remove and replace one or more general partners of the Borrower with a substitute General Partner who shall effect a cure within a reasonable time thereafter in accordance with the foregoing provisions. In no event shall the Holder be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by
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any failure to cure a default or the default is not cured within ninety (90) days after the first notice of default is given, or such longer period of time as may be specified in the Loan Documents.
5. Right to Cure Loan and Affordable Housing Agreement Defaults. Each limited partner of the Maker shall have the right, but not the obligation, to cure any default of the Maker under any Loan Document and the Affordable Housing Agreement. Any cure by a limited partner in the Maker shall be deemed to be a cure by the Maker.
6. Casualty, Condemnation, Etc. In the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project or any part thereof, the Maker shall have the right to rebuild the Project and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Loan in balance and rebuild the Project in a manner that provides adequate security to the Holder for repayment of the Loan, or if such proceeds are insufficient, then the Maker shall have funded any deficiency, (b) the Holder shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under the Loan Documents. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Loan in a manner that provides adequate security to the Holder for repayment of the remaining balance of the Loan.
7. Force Majeure. There shall be no default for delays beyond the reasonable control of the Maker, provided that such delays do not exceed ninety (90) days.
8. Purchase Rights. The execution and delivery of the Purchase Option and Right of First Refusal Agreement between the general partner of the Maker (or its affiliates), the limited partner of Maker, and the Maker (the "Option Agreement"), and the consummation of the transactions contemplated therein, shall not constitute a default under the Loan Documents or the Affordable Housing Agreement or accelerate the maturity of the Loan thereunder. Any requisite consent of the Holder to (a) the exercise of the rights under the Option Agreement by any general partner of Maker or its affiliate(s), and to (b) the assumption without penalty of the Loan obligations by any general partner of Maker or its affiliate(s) and the release of the Maker from such obligations, shall not be unreasonably withheld. Subject to any such consent requirement, the exercise of rights under such agreement shall not constitute a default or accelerate maturity of the Loan.
9. Loan Assumption. If (a) the right of first refusal and purchase option right in the Option Agreement, or (b) Maker’s limited partner’s Put Right under the Partnership Agreement, are not exercised and the Project is sold subject to low income housing use restrictions as contained in an existing regulatory agreement or other recorded covenant, then any requisite consent of the Holder to said sale and to the assumption without penalty of the Loan obligations by the purchaser and the release of the Maker from such obligations shall not be unreasonably withheld.
10. Approvals, Etc. In any approval, consent, or other determination by the Holder required under any of the Loan Documents, the Holder shall act reasonably and in good faith.
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11. Tax Credit Compliance. As of the date hereof, Internal Revenue Code (IRC) Section 42(h)(6)(E)(ii) does not permit the eviction or termination of tenancy (other than for good cause) of an existing tenant of any low-income unit or any increase in the gross rent with respect to such unit not otherwise permitted under IRC Section 42 for a period of three (3) years after the date the building is acquired by foreclosure or instrument in lieu of foreclosure. In the event that the regulatory agreement required by the California Tax Credit Allocation Committee is recorded against the Project, the Holder agrees to comply with the provisions set forth in IRC Section 42(h)(6)(E)(ii).
12. Notices. Formal notices, demands, and communications between the Maker and Holder shall be sufficiently given if, and shall not be deemed given unless, dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or personal delivery with a delivery receipt, as follows:
Holder:
City of Buellton
331B Park Street
Buellton, CA 93427
Attn: City Manager
Maker:
The Village Senior LP
c/o The Village Senior LLC
702 County Square Drive, Suite #200
Ventura, CA 93003
Attention: Chief Executive Officer
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected entity may from time to time designate as provided in this Section 12.
Receipt shall be deemed to have occurred on the date shown on a written receipt as the date of delivery, refusal of delivery, or the date the notice was returned as undeliverable.
13. Notices to Limited Partner. The Holder will use its best efforts to simultaneously provide the limited partner of the partnership that constitutes the Maker copies of any notice(s) of monetary or non-monetary default of the Maker or other notices sent to the Maker; provided, however, that failure to provide copies of any such notices shall in no way affect the right of the Holder to pursue its remedies under the Loan Documents and Affordable Housing Agreement.
The addresses for such notices to the limited partner are as follows:
NEF FRE Affordable Housing Fund II LP
c/o National Equity Fund, Inc.
10 South Riverside Plaza
Suite 1700
Chicago, Illinois 60606
Attention: General Counsel
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14. Attorneys' Fees Enforcement. If any attorney is engaged by any party hereto to enforce or defend any provision of this Agreement, then the prevailing party or parties shall be entitled to costs and reasonable attorneys' fees.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. If any court of competent jurisdiction determines any provision of this Agreement or the Loan Documents to be invalid, illegal or unenforceable, then that provision shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal or unenforceable provision had never been a part hereof or of the Loan Documents.
16. Modification. No provision of the Loan Documents, as modified herein, may be changed, discharged, supplemented, terminated, or waived except in a writing signed by the Maker and the Holder.
17. Binding Effect. The Loan Documents, as modified herein, shall be binding upon, and inure to the benefit of, the Maker and the Holder and their respective successors and assigns.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered to the Holder shall be deemed to be an original, and all of which, taken together, will be deemed to be one and the same instrument.
19. Headings. All paragraph headings in this Rider are for convenience of reference only and are not intended to qualify the meaning of any paragraph. For the avoidance of doubt, in the event a conflict between the terms of the Note and the terms of this Rider, this Rider shall govern.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Rider to be executed by their duly authorized officers all as of the date first above written.
MAKER:
THE VILLAGE SENIOR LP,
a California limited partnership
By: The Village Senior LLC,
a California limited liability company,
its general partner
By: Cabrillo Economic Development Corporation,
a California nonprofit public benefit corporation,
its sole managing member
By: _______________________________
Victoria J. Brady
Chief Financial Officer
HOLDER:
CITY OF BUELLTON, a California municipal corporation
By: _______________________________________
Its: _______________________________________
Printed Name: _________________________________
Subord. Agrmt HHC Page 1 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
FREE RECORDING IN ACCORDANCE
WITH CALIFORNIA GOVERNMENT
CODE SECTION 27383 and 27388.1.
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
State of California
Department of Housing and
Community Development
P. O. Box 952052
Sacramento, CA 94252-2052
Attn: Legal Affairs Division
Housing for a Healthy California
Program (HHC)
21-HHCC-00016
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY
INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT (the "Agreement") is dated as of April 15, 2024, for reference purposes only, and is entered into by and among City of Buellton, a California municipal corporation (the "Junior Lienholder"), and The Village Senior LP, a California limited partnership (the "Borrower"), and the Department of Housing and Community Development, a public agency of the State of California (the "Senior Lender").
RECITALS
A. Borrower is the owner of the fee simple interest in that real property described in Exhibit A attached hereto and made a part hereof (the "Property"). The Borrower is constructing a 50-unit multifamily residential rental development on the Property (the "Improvements"). The Property and the Improvements are sometimes referred to collectively as the "Development." B. The Junior Lienholder has made a loan to the Borrower in the principal sum of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the "Junior Lienholder Loan").
The Junior Lienholder Loan is evidenced by a certain promissory note (the “Junior Lienholder Note”), secured by a certain deed of trust (the “Junior Lienholder Deed of Trust”) recorded concurrently herewith in the Official Records of Santa Barbara County, California (the “Official Records”). (The Junior Lienholder Deed of Trust, the Junior Lienholder Regulatory Agreement
Subord. Agrmt HHC Page 2 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
and all other documents evidencing or securing the Junior Lienholder Loan are collectively referred to herein as the “Junior Lienholder Documents.”) C. In order to finance the development of the Improvements, the Senior Lender has agreed to loan the Borrower a sum not to exceed Three Million Nine Hundred Sixty Thousand and no/100 Dollars ($3,960,000.00) (the "HHC Loan"), subject to the terms and conditions of:
(i) a regulatory agreement restricting the use and occupancy of the Development and the income derived therefrom which shall be dated as of even date herewith and recorded concurrently herewith as an encumbrance on the Property in the Official Records (the "HHC Regulatory Agreement"), and (ii) other loan documents. The HHC Loan will be evidenced by a promissory note (the "HHC Note"), the repayment of which will be secured by, among other things, a deed of trust by Borrower as trustor, to Senior Lender as beneficiary recorded concurrently herewith as an encumbrance on the Property in the Official Records (the "HHC Deed of Trust") and by such other security as is identified in other loan documents. (The HHC Regulatory Agreement, the HHC Deed of Trust, the HHC Note and all other documents evidencing or securing the HHC Loan are collectively referred to herein as the “Senior Lender Documents.”)
D. The Senior Lender is willing to make the HHC Loan provided the HHC Deed of Trust and the HHC Regulatory Agreement are liens, claims or charges upon the Development prior and superior to the Junior Lienholder Documents, and provided that the Junior Lienholder specifically and unconditionally subordinates and subjects the Junior Lienholder Documents to the liens, claims or charges of the HHC Deed of Trust and the HHC Regulatory Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in order to induce the Senior Lender to make its HHC Loan, it is hereby declared, understood, and agreed as follows:
1. The Senior Lender Documents in favor of the Senior Lender, and any and all renewals, modifications, extensions or advances thereunder or secured thereby (including interest thereon) shall unconditionally be and remain at all times liens, claims, or charges on the Development prior and superior to the Junior Lienholder Documents, and to all rights and privileges of the Junior Lienholder thereunder; and the Junior Lienholder Documents, together with all rights and privileges of the Junior Lienholder thereunder are hereby irrevocably and unconditionally subject and made subordinate to the liens, claims or charges of the Senior Lender Documents.
2. This Agreement shall be the whole and only agreement with regard to the subordination of the Junior Lienholder Documents, together with all rights and privileges of the Junior Lienholder thereunder, to the liens, claims or charges of the Senior Lender Documents,
Subord. Agrmt HHC Page 3 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
and this Agreement shall supersede and cancel any prior agreements to subordinate the claims, liens or charges of, but only insofar as would affect the priority between the claims, liens or charges of the Junior Lienholder Documents to the Senior Lender Documents including, but not limited to, those provisions, if any, contained in the Junior Lienholder Documents, which provide for the subordination of the lien or charge thereof to another lien or charge on the Property or the Improvements. This agreement shall not limit, waive, modify, or replace the requirement that the Senior Lienholder comply with IRC Section 42(h)(6)(E)(ii) as stated in the HHC Regulatory Agreement.
3. The Junior Lienholder declares, agrees, and acknowledges that:
(a) The Junior Lienholder consents and approves (i) all provisions of the Senior Lender Documents, and (ii) all agreements among the Junior Lienholder, Borrower and Senior Lender for the disbursement of the proceeds of the HHC Loan, including without limitation any loan escrow agreements which have been provided to the Junior Lienholder for review;
(b) The Senior Lender, in making disbursements of the HHC Loan pursuant to the HHC Note or any other agreement, is under no obligation or duty to, nor has the Senior Lender represented that it will, see to the application of such proceeds by the person or persons to whom the Senior Lender disburses such proceeds, and any application or use of such proceeds for purposes other than those provided for in such agreement or agreements shall not defeat the subordination herein made in whole or in part;
(c) That none of the execution, delivery, or recordation of any of the Senior Lender Documents, or the performance of any provision, condition, covenant, or other term thereof, will conflict with or result in a breach of the Junior Lienholder Documents or the Junior Lienholder Note; and
(d) The Junior Lienholder intentionally and unconditionally waives, relinquishes, subjects and subordinates the claims, liens or charges upon the Development of the Junior Lienholder Documents, all present and future indebtedness and obligations secured thereby, in favor of the claims, liens or charges upon the Development of the Senior Lender Documents, and understands that in reliance upon, and in consideration of, this waiver, relinquishment, subjection, and subordination, the HHC Loan and advances thereof are being and will be made and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this waiver, relinquishment, subjection and subordination.
4. Senior Lender hereby agrees, but only as a separate and independent covenant of the Senior Lender and not as a condition to the continued effectiveness of the covenants and
Subord. Agrmt HHC Page 4 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
agreements of the Borrower and the Junior Lienholder as set forth herein, as follows:
(a) Following a notice from the Senior Lender to the Borrower that a default or breach exists under the terms of the Senior Lender Documents and each of them, the Senior Lender shall promptly (but in no event later than the following business day) send a copy of such notice to the Junior Lienholder and the Junior Lienholder shall have the right, but not the obligation, to cure the default as follows:
(i) If the default is reasonably capable of being cured within thirty (30) days, as determined by the Senior Lender in its sole discretion, the Junior Lienholder shall have such period to effect a cure prior to exercise of remedies by Senior Lender under the Senior Lender Documents, or such longer period of time as may be specified in the Senior Lender Documents.
(ii) If the default is such that it is not reasonably capable of being cured within thirty (30) days, as determined by the Senior Lender in its sole discretion, or such longer period if so specified, and if the Junior Lienholder (a) initiates corrective action within said period, and (b) diligently, continually, and in good faith works to effect a cure as soon as possible, then the Junior Lienholder shall have such additional time as is determined by the Senior Lender, in its sole discretion, to be reasonably necessary to cure the default prior to exercise of any remedies by Senior Lender.
In no event shall Senior Lender be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the first notice of default is given, or such longer period of time as may be specified in the Senior Lender Documents.
Nothing in this subparagraph (a) is intended to modify any covenant, term or condition contained in the Senior Lender Documents, including, without limitation, the covenant against creating or recording any liens or encumbrances against the Property without the prior written approval of the Senior Lender.
(b) The provisions of this paragraph 4 are intended to supplement, and not to limit, waive, modify or replace, those provisions of law pertaining to notice and cure rights of junior lenders including, without limitation, those set forth in California Civil Code sections 2924b and 2924c.
5. The Senior Lender would not make the HHC Loan without this Agreement.
6. This Agreement shall be binding on and inure to the benefit of the legal
Subord. Agrmt HHC Page 5 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
representatives, heirs, successors and assigns of the parties.
7. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
8. In the event that any party to this Agreement brings an action to interpret or enforce its rights under this Agreement, the prevailing party in such action shall be entitled to recover its costs and reasonable attorneys' fees as awarded by the court in such action.
9. This Agreement may be signed by different parties hereto in counterparts with the same effect as if the signatures to each counterpart were upon a single instrument. All counterparts shall be deemed an original of this Agreement.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH
ALLOWS THE PERSON (OR ENTITY) OBLIGATED ON YOUR REAL PROPERTY
SECURITY TO OBTAIN A LOAN A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE LAND.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above and agree to be bound hereby:
[Signatures follow on page 6 of this Subordination Agreement. The remainder of this page is blank.]
Subord. Agrmt HHC Page 6 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
JUNIOR LIENHOLDER:
City of Buellton, a California municipal corporation,
BY:
NAME:
ITS:
APPROVED AS TO FORM:
BY:
NAME:
ITS:
[Signatures must be acknowledged.]
[Signatures continue on page 7. Remainder of this page is blank.]
Subord. Agrmt HHC Page 7 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
BORROWER:
THE VILLAGE SENIOR LP,
a California limited partnership
By: The Village Senior LLC,
a California limited liability company
Its: General Partner
By: Cabrillo Economic Development Corporation,
a California nonprofit public benefit corporation
Its: Sole Member and Manager
By: ________________________________
Victoria J. Brady, Chief Financial Officer
[Signatures must be acknowledged.]
[Signatures continue on page 8. Remainder of this page is blank.]
Subord. Agrmt HHC Page 8 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
SENIOR LENDER:
The Department of Housing and Community
Development, a public agency of the State of California By:
Colleen O’Meara, Closing Manager
[Signatures must be acknowledged.]
Subord. Agrmt HHC Page 9 of 9
Rev: 02/28/2024
Prep: 04/10/2024 (City of Buellton $150,000 DoT)
Dev: Village Senior Apartments
Assessor’s Identification Number: 137-790-008
Loan No.: 21-HHC-00016
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
All that certain real property situated in the County of Santa Barbara, State of California, described as follows:
Lot 4 of Lot Line Adjustment No. 13-LLA-03, recorded September 23, 2014 as Instrument No. 2014-0043409 of Official Records, being a portion of Lots 2 and 5 of Tract 31,052 in the City of Buellton, County of Santa Barbara, State of California, as per map recorded in Book 205, Pages 69 and 70 of Maps, in the Office of the County Recorder of said County.
Excepting all oil, petroleum and other hydrocarbon substance, including natural gas, in and upon said land, as reserved in deeds from Merchants Trust Company, a Corporation, recorded September 5, 1912 in Book 137, Page 165 and September 24, 1913 in Book 141,
APN: 137-790-008
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RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
Banner Bank
110 S. Ferrall Street
Spokane, Washington 99202
Loan Nos. 14018437
(SPACE ABOVE FOR RECORDER'S USE)
SUBORDINATION AGREEMENT
(CITY OF BUELLTON)
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN CERTAIN INTERESTS IN THE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT (this “Agreement”), dated for reference purposes as of __________________, 2024, is entered into by and among THE VILLAGE SENIOR LP, a California limited partnership (“Borrower”), CITY OF BUELLTON, a general law city (“Junior Lienholder”), and BANNER BANK, a Washington corporation, and its successors and/or assigns (“Senior Lienholder”).
RECITALS
A. Borrower (i) owns a fee interest in certain real estate more particularly described on Exhibit A, and all improvements now or hereafter located thereon (collectively, the “Real Property”), and (ii) that certain personal property more particularly described in the Senior Loan Documents (the “Personal Property”; together with the Real Property, the “Property”).
B. Each of the documents listed on Exhibit B together with all other documents and materials entered into with Junior Lienholder with respect to the Property shall be referred to collectively as the “Junior Obligation Documents”.
C. As used herein, the term “Junior Obligations” means any and all indebtedness, claims, debts, liabilities or other obligations from Borrower to Junior Lienholder under the Junior Obligation Documents, together with all costs and expenses, including attorneys’ fees, of collection thereof, whether the same accrues or is incurred before or after the commencement of any bankruptcy case by or against Borrower.
D. Borrower and Junior Lienholder desire that Senior Lienholder and Borrower enter into that certain Construction and Term Loan Agreement (as amended from time to time, the “Senior Loan Agreement”) dated as of even date herewith, pursuant to which Senior Lienholder has agreed to make a loan (the “Senior Loan”) to Borrower in the maximum principal amount of $________________ in accordance with the terms and conditions set forth in the Senior Loan Agreement. Borrower’s obligations to Senior Lienholder under the Senior Loan Agreement evidenced and/or are secured by, among other things, (i) that certain Construction Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (“Senior Deed of Trust”), dated as of even date herewith, made by Borrower for the benefit of Senior Lienholder and (ii) the other Loan Documents described in the Senior Loan Agreement.
The Senior Deed of Trust is being recorded substantially concurrently herewith in the Official Records.
The Senior Loan Agreement, the Senior Deed of Trust, and the other Loan Documents (as defined in the Senior Loan Agreement) are hereinafter collectively referred to as the “Senior Loan Documents”.
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E. As used herein, the term “Senior Lienholder Indebtedness” means any and all indebtedness, claims, debts, liabilities or other obligations from Borrower to Senior Lienholder under the Senior Loan Documents, together with all interest accruing thereon and all costs and expenses, including attorneys’ fees, of collection thereof, whether the same accrues or is incurred before or after the commencement of any bankruptcy case by or against Borrower.
F. Pursuant to the Senior Deed of Trust and the other Senior Loan Documents, Borrower is not entitled to further encumber the Property without the prior written consent of Senior Lienholder, which consent may be withheld in Senior Lienholder’s sole discretion.
G. It is a condition precedent to Senior Lienholder to entering into the Senior Loan Documents and permitting the recordation of any of the Junior Obligation Documents that the Senior Deed of Trust and the other Senior Loan Documents be and remain at all times a lien or charge upon the Property, prior and superior to the liens or charges of the Junior Obligation Documents.
H. Senior Lienholder is willing to permit the recordation of the recordable Junior Obligation Documents, provided that (1) the Senior Deed of Trust and the other Senior Loan Documents are a lien or charge upon the Property prior and superior to the liens or charges of the Junior Obligation Documents, and (2) Junior Lienholder will specifically subordinate the liens or charges of the Junior Obligation Documents to the lien or charge of the Senior Deed of Trust and the other Senior Loan Documents.
I. Junior Lienholder is willing that the Senior Deed of Trust shall constitute a lien or charge upon the Property which is prior and superior to the liens or charges of the Junior Obligation Documents.
The parties hereto enter into this Agreement for the purposes set forth in these Recitals.
J. Capitalized terms used herein and not otherwise defined shall have the meanings set forth for them in the Senior Loan Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce Senior Lienholder to make the Senior Loan, it is hereby declared, understood, and agreed as follows:
1. Subordination. The Senior Deed of Trust in favor of Senior Lienholder, and all amendments, modifications, extensions and renewals thereof shall unconditionally be and remain at all times a lien or charge on the Property prior and superior to the lien or charge of the Junior Obligation Documents. Junior Lienholder intentionally and unconditionally subordinates the lien or charge of the Junior Obligation Documents in favor of the lien or charge upon said land of the Senior Deed of Trust, and all amendments, modifications, extensions and renewals thereof, and understands that in reliance upon and in consideration of this subordination, specific loans and advances are being and will be made and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this subordination.
2. Only Agreement Regarding Subordination. Senior Lienholder would not permit the recordation of any Junior Obligation Documents without this Agreement. This Agreement shall be the whole and only agreement with regard to the subordination of the lien or charge of the Junior Obligation Documents to the lien or charge of the Senior Deed of Trust and shall supersede and cancel, but only insofar as would affect the priority between said deeds of trust and said covenants, conditions and restrictions, any prior agreements as to such subordination, including, but not limited to, those provisions, if any, contained
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in the Junior Obligation Documents which provide for the subordination of the lien or charge thereof to another deed or deeds of trust or to another mortgage or mortgages.
3. Loan Disbursements. In making disbursements pursuant to any of the Senior Loan Documents, Senior Lienholder is under no obligation or duty to, nor has Senior Lienholder represented that it will, see to the application of such proceeds by the person or persons to whom Senior Lienholder disburses such proceeds, and any application or use of such proceeds for purposes other than those provided for in such Senior Loan Document(s) shall not defeat the subordination herein made in whole or in part.
4. Consent and Approval. Junior Lienholder has received and consents to and approves the Senior Loan Documents, including but not limited to any extension, modification and/or amendment of said agreements, between Borrower and Senior Lienholder. No decision by Junior Lienholder to review or not review the Senior Loan Documents, including but not limited to the disbursement provisions contained therein, shall impair or otherwise limit the enforceability of this Agreement.
5. Other Agreements. Junior Lienholder and Borrower declare, agree, and acknowledge that:
5.1 Subordination of Indebtedness. Any and all Junior Obligations are hereby subordinated and subject to any and all Senior Lienholder Indebtedness, as set forth herein.
5.2 Permitted Payments. Borrower may make payments under the Junior Obligation Documents, if required, as long as all payments under the Senior Deed of Trust and the other Senior Loan Documents are current and not delinquent or in arrears, and only so long as at the time of such payment:
(i) no Event of Default exists under the Senior Loan Agreement and no condition or event exists which, with the lapse of time or the giving of notice or both, would be an Event of Default under the Senior Lienholder Indebtedness of which Junior Lienholder has received notice; and (ii) the payment would not result in a violation of any of Borrower’s financial covenants set forth in any of the documents evidencing the Senior Loan (“Permitted Payments”).
5.3 Payment Subordination. Except for any Permitted Payments, (a) all of the Senior Lienholder Indebtedness now or hereafter existing shall be first paid in full by Borrower before any payment shall be made by Borrower on the Junior Obligations, and (b) this priority of payment shall apply at all times until all of the Senior Lienholder Indebtedness has been repaid in full. In the event of any assignment by Borrower for the benefit of Borrower’s creditors, or any bankruptcy proceedings instituted by or against Borrower, or the appointment of any receiver for Borrower or Borrower’s business or assets, or of any dissolution or other winding up of the affairs of Borrower or of Borrower’s business, and in all such cases respectively, Borrower’s officers and any assignee, trustee in bankruptcy, receiver and other person or persons in charge are hereby directed to pay to Senior Lienholder the full amount of the Senior Lienholder Indebtedness before making any payments to Junior Lienholder due under the Junior Obligations.
5.4 Return of Prohibited Payments. Except as otherwise expressly agreed to herein, if Junior Lienholder shall receive any payments or other rights in any property of Borrower in connection with the Junior Obligations in violation of this Agreement, such payment or property shall immediately be delivered and transferred to Senior Lienholder after notice to Junior Lienholder.
5.5 Repayment of Senior Lienholder Indebtedness. This Agreement shall remain in full force and effect until all amounts due under the Senior Note and the Senior Loan Agreement are fully repaid in accordance with its terms and all of the terms of this Agreement have been complied with.
5.6 Standstill. Junior Lienholder agrees that, without the Senior Lienholder’s prior written consent, it will not accelerate the Junior Obligations, commence foreclosure proceedings with
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respect to the Property, collect rents, appoint (or seek the appointment of) a receiver or institute any other collection or enforcement action. The foregoing notwithstanding, Junior Lienholder shall not be required to seek the Senior Lienholder’s prior written consent to bring an action in equitable relief seeking the specific performance by the Borrower of the terms and conditions of the Agreement to Provide Affordable Housing and/or enjoining, abating, or preventing any violation of said terms and conditions, and/or seeking declaratory relief.
5.7 Refinance. Junior Lienholder additionally consents to the refinancing of the Senior Loan at its maturity, provided that such refinancing does not have a principal amount in excess of the Senior Loan amount. Junior Lienholder agrees to execute a new subordination agreement in favor of the lender of such refinanced Senior Loan as the senior lender. Such new subordination agreement shall be substantially similar to this subordination agreement but shall provide only that the refinanced Senior Loan shall be senior to the Junior Obligation Documents.
6. Senior Lienholder Agreements. Senior Lienholder agrees that it shall not complete a foreclosure sale of the Property or record a deed-in-lieu of foreclosure with respect to the Property (each, a “Foreclosure Remedy”) unless Junior Lienholder has first been given ninety (90) days written notice of the Event(s) of Default giving Senior Lienholder the right to complete such Foreclosure Remedy, and unless Junior Lienholder has failed, within such ninety (90)-day period, to cure such Event(s) of Default; provided, however, that Senior Lienholder shall be entitled during such ninety (90)-day period to continue to pursue all of its rights and remedies under the Senior Loan Documents, including, but not limited to, acceleration of the Senior Loan (subject to any de-acceleration provisions specifically set forth in the Senior Loan Documents), commencement and pursuit of a judicial or non-judicial foreclosure (but not completion of the foreclosure sale), appointment of a receiver, enforcement of any guaranty (subject to any notice and cure provisions contained therein), and/or enforcement of any other Senior Loan Document. In the event Senior Lienholder has accelerated the Senior Loan and Junior Lienholder cures all Events of Default giving rise to such acceleration within the ninety (90) day cure period described above, such cure shall have the effect of de-accelerating the Senior Loan; provided, however, that such de-acceleration shall not waive or limit any of Senior Lienholder’s rights to accelerate the Senior Loan or exercise any other remedies under the Senior Loan Documents as to any future or continuing Events of Default. It is the express intent of the parties hereunder that Senior Lienholder shall have the right to pursue all rights and remedies except completion of a Foreclosure Remedy without liability to Junior Lienholder for failure to provide timely notice to Junior Lienholder required hereunder, and that Senior Lienholder’s liability hereunder shall be expressly limited to actual and consequential damages to Junior Lienholder directly caused by Senior Lienholder’s completion of a Foreclosure Remedy without Junior Lienholder receiving the notice and opportunity to cure described above. Senior Lienholder shall give Junior Lienholder notice at the address set forth below or such other address as Junior Lienholder may instruct Senior Lienholder in writing from time to time:
City of Buellton
107 W. Highway 246
Buellton, California 93427
Attention: City Manager
7. Bankruptcy Provisions. To the extent any payment under any Senior Loan Document (whether by or on behalf of Borrower, as proceeds of security or enforcement of any right of set-off, or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to a trustee, receiver or other similar party under the Bankruptcy Code or any federal or state bankruptcy, insolvency, receivership or similar law, then if such payment is recovered by, or paid over to, such trustee, receiver or other similar party, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
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8. Casualty Insurance Proceeds; Condemnation Proceeds. In the event Senior Lienholder shall release, for the purposes of restoration of all or any part of the improvements, its right, title and interest in and to the proceeds under policies of insurance thereon, and/or its right, title and interest in and to any awards, or its right, title and interest in and to other compensation made for any damages, losses or compensation for other rights by reason of a taking in eminent domain, Junior Lienholder shall simultaneously release (and hereby agrees that it shall be irrevocably and unconditionally deemed to have agreed to release) for such purpose all of Junior Lienholder’s right, title and interest, if any, in and to all such insurance proceeds, awards or compensation. Junior Lienholder agrees that the balance of such proceeds remaining after such restoration, or all of such proceeds in the event Senior Lienholder elects, in accordance with California law, not to release any such proceeds for any such restoration, shall be applied to the payment of amounts due under the Senior Loan Documents until all such amounts have been paid in full, prior to being applied to the payment of any amounts due under the Junior Obligation Documents. If Senior Lienholder holds such proceeds, awards or compensation and/or monitors the disbursement thereof, Junior Lienholder agrees that Senior Lienholder may also elect, in its sole and absolute discretion, to hold and monitor the disbursement of such proceeds, awards and compensation to which Junior Lienholder is or may be entitled. Nothing contained in this Agreement shall be deemed to require Senior Lienholder, in any way whatsoever, to act for or on behalf of Junior Lienholder or to hold or monitor any proceeds, awards or compensation in trust for or on behalf of Junior Lienholder, and all or any of such sums so held or monitored may be commingled with any funds of Senior Lienholder.
9. Effect of Other Agreements. The relationship between Borrower and Senior Lienholder under the Senior Loan Documents is, and shall at all times remain, solely that of borrower and lender.
Based thereon, Junior Lienholder acknowledges and agrees that Senior Lienholder neither undertakes nor assumes any fiduciary responsibility or other responsibility or duty to Borrower or Junior Lienholder to guarantee or assist in Borrower’s or Junior Lienholder’s performance under any of the agreements between those parties and other third parties, including without limitation the Junior Obligation Documents.
10. Miscellaneous. This Agreement may be executed in multiple counterparts and the signature page(s) and acknowledgment(s) assembled into one original document for recordation, and the validity hereof shall not be impaired by reason of such execution in multiple counterparts. This Agreement is to be governed according to the laws of the State of California. In the event of action, suit, proceeding or arbitration to enforce any term of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party, as determined by the court or arbitrator, all of the prevailing party’s costs and expenses, including without limitation attorneys’ fees and expert witness fees, incurred by the prevailing party in connection therewith. If Junior Lienholder or any affiliate of Junior Lienholder shall acquire, by indemnification, subrogation or otherwise, any lien, estate, right or other interest in the Property, that lien, estate, right or other interest shall be subordinate to the Senior Deed of Trust and the other Senior Loan Documents as provided herein, and Junior Lienholder hereby waives, on behalf of itself and such affiliate, until all amounts owed under the Senior Loan Documents have been indefeasibly paid in full and all Senior Lienholder’s obligations to extend credit under the Senior Loan Documents have terminated, the right to exercise any and all such rights it may acquire by indemnification, subrogation or otherwise. The Agreement shall inure to the benefit of, and the binding upon, the parties hereto and the respective successors and assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH MAY
ALLOW THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A
LOAN A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE PROPERTY.
JUNIOR LIENHOLDER:
CITY OF BUELLTON,
a general law city
By: ______________________________________
Scott Wolfe
City Manager
S-2
The Village Senior
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4871-7325-9943v.3 0058243-000781
BORROWER:
THE VILLAGE SENIOR LP,
a California limited partnership
By: The Village Senior LLC,
a California limited liability company,
its General Partner
By: Cabrillo Economic Development Corporation,
a California nonprofit public benefit corporation,
its sole Managing Member
By: ___________________________________
Victoria J. Brady
Chief Financial Officer
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SENIOR LIENHOLDER:
BANNER BANK,
a Washington corporation
By: ___________________________________
Waheed Karim
Vice President
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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 )
) ss
County of __________________ )
On _______________________, 2024 before me, ____________________________________________, a Notary Public, personally appeared _________________________________________, who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________________________ (SEAL)
The Village Senior
Subordination Agreement (City of Buellton)
4871-7325-9943v.3 0058243-000781
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 )
) ss
County of __________________ )
On _______________________, 2024 before me, ____________________________________________, a Notary Public, personally appeared _________________________________________, who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________________________ (SEAL)
The Village Senior
Subordination Agreement (City of Buellton)
4871-7325-9943v.3 0058243-000781
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 )
) ss
County of __________________ )
On _______________________, 2024 before me, ____________________________________________, a Notary Public, personally appeared _________________________________________, who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________________________ (SEAL)
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
JUNIOR OBLIGATION DOCUMENTS
1. Promissory Note Secured by Deed of Trust dated as of ________________, 2024, executed by Borrower to the order of Junior Lienholder in the face principal amount of $150,000.
2. Short Form Deed of Trust and Assignment of Rents (The Village Senior Apartments – City of Buellton In-Lieu Fee Loan) dated as of __________________, 2024, executed by Borrower for the benefit of Junior Lienholder and recorded in the Official Records substantially concurrently herewith.
3. First Amended and Restated Affordable Housing Regulatory Agreement City of Buellton dated as of November 2, 2021, executed by and between Cabrillo Economic Development Corporation, a California nonprofit public benefit corporation, as predecessor-in-interest to Borrower, and Junior Lienholder and recorded in the Official Records on February 14, 2022 as Document No. 2022-0007796.
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 7
To: The Honorable Mayor and City Council
From: Scott Wolfe, City Manager
Meeting Date: April 25, 2024
Subject: Joint Grant Management Agreement between the Santa Ynez Band of Mission Indians, the County of Santa Barbara, City of Solvang, and City of Buellton for a Joint Submission for the Caltrans 2024- 25 Active Transportation Program Cycle 7 Infrastructure Grant ______________________________________________________________________________
BACKGROUND
The Caltrans 2024-25 Active Transportation Program Cycle 7 Infrastructure Grant is a funding initiative aimed at supporting projects that promote sustainability in transportation planning. For the 2024-2025 period the grants focus on. The due date for grant submission is June 17, 2024.
A joint grant application is being considered to request these funds for the Santa Ynez River Trail project. The application is to be filed by the Santa Ynez Band of Mission Indians (the Chumash), and would cover areas on Tribal lands as well as land within the Cities of Buellton and Solvang and unincorporated areas. As such, both cities and the County would be co-applicants. A Joint Grant Management Agreement (Attached) is proposed to facilitate the work involved in applying for the grant, to include project scoping and public outreach necessary to provide information required for the grant application. Under the Joint Grant Management Agreement, the Parties would contribute $80,000 total ($20,000 each) to hire a consultant to apply for and then assist with managing a grant for the Santa Ynez Valley River Trail transportation project.
This project stands as a pivotal endeavor with the goal of establishing a vital multimodal connection between the cities of Buellton and Solvang. This project has garnered significant local support due to the pressing need for a safe and direct route catering to bicyclists, pedestrians, and equestrians, fostering connectivity between these neighboring jurisdictions. The current conditions pose challenges for individuals using alternative modes of transportation, making it imperative to address this gap in infrastructure. The Santa Ynez Valley River Trail transportation project emerges as a key initiative in enhancing multimodal accessibility, promoting sustainability, and fostering community connectivity in the region.
Joint Grant Management Agreement Page 2 April 25, 2024
This grant, if awarded, would contribute a significant amount of funds necessary for the initial planning, design, and environmental review of the River Trail project. A regional approach to this early planning phase could save considerable time and money in the eventual implementation of the River Trail project for each of the member entities.
FISCAL IMPACT
This action would result in an impact of $20,000, which could be drawn from the City’s River Trail Capital Improvement Fund for the River Trail project (CIP Project #207).
Alternatively, a budget adjustment could be approved for $20,000 to cover this cost from the General Fund.
RECOMMENDATION
That the City Council authorize the City Manager to execute the attached Joint Grant Management Agreement and authorize a $20,000 expenditure from the CIP Project #207 fund.
ATTACHMENTS
Attachment A - Joint Grant Management Agreement
ATTACHMENT A
1 of 3
JOINT GRANT MANAGEMENT AGREEMENT
This Joint Grant Management Agreement (“Agreement”) is entered into by and between the Santa Ynez Band of Mission Indians (sometimes referred to as “Chumash Indians” or “Recipient”) and the County of Santa Barbara (“County”), City of Solvang (“Solvang”) and City of Buellton (“Buellton”) (County and Solvang and Buellton are collectively “CoRecipients”) (“Recipient and Co-Recipient are collectively the “Parties”):
I. Purpose
The Recipient agrees to apply for and submit an application on behalf of all the parties to CalTrans Active Transportation Program (ATP) Cycle 7 Infrastructure Grant to fund the Santa Ynez Valley Active Transportation Regional Connector Project (Project). The anticipated Grant application due date is June 17, 2024. Recipient and Co-Recipients agree to jointly assist Recipient in providing information that may be needed for the application and to manage the Grant as described below.
II. Recipient Responsibilities
The Recipient will assume and carry out the following responsibilities and tasks:
A. Submittal of the Grant Application by the due date;
B. Co-Management of any Consultants that will prepare the application for submission;
C. Upon award of Grant funds, co-manage any Consultants that may assist with administration of the Grant;
D. Upon award of Grant, be responsible for filing project reports; E. Act as the Fiscal Agent to receive and distribute grant funds; and F. Co-contribute any partial in-kind contributions if necessary.
III. Co-Recipients Responsibilities
The Co-Recipients will assume and carry out the following responsibilities and tasks:
A. Co-Manage any Consultants that will prepare the application for submission; B. Upon award of Grant funds, co-manage any Consultants that may assist with administration of the Grant;
C. Upon award of Grant funds, review and provide comments to the Recipient or Consultants so that file project reports can be timely submitted as may be required to Caltrans, or other designated awarding bodies;
D. Co-contribute any partial in-kind contributions if necessary.
IV. Funding
A. Recipient and each Co-Recipient will contribute $20,000 funds to support the Grant application.
V. Term
This Agreement will commence on April 2, 2024 through the end date of the grant if awarded.
VI. Termination
Upon 30-days’ notice to all parties, Recipient or any Co-Recipient may terminate its participation in this Agreement. Such termination of one party will not affect the rights and responsibilities of the remaining parties. Upon notice, the parties will meet to discuss any changes that may be required to this Agreement.
VII. Governing Law
This Agreement will be governed by the laws of the United States and the State of California.
VIII. Notices
Santa Ynez Band of Mission Indians
P.O. Box 517 (mail)
100 Via Juana Lane (deliveries)
Santa Ynez, CA 93460
Attention: Sam Cohen
County of Santa Barbara
City of Solvang
City of Buellton
IX. Submittal of Grant
The parties shall submit this Agreement and any amendments thereto promptly to Caltrans if required to support the Grant application or Grant award.
3 of 3
X. Acceptance
In witness thereof, the authorized representatives of the Recipient and Co-Recipient have executed this Agreement:
Recipient
Santa Ynez Band of Mission Indians
Co-Recipient
County of Santa Barbara
Signature Signature
Steve Lavagnino, Chair
Printed Name Printed Name
Date Date
Co-Recipient
City of Buellton
Co-Recipient
City of Solvang
Signature Signature
Printed Name Printed Name
Date Date
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 8
To: The Honorable Mayor and City Council
From: Rose Hess, City Engineer/Director of Public Works Meeting Date: April 25, 2024
Subject: Acceptance of Public Improvements and Termination and Release of Village Specific Plan Subdivision Agreement
______________________________________________________________________________
BACKGROUND
With the recordation of the Village Specific Plan Tract Map on November 8, 2012, a Subdivision Improvement Agreement and Bonds were put in effect for the required offsite improvements that included water, sewer, storm drain and road improvements (and appurtenant facilities) on Highway 246 and McMurray Road. All off-site improvements have been completed as of 2021 upon completion of the Village Townhomes and the Crossroads developments. The street, water, sewer and storm drain infrastructure were completed at various stages and has been operational since that time. City inspectors have signed-off on the work and it is appropriate for the City to formally accept all the public improvements.
With the completion of the public improvements and acceptance, it is appropriate to terminate and release the Subdivision Agreement. The formal termination and release of the Subdivision Agreement is necessary due to the finance requirements associated with the Senior Housing development (Cabrillo Economic Development Corporation). See Attachment 1.
FISCAL IMPACT
Acceptance of the public improvements and the approval of the termination and release of the Subdivision Agreement for the Village Specific Plan will not cause any fiscal impact to the City.
RECOMMENDATION
That the City Council accept the public improvements for streets, water and sewer (and appurtenant facilities) and authorize the termination and release of the Subdivision Agreement for the Village Specific Plan and authorize the City Manager to sign and record the document.
ATTACHMENTS
Attachment 1 - Subdivision Agreement
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 9
To: The Honorable Mayor and City Council
From: Rose Hess, Public Works Director/City Engineer
Meeting Date: April 25, 2024
Subject: Resolution No. 24-08 - “A Resolution of the City Council of the City of Buellton, California, Approving the Summary Vacation of Easement and Terminating the Offer of Dedication for Freeway Access Use on 175 McMurray Road (APN:137-200-096) and
Finding Approval Categorically Exempt under CEQA Guidelines Section 15305”
BACKGROUND
On June 17, 1999, the Planning Commission approved the Tentative Map No. 31004. As part of that development, an Offer of Dedication in the form of an easement (“Easement Area”) was made for the possible freeway off ramp to McMurray Road for property located at 175 McMurray Road (APN:137-200-096). (See Exhibits A and B to Resolution 24-08).
An Offer of Dedication in fee was also made for the same purpose on the same property.
On August 3, 2001, the City Council accepted the Offer of Dedication in the form of an easement for the Easement Area. At that same meeting, the Council considered but did not accept an Offer of Dedication in fee. (See Exhibit C to Resolution 24-08).
Under certain circumstances, a city may use a summary procedure for vacating a portion of a street, highway or public service easement. (California Streets and Highways Code §§8330-8336). For example, pursuant to California Streets and Highways Code section 8333(a), the legislative body of a local agency may summarily vacate an “…easement has not been used for the purpose for which it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation.” Additionally, Streets and Highways Code section 8334 provides in relevant part that the legislative body of a local agency may summarily vacate “an excess right-of-way of a street or highway not required for street or highway purposes.”
Resolution No. 24-08 Page 2 April 25, 2024
The procedure for vacating the easement and the offer of dedication in fee requires a legislative body to adopt a resolution of vacation that states the following relevant steps:
• the vacation is made under Streets and Highways Code section 8330 et seq.; • the name or other designation of the street, highway, or public service easement and a precise description of the portion vacated; • the facts under which the summary vacation is made; and • That from and after the date the resolution is recorded, the street, highway, or public service easement vacated no longer constitutes a street, highway, or public service easement. (Streets and Highways Code § 8335).
The procedure also requires that the city clerk must cause a certified copy of the resolution of vacation to be recorded in the office of the recorder of the County, once the resolution is approved by the legislative body.
Given that it has been over 22 years since the City acquired the Easement Area through the easement and the City/Caltrans no longer plans to develop the off ramp (See Exhibit D to Resolution No. 24-08), Staff is recommending that the City Council consider approving the Resolution No. 24-08 to summarily vacate the Easement Area and terminate the Offer of Dedication for freeway access use on McMurray Road. Resolution No. 24-08 contains the information required by Streets and Highways Code sections 8335 and 8336.
In preparing this item for Council’s consideration, the City Attorney’s Office consulted with the California Department of Housing and Community Development (HCD) and HCD confirmed that the City does not need to follow the process under Section 103(b)(3)(E) of the Surplus Lands Act Guidelines to declare the Easement Area "exempt surplus land" before vacating the easement.
RECOMMENDATION
That the City Council consider adoption of Resolution No. 24-08 - “A Resolution of the City Council of the City of Buellton, California, Approving the Summary Vacation of Easement and Terminating the Offer of Dedication for Freeway Access Use on 175 McMurray Road (APN:137-200-096) and Finding Approval Categorically Exempt under CEQA Guidelines Section 15305”
CEQA
This action is categorically exempt from review in the California Environmental Quality Act (CEQA) per CEQA Guidelines section 15305 – minor alterations in land use limitations.
ATTACHMENTS
Resolution No. 24-08 (Exhibits A-D)
RESOLUTION NO. 24-08
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BUELLTON, CALIFORNIA, APPROVING THE SUMMARY
VACATION OF EASEMENT AND TERMINATING THE
OFFER OF DEDICATION FOR FREEWAY ACCESS USE ON
175 MCMURRAY ROAD (APN:137-200-096) AND FINDING
APPROVAL CATEGORICALLY EXEMPT UNDER CEQA
GUIDELINES SECTION 15305
WHEREAS, California Streets and Highways Code section 8330, et seq., provides for summary vacation of streets and public service easements; and WHEREAS, the City Council accepted the Offer of Dedication (Easement) for a possible freeway off ramp on August 3, 2001 for real property located at 175 McMurray Road, Buellton (APN:137-200-096) located between Parcels 1 and 2 of Parcel Map No. 31,004 as filed in Book 55 at Pages 85 and 86 of Parcel Maps in the Office of the County Recorder of the County of Santa Barbara, legally described in Exhibit A and depicted in Exhibit B both attached hereto and hereinafter incorporated by reference (collectively the “Easement Area”); and WHEREAS, the City Council did not accept the Offer of Dedication (in Fee) for the same purpose on August 3, 2001 as indicated in the Certificate of Non-Acceptance and Consent to Recordation of Offer of Dedication attached hereto and hereinafter incorporated by reference as Exhibit C; and
WHEREAS, the freeway off ramp was never developed in the Easement Area; and WHEREAS, Streets and Highways Code section 8333(a) provides that the Easement Area may be summarily vacated as the “…easement has not been used for the purpose for which it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation”; and
WHEREAS, Streets and Highways Code section 8334 provides in relevant part that the legislative body of a local agency may summarily vacate “an excess right-of-way of a street or highway not required for street or highway purposes”; and WHEREAS, in this case, the Easement Area was offered for a possible freeway off ramp over 22 years ago and the off ramp was never developed or utilized for said purpose and the California Department of Transportation (Caltrans) has stated that they no longer need the easement for a future ramp as indicated in the correspondence attached hereto and hereinafter incorporated by reference as Exhibit D; and
WHEREAS, pursuant to Government Code section 66477.2, an Offer of Dedication may be terminated in the same manner as prescribed for the summary vacation of streets provided in Streets and Highways Code section 8300 et seq; and
Resolution No. 24-08 Page 2 April 25, 2024
WHEREAS, sections 8335 and 8336 of the Streets and Highways Code provide that the City Council may summarily vacate an easement by adopting a resolution of vacation and following the procedures outlined in the Streets and Highways Code; and WHEREAS, the California Department of Housing and Community Development (HCD) was consulted and confirmed that the City of Buellton does not need to follow the process under Section 103(b)(3)(E) of the Surplus Lands Act Guidelines to declare the Easement Area "exempt surplus land" before vacating the easement; and
WHEREAS, the Easement Area is not required for future street or highway purposes and there are no in-place public utilities that would be affected by the vacation; and WHEREAS, Government Code section 65402(a) shall not apply given the Easement Area was acquired for street purposes and the disposition of the Easement Area acquired for street purposes are of a minor nature; and
WHEREAS, City Council intends to summarily vacate the Easement Area more particularly described herein Exhibit A attached to this resolution and depicted on the map attached as Exhibit B to this Resolution.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BUELLTON DOES HEREBY RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS:
Section 1. The City Council finds that the above recitals are true and correct and accordingly, are incorporated as a material part of this Resolution.
Section 2. The City Council hereby finds that pursuant to Section 8330 et seq. of the California Streets and Highway Code, the Easement Area described in Exhibit A and depicted in Exhibit B is excess and is not now required for the purposes for which it was acquired and is hereby vacated.
Section 3. The City Council hereby terminates the Offer of Dedication in fee for the Easement Area.
Section 4. From and after the date this Resolution is recorded the Easement Area shall be vacated and the Offer of Dedication shall be terminated and the Easement Area will no longer constitute an easement for freeway access from and after the date of recordation with the Office of the Recorder of the County of Santa Barbara.
Section 5. The City Clerk is authorized to cause a certified copy of this resolution of vacation, attested by the Clerk under seal, to be recorded without acknowledgment, certificate of acknowledgment, or further proof in the office of the recorder of the county in which the property is located. No fee shall be charged for recordation. Upon such recordation, the vacation is complete.
Resolution No. 24-08 Page 3 April 25, 2024
Section 6. This action is categorically exempt from review in the California Environmental Quality Act (CEQA) per CEQA Guidelines section 15305 – minor alterations in land use limitations.
PASSED, APPROVED and ADOPTED this 25th day of April, 2024 ____________________________
Dave King
Mayor
ATTEST:
___________________________
Linda Reid
City Clerk
1 Rose
From: Schudson, Jenna@DOT <[email protected]>
Sent: Tuesday, March 21, 2023 10:32 AM
To: Rose; Streder, Melissa@DOT
Subject: RE: People's Self Help / Buellton - Cul De Sac Easement Morning Rose,
We appreciate your patience on this matter. After discussing with several functional units, it looks like we do not need this row for a future ramp. That project is no longer on the table.
Regards,
Jenna Schudson
Associate Transportation Planner
Caltrans, District 5
805-835-6432
From: Rose <[email protected]>
Sent: Thursday, February 23, 2023 4:12 PM
To: Streder, Melissa@DOT <[email protected]>
Cc: Schudson, Jenna@DOT <[email protected]>
Subject: RE: People's Self Help / Buellton - Cul De Sac Easement EXTERNAL EMAIL. Links/attachments may not be safe.
No problem!
Yes, that will be just fine!
Thank you!
Rose Hess, PE
Public Works Director / City Engineer
City of Buellton
107 West Highway 246
Buellton, CA 93427
(805) 688-5177 ph
www.CityofBuellton.com
From: Streder, Melissa@DOT [mailto:[email protected]] Sent: Thursday, February 23, 2023 8:07 AM
To: Rose
Cc: Schudson, Jenna@DOT
Subject: RE: People's Self Help / Buellton - Cul De Sac Easement Hi Rose,
2 I apologize for the delay in my response. Jenna Schudson on our team is coordinating with our folks in right-of-way, design, and traffic to get input to make this determination. I expect that we should be able to have a response for you soon.
Can you let us know when you need a response? Would by end of next week give you enough time? Thank you,
Melissa Streder
Regional Planning Branch Chief - South
Caltrans District 5
(805) 458-2717
From: Rose <[email protected]>
Sent: Thursday, February 23, 2023 7:30 AM
To: Streder, Melissa@DOT <[email protected]>
Subject: FW: People's Self Help / Buellton - Cul De Sac Easement EXTERNAL EMAIL. Links/attachments may not be safe.
Hi Melissa,
Have you been able to find out who would/could make this determination or process? We’re in a bit of a time crunch as this arises from conditions from an affordable housing process. thank you,
rose
Rose Hess, PE
Public Works Director / City Engineer
City of Buellton
107 West Highway 246
Buellton, CA 93427
(805) 688-5177 ph
www.CityofBuellton.com
From: Rose
Sent: Tuesday, February 14, 2023 4:49 PM
To: 'Streder, Melissa@DOT'
Subject: FW: People's Self Help / Buellton - Cul De Sac Easement Hi Melissa,
I’m wondering if you can help me. I have this project that predates me, but is somewhat tied in to Caltrans.
It’s on the south side of Highway 246 off, south McMurray Road – there was a commercial development built – and was required to provide easement to the city and potentially subsequently Caltrans for a hook ramp – that has never been built.
If I recall correctly, hook ramp designs are no longer approved/allowed.
I want to confirm that a hook ramp at this location no longer on the table and Caltrans would not need this ROW? I’m not sure who or where to start at Caltrans to inquire about this.
Thank you,
Rose
Rose Hess, PE
Public Works Director / City Engineer
City of Buellton
3 107 West Highway 246
Buellton, CA 93427
(805) 688-5177 ph
www.CityofBuellton.com
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 10
To: The Honorable Mayor and City Council
From: Allison Firey, Recreation Coordinator
Meeting date: April 25, 2024
Subject: Consideration of Arts and Culture Project Application:
5th Annual Juneteenth SYV Celebration
________________________________________________________________________
BACKGROUND
The City’s Arts and Culture Committee has received an application (Attachment 1) requesting grant funds for a Juneteenth celebration, and has forwarded them to the City Council with a recommendation to authorize the fund allocation. The project is a request to fund the 5th Annual SYV Celebration on June 8th, 2024.
The 5th Annual Juneteenth SYV Celebration event/project request is in the amount of $9,750, and is proposed to pay the costs of creating a program called “Princess Tiana’s Masquerade Story Time and Music” which would celebrate diversity and elevate cultural awareness. This event would take place in the Buellton Recreation Center Gym, and would feature food, dancing, crafting, instrument playing, and an appearance by Princess Tiana. The goal of this event is to celebrate diversity and to teach children to begin to see the shared bonds of our common humanity.
The funding amount requested will cover participation for up to 125 children and is ideal for children 3-11 years of age. This amount would cover the costs of the performers, travel fees, staffing for the event, craft materials, event rentals/decorations, photographer, event insurance and advertisement. The proposal was brought to the committee by Vashti Wilson and the event will be hosted by Madi’s Treasure Box. The application materials for this project accompany this report as Exhibits A-E (Attachmente 2) and a video that should be sent to council prior to the meeting.
FISCAL IMPACT
The fiscal impact of the requested funding would be $9,750 from the General Fund.
The FY 23/24 Budget includes $100,000 budgeted for the Arts and Culture Committee, of which $63,851 has already been allocated for other projects, leaving $36,149 currently unallocated and available to fund other projects.
Arts & Culture Proejct Page 2 April 25, 2024
RECOMMENDATION
That the City Council consider approving $9,750 to fund the Juneteenth Celebration pursuant to the recommendation of the Arts and Culture Committee.
ATTACHMENTS
Attachment 1 – Project Funding Application
Attachment 2 - Exhibits A-E
April 4 2024
June 8 2024
Juneteenth SYV | Madi's Treasure Box
Vashti Wilson
[email protected]
X
$9,750
$9,750
Word of mouth
5th Annual Juneteenth SYV Celebration
Key Organizer's vitae/relevant previous experience: 2024 will be the 5th Juneteenth event hosted by Madi's Treasure Box in the Santa Ynez Valley. The annual celebration began in 2019 and has been lauded by the Solvang City Council as the "most diverse and inclusive event in the entire valley". On Jan 25 2024, The Buellton City Council agreed by consensus to recognize June 19 - Juneteenth via proclamation.
"Princess Tiana's Masquerade Storytime & Music" is designed to celebrate diversity and elevate cultural awareness. The enriching program showcases Black culture in a way that is inclusive, educational, and most of all...fun!This event is hosted by Princess Tiana (from Disney's The Frog Princess) and will highlight the rich oral tradition of African-American folktales and storytelling. There will be: food, singing, dancing, crafting, instrument playing, and more.Every culture has passed stories along through its oral tradition. As stories were shared, they were honed by the teller to make them more relevant, more entertaining, and even easier to remember. These stories survived for multiple generations as myths, legends, fables, fairy tales, and even tall tales. It’s also important to remember that one of the reasons these tales survived is that they are quite simply very entertaining stories.This event is ideal for ages 3-11 years. Parents/guardians will sign up online and pay a small refundable deposit to secure their spot. This will help to ensure their attendance and dissuade no shows.PROJECT DESCRIPTIONPROJECT OVERVIEWPARTICIPANTSToday when we share stories from different cultures with kids, we inevitably celebrate diversity. Even though another culture may have different beliefs, history, and customs, their stories typically share our core values, model consequences for making decisions, and provide invaluable insights into human behavior. PROJECT PARAMETERSThe musical notes and sounds from the story are reminiscent of New Orleans, and each child will become an integral part of the narrative by creating and decorating their own keepsake mask and instrument!Even more, there will be a live performance by Princess Tiana herself (see accompanying video), and cultural kid friendly finger food will be provided. Every family will take home a signed physical copy of the book "The First Music", along with their keepsake goodies.WHY IS THIS PROJECT IMPORTANT?As kids experience stories from another time and place, they have the opportunity to safely explore connections and perspectives they probably couldn’t imagine on their own. By learning about stories from different cultures, they can discover surprising insights and can begin to see the shared bonds of our common humanity. The funding amount requested will cover participation for up to 125 children.
$9,750
City of Buellton $9,750
Musical Entertainers (Qty 2)
$13,500
Staffing for Activit Prep | Main Event-Set-Up/Breakdown (8 Staff x 10 hrs)Materials for Instruments & Masks) Princess Tiana Host & Performance (including travel fee) $1500 $2400$1100
PhotographerEvent Insurance $300
$400$1000
Advertising & PR
$1350$850
Food & Supplies for Event (Rentals,Trash,Cleaning Products, etc)Printing Services (Posters, Flyers, Adventure Packages) $450 TOTAL $9,750
Event Rentals & Decorations
$400
JUNETEENTH: MASQUERADE STORYTIME & MUSIC
Buellton Arts & Culture Committee
Project Funding Request Form
Exhibit A
Event hosted by Princess Tiana with a special song and dance performance
Personalized
keepsake book
to be given to
each family
(with a special
note from
Princess Tiana!)
Exhibit B JUNETEENTH: MASQUERADE STORYTIME & MUSIC
Buellton Arts & Culture Committee
Project Funding Request Form
Inspired by the sounds and rhythms of the west African forest, Dylan Pritchett weaves a tale that reveals the music we all have inside us. In the beginning, each animal make his own sound—everyone, that is, except the frogs, who seem more comfortable listening than performing. But when Elephant stumbles on a log, he accidentally creates an intriguing, unfamiliar sound that engages everyone's attention. What follows might be called the first jam session, with each animal contributing his or her unique sound to the rhythm to create an engaging, harmonious, sweet sound – the first music.
The First Music: A Folktale from Africa (Animated Stories for Kids) https://www.youtube.com/watch?v=EqGli-UrHPw
"And oh, how sweet the sound when they perform together"
Exhibit C
Excerpts from the story
JUNETEENTH: MASQUERADE STORYTIME & MUSIC
Buellton Arts & Culture Committee
Project Funding Request Form
Exhibit D
Children will create and decorate their own instruments JUNETEENTH: MASQUERADE STORYTIME & MUSIC
Buellton Arts & Culture Committee
Project Funding Request Form
Exhibit E
Children will decorate animal masks to act out scenes from the story JUNETEENTH: MASQUERADE STORYTIME & MUSIC
Buellton Arts & Culture Committee
Project Funding Request Form
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 11
To: The Honorable Mayor and City Council
From: Andrea Keefer, Planning Director
Meeting Date: April 25, 2024
Subject: Consideration of a New Contract with Metro Ventures Ltd. for Irma L. Tucker to Provide Professional Planning Services
______________________________________________________________________________
BACKGROUND
The contract for Irma L. Tucker of Metro Ventures, for professional planning services, expires on May 10, 2024. Ms. Tucker has assisted the Planning Department by taking on major special projects and work that is subject to reimbursement by major developers, to reduce the overall Department workload and to provide essential staffing coverage during a period of time of significant workload in the Planning Department.
Ms. Tucker has worked at total of 682.5 hours from November 10, 2022 through March 31, 2024. This is approximately 95% of the total allowable under the current Metro Ventures contract. 57.5 of those 682.5 hours have been billed to private projects for reimbursement.
Therefore, the total charged to the City during this 18-month period is $62,500, including $5,750 of that amount billed to private projects. Additionally, 27 hours have been billed toward long range planning efforts, which are reimbursable to the City through the LEAP and REAP grants, for a total of $2,700. This is consistent with the scope of the Metro Ventures contract being major special projects and reimbursable work. When considering both private project reimbursement and grant funded reimbursements, the total amount of reimbursable work under the current contract is currently $8,450.
Under the current contract, Ms. Tucker spent a large portion of her contract hours on tasks which were reimbursed through the General Fund. If a new contract is approved, Ms. Tucker would work primarily on private development projects within the Avenue of Flags Specific Plan area. Those hours would be reimbursable to the City by the developer. Currently, there are four large development projects on the Avenue of Flags that are active and that staff anticipates will require plan check with the Planning Department over the next couple of years.
Metro Ventures Contract Page 2 April 25, 2024
Over the next couple of years, the Planning Department will also be working in earnest on a Comprehensive General Plan Update. Given the complexities and detailed requirements placed on cities when preparing a General Plan Update, the City would benefit from Ms.
Tucker’s services to assist with the timely completion of this project.
The proposed contract would further limit the scope of Ms. Tucker’s services to the City of Buellton, thereby reducing the overall cost to the City, while helping maintain the necessary level of staffing for the Planning Department while the Department enters into what is expected to be a very active year with construction and long range planning activities.
More specifically, under the proposed terms of the new contract, a total of 650 hours would be authorized, with a minimum of 338 out of 650 total contract hours (54%) required to be billed to private developers for reimbursable work, and the remaining hours can be billed for work which is reimbursable through the General Fund. This will result in a maximum impact to the General Fund of $31,200.
The below list of projects are the projects that Ms. Tucker would be tasked with under the proposed contract:
Long Range:
• Assistance with Comprehensive General Plan Update
Current Planning – Avenue of Flags Projects:
• Creekside Village Mixed Use Project, 480 Avenue of Flags • The 518 Mixed Use Project, 518 Avenue of Flags
• Arco AM/PM Gas Station/Convenience Store
• Highway 246 Commercial Project
• Other inquiries for potential projects within AOF Specific Plan The total proposed contract would be for an amount of $31,200 (non-reimbursable amount), at $100 per hour. This would anticipate an average of approximately 12.5 hours per week over a period of one year (or 650 total hours), ending on May 11, 2025. However, the contract would require that 338 hours would be reimbursable from private developers; thereby the total impact to the City’s General Fund would not exceed $31,200 (312 total hours). The contract would not exceed the amount listed above without separate review and approval by City Council.
Given the current influx in private development projects, coupled with the comprehensive General Plan Update occurring concurrently, Ms. Tucker’s services will be invaluable to help alleviate delays and allow the Planning Department to continue to provide timely services.
Metro Ventures Contract Page 3 April 25, 2024
This independent consultant position does not include any benefits, which are provided to Ms. Tucker through her employer or otherwise. Metro Ventures is a private company that employs Ms. Tucker and regularly makes her available to cities and other entities needing planning expertise. Under the existing contract, Ms. Tucker is given assignments of major projects with key due dates, and she then works out the best schedule for the completion of her tasks. In addition, she is required to check in at City Hall at least twice a month but otherwise determines whether she will work at City Hall or at her home office, depending on the work to be done and her overall schedule.
FISCAL IMPACT
The total fiscal impact to the City would be $31,200. A budget amendment would be required. It is required that a portion of her contract will be covered by private development reimbursement. The maximum fiscal impact to the City including developer- or grant funding- reimbursable work would be $65,000.
RECOMMENDATION
Staff recommends that the City Council authorize the City Manager to enter into a new contract for Contract Planning Services with Metro Ventures Ltd. beginning May 11, 2024 and ending on May 11, 2025 for a total contract amount not to exceed $31,200 of funds not reimbursed by developers or awarded grants, with a rate of $100 per hour.
ATTACHMENTS
Attachment 1 – Draft Contract
IRV #4823-8106-7689 v2
AGREEMENT FOR PLANNING PROJECT SERVICES
BETWEEN
CITY OF BUELLTON
AND
METRO VENTURES LTD.
This AGREEMENT FOR PLANNING PROJECT SERVICES BETWEEN THE CITY OF BUELLTON and METRO VENTURES LTD. (“AGREEMENT”), is made and entered into this ____ day of___________, 2024 by and among the CITY OF BUELLTON a municipal corporation (“CITY”) and METRO VENTURES LTD., a California business entity (“CONSULTANT”).
In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of SECTION 19 “TERMINATION OF AGREEMENT” of this AGREEMENT, the term of this AGREEMENT shall be for a period commencing May 11, 2024 and continuing through May 11, 2025. Such term may be extended upon written agreement of both parties to this AGREEMENT.
Notwithstanding the foregoing, the City Manager and Planning Director shall have the responsibility to review CONSULTANT’s workload and performance on the first business day of August 2024, November 2024, and February 2024, and may reduce the SCOPE OF SERVICES or may terminate the AGREEMENT pursuant to Section 19 if it is found that the SCOPE OF SERVICES can be carried out by CITY staff without CONSULTANT’s assistance.
SECTION 2. SCOPE OF SERVICES.
CONSULTANT agrees to perform the services set forth in EXHIBIT “A”, “SCOPE OF SERVICES” and made a part of this AGREEMENT.
SECTION 3. ADDITIONAL SERVICES.
CONSULTANT shall not be compensated for any services rendered in connection with its performance of this AGREEMENT which are in addition to or outside of those set forth in this AGREEMENT or listed in EXHIBIT “A” unless such additional services are authorized in advance and in writing by the City Council or City Manager of CITY.
CONSULTANT shall be compensated for any such additional services in the amounts and in the manner agreed to by the City Council or City Manager.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
Subject to any limitations set forth in this AGREEMENT, CITY agrees to pay CONSULTANT the amounts specified in EXHIBIT “A” and made a part of this
AGREEMENT,
Each month CONSULTANT shall furnish to CITY an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail
IRV #4823-8106-7689 v2
charges for labor only (by sub-category). CITY may provide office space and supplies, which CONSULTANT may choose to use. Time spent on travel and mileage to and from home are not included as part of this AGREEMENT, however the CONSULTANT shall be compensated for travel time and mileage incurred using a private vehicle while performing services under this AGREEMENT as authorized by the City Manager. CITY shall independently review each invoice submitted by the CONSULTANT to determine whether the work performed and expenses incurred are in compliance with the provisions of this AGREEMENT. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event CITY disputes any charges or expenses, the original invoice shall be returned by CITY to CONSULTANT for correction and resubmission.
Except as to any charges for work performed or expenses incurred by CONSULTANT which are disputed by CITY, CITY will use its best efforts to cause CONSULTANT to be paid within thirty (30) days of receipt of CONSULTANT invoice.
Payment to CONSULTANT for work performed pursuant to this AGREEMENT shall not be deemed to waive any defects in work performed by CONSULTANT.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
CITY may inspect and accept or reject any of CONSULTANTs work under this AGREEMENT, either during performance or when completed. CITY shall reject or finally accept CONSULTANTs work within sixty (60) days after submitted to CITY. CITY shall reject work by a timely written explanation, otherwise CONSULTANTs work shall be deemed to have been accepted. CITY’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of CONSULTANTs work by CITY shall not constitute a waiver of any of the provisions of this AGREEMENT including, but not limited to, sections 15 and 16, pertaining to indemnification and insurance, respectively.
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by CONSULTANT in the course of providing any services pursuant to this AGREEMENT shall become the sole property of CITY and may not be used, reused or otherwise disposed of by CITY without the permission of the CONSULTANT. Upon completion, expiration or termination of this AGREEMENT, CONSULTANT shall turn over to CITY all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
SECTION 7. CONSULTANTS BOOKS AND RECORDS.
CONSULTANT shall maintain any and all documents and records demonstrating or relating to CONSULTANTs performance of services pursuant to this AGREEMENT. CONSULTANT shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to CITY pursuant to this AGREEMENT. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by CONSULTANT pursuant to this AGREEMENT. Any and
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all such documents or records shall be maintained for three years from the date of execution of this AGREEMENT and to the extent required by laws relating to audits of public agencies and their expenditures.
Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon written request by CITY or its designated representative. Copies of such documents or records shall be provided directly to the CITY for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at CONSULTANTs address indicated for receipt of notices in this AGREEMENT.
Where CITY has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of CONSULTANTs business, CITY may, by written request, require that custody of such documents or records be given to the requesting party and that such documents and records be maintained by the requesting party. Access to such documents and records shall be granted to CITY, as well as to its successors-in-interest and authorized representatives.
SECTION 8. STATUS OF CONSULTANT.
CONSULTANT is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of CITY. CONSULTANT shall have no authority to bind CITY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against CITY; whether by contract or otherwise, unless such authority is expressly conferred under this AGREEMENT or is otherwise expressly conferred in writing by CITY.
The personnel performing the services under this AGREEMENT on behalf of CONSULTANT shall at all times be under CONSULTANT’s exclusive direction and control. Neither CITY nor any elected or appointed boards, officers, officials, employees or agents of CITY, shall have control over the conduct of CONSULTANT or any of CONSULTANTs officers, employees or agents, except as specifically set forth in this AGREEMENT. Neither CONSULTANT nor any of CONSULTANT’s officers, employees or agents shall at any time or in any manner represent that they, or any of them, are in any manner officials, officers, employees or agents of CITY.
Neither CONSULTANT nor CONSULTANT’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to CITY’s employees. To the fullest extent permitted by any applicable law(s), CONSULTANT expressly waives any claim(s) CONSULTANT or CONSULTANT’s officers, employees or agents may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE.
CONSULTANT represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the services required under this AGREEMENT in a thorough, competent and professional manner. CONSULTANT shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. In meeting its obligations under this AGREEMENT, CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to those required of CONSULTANT under this AGREEMENT.
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SECTION 10. COMPLIANCE WITH APPLICABLE LAWS, PERMITS AND LICENSES.
CONSULTANT shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this AGREEMENT. CONSULTANT shall obtain any and all licenses, permits and authorizations necessary to perform the services set forth in this AGREEMENT. Neither CITY, nor any elected or appointed boards, officers, officials, employees or agents of CITY, shall be liable, at law or in equity, as a result of any failure of CONSULTANT to comply with this section.
SECTION 11. NONDISCRIMINATION.
Basic Provisions. In performing the Work, CONSULTANT agrees as follows:
(1) CONSULTANT will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. (as those terms are defined by the California Fair Employment and Housing Act—Government Code Section 12900-12996), except where such discrimination is based on a bona fide occupational qualification. CONSULTANT will take positive action or ensure that applicants are employed, and that employees are treated during employment with CONSULTANT, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. (as those terms are defined by the California Fair Employment and Housing Act—Government Code Section 12900- 12996), except where such discrimination is based on a bona fide occupational qualification.
Such action shall include but not be limited to the following: Employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONSULTANT agrees to post in conspicuous places, available to its employees and applicants for employment, notices to be provided by CITY setting forth the provisions of this nondiscrimination clause. (2) CONSULTANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSULTANT, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. (as those terms are defined by the California Fair Employment and Housing Act—Government Code Section 12900- 129961), except where such discrimination is based on a bona fide occupational qualification. (3) CONSULTANT will comply with all applicable training requirements under state and federal harassment prevention laws for its officers, employees or agents and otherwise take reasonable steps to prevent harassment of CITY employees by CONSULTANT’s officers, employees and agents on the basis of their actual or perceived race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
SECTION 12. UNAUTHORIZED ALIENS.
CONSULTANT hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §1101, et seq. as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should
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CONSULTANT so employ such unauthorized aliens for the performance of work and/or services covered by this AGREEMENT, and should any liability or sanctions be imposed against CITY for such use of unauthorized aliens, CONSULTANT hereby agrees to and shall reimburse CITY for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by CITY.
SECTION 13. CONFLICTS OF INTEREST.
CONSULTANT covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANTs performance of services under this AGREEMENT. CONSULTANT further covenants that in the performance of this AGREEMENT, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager.
CONSULTANT agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of CITY in the performance of this AGREEMENT.
CITY understands and acknowledges that CONSULTANT is, as of the date of execution of this AGREEMENT, independently involved in the performance of services for other governmental agencies, community organizations, and/or private parties.
CONSULTANT is unaware of any stated position of CITY relative to such projects. Any future position of CITY on such projects shall not be considered a conflict of interest for purposes of this section.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
All information gained or work product produced by CONSULTANT in performance of this AGREEMENT shall be considered confidential, unless such information is in the public domain or already known to CONSULTANT. CONSULTANT shall not release or disclose any such information or work product to persons or entities other than CITY without prior written authorization from the City Manager, except as may be required by law.
CONSULTANT, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of CITY, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this AGREEMENT. Response to a subpoena or court order shall not be considered “voluntary” provided CONSULTANT gives CITY notice of such court order or subpoena.
If CONSULTANT, or any officer, employee, agent or subcontractor of CONSULTANT, provides any information or work product in violation of this AGREEMENT, then CITY shall have the right to reimbursement and indemnity from CONSULTANT for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of CONSULTANT’s conduct.
CONSULTANT shall promptly notify CITY should CONSULTANT, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this AGREEMENT and the work performed thereunder. CITY retains the right, but has no obligation, to represent
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CONSULTANT or be present at any deposition, hearing or similar proceeding. CONSULTANT agrees to cooperate fully with CITY and to provide CITY with the opportunity to review any response to discovery requests provided by CONSULTANT, However, this right to review any such response does not imply or mean the right by CITY to control, direct, or rewrite said response.
SECTION 15. INDEMNIFICATION.
INDEMNITY FOR OTHER THAN PROFESSIONAL LIABILITY: Other than in the performance of professional services and to the full extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless CITY, and any and all of its boards, employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this AGREEMENT by CONSULTANT or by any individual or entity for which CONSULTANT is legally liable, including but not limited to officers, agents, employees or subcontractors of CONSULTANT. With respect to the performance of professional services, CONSULTANT shall indemnify, defend, and hold harmless CITY and the above-listed indemnitees to the greatest extent allowable by California law and this AGREEMENT shall not be construed to require CONSULTANT to indemnify, defend, or hold harmless City or said indemnitees in violation of any provision of California law.
SECTION 16. INSURANCE.
CONSULTANT agrees to obtain and maintain in full force and effect during the term of this AGREEMENT the insurance policies set forth in EXHIBIT “B” “INSURANCE” and made a part of this AGREEMENT. All insurance policies shall be subject to approval by CITY as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. CONSULTANT agrees to provide CITY with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of CONSULTANT are material considerations for this AGREEMENT. CITY has an interest in the qualifications of and capability of the persons and entities who will fulfill the duties and obligations imposed upon CONSULTANT under this AGREEMENT. In recognition of that interest, CONSULTANT shall not assign or transfer this Agreement or any portion of this AGREEMENT or the performance of any of CONSULTANTs duties or obligations under this AGREEMENT without the prior written consent of the City Council. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this AGREEMENT entitling CITY to any and all remedies at law or in equity, including summary termination of this AGREEMENT. CITY acknowledges, however, that CONSULTANT, in the performance of its duties pursuant to this AGREEMENT, may utilize subcontractors.
SECTION 18. CONTINUITY OF PERSONNEL.
CONSULTANT shall make every reasonable effort to maintain the stability and continuity of CONSULTANTs staff assigned to perform the services required under this
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AGREEMENT. CONSULTANT agrees that the staff currently assigned to perform the services required under this AGREEMENT is Irma Tucker and that CONSULTANT shall notify CITY of any changes in CONSULTANTs staff assigned to the CITY prior to any such changes taking place.
SECTION 19. TERMINATION OF AGREEMENT.
CITY may terminate this AGREEMENT, with or without cause, at any time by giving thirty (30) days written notice of termination to CONSULTANT. In the event such notice is given, CONSULTANT shall cease immediately all work in progress.
CONSULTANT may terminate this AGREEMENT at any time upon thirty- (30) days written notice of termination to CITY.
If either CONSULTANT or CITY fail to perform any material obligation under this AGREEMENT, then, in addition to any other remedies, either CONSULTANT, or CITY may terminate this AGREEMENT immediately upon written notice.
Upon termination of this AGREEMENT by either CONSULTANT or CITY, all property belonging exclusively to CITY, which is in CONSULTANTs possession, shall be returned to CITY. CONSULTANT shall furnish to CITY a final invoice for work performed and expenses incurred by CONSULTANT, prepared as set forth in SECTION 4 of this AGREEMENT. This final invoice shall be reviewed and paid in the same manner as set forth in SECTION 4 of this AGREEMENT.
SECTION 20. DEFAULT.
In the event that CONSULTANT is in default under the terms of this AGREEMENT, the CITY shall not have any obligation or duty to continue compensating CONSULTANT for any work performed after the date of default and may terminate this AGREEMENT immediately by written notice to the CONSULTANT, SECTION 21. EXCUSABLE DELAYS.
CONSULTANT shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of CONSULTANT. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of CITY, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this AGREEMENT shall be equitably adjusted for any delays due to such causes.
SECTION 22. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to CITY as public records, and which are necessary for carrying out the work as outlined in the EXHIBIT “A” “SCOPE OF SERVICES”, shall be furnished to CONSULTANT in every reasonable way to facilitate, without undue delay, the work to be performed under this AGREEMENT.
SECTION 23. NOTICES.
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All notices required or permitted to be given under this AGREEMENT shall be in writing and shall be personally delivered, transmitted by electronic means, or sent by certified mail, postage prepaid and return receipt requested, addressed as follows:
To CITY: City of Buellton
Attn: Scott Wolfe
P.O. Box 1819
107 W. Highway 246
Buellton, CA 93427
E-mail: [email protected]
To: Metro Ventures, Ltd.
Attn: Irma L. Tucker
E-mail: [email protected]
Notice shall be deemed effective on the date personally delivered, transmitted by electronic means with receipt acknowledged by recipient, or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this AGREEMENT on behalf of CONSULTANT represents and warrants that he/she/they has/have the authority to so execute this AGREEMENT and to bind CONSULTANT to the performance of its obligations hereunder.
SECTION 25. BINDING EFFECT.
This AGREEMENT shall be binding upon the heirs, executors, administrators, successors and assigns of the parties.
SECTION 26. MODIFICATION OF AGREEMENT.
No amendment to or modification of this AGREEMENT shall be valid unless made in writing and approved by the CONSULTANT and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. In the event of any conflict between the terms and conditions of this AGREEMENT and attached Exhibit “A”, the terms and conditions of this AGREEMENT shall control. In the event of any conflict between the terms and conditions of this AGREEMENT and any attached exhibits, the terms and conditions of this AGREEMENT will control.
SECTION 27. WAIVER.
Waiver by any party to this AGREEMENT of any term, condition, or covenant of this AGREEMENT shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any party of any breach of the provisions of this AGREEMENT shall not constitute a waiver of any other provision, nor a waiver of any subsequent breach or violation of any provision of this AGREEMENT. Acceptance by CITY of any work or services by CONSULTANT shall not constitute a waiver of any of the provisions of this AGREEMENT.
SECTION 28. LAW TO GOVERN; VENUE.
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This AGREEMENT shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Santa Barbara. In the event of litigation in a U.S.
District Court, venue shall lie exclusively in the Central District of California, in Los Angeles.
SECTION 29. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this AGREEMENT, the prevailing party in such litigation or other proceeding shall be entitled to an award of reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may he entitled.
SECTION 30. ENTIRE AGREEMENT.
This AGREEMENT, including the attached EXHIBITS “A” and “B”, is the entire, complete, final and exclusive expression of the parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between CONSULTANT and CITY prior to the execution of this AGREEMENT. No statements, representations or other agreements, whether oral or written, made by any party which are not embodied herein shall be valid and binding. No amendment to this AGREEMENT shall be valid and binding unless in writing duly executed by the parties or their authorized representatives.
SECTION 31. SEVERABILITY.
If a term, condition or covenant of this AGREEMENT is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this AGREEMENT shall not be affected thereby and the AGREEMENT shall be read and construed without the invalid, void or unenforceable provision(s).
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed the day and year first above written.
METRO VENTURES LTD.
By:
Irma L. Tucker
Title: President
CITY OF BUELLTON
By:
Scott Wolfe
Title: City Manager
APPROVED AS TO FORM:
Greg M. Murphy, City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES
The CONSULTANT shall perform contract planning services projects as directed by the City Manager of the City of Buellton, including major special projects and reimbursable work as listed below.
• Serve as project manager on development projects within the Avenue of Flags Specific plan.
• Oversee the preparation of the Comprehensive General Plan Update, to include the oversight of the requisite environmental documentation preparation (maximum of 312 hours over the term of the Agreement).
Similar work may be performed if the City Manager deems it necessary and directs that it be done, but must be accomplished within this AGREEMENT’s hours limitation. CONSULTANT’s billing rate shall be $100/hour. The AGREEMENT is limited to 650 hours for a not-to-exceed cost of $65,000, of which a maximum of $31,200 shall be for work which is non-reimbursable to the City, unless the term of the AGREEMENT is extended in writing pursuant to Section 1.
The work schedule shall be mutually agreed upon by the CITY and CONSULTANT, subject to project deadlines and ensuring reasonable availability of CONSULTANT during business hours.
CONSULTANT shall check in with the Planning Director (or City Manager in the Planning Director’s absence) by phone once per month. CONSULTANT can otherwise set its own work hours and location; if CONSULTANT desires to work at a City location and space is available, CITY will offer such space to CONSULTANT at no cost.
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EXHIBIT “B”
INSURANCE
A. Insurance Requirements. CONSULTANT shall provide and maintain insurance, acceptable to the City Manager or City Council, in full force and effect throughout the term of this AGREEMENT, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by CONSULTANT, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII. CONSULTANT shall provide the following scope and limits of insurance:
1. Minimum Scone of Insurance. Coverage shall be at least as broad as:
(1) Insurance Services Office form number CA 0001 (Ed.1/87) covering Automobile Liability, including code 1 “any auto” and endorsement CA 0025, or equivalent forms subject to the written approval of the City.
2. Minimum Limits of Insurance. CONSULTANT shall maintain limits of insurance no less than:
(1) Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
B. Other Provisions. Insurance policies required by this AGREEMENT shall contain the following provisions:
1. All Policies. Each insurance policy required by this AGREEMENT shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either party to this AGREEMENT, reduced in coverage or in limits except after 30 days’ prior written notice by Certified mail, return receipt requested, has been given to the CITY FINANCE DIRECTOR.
2. General Liability Accident -- Mobile Liability Rates. (1) CITY and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities CONSULTANT performs; products and completed operations of CONSULTANT; premises owned, occupied or used by CONSULTANT; or automobiles owned, leased, hired or borrowed by CONSULTANT. The coverage shall contain no special limitations on the scope of protection afforded to CITY, and their respective elected and appointed officers, officials, or employees.
(2) CONSULTANTs insurance coverage shall be primary insurance with respect to CITY, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by CITY, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, CONSULTANTs insurance.
(3) CONSULTANTs insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
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(4) Any failure to comply with the reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to CITY, and its respective elected and appointed officers, officials, employees or volunteers.
C. Other Requirements. CONSULTANT agrees to deposit with CITY, at or before the effective date of this contract, certificates of insurance necessary to satisfy CITY that the insurance provisions of this contract have been complied with. The City Attorney may require that CONSULTANT furnish CITY with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. CITY reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. CONSULTANT shall furnish certificates and endorsements from each subcontractor identical to those CONSULTANT provides.
2. Any deductibles or self-insured retentions must be declared to and approved by CITY. At the option of CITY, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY or its respective elected or appointed officers, officials, employees and volunteers or the CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit CONSULTANTs liability hereunder nor to fulfill the indemnification provisions and requirements of this AGREEMENT.
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 12
To: The Honorable Mayor and City Council
From: Scott Wolfe, City Manager
Meeting Date: April 25, 2024
Subject: Buellton Urban Growth Boundary (UGB) Initiative City Council Workshop
______________________________________________________________________________
BACKGROUND
On February 22, 2024, staff introduced the concept of an Update to the Urban Growth Boundary (UGB) that would extend the time frame of the UGB as well as allow for some expansion of the UGB to allow controlled growth on a very limited basis. Following this introduction of the UGB concept, the City Council provided some comments. Staff received further comments from the public, as well as from the Planning Commission as a result of the Planning Commission Workshop held on March 18.
In response to these comments (and additional information provided by a property owner), staff has updated the proposed UGB concept. This new concept significantly reduces the area proposed for expansion, as the need to provide an area to meet future state mandates can be met by property originally – but erroneously – reported to be under Williamson Act contract.
The revised concept is shown on the attachments. The City is under no obligation to use this concept in any way. It is the updated result of the original concept in light of comments and responses received since that time.
The City Council should conduct a workshop for this item. The City Manager will be prepared to lead this workshop the night of the meeting, but the Council may choose to do so itself. Either way, a more complete report will be presented verbally on the night of the meeting.
FISCAL IMPACT
No action is proposed at this time. Therefore, no fiscal impact is anticipated as a result of this agenda item.
UGB City Council Workshop Page 2 April 25, 2024
RECOMMENDATION
Staff recommends that the City Council consider the revised report on the night of April 25, conduct the workshop, and provide staff with comments and other direction regarding the UGB initiative, to include direction to bring the matter to the City Council for further consideration and possible action on May 23, 2024.
ATTACHMENTS
Attachment 1 – Initial Urban Growth Boundary Concept
Attachment 2 – Revised Urban Growth Boundary Concept
Attachment 1:
Initial Urban Growth Boundary Concept
UGB Extended ONLY
if urban uses
approved by SB
County
Attachment 2:
Revised Urban Growth Boundary Concept
UGB Extended ONLY
if urban uses
approved by SB
County
CITY OF BUELLTON
City Council Agenda Staff Report
City Manager Review: SW
Council Agenda Item No.: 13
To: The Honorable Mayor and City Council
From: Rose Hess, Public Works Director
Meeting Date: April 25, 2024
Subject: Discussion Regarding Potential Parking Restrictions on McMurray Road and Valley Vineyard Circle
______________________________________________________________________________
BACKGROUND
During the April 11, 2024 City Council meeting, council discussed the origin of requests for proposed parking restrictions in the McMurray Road and Valley Vineyard Circle area.
These include the City’s receipt of Vineyard Village Townhomes residents’ concerns regarding site visibility issues at the intersections of McMurray Road and Valley Vineyard Circle, Council discussion regarding long-term parking of recreation vehicles along Valley Vineyard Circle, and Vineyard Village Townhomes HOA concerns regarding congestion and lack of parking due to large vehicles, construction activities and safety issues.
As discussed, the area of McMurray Road will have multiple construction projects occurring simultaneously over the next 18-24 months with the following projects:
*Polo Village – Currently under construction, anticipated completion July/Aug 2024
*Village Senior Apartments – Tentative start end-April/early-May 2024, ~16 months construction
*McMurray Hotels – Tentative start June 2024, ~ 18 month’s construction *McMurray Rd/Hwy 246 Intersection Project – Tentative start July 2024, ~ 6 months construction
The consensus from the April 11, 2024 meeting was for staff to return with a new exhibit with less parking restrictions, but maintaining proposed red curbing for appropriate lineof-sight so that safety considerations are addressed at the intersections of McMurray Road and Valley Vineyard Circle (north and south) and adding green curb with 2-hour parking limits along the frontage of Crossroads and Village Park on Valley Vineyard
Parking Restrictions Page 2 April 25, 2024
Circle and “No Oversized Vehicles” signage along the frontage of the Vineyard Village Townhomes. See Attachment 1.
FISCAL IMPACT
Approval of curb painting and signage and/or removal of curb painting will have minor Fiscal Impact and will be dependent on the extent of painting/signage required.
RECOMMENDATION
Staff recommends that the City Council review and discuss the parking restriction options and provide staff with further direction.
ATTACHMENTS
Attachment 1 – Existing and Proposed Parking Restrictions Map
Existing Red curb est
11/9/23 reso 23-21
Existing 50’ Red curb
est 6-1-19 reso 19-14
Existing 140’ Red curb
est 6-1-19 reso 19-14
Existing Red curb
est w/Crossroads
Proposed 50’
Red Curb Proposed “No
Oversize Vehicles”
Proposed 2
hr Parking
Proposed 140’
Red Curb
Proposed
Red Curb
Existing No Parking on
west side by signage,
red curb by hydrants
White Curb
– 10 min
Proposed 50’
Red Curb