18. Notwithstanding Sections 16 and 17, in the event that a portion of the Property is taken for a public improvement or pursuant to a condemnation proceeding and the Qualifying Units (as defined in the Regulatory Agreement) remain intact and continue to be owned and operated by Trustor in conformance with the Affordable Housing Agreement and the Regulatory Agreement, Beneficiary shall not declare all sums due and payable under the Notes, nor shall the Beneficiary be entitled to any compensation, awards and other payments therefor, provided that
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such compensation, awards and other payments are used for (1) paying principal and interest owed on the Permanent Loan (as defined in the Affordable Housing Agreement), (2) making improvements to the Property that are approved by Beneficiary, in its reasonable discretion, or (3) payment of principal owing under the Notes. In the event that Trustor receives such compensation, awards or other payments and fails to expend the funds in conformance with subsections (1) and (2) this section within thirty (30) days of receipt of such funds, Trustor shall be in default under this Deed of Trust;
19. Upon default by Trustor in taking any action or in making any payments provided for herein, or in the Secured Obligations, if Trustor shall fail to perform any covenant or agreement in this Deed of Trust within thirty (30) days after written demand therefor by Beneficiary (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Trustor fail to promptly commence such cure, and diligently prosecute same to completion), after the giving of notice and the expiration of any applicable cure period, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale, and of written notice of default and of election to cause the property to be sold, which notice Trustee shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust. Beneficiary shall also deposit with Trustee this Deed of Trust and all documents evidencing expenditures secured hereby;
20. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its Deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in the Deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of this trust including therein reasonable Trustee's fees or attorney's fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost of any search and/or other evidence of title procured in connection with such sale and revenue stamps on Trustee's Deed; (3) all sums expended under the terms hereof, not then repaid, with accrued interest at the maximum rate allowed by law; (4) all other sums then secured hereby; and (5) the remainder, if any, to the person or persons legally entitled thereto;
21. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary,
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containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the property is situated, shall be conclusive proof of proper appointment of the successor trustee;
22. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law;
23. Upon written request of Beneficiary stating that all sums secured hereby have been paid and all obligations secured hereby have been satisfied, and upon surrender of this Deed of Trust to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters of fact shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto";
24. The trust created hereby is irrevocable by Trustor;
25. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future successor in interest to Beneficiary. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. All obligations of Trustor hereunder are joint and several;
26. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee;
27. The undersigned Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at the address set forth in the Deed of Trust;
28. Trustor agrees at any time and from time to time, upon receipt of a written request from Beneficiary, to furnish to Beneficiary detailed statements in writing of income, rents, profits, and operating expenses of the premises, and the names of the occupants and tenants in possession, together with the expiration dates of their leases and full information regarding all rental and occupancy agreements, and the rents provided for by such leases and rental and occupancy agreements, and such other information regarding the premises and their use as may be requested by Beneficiary;
29. Trustor agrees that the obligations secured by this Deed of Trust are made expressly for the purpose of acquiring the Property, completing the construction work necessary to construct a new [55]- unit affordable housing development on the Property, as is more specifically provided in the Secured Obligations;
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30. As is provided more specifically in the Secured Obligations, the obligations of Trustor thereunder are nonrecourse obligations of the Trustor. The sole recourse of Beneficiary shall be the exercise of its rights against the Property;
31. Notwithstanding specific provisions of this Deed of Trust, non-monetary performance hereunder shall not be deemed to be in default where delays or defaults are due to:
war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City of Buena Park or any other public or governmental agency or entity (except that any act or failure to act of Beneficiary shall not excuse performance by Beneficiary unless such act or failure to act is allowed or required by law); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause (a " Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Deed of Trust may also be extended in writing by the Beneficiary and Trustor;
32. If the rights and liens created by this Deed of Trust shall be held by a court of competent jurisdiction to be invalid or unenforceable as to any part of the obligations described herein, the unsecured portion of such obligations shall be completely performed and paid prior to the performance and payment of the remaining and secured portion of the obligations, and all performance and payments made by Trustor shall be considered to have been performed and paid on and applied first to the complete payment of the unsecured portion of the obligations;
33. (a) Subject to the extensions of time set forth in Paragraph 31, and subject to the further provisions of this Paragraph 33, failure or delay by Trustor to perform any term or provision respectively required to be performed under the Secured Obligations or this Deed of Trust constitutes a default under this Deed of Trust;
(b) Beneficiary shall give written notice of default to Trustor, specifying the default complained of by the Beneficiary. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; (c) Any failures or delays by Beneficiary in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by Beneficiary in asserting any of its rights and remedies shall not deprive Beneficiary of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies; (d) If an event of default occurs under the terms of this Deed of Trust, prior to exercising any remedies hereunder or thereunder, Beneficiary shall give Trustor written notice of
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such default. Trustor shall have a reasonable period of time after such notice is given within which to cure the default prior to exercise of remedies by Beneficiary under this Deed of Trust.
In no event shall Beneficiary 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 thirty (30) days after the notice of default is first given; (e) If an event of default occurs under the terms of the Secured Obligations, prior to exercising any remedies hereunder or thereunder, Beneficiary shall give Trustor notice of such default. As is provided more specifically in the Secured Obligations, if the default is reasonably capable of being cured within thirty (30) days, Trustor shall have such period to effect a cure prior to exercise of remedies by the Beneficiary under the Secured Obligations, or this Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Trustor shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default.
34. This Deed of Trust shall be subject and subordinate to the terms of that certain extended use agreement executed by the Trustor in connection with the Trustor's allocation of low-income housing tax credits under Section 42 of the Code (the " Extended Use Agreement").
If Beneficiary or its successors or assigns (collectively, the " Subsequent Owner") acquires the Property by foreclosure (or instrument in lieu of foreclosure), then the "extended use period" (as defined in Section 42(h)(6)(D) of the Internal Revenue Code) shall terminate, except for the obligation of the Subsequent Owner to comply with the limitations on evictions, termination of tenancy and increase in rents for the three year period following the Subsequent Owner's acquisition of the Property, as set forth in Section 42(h)(6)(E)(ii) of the Internal Revenue Code.
As provided in the Affordable Housing Agreement, upon request when appropriate, Beneficiary shall execute such documentation as is necessary to subordinate this Deed of Trust to a Senior Loan.
[Signatures on Following Page]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first set forth above.
TRUSTOR:
_________________________, a California limited partnership
By: ____________________ LLC,
a California limited liability company,
its managing general partner
By: __________________________,
a California nonprofit corporation, its sole member and manager
By: ____________________________________
______________, ____________________
By: ______________ LLC,
a California limited liability company,
its developer general partner
By: C & C Development Co., LLC,
a California limited liability company, its member and manager
By: _____________________________
Todd R. Cottle, Trustee of 2007
Todd R. Cottle and Jennifer N. Cottle
Revocable Trust, its member
[SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
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EXHIBIT A TO
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
(Lincoln Avenue Apartments)
Legal Description of Subject Property
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REPLACEMENT EXHIBIT J
TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT
Form of Land Note
LAND PROMISSORY NOTE SECURED BY DEED OF TRUST
(Lincoln Avenue Apartments)
Principal Amount: $3,850,000 Date of Note: ______, 20__ Maker: _______________ LP, a
California limited partnership
Lender: CITY OF BUENA PARK, a California
charter city and municipal corporation
Source: City low-and-moderate income housing
funds (H&S Code § 34176.1)
Maturity Date: Fifty-five (55) years from
the date on which the Certificate of
Completion is issued
Interest Rate: One-Half Percent (0.50%)
1. Land Loan.
FOR VALUE RECEIVED, the undersigned ____________ LP, a California limited partnership (" Maker"), with its principal place of business located at ______________________, promises to pay to the CITY OF BUENA PARK, a California charter city and municipal corporation (the " City" or " Holder") at 6650 Beach Boulevard, Second Floor, Buena Park, California 90622, or such place as the Holder may, from time to time, designate by written notice to the Maker, the principal sum of THREE MILLION EIGHT HUNDRED FIFTY THOUSAND DOLLARS ($3,850,000), (the " Land Loan "), together with any accrued interest, if applicable, as set forth in this Note. This Promissory Note (the "Note") is made and given pursuant to that certain Affordable Housing Disposition and Development Agreement (Lincoln Avenue Apartments) between the City and Maker's predecessor-in-interest, dated ___________, 2021 (as amended from time to time, the " Affordable Housing Agreement"). The Affordable Housing Agreement is incorporated herein by this reference. All initially capitalized terms used but not defined herein shall have the meanings given to them in the Affordable Housing Agreement. The Land Loan is made for the conveyance of the Property by City to Maker in accordance with the terms and conditions of 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 fifty-five (55) years from the date on which the Certificate of Completion is recorded pursuant to the Affordable Housing Agreement ("Maturity Date").
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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 that certain real property as described therein and in the Affordable Housing Agreement.
4. Interest Calculation.
The principal outstanding under this Note shall accrue simple interest at the rate of one- half percent (0.50%) per annum, except in the case of Default as set forth in Section 9 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.
Following completion of the Project as evidenced by the issuance by the City of a Certificate of Completion as set forth in the Affordable Housing Agreement, and continuing each year thereafter until the Maturity Date, a portion of the Residual Receipts (as defined below) from the Project shall be paid to Holder and applied to pay down the amounts due and owing under this Note. The payments described below 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. a. Annual Payments from Residual Receipts. Maker shall make repayments of the outstanding principal and accrued interest, if any, equal to the City's Land Percentage of Fifty Percent (50%) of the Residual Receipts from the Project as repayment of amounts due and owing under this Note. For the purposes of this Note, " City's Land Percentage " means the percentage calculated by dividing (1) the original principal amount of the Land Loan actually disbursed to Borrower by (2) the sum of Total Assistance from all government entities obtained by the Borrower, to the extent not requiring a mandatory debt service payment. " Total Assistance" means the original principal amounts of loans and grants made by the other government entities plus the cumulative value of Project Based Section 8 or similar housing vouchers provided by the other government entities.
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.
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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 on which the Certificate of Completion is recorded pursuant to the Affordable Housing Agreement.
Prior to any sale of all or any portion of the Project, or Refinancing of all or any portion of the outstanding debt from the Project, and so long as there is any outstanding amount due and owing under this Note, Maker shall notify Holder of any such proposed or intended sale or Refinancing. In such event, Maker and Holder shall meet and confer, and shall use good faith efforts, to determine the feasibility of the payoff or restructuring of the remaining balance owing under this Note as part of any such sale or Refinancing to provide for repayment of this Note sooner than the fifty-five (55) year repayment period.
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 the investor limited partner 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, operating deficit or other loans relating to the Project; asset management fee payable to the limited partner of Maker in an amount approved as part of the Project Budget (as defined in the Affordable Housing Agreement); partnership management fee payable to Maker, not to exceed the amount approved as part of the Project Budget (as defined in the Affordable Housing Agreement); reasonable property management fees not to exceed 8% of gross revenue; deferred developer fee in an amount approved as part of the Project Budget (as defined in the Affordable Housing Agreement); amounts (approved by Holder) expended to restore the Project after a casualty loss or condemnation; reasonable and customary cost 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.
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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. Annual Budget.
Maker shall prepare and submit to Holder a proposed annual operating budget for the management and operation of the Project ("Annual Budget") no later than 60 days preceding the effective year of such budget. The Annual Budget shall include the projected Gross Revenue and Operating Expenses for the year and a line item showing the projected Residual Receipts from the Project for the year. Holder will review the Annual Budget and, if acceptable, approve it, which approval shall not be unreasonably withheld. If the Annual Budget is not acceptable, Holder shall specify the reasons for disapproval. The intent of this section is to provide Holder an opportunity to disapprove any unreasonable expenses which would diminish the Residual Receipts from the Project. Once approved, any changes to the Annual Budget which exceed ten percent (10%) of the total Annual Budget shall require Holder's prior written consent, which consent shall not be unreasonably withheld.
8. Acceleration Upon Certain Events or Upon Default.
In the event of any Default under the terms of this Note, the Affordable Housing Agreement or the Regulatory Agreement, 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 the Affordable Housing Agreement), then, at the option of the Holder, all principal and interest due hereunder shall immediately become due and payable upon thirty (30) days
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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 Affordable Housing Agreement shall not constitute a Default hereunder or under the Affordable Housing Agreement, 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 Affordable Housing Agreement or is reasonably acceptable to the City with reasonable promptness, and any transferee under such a transfer agrees to be bound by any and all instruments in favor of the City.
9. 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.
10. 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.
11. 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.
12. Indemnification.
Maker shall indemnify, defend, protect and hold the City 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 the Affordable Housing Agreement or related agreements; (ii) intentional bad faith waste of the real property encumbered by the deed of trust which secures this Note; and (iii) losses resulting from Maker's failure to maintain insurance as required under the provisions of the deed of trust securing this Note and the Affordable Housing Agreement.
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13. Nonrecourse.
This Note shall become a nonrecourse obligation of Maker on the date that Maker files a valid and timely Notice of Completion for the Project 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. At such time as this Note becomes nonrecourse, neither Maker nor any of its general and limited partner shall have any personal liability for repayment of the Land 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, intentional bad faith waste of or on the Project and such other matters as are referred to below. Notwithstanding the generality of the foregoing, however, Maker shall indemnify, defend, protect and hold 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 arising as a result of any (i) fraud or material misrepresentation by the Maker under or in connection with the Affordable Housing Agreement or any other agreements or documents provided in connection therewith; (ii) intentional bad faith waste of the Property encumbered by the deed of trust which secures this Note; and (iii) losses resulting from Maker's failure to maintain insurance as required under the provisions of the deed of trust securing this Note.
Maker's obligation to indemnify the Holder hereof as aforesaid shall be recourse obligations of the Maker, and in the event of any breach of such obligations, the Holder shall have the right to proceed directly against the Maker to recover any and all losses, damages, liability, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) and may bring any action and institute any proceeding to obtain a deficiency judgment in or following foreclosure for any and all such losses, damages, liabilities, costs and expenses resulting from such breach.
14. 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.
15. 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. [Signatures on Following Page]
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MAKER:
______________________ LP, a California limited partnership
By: ___________________ LLC,
a California limited liability company,
its managing general partner
By: ___________________________________________________, a California nonprofit corporation, its sole member and manager
By: ____________________________________
_______________, ____________________
By: _______________________ LLC,
a California limited liability company,
its developer general partner
By: C & C Development Co., LLC,
a California limited liability company, its sole member and manager
By: _____________________________
Todd R. Cottle, Trustee of 2007
Todd R. Cottle and Jennifer N. Cottle
Revocable Trust, its member
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REPLACEMENT EXHIBIT L
TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT
Project Budget
(on following pages)
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FIRST AMENDMENT TO AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT
AGREEMENT
(Lincoln Avenue Apartments)
THIS FIRST AMENDMENT TO AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT (the " First Amendment ") is entered into as of October 10, 2023 (the “Effective Date ”), by and among the City of Buena Park, a California municipal corporation and charter city (the " City"), and C & C Development Co., LLC, a California limited liability company (the " Developer"). City and Developer are sometimes referred to hereinafter individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Parties entered into that certain Affordable Housing Disposition and Development Agreement dated as of August 24, 2021 (the " Original Agreement "). These recitals refer to and utilize certain capitalized terms which are defined in Article I of the Original Agreement. Capitalized terms used in this First Amendment, but not defined herein, shall have the meanings set forth in the Original Agreement.
B. Under the Original Agreement, the Parties agreed to a schedule of performance attached as Exhibit C to the Original Agreement (the "Original Schedule of Performance") that anticipated "Entitlement Approval" to occur within two hundred seventy (270) days after execution of the Original Agreement by the City.
C. Entitlements were not approved on or before the deadline set forth in the Original Schedule of Performance.
D. Under the Original Agreement, the Parties agreed to an Escrow Closing Date with the expectation that Entitlements would be approved on or before the deadline set forth in the Original Schedule of Performance.
E. Under Section 6.1.1 of the Original Agreement, the Parties had agreed that the Developer would use commercially reasonable efforts to submit applications for an allocation of TEBs and a reservation of the Tax Credits by the deadline for the CDLAC and TCAC allocation and reservation meetings first occurring after receipt of all Entitlements, with reference to CDLAC's and TCAC's allocation and reservation meetings in 2022, 2023, and 2024.
F. The purpose of this First Amendment is to update the Original Schedule of Performance to delete the deadline for Entitlements approval, which have been approved by the City Council contemporaneously with this First Amendment, and to extend the Escrow Closing Date amend Section 6.1.1 of the Original Agreement, and extend other Project-related deadlines in the Original Schedule of Performance to be consistent with the forgoing purposes.
G. Section 4.5 of the Original Agreement allows a modification to the Original Schedule of Performance so long as the City Council approves any such modification that results in a change of the Original Project Completion Date by more than one hundred and eighty (180) days. The City Council has duly considered and approved this First Amendment at a regular meeting held on October 10, 2023.
DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C
1603\46\3608651.2 2
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Escrow Closing Date. The definition of "Escrow Closing Date" set forth in Section 1.1.33 of the Original Agreement shall be modified by deleting the date "December 31, 2023" and replacing it with "December 31, 2025."
2. TEBs and Tax Credit Financing. Section 6.1.1 of the Original Agreement shall be modified by:
a. Deleting the following sentence: "If Developer does not receive the allocation of TEBs and Tax Credits as a result of such application, the Developer agrees to use commercially reasonably efforts to submit applications for an allocation of TEBs and a reservation of the Tax Credits in the remaining cycles of CDLAC’s and TCAC’s allocation and reservation meetings for 2022 and the cycles of CDLAC’s and TCAC’s allocation and reservation meetings for 2023, and, subject to extensions approved pursuant to Section 4.5, the cycles of CDLAC’s and TCAC’s allocation and reservation meetings for 2024." (the " Deleted Sentence"), and
b. Replacing the Deleted Sentence with the following sentence: "If Developer does not receive the allocation of TEBs and Tax Credits as a result of such application, the Developer agrees to use commercially reasonably efforts to submit applications for an allocation of TEBs and a reservation of the Tax Credits in the remaining cycles of CDLAC’s and TCAC’s allocation and reservation meetings for 2024 and the cycles of CDLAC’s and TCAC’s allocation and reservation meetings for 2025, and, subject to extensions approved pursuant to Section 4.5, the cycles of CDLAC’s and TCAC’s allocation and reservation meetings for 2026."
3. Exhibit C. Exhibit C to the Original Agreement shall be deleted in its entirety and replaced with Replacement Exhibit C attached to this First Amendment.
4. No Other Changes to the Original Agreement; Incorporation. Except as expressly modified by this First Amendment, all other provisions of the Original Agreement remain unmodified and continue in full force and effect being incorporated fully herein by this reference.
5. Conflicts with the Original Agreement. In the event of any conflict between this First Amendment and the Original Agreement, the provisions of this First Amendment shall prevail.
6. Effective Date. This First Amendment shall be effective on the date first set forth above.
7. Counterparts. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The signature of a party to any counterpart shall be sufficient to DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C
1603\46\3608651.2 3
legally bind such party. Delivery of an executed counterpart of a signature page to this First Amendment by telecopy, emailed portable document format (“pdf”), or tagged image file format (“tiff”) or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of an original executed counterpart of this First Amendment.
Any party sending an executed counterpart of a signature page to this First Amendment by telecopy, pdf, tiff or any other electronic means shall also send the original thereof to the other within five (5) days thereafter, but failure to do so shall not affect the validity, enforceability, or binding effect of this First Amendment.
[Remainder of page intentionally left blank]
DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C S-1
1603\46\3608651.2
IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first above written.
CITY:
THE CITY OF BUENA PARK
a California municipal corporation
By: _________________________________
Aaron France,
City Manager
Dated: _________________
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:
ALVAREZ-GLASMAN & COLVIN
By: _______________________
City Attorney
[Signatures continued on following page]
DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C 10/17/2023 | 9:09:27 AM PDT
1603\46\3608651.2 S-2
DEVELOPER:
C & C DEVELOPMENT CO., LLC, a
California limited liability company
Dated: _________________ By: ________________________________ Todd R. Cottle, Trustee of the 2007 Todd R.
Cottle and Jennifer N. Cottle Revocable
Trust, its member
By: ________________________________
Barry A. Cottle, Trustee of
The Cottle Family Trust Dated 3/8/1987,
its member
DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C 10/16/2023 | 2:55:17 PM PDT
REPLACEMENT EXHIBIT C
C-1
1603\46\3608651.2
REPLACEMENT EXHIBIT C
TO
AFFORDABLE HOUSING DISPOSITION AND DEVELOPMENT AGREEMENT Schedule of Performance
ACTION DATE
1. Developer Inspections; Condition of the
Site. The Developer shall complete its
investigation of the Site (including
obtaining a survey), its physical
condition, the soils and toxic conditions
of the Site and all other matters that may
affect the Developer’s ability to develop
the Site pursuant to this Agreement.
Completed.
2. Submission – Updated Project Budget
and Updated Project Financing. The
Developer shall submit to the City for
review and approval a revised Project
Budget and the proposed Project
Financing.
As a condition to the execution of this
Agreement by the City, and within 20 days
after written request by the City staff from time
to time.
3. SNHP Loan Application, Project Based
Vouchers and County Loan Application
Submittal.
Within sixty (60) days after execution of this
Agreement by the City.
4. Applications and Awards for TEBs and
Tax Credits. The Developer shall make
application to the CDLAC for TEBs and
TCAC for Tax Credits.
In the first tax credit cycle immediately
following Entitlements approval, which is
currently anticipated to be in February 2024
based upon the CDLAC/TCAC schedule and,
if unsuccessful, the remaining cycles of 2024,
and all cycles in 2025, and, subject to Section
4.5, additional cycles in 2026.
5. Opening of Escrow. The City and
Developer shall open an escrow for
conveyance of the Site to the Developer
Within thirty (30) days after reservation of Tax
Credits to Developer by TCAC.
6. Close of Escrow. The Escrow Agent
shall close the escrow and the City shall
convey title to the Site to the Developer,
and the Developer shall accept such
conveyance. This is a deadline for
completion of all conditions to closing.
Within 195 days after reservation of Tax
Credits to Developer by TCAC.
DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C
REPLACEMENT EXHIBIT C
C-2
1603\46\3608651.2
ACTION DATE
7. Submission – Certificates of Insurance.
The Developer shall furnish to the City
duplicate originals or appropriate
certificates of bodily injury and property
damage insurance policies.
Prior to Close of Escrow.
8. Commencement of Construction of
Developer’s Improvements. The
Developer shall commence construction
of the improvements to be constructed
on the Site.
Within 30 days after the Close of Escrow.
9. Completion of Construction of
Developer’s Improvements and
Certificate of Occupancy Issued. The
Developer shall complete construction of
the improvements to be constructed on
the Site.
As soon as reasonably possible, but in any
event within 20 months after commencement
thereof by the Developer.
DocuSign Envelope ID: DC86C965-31A6-43CE-A10E-0E7952C5172C City of Buena Park
City Council Regular Meeting Agenda Report
A. DISCUSS AND PROVIDE DIRECTION FOR TRAFFIC CONCERNS NEAR TAMARACK WAY/DALE STREET/LA
PALMA AVENUE
Meeting
Tuesday, October 22, 2024, 5:00 PM
Agenda Group
STUDY SESSION Item: 9A.
Presented By
Norm Wray, Senior Engineering Technician
Prepared By
Mina Mikhael, Director of Public Works/City Engineer
Approved By
Aaron France, City Manager
DISCUSSION
BACKGROUND:
Staff was requested to evaluate three traffic concerns in the general vicinity of Dale Street and La Palma Avenue.
One concern was high speeds and “corner cutting” on Tamarack Way between Dale Street and La Palma Avenue.
The “corner cutting” was directed towards the right angle turn on Tamarack Way where the street changes from the east/west direction to the north/south direction (see Attachment 1). Residents have expressed concerns that vehicles parked near or around the corner cause southbound and westbound traffic to veer wide when navigating the turn. At the same time, eastbound and northbound traffic often crosses over the centerline, entering the lane of oncoming traffic. This raises concerns about the potential for head-on collisions.
The second concern is with regard to the proposed Dale Townhomes project that is currently undergoing the public hearing process. This project would, if approved, result in the construction of 93 new townhomes on the currently vacant former OSH site located on the southeast corner of La Palma Avenue and Dale Street. The plans for the site would result in the closure and re-location of the current entrances to the site. Residents expressed concerns about the additional traffic the proposed development would add onto La Palma Avenue. Another concern that has been raised is with regard to the proposed new entrance to the property on the La Palma Avenue site, which would be located approximately 350 feet east of the intersection of La Palma Avenue and Dale Street. The primary concern here is whether left turns into and out of the proposed driveway can be made safely, as well as the potential for traffic from the new development onto La Palma to use Tamarack Way as a cut-through route for westbound travel.
The last concern was with respect to northbound traffic at the intersection of Dale Street and La Palma Avenue.
Specifically, staff was asked to review the possibility of changing the northbound outside through lane from a shared through-right configuration to a right-turn only configuration.
EXISTING CONDITIONS – TAMARACK WAY: Tamarack Way is a two-lane, east/west and north/south residential collector street with a Prima Facie speed limit of 25 MPH. It is 1,400 feet long and runs from Dale Street on its western end to La Palma Avenue on its northern end. It is a 40-feet wide, undivided roadway with numerous single- family residential driveways fronting both sides. Two local residential roadways intersect Tamarack Way between its limits – Hickory Drive and Teakwood Circle. Parking is generally allowed on both sides of the roadway. The road has a 90 degree bend where it changes from and east/west street to a north/south street (see Attachment 1).
ANALYSIS: In response to the concerns in the area, staff conducted a thorough field review of the existing conditions on the roadway, collected traffic volumes, speeds and collision history on Tamarack Way.
Staff’s field review indicated all traffic controls to be adequately and appropriately present on the roadway. With regard to the residents’ concern about “cutting the corner” at the 90 degree turn, staff worked with residents to implement a work order to install a small no parking zone on the inside of the turn and stripe a double yellow centerline (two-direction no-passing zone) around the curve. These changes, shown on Attachment 3, have already been installed.
Traffic counts were conducted over a 48-hour period from September 25th to September 26th. The counts were taken at two locations on Tamarack Way: one on the east/west leg and one on the north/south leg. The counts at these locations were used to establish the Average Daily Traffic (ADT) and 85th percentile speeds on the two street segments. See the table below for the details of the traffic counts on Tamarack Way. The count data is also shown on Attachment 2.
Date EB/NB 85th% Speed WB/SB 85th%
Speed
ADT
East/West Leg 09/25/24 28 MPH (EB) 28 MPH (WB) 974
East/West Leg 09/26/24 28 MPH (EB) 30 MPH (WB) 996
North/South Leg09/25/24 26 MPH (NB) 28 MPH (SB) 984
North/South Leg09/26/24 26 MPH (NB) 28 MPH (SB)1,001
The average 85th percentile speed (speed at which 85% of the traffic is traveling at or below) was measured to be 27 mph. In general, it seems that only 15% of traffic on Tamarack Way is traveling at more than 2 to 3 MPH above the speed limit. The highest speeds encountered were only on the westbound direction of Tamarack, and only on one day (30 MPH on September 26th). Even on this day, 85% of the traffic were at or below a speed only 5 MPH greater than the prima facie limit. The speed information shows that the majority of traffic is traveling at a reasonable speed on this street indicating no speeding concern on Tamarack Way. Furthermore, the average ADT on the roadway was measured to be 989, which is typical for a residential collector street such as Tamarack.
A 5-year collision history revealed three reported collisions on Tamarack. All occurred at the signalized intersection with Dale Street. In each case, one of the vehicles involved in the collision violated the signal indications (driver error). There have been no reported collisions on Tamarack, indicating that the roadway is operating safely.
EXISTING CONDITIONS – LA PALMA AVENUE and DALE STREET: La Palma Avenue is an east/west primary arterial street with three lanes westbound and two lanes eastbound near Dale Street. Its intersection with Dale Street is controlled by a traffic signal. The speed limit on La Palma Avenue in this area is posted at 40 MPH. La Palma Avenue east of Dale Street is approximately 78 feet wide, and west of Dale Street it is approximately 105 feet wide. East of Dale Street, La Palma Avenue is divided by a striped median and two-way left-turn lane. West of Dale Street, La Palma Avenue is divided by a raised concrete median.
Dale Street south of La Palma Avenue is a north/south secondary arterial street with two lanes northbound and three lanes southbound. This portion of the street is approximately 84 feet wide with a posted speed limit of 40 MPH. This portion of the street is divided by a raised concrete median. Dale Street north of La Palma Avenue is also a north/south secondary arterial street. At the intersection with La Palma Avenue there are two lanes in each direction. However, as traffic proceeds north from La Palma Avenue, the street narrows to approximately 64 feet wide and has one lane in each direction. This narrowing is complete by approximately 300 feet north of La Palma Avenue. This section of the street has a posted speed limit of 40 MPH and is divided by a painted median.
ANALYSIS: In response to the resident concerns regarding La Palma and Dale Streets, staff had a consultant perform specific traffic counts, including ADT and turning movement counts on the roadways. The ADT is defined as the average number of vehicles passing a specific point on a roadway on an average day. As shown in Attachment 2, the volume of vehicles on traffic on La Palma Avenue at this location was 26,399 on Septmber 25th and 26,860 on September 26th. These numbers result in an ADT of 26,630 vehicles per day. Per the Buena Park General Plan, La Palma Avenue is designated as a Primary Arterial Street. The General Plan states that this type of roadway is expected to carry an ADT of 20,000 to 30,000 vehicles per day in order to have a Level of Service (LOS) of C. Based on the recent traffic counts, this portion of La Palma Avenue falls into the expected amount of traffic anticipated in the General Plan. Furthermore, the new development’s trip generation memo estimates an increase of 361 vehicles per day and 66 vehicles during the morning and evening peaks hour on La Palma Avenue. This is not expected to negatively impact the existing infrastructure or traffic flow.
Counts on Dale Street south of La Palma Avenue show that the ADT was 14,158 vehicles per day. Counts on Dale Street north of La Palma Avenue shot that the ADT was 5,138 vehicles per day. Turning movement counts at the intersection of Dale Street and La Palma Avenue are shown in Attachments D and E. Based on the request to remove one northbound through lane and replace it with a right turn only lane, the primary interest in the turning movement counts is comparing the northbound right turns and northbound through movements. See the table below for a comparison of these movements. Peak hour turning movements are shown on Attachment 5.
Date Total NB
Right TurnTotal NB ThroughTotal Peak Hour
Right Turn Total Peak Hour Through
09/25/24 3,173 1,070 198 139
09/26/24 3,090 1,063 225 116
The data shows that the overall demand for northbound right turns is about triple the demand for northbound through movements.
The Buena Park General Plan has a goal that all signalized intersections perform at a level of service of “D” or better. Level of service, or “LOS,” is a qualitative description of traffic at a location and compares (in this case) the volume of traffic at an intersection to the intersection’s actual capacity. LOS values range from A to F, and the lower values indicate the likelihood of longer delays to traffic at an intersection. An analysis of the LOS of this intersection shows that it currently operates at a LOS of B, and it will continue to have a LOS of B if the northbound lane changes are made.
With regard to concerns about the safety of vehicles making left turns into and out of the new development, staff has conditioned the developer to make changes to the median in this area. The developer will install raised concrete medians and striping that will create a protected west bound left turn lane for entry to the site, and a protected westbound acceleration lane. These lanes will serve two functions. For westbound turns into the property, vehicles will be able to pull out of the through traffic lanes and wait for breaks in eastbound traffic in order to safely make their turn. For left turns out of the property, the acceleration lane will provide a location for vehicles to turn into and then be able to wait for a break in westbound traffic before merging. This turns a one-stage movement across two directions of traffic into two different one-stage movements that only have to move across one direction of traffic. This proposed layout is shown on Attachment 4.
NEXT STEPS: With regard to Tamarack Way, staff has already implemented no parking zones and striping changes to address the concerns. There are no additional recommendations at this time. However, staff will continue to monitor the roadway for any conditions that might be warranted.
With regard to La Palma Avenue, staff will require the developer to implement the protected left-turn in and left-turn out islands at the new driveway. These changes could be implemented during the construction phase of this private development project.
Given the above findings, the northbound lanes of Dale Street at La Palma Avenue can be reconfigured. On the south side of the intersection, staff will convert the northbound outside through lane to a right-turn only lane. On the north side of the intersection staff will reconfigure the lanes to remove the outside through lane.
The lane configuration changes on Dale Street south of La Palma will be implemented in the next two to three weeks, while changes on Dale street north of La Palma will be implemented in coordination with the Annual Pavement Rehabilitation Project in summer 2025.
BUDGET
The proposed changes will cost approximately $1,500. This cost would be borne by the existing signing and striping budget.
Attachments
Attachment_1.pdf
Attachment_2.pdf
Attachment_3.pdf
Attachment_4.pdf
Attachment_5.pdf
DALE ST
LA PALMA AVE
TAMARACK WAYTAMARACK WAYTEAKWOOD CIR
HICKORY DRHOLLYOAK ST
BLACKBERRY CIRBEGONIA CIRBELLFLOWER DR
CITY OF ANAHEIMCITY OF BUENA PARK
DALE ST
LA PALMA AVE
TAMARACK WAYTAMARACK WAYTEAKWOOD CIR
HICKORY DRHOLLYOAK ST
BLACKBERRY CIRBEGONIA CIRBELLFLOWER DR09/25/24EB:11,534WB:10,677COMBINED:22,21109/26/24EB:11,652WB:10,896COMBINED:22,548 09/25/24EB:12,454WB:13,945COMBINED:26,39909/26/24EB:12,378WB:14,482COMBINED:26,860 09/25/24NB:2,615SB:2,551COMBINED:5,16609/26/24NB:2,593SB:2,516COMBINED:5,109 09/25/24NB:7,948SB:6,266COMBINED:14,21409/26/24NB:7,796SB:6,305COMBINED:14,101 09/25/2485TH NB:26 MPH85TH SB:28 MPHADT:98409/25/2485TH NB:26 MPH85TH SB:28 MPHADT:1,001 09/25/2485TH EB:28 MPH85TH WB:28 MPHADT:97409/25/2485TH EB:28 MPH85TH WB:30 MPHADT:996 SHEET 1 OF 1CITY ENGINEER R.C.E. NO. 40764
R E V I S I O N SNO. R E F E R E N C E S APPROVED:
DRAWING NO.REV.DATEBYDESCRIPTIONAPPR.DATE BENCH MARKDATEPREPARED UNDER THE DIRECTION OF:
DATE
REVIEWED BY CITY STAFFTRAFFICENGINEERINGUTILITIESSTREETINSPECTION INITIALDATEDRAWN BY:
CHECKED BY:NORM WRAY N / A CITY OF BUENA PARKDALE ST / LA PALMA AVE / TAMARACK WAYOVERVIEW OF COUNT LOCATIONS FOR : INDICATES THE LOCATION FOR A 48 HOUR SPEED AND VOLUME COUNT (2 TOTAL) : INDICATES THE LOCATION FOR A 48 HOUR VOLUME COUNT (4 TOTAL) : INDICATES THE LOCATION FOR A 48 HOUR TURNING MOVEMENT COUNT (1 TOTAL)NOTES:1.VOLUME AND SPEED COUNT LOCATIONS ARE APPROXIMATEAND MAY BE ADJUSTED IN THE FIELD BASED ON THE NEEDSOF THE COUNTING EQUIPMENT.2.IF ADJUSTED, THE EXACT LOCATION SHALL BE RECORDEDFOR LATER INCORPORATION INTO THIS MAP. 40'20'20'
40'20'20'
15'15'
50'
50'BCR
ECRTAMARACK WAY
INSTALL NEW TWO-DIRECTIONNO-PASSSING ZONE PER CALTRANSSTD PLAN A20A DETAIL 22. (180')
INSTALL NEW REDCURB AS SHOWN
EX. HYDRANT
TAMARACK WAY
20'
NOTES:1.ALL NEW STRIPING SHALL BE 2 COATS PAINT WITHRETROREFLECTIVE BEADS APPLIED TO EACH COAT.2.ALL NEW STRIPING SHALL BE PER CURRENT CALTRANSSTD. PLANS AND SPECIFICATIONS.
2151391985525141066OUTINTOTAL
706938491177314OUTINTOTAL
496552439497921741OUTINTOTAL2
2025391268679231790OUTINTOTAL00
0 NOTES:1.COUNTS ABOVE WERE COLLECTEDON 09/25/24.2.COUNTS ABOVE ARE THE PEAK HOURRESULTS OF A 24 HOUR COUNT.3.PEAK HOUR WAS FOUND TO BE 17:15TO 18:15.4.TOTAL PHF WAS 0.9525.TOTAL ENTERING VOLUME WAS 2,545 2001162255435141057OUTINTOTAL2
6175725010719101981OUTINTOTAL
1946759896710572024OUTINTOTAL0
757035455180275OUTINTOTAL0
3 NOTES:1.COUNTS ABOVE WERE COLLECTEDON 09/26/24.2.COUNTS ABOVE ARE THE PEAK HOURRESULTS OF A 24 HOUR COUNT.3.PEAK HOUR WAS FOUND TO BE 17:15TO 18:15.4.TOTAL PHF WAS 0.9405.TOTAL ENTERING VOLUME WAS 2,761 City of Buena Park
City Council Regular Meeting Agenda Report
B. DISCUSS AND PROVIDE DIRECTION REGARDING AN EVALUATION OF THE NEED FOR AN ADULT SCHOOL
CROSSING GUARD AT THE INTERSECTIONS OF CAMELLIA DRIVE AT COLUMBINE CIRCLE/PERIWINKLE DRIVE
AND CAMELLIA DRIVE AT CALLALILY CIRCLE
Meeting
Tuesday, October 22, 2024, 5:00 PM
Agenda Group
STUDY SESSION Item: 9B.
Presented By
Deepthi Arabolu, P.E., T.E., Assistant City Engineer
Prepared By
Mina Mikhael, Director of Public Works/City Engineer
Approved By
Aaron France, City Manager
DISCUSSION
EXISTING CONDITIONS:
City staff was recently contacted about placement of an adult school crossing guard at intersections of Camellia Drive at Columbine Circle/Periwinkle Drive and Camellia Drive at Callalily Circle (Attachment 1).
Camellia Drive is a two-lane, north/south residential collector street with a Prima Facie speed limit of 25 MPH. It is 3,100 feet long and runs from Poinsettia Drive on its northern end to La Palma Avenue on its southern end. It is a 40-feet wide, undivided roadway with numerous single-family residential driveways fronting both its sides. Several local residential roadways intersect Camellia Drive between its limits. Parking is allowed on both sides of the roadway. Dysinger Elementary School (part of the Centralia Elementary School District) is located on the east side of the roadway.
Columbine Circle is a two-lane, east/west local residential cul-de-sac street with a Prima Facie speed limit of 25 MPH. The street is approximately 450 feet long and intersects Camellia Drive on its eastern end. It is 28-feet wide, undivided roadway with many single-family residential driveways fronting both its sides. Parking is allowed on both sides of the roadway.
Periwinkle Drive is a two-lane east/west local residential street with a Prima Facie speed limit of 25 MPH. It is approximately 110 feet long, and intersects Camellia Drive on its western end. It dead-ends on its eastern end. It is a 40-feet wide, undivided roadway and serves just one single-family residential home on its south side. On its north side, it provides access to a service road into Dysinger Elementary School.
Perwinkle Drive and Columbine Circle intersect Camellia Drive in an off-set manner forming two “T” intersections; the two legs are offset approximately 50 feet apart. This offset intersection is currently an all-way stop controlled intersection. The northerly Columbine Circle intersects Camellia Drive from the west side, forming a stop controlled “T” intersection. Southbound traffic on Camellia Drive is stop controlled at the northerly Columbine Circle. The southerly Periwinkle Drive intersects Camellia Drive from the east side, forming a stop controlled “T” intersection as well. Northbound traffic on Camellia Drive is stop controlled at southerly Periwnkle Drive. There is a marked school crosswalk across Camellia Drive at Periwinkle Drive and across Columbine Circle at Camellia Drive. The elementary school is located on the northeast corner of this intersection
Approximately 500 feet north of this crosswalk exists another uncontrolled crosswalk at the intersection of Camellia Drive at Callalily Circle. Callalily Circle is a two-lane, east/west local residential cul-de-sac street with a Prima Facie speed limit of 25 MPH. The street is approximately 450 feet long and intersects Camellia Drive on its eastern end. It is 28-feet wide, undivided roadway with many single-family residential driveways fronting both its sides. Parking is allowed on both sides of the roadway. Callalily Circle eastbound is stop controlled at Camellia Drive.
PEDESTRIAN/TRAFFIC VOLUMES – (School Peak Hours)
Warrant Analysis – California Manual on Uniform Traffic Control Devices (CA MUTCD)
Location Date/Time Vehicles Per Hour Pedestrians Per Hour Actual Warrant Actual Warrant
Crossing
Camellia Drive
@ Columbine
Circle (South
Leg)
09/04/2024
7:30 – 8:30 AM
385 500 16 40
09/04/2024
1:00 to 2:00 PM
245 500 27 40
Crossing
Columbine
Circle @
Camellia Drive
(West Leg)
09/04/2024
7:30 – 8:30 AM
20 500 10 40
09/04/2024
1:00 to 2:00 PM
38 500 7 40
Crossing
Camellia Drive
@ Callalily
Circle (South
Leg)
09/04/2024
7:30 – 8:30 AM
260 350 27 40
09/04/2024
1:00 to 2:00 PM
218 350 48 40
Crossing
Callalily Circle
@ Camellia
Drive (West
Leg)
09/04/2024
7:30 – 8:30 AM
29 500 18 40
09/04/2024
1:00 to 2:00 PM
36 500 26 40
ANALYSIS:
Staff conducted pedestrian and vehicle counts at this location to evaluate the need for an adult school crossing guard in response to a recent request from Centralia Elementary School District.
The CA MUTCD’s warrant for the assignment of an adult school crossing guard has a basic requirement of at least 40 elementary school children crossing per hour for any two hours of the day. Additionally, for an uncontrolled crossing in an urban area, like Camellia Drive at Callalily Circle, the warrant requires there be at least 350 opposing vehicles conflicts per hour during the same two hours of the day when children are present for an uncontrolled crossing. For a STOP controlled crossing, the warrant requires that there be at least 500 opposing vehicle conflicts during the same time period. Both the basic and the traffic volume elements of the warrant must be met to justify the assignment of a crossing guard.
In addition, the CA MUTCD requires that any STOP controlled crossing must be an undivided roadway with four or more approach lanes to qualify for a crossing guard. For the intersection of Camellia at Columbine, both approaches are stop controlled but neither is a four-lane undivided roadway. Lastly, the CA MUTCD requires that if a crosswalk is not controlled by either a STOP or a traffic signal, it must be at least 600 feet away from a crossing that is controlled by a STOP or a traffic signal. In the case of Camellia at Callalily, the crosswalk is uncontrolled, but is under 500 feet from a crossing that is STOP controlled.
Additionally, staff collected traffic volumes, speeds and collision histories on Camellia Drive. A spot speed survey was conducted to assess the speeds at which drivers are traveling. The results indicated that the 85th percentile speed—the speed at or below which 85% of drivers are traveling—was measured at 28 mph, suggesting there is no speeding issue on the roadway. The Average Daily Traffic (ADT) was measured to be 1,111 vehicles, which is typical of a residential collector roadway such as Camellia Drive. The five-year collision history indicated no reported accidents, indicating the roadway to be operating with an excellent safety record.
CITY COUNCIL OPTIONS:
Based on current volume counts and requirements of the CA MUTCD, the intersections did not meet the necessary warrants for the assignment of an adult school crossing guard. A warrant is a criteria used as a threshold for uniformity and to justify taking an action. The final authority of recommending an Adult School Crossing Guard at these locations rests with the City Council. Should the Council wish to add a crossing guard to a location near Dysinger School, the cost is approximately $15,000 per year.
Based on field observations and a review of the existing traffic controls along the roadway, staff is proposing changes to the roadway striping to enhance traffic safety and flow in the area surrounding the school:
1. Establish a right-turn-only lane into the school drop-off and pick-up area, which would involve creating an approximately 150-foot "No Stopping Any Time" zone north of Periwinkle Drive.
2. Remove 20 feet of parking space in front of all crosswalks on Camellia Drive to enhance pedestrian safety and prevent vehicles from parking too close to the crosswalks.
3. Implement a striped centerline no-passing zone on Camellia Drive near the school.
4. Implement a striped centerline passing-zone on the remainder of Camellia Drive outside of the school area.
See Attachment 2 for an overview of these recommendations. With City Council direction, staff will collaborate with the District on these recommendations before issuing a work order for implementation.
The proposed changes will cost approximately $3,000. This cost would be borne by the existing signing and striping budget.
Attachments
Att 1 of 2.pdf
Att 2 of 2.pdf
8301B
8283
8285
8376
LA PALMA AVE
BEACH BLVD
STANTON AVE
CAMELLIA DR
COLUMBINE CIR
PERIWINKLE DR
DYSINGER
ELEMENTARY
SCHOOL
AFFECTED AREAS
ATTACHMENT 1
CALLALILY CIR
108'20'20'
20'20' 10'10'20'
CACTUSCIR
CORNFLOWERCIR
COLUMBINECIR
PERIWINKLEDRCAMELLI A DR
20' 20'20'20'
20'20' 20'20'
20'
CALLALILY CIR
CANNA CIR
CLOVER WAYCAMELLI A DR
CAMELLIA DRIVEPROPOSED SIGNING AND STRIPING IMPROVEMENTS
REFRESH EXISTING RED CURBNEAR FIRE HYDRANT
REFRESH EXISTING RED CURBNEAR FIRE HYDRANT
NO STOPPING ANY TIMERIGHT TURN ONLY
LEGENDPROPOSED SIGNPROPOSED RED CURBREFRESH EXISTING RED CURB
INSTALL RED CURBINSTALL RED CURB
REFRESH RED CURBINSTALL RED CURBREFRESH EXISTING RED CURBNEAR FIRE HYDRANT
INSTALL RED CURB
INSTALL RED CURBINSTALL RED CURB
City of Buena Park
City Council Regular Meeting Agenda Report
C. DISCUSS AND PROVIDE DIRECTION REGARDING A PILOT PROGRAM FOR RESIDENTIAL WILDLIFE SPRAY
DETERRANT DEVICES
Meeting
Tuesday, October 22, 2024, 5:00 PM
Agenda Group
STUDY SESSION Item: 9C.
Presented By
Jessica Fewer, Senior Management Analyst
Prepared By
Eddie Fenton, Assistant City Manager/Director of Human
Resources
Approved By
Aaron France, City Manager
DISCUSSION
On September 20, 2024, Mayor Sonne calendared discussion regarding the city purchasing wildlife deterrent devices for residents to use in the community. Wildlife venturing into residential neighborhoods (e.g. coyotes, skunks, squirrels, etc.) continues to be an issue within the community. Previously, the City's animal services contractor, the Southeast Area Animal Control Agency (SEAACA), would set traps for wildlife animals or feral cats.
However, a few year back, the California Department of Fish and Wildlife changed their policies and they no longer authorize SEAACA (or animal control agencies in general) to relocate healthy wildlife. (SEAACA can still respond to sick, injured or deceased wildlife animals or those who have made physical contact with humans or domestic animals.)
While trapping and relocating wildlife is no longer an option, there are other ways to deter these animals from traversing neighborhood properties or co-habitating on a property. First, there are many ways to deter these types of animals from residential areas, including trimming back shrubs and bushes, only feeding domestic animals indoors, storing trash in receptacles, keeping grounds free of fallen/rotting fruit, and not mass feeding feral cats, birds or other wildlife outside the home. Attachment 1 has a full list of wildlife tips from SEAACA.
Additionally, there are numerous devices that can be purchased to try to deter wildlife, including repellent spray, motion-activated water spraying devices, motion-activated repellent spray devices, and solar ultrasonic deterrent devices. From online reviews, the ultrasonic deterrent devices may be effective while not involving sprinkling pellets or spraying deterrent. Most of the ultrasonic devices are solar-powered and less than $50 each. As with any deterrent, the devices may or may not work on various types of animals or could only deter them for a period of time.
Given the cost of the ultrasonic item and the unknown time frame a resident would need to use the device to be effective, a City-funded rebate program may work better than a rental program. This way, the resident could choose and purchase the specific device for their property and later be reimbursed by the City. This pilot wildlife deterrent program could be funded initially with $1,000 (or another amount selected by the City Council) and be available to residents until funds are depleted each fiscal year. Ultrasonic devices range from roughly $25 to $50, so residents could purchase the product and then be reimbursed by the City upon proof of installation. Residents could be limited to two devices per property address. The program could be limited to single-family residences initially with the potential to be expended to multi-family units, if requested in the future. Staff is seeking City Council direction regarding the scope of the proposed pilot program as well as if the City Council wants to limit the devices to only ultrasonic devices or allow other deterrent devices to be part of the rebate program.
Attachments
Wildlife Information Public March 2019.pdf
Wildlife Information
SEAACA receives many calls regarding wildlife sightings and wildlife in traps. SEAACA can respond to calls for wildlife that are sick, injured, deceased or has had physical contact with a human or domestic animal. After consultation with the State of California Department of Fish and Wildlife, SEAACA is not authorized to relocate healthy wildlife.
To comply with State Law effective May 15, 2014, we will not routinely respond to sightings or healthy wildlife in traps. Should wildlife be inadvertently trapped, we will offer guidance and appropriate assistance to the resident. We have wildlife information flyers that we can send to residents and also information posted on our website for reference.
If you have contained a wild animal or have nuisance wildlife, you may release it or contact a state licensed trapper or pest control service for assistance. You may obtain more information online on the Department of Fish and Wildlife’s website (wildlife.ca.gov) or by phone (858) 467-4201 for more information on the laws pertaining to urban wildlife and their protection. For a listing of licensed trapper’s you can look in your local phone listings.
The following are helpful tips to discourage wildlife activity in residential neighborhoods:
Cats and small dogs should be kept indoors. When cats and small dogs are allowed outside they should be supervised closely.
Do not feed pets outdoors. Do not leave food of any kind outside at night. Food left out at night will be taken as a welcome invitation by wildlife and may prompt a future visit. Keep pet food indoors. If you must feed your pet outdoors, you should immediately pick up the food when your pet has finished eating.
Keep grounds around trees free from fallen/rotten fruit and leaf litter. Store trash in securely covered heavy-duty containers. Keep yard landscaping well maintained to minimize hiding or potential sheltering areas. Enclose the bottoms of porches and decks. These can be potential sheltering areas for wildlife. Eliminate garbage, debris, lumber piles, etc. from the property which can be potential sheltering areas for wildlife. Keep property fencing well maintained and try to eliminate access points to roof tops by trimming trees branches and vines that are close to the house.
Make sure pets are up to date on their vaccines and licenses. Consider using animal repellant products available on the internet or in stores to deal with nuisance wildlife animals.
Please remember that if any of the three (3) life sustaining elements (food, water and shelter) are available on the property, you are more likely to encounter some wildlife in your yard.
March 2019
seaaca.org/wildlife