K. Perfect Union did not cure all of the breaches cited by the City Attorney’s March 3, 2021 Notice of Breach letter within the 30-day period provided. Specifically, Perfect Union failed to obtain all Subsequent Approvals and open for business by the end of the cure period, or to commence the cure during the cure period and diligently prosecute it to completion. Further, pursuant to Government Code section 64865(a) and the Third District Court of Appeal’s analysis in Mitracos v. City of Tracy, Perfect Union’s lack of legal or equitable interest in the Property at the time the Development Agreement was executed is not a curable breach and rendered the Development Agreement void. Perfect Union has never provided any contrary evidence to show it had a legal or equitable interest in the Property when the Development Agreement was executed, or on or before its effective date. Thus, the evidence shows that Perfect Union did not actually have the requisite legal or equitable interest in the Property when the Development Agreement was entered into or on or before its effective date.
L. On May 13, 2021, the Planning Commission held a public hearing and passed Resolution No. 2021-08 suspending Perfect Union’s cannabis use permit under South Lake Tahoe City Code section 6.55.780 pending the outcome of the termination proceedings, and recommending that City Council adopt an ordinance terminating the Development Agreement.
M. On June 1, 2021, the City Council held a first reading (by title only) and referred a second reading and adoption to June 15, 2021, to terminate the Development Agreement. On June 15, 2021, the City Council adopted Ordinance No. 2021-1155 terminating the Development Agreement on the grounds that Perfect Union breached the Development Agreement by failing to obtain all Subsequent Approvals and be open for business by the deadline of February 13, 2021, which automatically terminated the associated Cannabis Use Permit under South Lake Tahoe City Code section 6.55.780(D).
N. On September 22, 2021, Perfect Union filed a lawsuit against the City (El Dorado County Superior Court Case No. SC20210172), alleging breach of contract and seeking relief including damages, specific performance, and injunctive relief against the City.
O. During discovery in the lawsuit, and following a motion to compel, Perfect Union produced documents showing that local owners Scott Peters and Leon Abravanel had arranged to transfer their ownership in the business before any application was even submitted to the City, in violation of the Development Agreement and City Code.
P. Specifically, the documents produced during discovery show that on April 4, 2019, the day before Perfect Union submitted its application for the Development Agreement to the City, Peters and Abravanel executed a Conditional Assignment of Membership Interest (attached hereto as Exhibit “C”) in which they agreed to convey 95 percent of their membership interest in Perfect Union to SLT James, LLC and MWG Holdings Group, Inc. upon issuance of a City 1071
Ordinance 2023-XXX June 20, 2023 Page 4 of 5
license. This appears to have been a fraudulent attempt to structure ownership to achieve the maximum number of points for local ownership at the time the development agreement applications were scored without actually having any local ownership in effect by the time the business began operating. For reasons that have not been disclosed to the City, this ownership transfer does not appear to have been consummated (however, Perfect Union continued to pursue an unauthorized transfer, as discussed below).
Q. The documents produced during discovery in the lawsuit also show that on November 25, 2020 (the same day that Perfect Union applied for an amendment to its Development Agreement to extend the time to open for business and change ownership or control to James Tahoe LLC), Peters and Abravanel executed an Agreement of Purchase and Sale of Membership Interest (attached hereto as Exhibit “D”) in which Peters and Abravanel agreed to sell 99 percent of their interest in Perfect Union to 2227 SLT LLC, an entity for which Melissa Sanchez signed as the Manager, for $100,000. Section 10.1 of the Development Agreement prohibits unauthorized sale, assignment, or transfer of interests in the cannabis business, and states that “any assignment or transfer prohibited by this Agreement will be considered an immediate breach of this Agreement and City may elect to immediately terminate this Agreement.” Additionally, the transfer or attempted transfer of ownership or control of a cannabis business without obtaining approval from the City is void and results in the affected Cannabis Use Permit being deemed revoked under South Lake Tahoe City Code section
6.55.740(C).
Now, Therefore, the City Council of City of South Lake Tahoe does ordain as follows:
SECTION 1. The recitals set forth above are true and correct.
SECTION 2. The City Council reaffirms that Perfect Union breached its Development Agreement by failing to obtain all Subsequent Approvals (as defined in its Development Agreement) and be open for business by the deadline of February 13, 2021.
SECTION 3. The City Council finds that Perfect Union also breached its Development Agreement by attempting and/or actually selling and transferring 99 percent of the local owners’ interest in Perfect Union to 2227 SLT LLC, on November 25, 2020, a breach which entitled the City to immediate termination of the Development Agreement at that time, had Perfect Union not fraudulently withheld information about the sale and transfer of ownership and control until Perfect Union was compelled by the court to disclose it during discovery.
SECTION 4. The City Council finds that Perfect Union also breached the Development Agreement by falsely representing and warranting at the time of its application and execution of the Development Agreement that it had a “legal, possessory, or other equitable interest” in the Property, and that this breach was not cured before the Development Agreement’s effective date of February 13, 2020, and was not curable under Government Code section 64865(a), including as interpreted by the Third District California Court of Appeal (which has jurisdiction of appeals from El Dorado County Superior Court) in Mitracos v. City of Tracy.
SECTION 5. The City Council further finds that the Development Agreement was and is void based on the foregoing findings.
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Ordinance 2023-XXX June 20, 2023 Page 5 of 5
SECTION 5. Based on the foregoing, the City Council reaffirms the termination of the Development Agreement with Perfect Union and further determines that the Development Agreement is and shall be rescinded.
SECTION 6. This Ordinance shall be effective thirty (30) days after its passage and adoption.
Adopted by the City of South Lake Tahoe City Council on August 8, 2023 by the following vote:
Yes:
No:
Abstain:
Absent:
________________________ Date:_________
Cristi Creegan, Mayor
Attest:
________________________
Susan Blankenship, City Clerk
First Reading:
Published:
Effective:
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council.
1073
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Red Flag - Severe Negative Treatment
Unpublished/noncitable
2022 WL 1536636
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
Only the Westlaw citation is currently available.
California Rules of Court, rule 8.1115, restricts
citation of unpublished opinions in California courts.
Court of Appeal, Third District, California.
Mary MITRACOS, Plaintiff and Respondent,
v.
CITY OF TRACY, Defendant and Appellant;
Surland Communities, LLC, Real
Party in Interest and Appellant.
C093383
|
Filed 5/16/2022
Attorneys and Law Firms
Mark V. Connolly, Attorney at Law, P.O. Box 1109, Tracy, CA 95378, for Plaintiff and Respondent.
Kevin Drake Siegel, Nicholas Joseph Muscolino, Burke,
Williams & Sorensen LLP, 1901 Harrison Street, Suite 900, Oakland, CA 94612, Leticia Ramirez, City Attorney, City of Tracy, 333 Civic Center Plaza, Tracy, CA 95376-4062, for Defendant and Appellant.
Steven A. Herum, Joshua Jonathan Stevens, Herum Crabtree Suntag, 5757 Pacific Avenue, Suite 222, Stockton, CA 95207, for Real Party in Interest and Appellant.
Matthew Cable Henderson, Miller Starr Regalia, 1331 N.
California Blvd., 5th Floor, Walnut Creek, CA 94596, for Appellant.
Rick W. Jarvis, Jarvis, Fay & Gibson, LLP, 555 12th Street, Suite 1630, Oakland, CA 94607, for Appellant.
(Super. Ct. No. STK-CV-UWM-2018-0005531)
Opinion
RAYE, P. J.
*1 Defendant City of Tracy and real party in interest
Surland Communities, LLC (Surland) jointly appeal from the judgment on plaintiff Mary Mitracos’ petition for writ of mandate ordering the city to vacate and set aside the adoption and approval of the “Second Amendment to Amended and
Restated Development Agreement” between the city and
Surland (hereafter the Second Amendment).
The city and Surland contend that the judgment should be reversed, because (1) the trial court wrongly found that sections 1.07(b)(ii) and 1.07(h) of the Second Amendment, allowing property to be added to the city's development agreement with Surland, violated Government Code sections 65865, subdivision (a), and 65865.2;
1 and (2) the court
should have severed sections 1.07(b)(ii) and 1.07(h), rather than invalidating the entire Second Amendment.
We will remand to the trial court to determine the amount of attorney fees Mitracos reasonably incurred defending against this appeal. We will otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, the city recorded a development agreement with Surland. Under the vested rights provisions of the agreement, the city's land use “rules, regulations, ordinances, policies, standards, specifications, practices and standard operating procedures” relating to Surland's development of property in the Ellis Specific Plan area were frozen as of December 1, 2008. In return, Surland committed to provide $10 million towards design, maintenance, operation and construction of a local community swim center and to offer to dedicate up to 16 acres for the swim center site. The term of the agreement was 25 years.
The agreement further provided that Surland was eligible to receive 2,250 “Residential Growth Allotments” (RGAs) from the city. An RGA, as defined by the city's Growth
Management Ordinance, “is an allotment made by the City ... which must be obtained by a developer ... before each
residential building permit is issued by the City .... One RGA is required for each dwelling unit to be constructed.” (Tracy Mun. Code, ch. 10.12, § 10.12.030.) The first 500 RGAs
were dedicated to development within the Ellis Specific Plan area. 2 All remaining RGAs could be used within the Ellis Specific Plan area or applied to other Surland-owned property authorized for development. The agreement required that “[a]s to all property ... Owner [Surland] must have a legal or 1074
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 equitable interest in such property before this Agreement can be recorded against such property.”
*2 On October 31, 2011, the trial court issued a statement of decision on a petition for writ of mandate filed by the Tracy Region Alliance for a Quality Community to enjoin the city from proceeding under the 2009 development agreement.
The court found that (1) “the Development Agreement in
this case is a reservation of future development rights for Surland ... contrary to the plain language and objectives of Section 65865(a)”; and (2) the agreement applied to property outside the Ellis Specific Plan area, thus “there can be no reference to existing regulations or zoning ordinances which can satisfy the requirements of Government Code § 65865.2.” In 2013, the city recorded an “Amended and Restated
Development Agreement” with Surland (hereafter the 2013 DA). The 2013 DA provided that the 2,250 RGAs that
Surland was eligible to apply for and potentially receive were for development of all the property within the Ellis Specific Plan area that Surland owned or had enforceable contracts to purchase.
On May 18, 2018, the city recorded the Second Amendment to the 2013 DA. 3 Under the Second Amendment, Surland
would assume an increased obligation to design and construct the swim center and the city would adopt a process for Surland to apply for and the city to approve the addition of property subject to the 2013 DA. Section 1.07(b)(ii) of the Second Amendment provided in relevant part: “This amendment is designed to permit additional property to be added to and incorporated in to the Development Agreement and therefore become Property of the Development Agreement, and Owner [Surland] may apply for RGAs for Projects and home builders within the Property (whether or not annexed to the [Ellis Specific Plan]) area. Owner shall not apply RGAs subject to this Agreement to other real property unless this property has been added to the Development Agreement as Property pursuant to subsection 1.07(h).”
Section 1.07(h) gave Surland the right to request approval from the city to record the development agreement against additional property if: (1) the property “has been annexed” to the city; (2) Surland has an enforceable right to purchase the property “within the meaning of ‘legal and equitable interest in real property’ as used in current Government Code Section 65865(a)”; (3) Surland agrees to annex the property into the Ellis Specific Plan owners’ association, finance district and finance plan; (4) the development agreement as amended
or modified includes a description of the property; and (5) the city adopts a finding that the property description is not inconsistent with the city's Growth Management Ordinance in the form that existed on the effective date of the 2013 DA.
On May 11, 2018, Mitracos filed a petition for writ of mandate and complaint for declaratory relief against the city, naming Surland as real party in interest, alleging that the Second Amendment violated sections 65865, subdivision (a), and 65865.2 and was therefore void. 4 Surland and the city filed answers to the petition and the parties submitted a brief. The matter proceeded to a court trial, essentially a writ hearing, which was not reported. Mitracos requested a statement of decision.
*3 In the statement of decision, the court found the
Second Amendment “could be recorded against and currently allocated Residential Growth Allotments applied to real property in which [Surland] has no ‘legal or equitable interest’ ” as required by section 65865. The court further found “that the fact the 2018 amendments allow for the annexation of Real Party's after acquired property, and the application of allotted RGAs only upon city council action does not meet the Government Code requirements which exist at the inception of Development Agreements.” The court also found that the Second Amendment did not meet the requirements of section 65865.2 as it “allows RGAs to be used on other unknown
projects and unknown parcels which may or may not have
the Ellis Specific Plan design and planning standards for all infrastructure and site improvements.”
The court entered judgment finding that the city committed a prejudicial abuse of discretion in adopting the Second Amendment, which did not comply with sections 65865,
subdivision (a), and 65865.2, and was therefore void, and ordering the city to set aside, rescind and vacate the Second Amendment and ordinance adopting it.
The city and Surland moved for a new trial, or, in the
alternative, to set aside and vacate the judgment and enter a new and different judgment. The trial court failed to rule on the motion within the statutorily prescribed time, resulting in its denial by operation of law. (Hersey v. Vopava (2019) 38 Cal.App.5th 792, 797, fn. 2; Code Civ. Proc., §§ 660, subd. (c), 663a, subd. (b).)
The city and Surland filed timely appeals.
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Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
DISCUSSION
I
Section 68685
The city and Surland contend that the trial court's
interpretation of sections 1.07(b)(ii) and 1.07(h) of the Second Amendment as violating section 65865 is incorrect. We
disagree.
The standard of review we apply in reviewing the validity of a development agreement is in fact two standards of review, as the court explained in Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221 (Santa Margarita): “A development
agreement is a legislative act (§ 65867.5) and [the city] has the discretion to determine what legislation is necessary and appropriate. A reviewing court will not set aside a legislative act unless it is arbitrary, capricious, or unlawful. [Citations.] On the other hand, courts independently decide purely legal issues such as statutory interpretation.” ( Id. at pp. 227-228.) Thus, a court reviews a development agreement “to determine if it enlarges or impairs the terms of the authorizing statute without deference” to the local legislative body. ( Id. at p. 228.)
The city and Surland argue that the Second Amendment did not violate section 65865, subdivision (a), because (1) section
1.07(b)(ii) of the Second Amendment only allows property to be added to the 2013 DA if Surland owns or has an
enforceable right to purchase property within the meaning of the “ ‘legal and equitable interest in real property’ ” language in section 65865, and (2) section 1.07(h)(iv) of the Second Amendment requires that the 2013 DA contain an amended
description of property subject to the agreement that includes the newly added property. The city and Surland argue that sections 1.07(b)(ii) and 1.07(h) were drafted to address the issues that prompted invalidation of the 2009 development agreement.
However, the 2009 development agreement also contained
a provision requiring Surland to have an interest in
newly acquired property that complied with section
65865, subdivision (a). The difference between the 2009 development agreement and the Second Amendment to the
2013 DA is only that the latter requires amendment of
the property description. The city and Surland deem this requirement to mandate an amendment of the 2013 DA under section 65868.
5 The 2013 DA states: “This Agreement may
be amended from time to time in accordance with California Government Code section 65868 ....”
*4 An amendment requirement does not obviate the core
problem under section 65865, subdivision (a), the Second Amendment, which gives Surland vested rights as of the
effective date of the 2013 DA for property Surland might acquire in the future. This is not permissible under section 65865, subdivision (a), nor is it consistent with the purpose of the development agreement statute.
In Mammoth Lakes Land Acquisition, LLC v. Town of
Mammoth Lakes (2010) 191 Cal.App.4th 435 (Mammoth
Lakes), we summarized the history and purpose of the
development agreement statute: “A development agreement is a statutorily authorized agreement between a municipal government ... and a property owner for the development of the property. (Gov. Code, § 65865, subd. (a).) One
of the main components of a development agreement is
a provision freezing the municipality's rules, regulations, and policies governing permitted uses of land and density of the land use, as well as standards and specifications for design, improvement, and construction. (Gov. Code,
§ 65866.) This provision allows a developer to make
long-term plans for development without risking future
changes in the municipality's land use rules, regulations, and policies.” ( Id. at p. 442, citing Santa Margarita, supra, 84 Cal.App.4th at p. 227.)
“The Legislature enacted the development agreement statutes in response to the California Supreme Court's jurisprudence on vested rights. [¶] Before 1976, developers in California faced changes in land use laws and policies during the course of long-term development of property. When a change in
the land use laws and policies interfered with development already initiated, some developers argued that they had a ‘vested right’ to complete the development despite the changes in the land use laws and policies.” ( Mammoth
Lakes, supra, 191 Cal.App.4th at p. 443, citing Avco
Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791.) “In 1976, the California Supreme Court, in Avco, decided that no right to complete the work vested until the developer obtained a building permit, even 1076
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4 if the developer had already performed substantial work and incurred substantial liabilities on the project.” (Mammoth Lakes, at p. 443, citing Avco, at p. 793.)
“In 1979, the Legislature's enactment of the development agreement statutes provided a way for the municipality and developer to depart from the common law rule of vested
rights.” ( Mammoth Lakes, supra, 191 Cal.App.4th at p.
443.) “The agreements allowed the developer to proceed
with a project with the assurance that the project would be approved based on rules, regulations, and policies existing at the time the development agreement was approved, even if those rules, regulations, and policies changed over the course of the development project. (Gov. Code, § 65864, subd. (b).)” (Ibid.)
In sum, under the development agreement statute,
a municipality could contractually assure a developer
embarking on a long-term development project that local land use regulations and standards would not change
before the developer completed the project. (See Citizens for Responsible Government v. City of Albany (1997)
56 Cal.App.4th 1199, 1213 (Citizens for Responsible
Government) [“Development agreements are creatures of
legislation intended to provide developers with an assurance of their right to carry a project to completion and for which they need to make initial commitments”]; Neighbors in
Support of Appropriate Land Use v. County of Tuolumne
(2007) 157 Cal.App.4th 997, 1013 [“the main purpose of
a development agreement is to freeze existing regulations in order to give the developer assurance that the project will not be blocked by future regulatory changes”]; North Murrieta Community, LLC v. City of Murrieta (2020) 50
Cal.App.5th 31, 41 [“entering a development agreement
allows a builder to rely on the regulations, conditions, and fees that exist at the planning stage when assessing the economics of completing a development that may take years or even decades to complete”]; Sigg, California's Development Agreement Statute (1985) 15 Sw.U. L.Rev.
695, 707 [“Development agreements grant builders a critical benefit which the traditional vested rights rule withheld: they allow a builder to acquire by contract the equivalent of a vested right at an early stage of the project”].)
*5 The language of section 65865, subdivision (a), reflects the Legislature's intent to allow a municipality to enter into an agreement to freeze land use regulations for a developer to complete a project: “Any city, county, or city and county, may enter into a development agreement with any person
having a legal or equitable interest in real property for the development of the property as provided in this article.” (§ 65865, subd. (a), italics added.) The statute speaks in terms of a developer “having” an interest in “the” real property at the inception of the development agreement. It is axiomatic that our primary task in interpreting the development agreement statute, as with any statute, is to determine the Legislature's intent, giving effect to the statutory purpose, of which the words of the statute are the most reliable indicator. (Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689, 698 (Center for Community Action).)
The Legislature's declaration in section 65864, subdivision (b), underscores that the purpose of the statute is to facilitate completion of development projects: “The Legislature finds and declares that: [¶] ... (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development.” (§ 65864, subd. (b); see also Sigg, supra, 15 Sw.U. L.Rev. at p. 708 [“Perhaps the primary attraction development
agreements hold for builders is their potential for reducing the uncertainty over whether the builder will be able to complete a large-scale project”].)
In service of the statutory objective to facilitate completion of projects, section 65865, subdivision (a), imposes the threshold requirement that the developer actually have a legal or equitable interest in the property to be developed.
Put another way, the statute is not designed to facilitate development speculation.
The amendment provisions of the development agreement
statutes do not alter or expand the limited purpose of
the statutes to freeze land use regulation for a developer to complete a project. The city and Surland argue that
“sections 65867.5(a) and 65868 ... authorize cities to amend development agreements via duly-adopted ordinance, without any limitation on the nature and scope of the amendment.” Not so. While these statutes are content neutral, describing only the parties’ ability to amend the agreement by mutual consent and the process to do so, that does not mean a
municipality has free rein to do by amendment what it
cannot do in the initial agreement in compliance with section 1077
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 5 65865, subdivision (a). The provisions of the development agreement statutes must be interpreted “ ‘consistent with the purpose of the statute and statutory framework.’ ” (Center for Community Action, supra, 26 Cal.App.5th at p. 698.) The limitation imposed by section 65865, subdivision (a), applies equally to an amendment under section 65868 as to the initial agreement.
Both sides cite National Parks & Conservation Assn. v.
County of Riverside (1996) 42 Cal.App.4th 1505 (National Parks), in support of their respective positions. In National Parks, the court upheld the validity of a development
agreement where the developer did not have fee title to all of the land under the agreement. ( Id. at p. 1521.) The city and Surland argue National Parks concluded that a development agreement is consistent with section 65865, subdivision (a), if “ ‘it does not bind the use of the land unless and until the land transfer is accomplished,’ ” quoting National Parks, at page 1523. Mitracos argues that, “[i]n National Parks, the [development agreement] was NOT effective until the developer identified the property to be included and acquired an interest in all of that property. [Citation.] In National Parks there was no [development agreement] and no vested rights conveyed to any property until those conditions precedent occurred.” Mitracos has the better argument.
*6 In National Parks, the challenger to a development
agreement between a developer proposing to site a landfill in a former mine and the county contended that the former could not enter into the agreement, because part of the landfill site was owned by the federal Bureau of Land Management (BLM), which had agreed to a land exchange that had yet to be completed. ( National Parks, supra, 42 Cal.App.4th at p. 1512.) The trial court held that the development agreement was valid under section 65865, subdivision (a), because the agreement by its terms would not become effective until the developer acquired a fee interest in the BLM property, the developer already owned the bulk of the land, and it was reasonably foreseeable the developer would acquire the BLM land. (National Parks, at p. 1513.) The appellate court agreed. The development agreement expressly provided that it was not effective until the developer acquired fee interest in the BLM property. ( Id. at p. 1521.) The court observed:
“The record shows the County has a policy not to execute development agreements until the developer has the requisite interest in the land. The condition of [the developer] acquiring the fee interest in the property was required by the County to comply with the terms of the Government Code section 65865, subdivision (a).” (Ibid.)
There is no similar delay in the effective date of the 2013 DA under the Second Amendment. Surland did not need
to acquire fee title, or any other legal or equitable interest, in land to be added to the 2013 DA for the agreement to become effective. Under the Second Amendment, the 2013
DA was immediately effective and recorded as of March
2013, giving Surland vested rights for property that Surland had not acquired, was not in the process of acquiring, or had even identified.
We conclude the Second Amendment was not in compliance
with section 65865, subdivision (a), and the city abused its discretion in adopting the ordinance approving the Second Amendment.
II
Section 65865.2
Section 65865.2 “identifies the necessary terms in a
development agreement, including duration, permitted uses, density of development, size of buildings and dedication of land for public purposes.” ( Citizens to Enforce CEQA
v. City of Rohnert Park (2005) 131 Cal.App.4th 1594,
1599; see Citizens for Responsible Government, supra, 56 Cal.App.4th at p. 1214.)
The 2013 DA states that it complies with the requirements of section 65865.2: “The duration of this Agreement is set forth in Section 1.06 of this Agreement, and this Agreement sets forth provisions for the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, and the dedication of land for public purposes in the Applicable Law provisions of this Agreement, either by its terms or through its incorporation of the General Plan and the 2013 Ellis Specific Plan.”
The Second Amendment states that Surland “intends to
annex to the Ellis Property Owners Association all real property which is subsequently subject to the Development Agreement,” and “such other real property may adopt the Ellis Specific Plan design and planning standards for all infrastructure and site improvements.” (Italics added.) 1078
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 6 Thus, with respect to property added to the 2013 DA, the Second Amendment does not set forth the permitted uses, density of development, and size of buildings mandated by section 65865.2 for property subject to the development agreement. In effect, no standards were specified for afteracquired property but only an intention to consider the Ellis Specific Plan specifications. The Second Amendment thus does not comply with section 65865.2.
The city and Surland argue that the section 65865.2
compliance issue is not ripe because no additional property has been acquired by Surland and added to the 2013
DA by the process set forth in sections 1.07(b)(ii) and
1.07(h) of the Second Amendment. We disagree. Whether
a development agreement contains required terms is an
issue ripe for decision at the time the agreement was
adopted. (See Trancas Property Owners Assn. v. City of
Malibu (2006) 138 Cal.App.4th 172, 182-183 [rejecting the argument that agreement between the city and developer
exempting development from compliance with zoning
density restrictions was not ripe for review because the development had yet to occur, as the city “has already made impermissible promises and commitments”].)
*7 The city and Surland also claim that the city is
entitled to a presumption that an amendment to the
property description of the 2013 DA under sections
1.07(b)(ii) and 1.07(h) of the Second Amendment will
comply with section 65865.2. “Amendments to development agreements are subject to the provisions of Government
Code section 65867.5. (Gov. Code, § 65868.) Legislative enactments such as these ‘are presumed to be valid; to
overcome this presumption the petitioner must bring forth evidence compelling the conclusion that the ordinance
is unreasonable and invalid.’ [Citation.]” ( Citizens for Amending Proposition L v. City of Pomona (2018) 28
Cal.App.5th 1159, 1187.) We have already concluded sections
1.07(b)(ii) and 1.07(h) of the Second Amendment are not in compliance with section 65865 and the city abused
its discretion in adopting the ordinance approving the
Second Amendment. Any presumption of validity has been
overcome. (See Citizens for Amending Proposition L, at p. 1187 [evidence that city ordinance and contract it authorized violated Prop. L prohibiting new or structurally altered billboards overcame presumption of validity].)
We conclude that the Second Amendment did not comply
with the mandatory requirements of section 65865.2 and, for this reason as well, the city abused its discretion in approving the Second Amendment.
III
Severance
The city and Surland contend that, “[a]ssuming, arguendo, the challenged provisions of the Second Amendment are
unlawful, the trial court committed prejudicial error by rejecting Appellant's argument that they should be severed,” and “invalidating the entirety of the City's legislative approval and the Second Amendment.” They argue that the trial court should have severed sections 1.07(b)(ii) and 1.07(h) for three reasons: “(1) Mitracos failed to exhaust administrative remedies as to the other sections; (2) the overbroad ruling violates the separation of powers doctrine; and (3) Sections
1.07(b)(ii) and (h) are severable from the remainder of the Second Amendment and 2013 DA.”
In fact, the trial court did not reject the severance argument.
Rather, the court simply did not address severance in the statement of decision because it was not raised in the answers Surland and the city filed or their brief in opposition to the petition. The city and Surland first proposed severance in a footnote in their objections to the proposed statement of decision and then again in their motion for new trial.
We conclude that the city and Surland have forfeited the severance issue on appeal. The trial court was not obligated to address objections to the proposed statement of decision premised on new arguments not litigated in the case.
(Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365, 382; Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750 [“A statement of decision ... covers only issues litigated in the case”].) Nor is this court. “ ‘It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried.’ [Citation.]” (Colony, at p. 751.)
A motion for a new trial is also not a vehicle to preserve new theories for appeal. (See Insurance Co. of State of Pennsylvania v. American Safety Indemnity Co. (2019) 32 Cal.App.5th 898, 922 [“New theories that could have been raised, but were not, is not one of the causes that permits a new trial”]; Green v. Healthcare Services, Inc. (2021) 68 Cal.App.5th 407, 419 [“ ‘Appellate courts are loath to reverse 1079
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 7 a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider .... Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier’ ”].)
Moreover, “[w]hether a contract is severable is ‘equitable and fact specific, and its application is appropriately directed to the sound discretion of the ... trial courts in the first instance.’ [Citation.] Accordingly, it cannot be raised for the first time on appeal ....” ( In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498, 1509, quoting Marathon
Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 998 (Marathon); see also Samaniego v. Empire Today, LLC
(2012) 205 Cal.App.4th 1138, 1149.)
*8 In their reply brief, the city and Surland counter “the Court should consider the severance issue regardless of the timing at which it was raised below,” because “[i]t is well established that pure questions of law based on undisputed facts may be raised for the first time on appeal.” The city and Surland argue two of their severance arguments involve “pure questions of law,” i.e., (1) violation of the separation of powers doctrine based on the contents of the writ and the Second Amendment, and (2) contract law severance
based on the language of the Second Amendment. While
this court has discretion “to consider forfeited arguments that raise pure questions of law,” it has no mandatory duty to do so. (Wittenberg v. Bornstein (2020) 51 Cal.App.5th 556, 567; Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 700.) Assuming, for argument's sake, that these are pure questions of law, neither separation of powers principles nor contract law require severance.
Regarding separation of powers, the city and Surland argue that trial court violated separation of powers by interfering with legislative action, i.e., by ordering the city to rescind the ordinance approving the Second Amendment “when the
less invasive remedy of invalidating or voiding the ordinance, to the extent it violates the law, is available.” ( City of Palo Alto v. Public Employment Relations Bd. (2016) 5
Cal.App.5th 1271, 1310 [“ ‘Generally, a court is without power to interfere with purely legislative action, in the sense that it may not command or prohibit legislative acts, whether the act contemplated or done be at the state level [citation] or the local level [citation]. The reason for this is a fundamental one—it would violate the basic constitutional concept of the separation of powers among the three coequal branches of the government’ ”].) They assert “the trial court should have voided and severed Sections 1.07(b)(ii) and (h) from the Second Amendment ....” We conclude that these provisions do not meet the ultimate determination of severability that the city council still would have adopted the remainder of Second Amendment had it foreseen that these provisions would be invalidated.
“If an invalid provision of an initiative or ordinance is severable, it is stricken from the ordinance and the remaining provisions are given effect. [Citations.] When the ordinance contains a severability clause, an invalid provision is severable if it is grammatically, functionally, and volitionally separable. [Citations.] ‘An enactment passes the grammatical test “ ‘where the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase, or even single words. [Citations.].’ ” [Citation.]’ [Citation.] A provision is functionally severable if it is ‘capable of independent application. In order to pass this test
“[t]he remaining provisions must stand on their own,
unaided by the invalid provisions nor rendered vague
by their absence nor inextricably connected to them by
policy considerations.” [Citation.]’ [Citations.] The volitional requirement for severability is met if the voters [or legislative body] likely would have adopted the initiative without the invalid provisions. [Citations.]” ( MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1393; see also Rental Housing Assn. of Northern
Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741, 770 [“ ‘ “Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable....
The final determination depends on whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute ... or constitutes a completely operative expression of the legislative intent ... [and is not] so connected with the rest of the statute as to be inseparable” ’ ”].)
*9 Neither Ordinance No. 1253 approving the Second
Amendment, nor the Second Amendment itself, contain
a severability clause. The 2013 DA, however, does. 6
Assuming, for argument's sake, that this clause is applicable, it is highly questionable whether the city council would have even been afforded the opportunity to adopt an ordinance approving an amendment that required Surland to build the 1080
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 8 swim center, if the parties foresaw that sections 1.07(b)(ii) and 1.07(h) would be invalidated. The Second Amendment
was a trade-off of a very substantial increase in Surland's commitment to build the swim center for vested rights
for development of property yet to be acquired. 7 The
Second Amendment expressly stated that its purpose was “to expand the scope of the proposed Development Agreement
amendment to provide for Owner [Surland] to assume the
obligation to design and construct the proposed Swim Center, and to describe a process by which other real property could become subject to the Development Agreement ....” Surland agreed to design and construct the swim center and increase its funding commitment to $35 million, over and above the $8 million second installment payment required by the 2013 DA, plus a contingency fund of up to 20 percent of the $45 million total estimated costs to complete the center. In return, Surland received vested rights to add property to the 2013 DA and use the RGAs allocated in the 2013 DA outside the Ellis Specific Plan property. To be sure, Surland has joined with the city in advocating severance on appeal, but the notion that Surland intends to undertake a more than four-fold increase in expense to build the swim center without the vested rights conferred by sections 1.07(b)(ii) and 1.07(h) is inconsistent with the fundamental structure of the Second Amendment.
Application of contract law severance principles yields the same result for a similar reason: the vested rights illegal under the statute are central to the agreement. “ ‘ “Courts are to look to the various purposes of the contract. If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.” ’ ” ( Koenig v. Warner Unified School Dist. (2019) 41 Cal.App.5th 43, 56 (Koenig), quoting Marathon, supra, 42 Cal.4th at p. 996.)
Here, “ ‘ “the central purpose of the contract is tainted with illegality.” ’ ” ( Koenig, supra, 41 Cal.App.5th at p. 56.) The exchange of design and construction services and increased funding for the swim center from Surland
in return for vested rights to add property to the 2013 DA and to use RGAs outside the Ellis Specific Plan area constitutes the central purpose of the Second Amendment.
Indeed, the Second Amendment states: “This amendment
is designed to permit additional property to be added to and incorporated in to the Development Agreement and
therefore become Property of the Development Agreement, and Owner [Surland] may apply for RGAs for Projects and home builders within the Property (whether or not annexed to the [Ellis Specific Plan]) area.” (Italics added.) Thus, the central purpose of the Second Amendment, and the
consideration Surland received under the amendment, were illegal under sections 65865 and 65865.2. Accordingly, the Second Amendment was not severable.
IV
Attorney Fees Incurred on Appeal
In the statement of decision, the trial court determined that Mitracos should recover attorney fees under Code of Civil Procedure section 1021.5. Mitracos contends she is also entitled to recover attorney fees connected with this appeal under the same statute.
“When a contract or a statute authorizes the prevailing party to recover attorney fees, that party is entitled to attorney fees incurred at trial and on appeal. [Citations.]” ( Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211
Cal.App.4th 230, 250 (Barnhart); Del Cerro Mobile
Estates v. Proffer (2001) 87 Cal.App.4th 943, 951.) Courts have awarded under Code of Civil Procedure section 1021.5 attorney fees incurred on an appeal, even though that statute does not expressly state that the prevailing party is entitled to attorney fees on appeal. ( Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927, 928, fn. 5; Serrano v. Unruh (1982) 32 Cal.3d 621, 637, 639.)
*10 Therefore, on remand, the trial shall determine the amount of attorney fees reasonably incurred in defending this appeal, and include that amount in its order awarding Mitracos attorney fees. ( Barnhart, supra, 211 Cal.App.4th at p. 250.)
DISPOSITION
The matter is remanded to the trial court to determine the amount of attorney fees Mitracos reasonably incurred in defending against this appeal and include that amount in the fees award under Code of Civil Procedure section 1021.5. The 1081
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 9 judgment is otherwise affirmed. Mitracos shall also recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
BLEASE, J.
KRAUSE, J.
All Citations
Not Reported in Cal.Rptr., 2022 WL 1536636
Footnotes
1 Government Code section 65865, subdivision (a), provides: “Any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article.” Government Code section 65865.2 provides in relevant part: “A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes.” All undesignated statutory references are to the Government Code. 2 At the time, Surland did not own all the property in the Ellis Specific Plan area. 3 The first amendment to the 2013 DA extended the time (1) for Surland to make the first installment payment to fund the swim center, and (2) for the city to accept Surland's land dedication offer. 4 Mitracos also alleged a claim for civil contempt, contending that the city and Surland willfully disobeyed the trial court's 2011 order by entering into and implementing the Second Amendment. The city and Surland have not appealed the trial court's rulings on contempt.
5 Section 65868 provides: “A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Notice of intention to amend or cancel any portion of the agreement shall be given in the manner provided by Section 65867. An amendment to an agreement shall be subject to the provisions of Section 65867.5.” Section 65867 requires public notice and hearing by the local government planning commission and legislative body on a proposal to adopt a development agreement. Section 65867.5, subdivision (a) provides: “A development agreement is a legislative act that shall be approved by ordinance and is subject to referendum.” 6 The 2013 DA states: “Should any part, term or provision of this Agreement or any document required herein to be executed or delivered be declared invalid, void or unenforceable, all remaining parts, terms and provisions hereof shall remain in full force and effect and shall no way be invalidated, impaired or affected thereby.” 7 “In 1984, the Legislature added a declaration that development agreements would also allow municipalities to extract promises from the developers concerning financing and construction of necessary infrastructure.” ( Mammoth Lakes, supra, 191 Cal.App.4th at pp. 443-444; see also Miller & Starr, Cal. Real Estate (4th ed. 2021) § 21:29 [“In effect, the public entity agrees to ‘freeze’ the zoning, planning, and other ordinances applicable to the property and allow development to proceed under the then-existing laws and ordinances, and in exchange the public entity may bargain for financial and other concessions and public benefits from the developer parties”].)
1082
Mitracos v. City of Tracy, Not Reported in Cal.Rptr. (2022) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 10 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1083
BINDING LETTER OF INTENT TO LEASE
PREMISES: 2227 James Ave #5, South Lake Tahoe, CA 96150, a suite in a warehouse building containing approximately 2,500 SF.
LESSEE: Perfect Union SLT, LLC
LESSOR: Michael McKeen
AGREED USE: Cannabis retail dispensary, distribution, nursey, including a cannabis microbusiness
TERMS:
a) Seven (7) year initial term, with Lease and rent commencement date beginning upon and subject to Lessee’s receipt of a cannabis business permit. c) If Lessee is not in default of the Lease, then Lessor grants to Lessee Two (2) sevenyear options to extend the lease. Lessee must express its intent to exercise each renewal option to Lessor in writing no less than sixty (60) days prior to the Lease Expiration Date. e) The Lease shall be null, void, and of no effect in the event that the Lessee does not receive the cannabis business permit.
OWNER CONSENT: Lessor shall cooperate with Lessee in the course of the applying for the cannabis business permits including providing authorization of consent allowing a cannabis business at the Premises.
BASE LEASE RATE: $9,000.00 per month with 1.5% increases per year.
DEPOSIT: Lessee shall pay $9,840.99 to Lessor upon the formal Lease agreement executed by all Parties.
LEASE AGREEMENT: The Lease shall be prepared by Lessor and provided to Lessee. The Lease will contain, in addition to the provisions specifically described herein, standard representations, warranties, covenants, indemnification, and other provisions appropriate for a transaction of the type contemplated herein. Until execution of a Lease, this Agreement is deemed by the Parties to be binding and controlling and enforceable in law and in equity.
ACCEPTED AND AGREED TO BY:
LESSOR
By: _________________________
Name: Michael McKeen
Date:
LESSEE
PERFECT UNION SLT, LLC
By:
Name:
Title:
Date:
4/4/2019
1084
April 4, 2019
Michael McKeen
[email protected]
Re: Side Letter Agreement Re Lease dated December 14, 2018 Dear Mr. McKeen:
Reference is made to the lease for the commercial real property located at 2227 James Ave #5, South Lake Tahoe, CA 96150 entered into by and between Michael McKeen (“Lessor”), on the one hand, and Melissa Sanchez and Rick Lobley (“Lessee”), on the other hand (the “Lease”). This Side Letter sets forth the understanding between Lessor and Lessee.
Specifically, while for purposes of the Lessee’s cannabis business license application for the city of South Lake Tahoe it was necessary to enter into a binding real estate letter of intent (“RELOI”) (attached), Lessor and Lessee agree that the Lease remains in full force and effect and the RELOI has no effect on the terms of the lease. The RELOI is null and void. For the avoidance of doubt, Lessor and Lessee acknowledge and understand that the Lease is the sole valid agreement between the parties.
This Side Letter constitutes the entire agreement between Lessor and Lessee with respect to the subject matter covered herein. This Side Letter is an integrated agreement. The terms of this Side Letter are contractual and are not merely recitals. This Side Letter may not be altered, amended or extinguished, except by a writing which expressly refers to this Side Letter and which is signed subsequent to the execution of this Side Letter by the party or parties to any such alteration, amendment or extinguishment, or their successorsin-interest. Any such alteration, amendment or extinguishment must be executed by the party against whom enforcement is sought.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
UNDER THIS SIDE LETTER FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT
LIMITATION, LOST PROFITS, HOWEVER ARISING, EVEN IF THE PARTIES
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AS LONG AS THE PARTIES ACTED IN GOOD FAITH. THIS PARAGRAPH ALLOCATES THE RISKS BETWEEN THE PARTIES UNDER THIS SIDE LETTER. THIS
ALLOCATION IS AN INTRINSIC PART OF, AND THE BASIS OF, THE BARGAIN
BETWEEN THE PARTIES AND WITHOUT SUCH ALLOCATION, THE PARTIES WOULD NOT HAVE ENTERED INTO THIS SIDE LETTER. THE LIMITATIONS,
EXCLUSIONS AND DISCLAIMERS CONTAINED IN THIS PARAGRAPH APPLY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF
ANY REMEDY (INCLUDING ANY LIMITED OR EXCLUSIVE REMEDY)
PROVIDED FOR IN THIS SIDE LETTER FAILS IN ITS ESSENTIAL PURPOSE. 1085
Any dispute whatsoever relating to the interpretation, validity or performance of this Side Letter, or any dispute arising out of this Side Letter which is not resolved within the thirty (30) day period commencing upon receipt of written notice by either party from the other party, shall be settled by binding and final arbitration before a single arbitrator. The arbitration shall be conducted in accordance with JAMS Comprehensive Arbitration Rules and Procedures (the “JAM Rules”). This Side Letter shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be performed wholly within that state.
Please indicate your acceptance of the terms and conditions of this Side Letter by signing in the space marked below. For clarity, by signing below, you acknowledge and agree that you have carefully read this Side Letter (along with all other agreements referenced herein) in its entirety; fully understand and agree to its terms and conditions; had a reasonable opportunity to consult with legal counsel; and intend and agree that it be final and legally binding on you. This Side Letter may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
Sincerely,
Melissa Sanchez Rick Lobley
1086
ACKNOWLEDGED AND AGREED:
On this 4th day of April 2019, I, Michael McKeen, acknowledge that I have read the Side Letter. Having had the opportunity to consult with my legal counsel, I acknowledge and agree to the terms and conditions of the Side Letter on my own behalf. ____________________________
Name: Michael McKeen
1087
CONDITIONAL ASSIGNMENT OF MEMBERSHIP INTEREST
PERFECT UNION SLT, LLC
Pursuant to that certain CONDITIONAL AGREEMENT FOR PURCHASE AND SALE OF MEMBERSHIP INTEREST PERFECT UNION SLT, LLC dated April 4, 2019, SCOTT PETERS and LEON ABRAVANEL hereby expressly transfer, convey and assign Ninety-Five Percent (95%) of their membership interest in Perfect Union SLT, LLC, a California limited liability Company (“Company”) to MWG HOLDINGS GROUP, INC., and SLT JAMES, LLC in equal shares of 47.5% each. This transfer shall take affect automatically upon issuance of a Cannabis Micro Business License to the Company by the City of South Lake Tahoe. SCOTT PETERS and LEON ABRAVANEL shall take any and all necessary and further action to consummate this transaction. SCOTT PETERS and LEON ABRAVANEL hereby appoint MWG MANAGER as their attorney-in-fact for the sole purpose of amending the Operating Agreement to reflect the new ownership structure of the Company.
SELLER:
SCOTT PETERS
LEON ABRAVANEL
BUYER:
MWG HOLDINGS GROUP, INC.
By:
DAVID M. SPRADLIN
Its: President
SLT JAMES, LLC
By:
MELISSA N. SANCHEZ
Its: Manager
PUSLT005029
1088
AGREEMENT OF PURCHASE AND SALE OF
MEMBERSHIP INTEREST
dated as of November 25, 2020
By and Among
2227 SLT LLC,
a California limited liability company
and
SCOTT PETERS
and
LEON ABRAVANEL
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1089
2 AGREEMENT OF PURCHASE AND SALE OF MEMBERSHIP INTEREST OF
PERFECT UNION SLT, LLC
This AGREEMENT OF PURCHASE AND SALE OF MEMBERSHIP INTEREST (“Agreement”) is entered into as of November 25, 2020 (the “Effective Date”), by and between SCOTT PETERS, individually, and LEON ABRAVANEL, individually (collectively, “Seller”), and 2227 SLT LLC, a California limited liability company (“Buyer”). Seller and Buyer are sometimes collectively referred to herein as the “Parties,” and, individually, as a “Party.”
ARTICLE I
RECITALS
1.1 Limited Liability Company. PERFECT UNION SLT LLC, is a California limited liability company (the “LLC”).
1.2 Subject Membership Interest. Collectively, Seller owns one hundred percent (100%) of the outstanding membership interests in the LLC (the “Membership Interest”). Seller desires to sell ninety-nine percent (99%) of their Membership Interest in the LLC to Buyer (the “Subject Membership Interest”) on the terms and conditions outlined in this Agreement. Buyer desires to purchase the Subject Membership Interest from Seller on those terms and conditions.
The LLC desires that this transaction be consummated.
1.3 Remaining Interest. Buyer shall purchase Seller’s remaining one percent (1%) Membership Interest in the LLC (the “Remaining Interest”), for fair market value, upon receipt of approval by the City of South Lake Tahoe to the complete removal of Seller from the LLC and the Permit (as defined below). Buyer desires to purchase the Remaining Interest from Seller on the terms and conditions set forth in this Agreement. The LLC desires that this transaction be consummated. The Subject Membership Interest and the Remaining Interest are collectively referred to herein as the “Entire Interest.”
1.4 Purpose. In consideration of the mutual agreements, representation, warranties, and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as provided herein.
ARTICLE II
PURCHASE OF SUBJECT MEMBERSHIP INTEREST
2.1 Purchase and Sale of Membership Interest. On the terms and conditions of this Agreement, at the Closing and effective as of the Closing Date (each as defined in Article IV, below), Seller hereby sells, assigns, transfers, delivers, and conveys to Buyer pro rata, and Buyer hereby purchases, acquires and accepts from Seller pro rata, all of Seller’s right, title, and interest in and to the Subject Membership Interest.
2.2 Purchase Price. The purchase price for the Subject Membership Interest shall be the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00) (the “Purchase Price”).
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1090
3 2.3 Payment Terms. Fifty percent (50%) of the Purchase Price shall be delivered to Seller by cashier’s check or wire on the earlier to occur of: (i) December 23, 2020 or (ii) that date that is three (3) business days following receipt of approval by the City of South Lake Tahoe to the addition of Buyer to the Permit (as defined below). The remaining fifty percent (50%) of the Purchase Price shall be delivered to Seller by cashier’s check or wire on or before that date that is six (6) months following the opening of a cannabis dispensary by the LLC or an affiliate entity in connection with the Permit. For purposes of this Agreement, “opening” shall mean that day on which the LLC opens for full and unrestricted public access (not limited to, a soft opening with restricted and/or limited access to the public).
2.4 Determination of Fair Market Value. The fair market value of the Remaining Interest shall be determined by a nationally or locally recognized investment banking, accounting or valuation firm jointly selected by Buyer and Seller. The determination of such firm shall be final and conclusive, and the fees and expenses of such valuation firm shall be borne by the LLC.
ARTICLE III
OBLIGATIONS ON OR BEFORE CLOSING
3.1 Information to be Held in Confidence. The Parties agree that, until the Closing has been consummated, the Parties and their representatives will hold in strict confidence and will not use to the detriment of any other Party any/all data and information obtained in connection with this transaction or Agreement with respect to the business of the LLC.
3.2 Micro Business Permit Obtained. The Parties agree that on or prior to the Closing, the LLC has obtained a Micro Business Retail, Distribution and Nursery Permit from the City of South Lake Tahoe (the “Permit”).
ARTICLE IV
CLOSING
4.1 Closing. The Closing of the sale of the Subject Membership Interest as contemplated by this Agreement (the “Closing”) shall take place upon mutual execution of this Agreement (the “Closing Date”).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Seller to enter into this Agreement, Buyer represents and warrants to Seller as follows:
5.1 Authorization. Buyer has full power and authority to enter into this Agreement and perform his obligations hereunder. This Agreement constitutes the duly authorized, valid and binding obligation of Buyer, enforceable against him in accordance with its terms and that this Agreement and all other agreements and documents executed and delivered by Buyer hereunder constitute a legal, valid, and binding obligation, enforceable against Buyer in accordance with their terms.
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1091
4 5.2 Brokers and Finders. Buyer has not retained any broker, finder or other financial intermediary in connection with the transactions contemplated by this Agreement.
5.3 Organization and Authority of Buyer. Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the state of California. Buyer has all necessary limited liability company power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite limited liability company action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
5.4 Investment Purpose. Buyer is acquiring the Subject Membership Interest solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Buyer acknowledges that the Subject Membership Interest is not registered under the Securities Act of 1933, as amended, or any state securities laws, and that the Subject Membership Interest may not be transferred or sold except pursuant to the registration provisions of the Securities Act of 1933, as amended or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable. Buyer is able to bear the economic risk of holding the Subject Membership Interest for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment.
5.5 Sufficiency of Funds. Buyer has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Purchase Price and consummate the transactions contemplated by this Agreement.
5.6 Legal Proceedings. There are no actions, suits, claims, investigations or other legal proceedings pending or, to Buyer’s knowledge, threatened against or by Buyer or any affiliate of Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
5.7 Investigation. Buyer acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon the express representations and warranties of Seller set forth in this Agreement (including the related portions of the Disclosure Schedule); and (b) none of Seller, the LLC or any other person has made any representation or warranty as to Seller, the LLC or this Agreement, except as expressly set forth in this Agreement (including the related portions of the Disclosure Schedules).
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1092
5 ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer to enter into this Agreement, Seller represents and warrants to Buyer as follows:
6.1 Membership Interest. Seller is the record and beneficial owner of the Membership Interest, has and will have until Closing, good and marketable title to the Membership Interest, and has full right, power, and authority to sell and transfer the Membership Interest to Buyer as provided for in this Agreement. Further, Seller represents and warrants to Buyer that the Membership Interest is free and clear of any and all liens, security interests, encumbrances, or claims whatsoever, and that this Agreement and all other agreements and documents executed and delivered by Seller hereunder constitute a legal, valid, and binding obligation, enforceable against them in accordance with their terms.
6.2 Organization, Good Standing and Qualification. The LLC is duly organized, validly existing, and in good standing under the laws of California, has all necessary corporate powers to own its properties and to carry on its business as now owned and operated by it, and is duly qualified to transact intrastate business and is in good standing in all jurisdictions in which the nature of its business or of its properties makes such qualification necessary.
6.3 Ownership Structure. The ownership structure of the LLC prior to this transfer is as follows: 50% Scott Peters and 50% Leon Abravanel. There are no outstanding subscriptions, options, rights, warrants, convertible securities, or other agreements or commitments obligating Seller to issue or to transfer any membership interests.
6.4 Brokers and Finders. Seller has not retained any broker, finder or other financial intermediary in connection with the transactions contemplated by this Agreement. Seller has not retained any broker, finder or other financial intermediary to sell any portion of his stock.
6.5 Corporate Documents. Seller has furnished to Buyer for its examination (i) copies of the Articles of Organization of the LLC; (ii) the Operating Agreement and any subsequent amendments; and (ii) the minute books of the LLC containing all records required to be set forth of all proceedings, consents, actions and meetings of the Members of the LLC.
6.6 Personnel Identification and Compensation. There are no parties employed by the LLC. No compensation is owed to any individual in connection with work performed for the LLC except as otherwise stated in this Agreement.
6.7 No Violations. Neither the execution and delivery of this Agreement and the documents and instruments referenced herein, nor the incurrence of the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement and the documents and instruments referenced herein conflict with or will result in a material breach of any term, condition or provision of, or constitute a default under, any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreement or instrument to which Seller is a party.
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1093
6 6.8 No Actions. Except as set forth in Schedule 1, there are no actions, debts, liabilities, outstanding contracts, obligations, suits, proceedings, or claims due, pending, or, to the best of Seller’s knowledge, threatened against Seller or the LLC that would come due, would affect Seller’s ability to fulfill their obligations under this Agreement or that would impair the value of the Subject Membership Interest.
6.9 Covenant Not to Compete. Seller hereby agrees that they shall not, either directly or indirectly, carry on or engage in the operation of a cannabis dispensary within the City of South Lake Tahoe, California through April 30, 2021.
ARTICLE VII
MUTUAL ADDITIONAL COVENANTS
From time to time prior to and after Closing, at the request of any Party and without further consideration, the other Party shall execute and deliver any further instruments or documents and take such other actions as may be reasonably necessary to carry out the transactions contemplated under this Agreement.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to fulfillment, prior to Closing, of the following conditions, which conditions may be waived only in a writing signed by Buyer.
8.1 Representations and Warranties. The representations and warranties of Seller contained in Article VI shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of such Closing Date.
8.2 Performance. All of the terms, conditions, and covenants of this Agreement to be complied with, performed, and satisfied by Seller on or before the Closing shall have been complied with, performed, and satisfied.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to fulfillment, prior to the Closing, of each of the following conditions, any of which may be waived only in a writing signed by Seller.
9.1 Representations and Warranties. The representations and warranties of Buyer contained in Article V shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of such Closing Date.
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1094
7 9.2 Performance. All of the terms, conditions, and covenants of this Agreement to be complied with, performed, and satisfied by Buyer on or before the Closing shall have been complied with, performed, and satisfied.
ARTICLE X
MANAGER
Seller hereby appoints Buyer as Manager of the LLC as of the Effective Date, with all powers and authority as set forth in the LLC’s Operating Agreement, as amended. Seller agrees not to remove Buyer from the position of Manager without court order.
ARTICLE XI
INDEMNITY
11.1 Buyer shall indemnify, defend and hold Seller harmless from and against any and all losses, costs, damages, claims, liabilities, or expenses, including reasonable attorney fees, expert fees and costs, in any way arising from or related to: (a) the matters disclosed on the attached Schedule 1; and (b) any inaccuracy or breach of any warranties made by Buyer under this Agreement. Seller shall jointly and severally indemnify, defend and hold Buyer harmless from and against any and all losses, costs, damages, claims, liabilities, or expenses, including reasonable attorney fees, expert fees and costs, in any way arising from or related to any inaccuracy or breach of any warranties made by Seller under this Agreement. With the exception of the respective indemnity obligations contained in this Agreement, Buyer and Seller hereby release all other claims they have against each other as of the Closing Date, and waive application of California Civil Code section 1542, or any similar, comparable, or equivalent law(s) of the United States, law of a state or territory of the United States, or principles of common law. California Civil Code section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
Buyer and Seller understand and acknowledge that the significance and consequence of this waiver of California Civil Code section 1542 and all similar, comparable, or equivalent laws is that even if they should eventually suffer damages arising from the LLC, which is the subject of this Agreement, they will not be able to make any claim for those damages. Buyer and Seller acknowledge that this release applies to claims for damages that may exist as of the date of this Agreement, but which Buyer and Seller do not know to exist and which, if known, would materially affect Buyer and Seller’s decision to execute this Agreement.
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1095
8 ARTICLE XII
GENERAL
12.1 Cooperation. The Parties shall all cooperate in good faith to do all additional acts reasonably necessary to complete the transactions contemplated by this and the related agreements but not specifically provided for herein or therein, including prompt execution of the extension of the Permit with the City of South Lake Tahoe and transfer of the Permit.
12.2 Successors and Assigns. This Agreement and the rights of the Parties hereunder may not be assigned without the prior written consent of the non-assigning party, which consent the non-consenting party may give or withhold in its absolute discretion, and shall be binding upon and shall inure to the benefit of the Parties hereto, their successors, and permitted assigns.
12.3 Entire Agreement. This Agreement (which includes the Exhibits, documents and instruments referred to herein and therein) constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes all prior and current understandings and agreements, whether written or oral, with respect to such subject matter. This Agreement may be modified or amended only by written instrument executed by the Parties.
12.4 Counterparts. This Agreement may be executed in any number of counterparts that together shall constitute one instrument.
12.5 Notices. All notices, demands, or communications required or permitted hereunder shall be in writing. Any notice, demand, or other communication given under this Agreement shall be deemed to be given if given in writing (including telex, telecopy, or similar transmission) addressed as provided below (or at such other address as the addressee shall have specified by notice actually received by the addresser) and if either: (a) actually delivered in fully legible form, to such address (evidenced in the case of a telex by receipt of the correct answerback); or (b) in the case of a letter, three (3) days shall have elapsed after the same shall have been deposited in the United States mails, with first-class postage prepaid and registered or certified.
If to Seller: Leon Abravanel / Scott Peters
10280 Donner Pass Road
Truckee, CA 96161
Email: [email protected]
If to Buyer: 2227 SLT LLC
Attn: Melissa Sanchez
1017 L Street #275
Sacramento, CA 95814
Email: [email protected]
12.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflicts of laws principles.
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1096
9 12.7 Exercise of Rights and Remedies/Waivers. No delay of or omission in the exercise of any right, power, or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power, or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
A. A waiver or breach of covenant or provision of this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement, and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act.
12.8 No Third-Party Beneficiaries. This Agreement is not intended to be for the benefit of and shall not be enforceable by any person who or which is not a party hereto (or a permitted assign or successor to such party).
12.9 Drafting/Interpretation. As this Agreement has been negotiated, it shall not be construed as if it had been prepared by one of the parties, but rather as if all parties have prepared it.
12.10 Dispute Resolution. ANY CONTROVERSY, CLAIM, ACTION OR DISPUTE
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER SECURED DOCUMENT SHALL BE SUBJECT TO NON-BINDING MEDIATION. IF
THE PARTIES HERETO CANNOT RESOLVE THE MATTER THROUGH
MEDIATION, THEN SUCH MATTER SHALL BE HEARD BY JUDICIAL REFERENCE
PURSUANT TO THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 THROUGH 645.1, INCLUSIVE, ACCORDING TO THE FOLLOWING PROCEDURES:
THE PARTIES SHALL AGREE UPON A SINGLE REFEREE WHO
SHALL THEN TRY ALL ISSUES, WHETHER OF FACT OR LAW, AND REPORT A FINDING AND JUDGMENT THEREON. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN TEN (10) DAYS OF A WRITTEN REQUEST TO DO SO BY
ANY PARTY, THEN ANY PARTY MAY THEREAFTER SEEK TO HAVE A REFEREE
APPOINTED PURSUANT TO THE LOCAL JURISDICTION'S EQUIVALENT OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 AND 640.
THE PARTIES AGREE THAT THE REFEREE SHALL HAVE THE
POWER TO DECIDE ALL ISSUES OF FACT AND LAW AND REPORT HIS/HER
DECISION THEREON, AND TO ISSUE ALL LEGAL AND EQUITABLE RELIEF
APPROPRIATE UNDER THE CIRCUMSTANCES OF THE CONTROVERSY BEFORE HIM/HER; PROVIDED, HOWEVER, THAT TO THE EXTENT THE REFEREE IS
UNABLE TO ISSUE AND/OR ENFORCE ANY SUCH LEGAL AND EQUITABLE
RELIEF, EITHER PARTY MAY PETITION THE COURT TO ISSUE AND/OR ENFORCE SUCH RELIEF ON THE BASIS OF THE REFEREE'S DECISION; DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1097
10 THE LOCAL JURISDICTION'S EQUIVALENT OF CALIFORNIA
EVIDENCE CODE RULES OF EVIDENCE AND PROCEDURE RELATING TO THE
CONDUCT OF THE HEARING, EXAMINATION OF WITNESSES AND
PRESENTATION OF EVIDENCE SHALL APPLY;
ANY PARTY DESIRING A STENOGRAPHIC RECORD OF THE
HEARING MAY SECURE A COURT REPORTER TO ATTEND THE HEARING;
PROVIDED THE REQUESTING PARTY NOTIFIES THE OTHER PARTIES OF THE REQUEST AND PAYS FOR THE COSTS INCURRED BY THE COURT REPORTER;
THE REFEREE SHALL ISSUE A WRITTEN STATEMENT OF DECISION
WHICH SHALL BE REPORTED TO THE COURT IN ACCORDANCE WITH THE
LOCAL JURISDICTION'S EQUIVALENT OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 643 AND SHALL BE PROMPTLY MAILED TO THE PARTIES;
JUDGMENT MAY BE ENTERED ON THE DECISION OF THE REFEREE
IN ACCORDANCE WITH THE LOCAL JURISDICTION'S EQUIVALENT OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 644, AND THE DECISION MAY BE EXCEPTED TO, CHALLENGED AND APPEALED ACCORDING TO LAW;
THE PARTIES SHALL PROMPTLY AND DILIGENTLY COOPERATE
WITH ONE ANOTHER AND THE REFEREE, AND SHALL PERFORM SUCH ACTS AS
MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS RESOLUTION
OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS HEREOF; AND
THE COST OF SUCH PROCEEDING, INCLUDING BUT NOT LIMITED
TO THE REFEREE'S FEES, SHALL INITIALLY BE BORNE EQUALLY BY THE PARTIES TO THE DISPUTE OR CONTROVERSY. HOWEVER, THE PREVAILING
PARTY IN SUCH PROCEEDING SHALL BE ENTITLED, IN ADDITION TO ALL
OTHER COSTS, TO RECOVER ITS CONTRIBUTION FOR THE COST OF THE
REFERENCE AND ITS REASONABLE ATTORNEYS' FEES AS ITEMS OF RECOVERABLE COSTS.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO
SUBMIT DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT TO JUDICIAL REFERENCE.
__________ __________
Buyer Seller
12.11 Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred; provided, however, that Buyer shall be responsible for all filing and other similar DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1098
11 fees payable in connection with any filings or submissions required to extend the Permit deadline.
12.12 Survival of Representations and Warranties. The covenants, representations and warranties of the Parties set forth in this Agreement shall the Closing.
12.13 Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected.
12.14 Construction. The section headings and captions of this Agreement are, and the arrangement of this instrument is, for the sole convenience of the Parties to this Agreement. The section headings, captions, and arrangement of this instrument do not in any way affect, limit, amplify, or modify the terms and provisions of this Agreement. The singular form shall include plural, and vice versa. Unless otherwise indicated, all references to sections are to this Agreement.
All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference.
12.15 Time of the Essence. Time is of the essence in this Agreement.
12.16 Facsimile or Electronic Signature. Facsimile or electronic signatures shall be treated as originals for all purposes with respect to this Agreement. “Hard copy” of ink signatures shall promptly follow facsimiles by regular mail.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1099
12 IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date defined in the introductory paragraph hereof and otherwise on the terms and conditions hereof.
SELLER:
SCOTT PETERS
LEON ABRAVANEL
BUYER:
2227 SLT LLC,
a California limited liability company
By:
Name: Melissa Sanchez
Title: Manager
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1100
SCHEDULE 1
DISCLOSURE SCHEDULE
1. Potential legal action by MWG Holdings Group, Inc., a California corporation (“MWG”) against the LLC to recover Permit application costs, and costs associated with leasehold improvements.
2. A mechanic’s lien was recorded against the LLC and the premises located at 2227 James Street, South Lake Tahoe, CA by SSW Construction Corp., a California corporation (“SSW”) to collect approximately $90,000.00 for services furnished.
3. Seller advises Buyer to file an extension of the Permit with the City of South Lake Tahoe as soon as reasonable possible. Note, the renewal requires that the LLC deposit a retainer in the amount of $22,018.00 with the City of South Lake Tahoe.
DocuSign Envelope ID: 4A968798-0938-4AD1-9B6A-9D30AA33EEE9 1101
Notice of Public Hearing
City of South Lake Tahoe City Council
NOTICE IS HEREBY GIVEN that in accordance with
Sections 65090 and 65091 (Planning and Zoning Law)
of the Government Code: the City of South Lake Tahoe
City Council will conduct a public hearing on Tuesday,
June 20, 2023, at 5:30 p.m., (or as soon thereafter)
in the City Counc i l Chambers located at 1901 Lisa
Maloff Way, South Lake Tahoe, California, to consider
the following agenda item:
Adoption of an ordinance confirming terminating
and rescission of Development Agreement with
Perfect Union SLT, LLC.
Summary: On June 15, 2021, City Council
adopted Ordinance No. 2021-1155 terminating
the Development Agreement with Perfect Union
SLT, LLC (“Perfect Union”). Subsequently,
Perfect Union filed a lawsuit against the City
challenging this action. During the course of
this lawsuit and documents produced by Perfect
Union following a motion to compel, the City has
become aware of additional grounds supporting
termination and rescission of the Development
Agreement. The proposed Ordinance would
confirm termination and rescission of the
Development Agreement to document these
additional grounds, namely Perfect Union’s
uncurable lack of legal or equitable interest in
the 2227 James Avenue, Suite 5 at the time the
Development Agreement was executed, and an
unauthorized attempt to transfer and/or actual
transfer of ownership or control of the business.
Any interested person may appear at the public
hearing and present written testimony or speak in
favor or against the proposed ordinance. Pursuant
to Government Code Section 65009(b)(2), if you
challenge the above ordinance in court, you may be
limited to raising only those issues, you, or someone
else, raised at the public hearing described in this
notice, or in written correspondence delivered to the
South Lake Tahoe City Council at, or prior to, the public hearing. Written testimony may be addressed to the
City Council in care of the City Clerk PublicComment@
cityofslt.us or at the address listed below.
City Council agendas and related staff reports are
available at least 72 hours in advance of regular
meetings on the City Council page of the City’s website www.cityofslt.us or by contacting the City Clerk.
Susan Blankenship
Elected City Clerk
City of South Lake Tahoe
1901 Lisa Maloff Way, Ste 206
South Lake Tahoe, CA 96150
(530) 542-6005
[email protected]
Published: June 9, 2023
1102
City of South Lake Tahoe
Agenda Item Executive Summary
Joe Irvin, City Manager
Meeting Date: June 20, 2023
Agenda Item #: 18
Agenda Item: 2023 Cannabis Revenues Grant Program Recommendations for Awards of 15 Project Totaling $408,625
Executive Summary: On March 14, 2023, The City Council adopted Resolution No. 2023 - 016 updating the Cannabis Revenue Policy, Grant Program Process and Guidelines. Under the City Council policy for these grants (adopted May 18, 2021), up to half the previous year's cannabis revenues received is available for 2023 awards. $400,000 was reserved for this program for the 2023 - 2024 project year, same as last year. The application period for the City's Cannabis Revenues Grant Program was April 15 - May 15. The grant application review committee consisted of the City Manager, City Finance Director, and two City Council members. The review team met and considered 28 applications.
The review team recommends 15 projects for funding, totaling $408,625.
Requested Action / Suggested Motions: (1) Pass a Motion approving the 15 projects recommended by the grant application review committee; and (2) Pass a Resolution appropriating an additional $3,987 into the Cannabis Revenues Grant Program.
Responsible Staff Member: Sara Letton: Sustainability Coordinator Responsible Staff Member: Sara Letton, Sustainability Coordinator, 530-542-6175 Reviewed and Approved By:
Heather Stroud, City Attorney
Susan Blankenship, City Clerk
Olga Tikhomirova, Finance Director
Attachments:
01-Staff Report - Cannabis Revenue Grant Awards.docx
02-Resolution - Additional Funding 2023 Cannabis Revenue Grant Program.docx 03-Res 2023-016 Cannabis Revenue Policy Process and Guidelines.pdf 1103
Council Agenda Report- June 20, 2023 Page 1 of 3
City of South Lake Tahoe
Report to City Council
Meeting Date: June 20, 2023
Title: 2023 Cannabis Revenues Grant Program Recommendations for Awards Location: Citywide
Responsible Staff Member: Sara Letton, Sustainability Coordinator, (530) 542-6175 Background: On May 18, 2021, City Council adopted Resolution 2021-039, establishing the Cannabis Community Benefit Fee Revenue Allocation Policy. Under this policy, City Council committed to allocating up to 50 percent of the previous year’s cannabis revenue to a community benefit grant program. On March 15, 2022, the City Council adopted Resolution 2022-030 to establish the Cannabis Revenue Grant Program Process and Guidelines. On March 14, 2023 those guidelines were updated and adopted by City Council. Under these Guidelines, grants are to be awarded annually to South Lake Tahoe organizations whose projects contribute to mitigating the potential impacts of the cannabis industry in the city, and which help promote and address the priorities of the City Strategic Plan, including Built Environment, Recreation and Equitable Access, Community for All, Economic Development and Continuous Improvement. Pursuant to these policies, $400,000 of cannabis revenue was committed towards this grant program for 2023, which is the same amount as 2022.
Issue and Discussion: The review team engaged in a process developed by staff, within the council-adopted guidelines, and informed by the pilot year experience. All applications received at least two reviews by team members. Application questions were scored and totaled for each applicant. An average absolute score was ascribed to each. An efficiency score was calculated by dividing the average score by the amount requested. The applications were ranked. A secondary review was done by looking at the absolute score. Projects were then selected for recommendation of award by the review team by consensus.
Ideas for refining both the program and the scoring criteria were brought up during the review team meeting and were captured by the staff facilitator. Recommendations will be brought back to council for discussion or adoption as updated guidelines in March 2024, when the program guidelines will be up for review.
Twenty-eight (28) applications were reviewed by the grant review committee, consisting of the City Manager, the City’s Finance Director, and two City Council members. For Council’s discussion and/or approval, the committee brings recommendations for awarding (15) fifteen projects that were most consistent with the criteria. All projects are recommended for funding at their full request. The following is the list of organizations recommended for awards, the amount they have requested, and with a brief project description, in no particular order:
1104
Council Agenda Report- June 20, 2023 Page 2 of 3
Applicant Request Brief Project Description
1 South Tahoe Middle School
PTA $ 10,500 Add at least five more afterschool club options, and the necessary equipment, for at least 120 middle schoolers. 2 Gateway $ 50,000
Provide overnight camps and alternative programs for
under-resourced Tahoe youth. Participants adventure in
nature, connect with peers, support the community,
develop skills and build confidence.
3 EDCF The Drug Store
Project $ 29,500
300 sixth graders will participate in a comprehensive
middle school drug prevention event designed to educate youth about the dangers of substance use and abuse.
4 Tahoe Youth and Family
Services $ 50,000 Providing youth and families in our community with free mental health and substance abuse services. 5 EDCF Tahoe Alliance for
Safe Kids $ 50,000
Launch the "Did You Know" campaign to educate about
the drug trends and stigmas around mental health;
Challenge Days at the middle and high schools; targeted outreach to LatinX community.
6 Bread and Broth $ 10,000
Support for the "Green Goal" program, ensuring fresh
produce and dairy are provided in weekly food bags to
community members.
7 South Tahoe National Little
League $ 15,000 Investing in facilities and equipment enhancement for programs that serve middle and high schoolers. 8 South Tahoe High School $ 50,000
The project aims to build up to two tiny sustainable homes per school year using local wood materials, exposing high school students in construction courses to the construction trades and addressing teacher shortages due to limited
affordable housing.
9 Tahoe Valley Elementary $ 10,000 Supporting the creation of a Wellness Room at Tahoe Valley Elementary.
10 Encompass Youth $ 23,625
Supporting a team of committed and trained adult
Volunteer Youth Navigators, providing the social and
emotional support, guidance and resources needed to
create stability in the lives of Transitional Age Youth most at-risk in our community.
11 South Tahoe Sober Grad
Night Task Force $ 20,000
Providing a safe, fun, sober high school graduation
celebration. Investing in safe storage of materials and supplies that support the event year after year.
12 Lake Tahoe Unified School
District $ 50,000
Social & Emotional Learning investment in counseling, art materials, art instructors, and bussing for SEL enrichment field trips.
13 Babe Ruth Baseball of South
Lake Tahoe, Inc $ 25,000 Investing in equipment and supplies for baseball programs serving 13 - 15-year-olds.
14 Lake Tahoe Bicycle Coalition $ 3,000 Funding bike locks, parts, and mechanics' time in support of bike donation and bike valet programs.
15 Tahoe Art League $ 12,000
Providing art classes to all 6 grades at both Boys & Girls club campuses; offering a minimum of 8 camps and
providing free or reduced option for 5-10 kids per class through word of mouth and vouchers; offering 6-8 classes for adults that also have 5-10 spaces for at risk and low income participants; murals.
Total of requests
recommended for award $408,625
1105
Council Agenda Report- June 20, 2023 Page 3 of 3
Financial Implications: $400,000 was originally designated for this program in this year’s budget. The recommendations for awards totals $408,625. At least $4,638 was left unspent from the 2022 grant program allocation of $400,000. The review team recommends allocating an additional $3,987 in order to fund the 15 projects at their full requested amount.
Environmental Considerations: This is not a “project” subject to review under the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15378(b)(2) (continuing administrative activities).
Policy Implications: The awarded projects fall within the guidelines approved by City Council and all will help achieve progress on the City’s Strategic Plan. To be eligible, each applicant had to name at least one Strategic Priority addressed by their project. 1106
Resolution 2023-XXX June 20, 2023 Page 1 of 2
Resolution 2023-XXX
Adopted by the City of South Lake Tahoe
City Council
June 20, 2023
Appropriating an Additional Allocation of $3,987 of Cannabis Program Revenue toward 2023 Cannabis Revenue Grant Program
BACKGROUND
A. On February 19, 2019, the City Council adopted Ordinance No. 2019-1126 which regulates cannabis businesses in order to ensure the health, safety, and welfare of the residents of the city of South Lake Tahoe and visitors.
B. Cannabis businesses operate pursuant to individual Development Agreements that require to submit to the City on a monthly basis within 45 days following the month end the Community Benefit Fees payment equivalent six (6) percent of Gross Receipts for that month.
C. On May 18, 2021, City Council adopted Resolution 2021-039 which established the Cannabis Community Benefit Fee Revenue Allocation Policy, and on March 15, 2022, adopted Resolution 2022-030 which established the Cannabis Revenue Grant Program Process and Guidelines.
D. Pursuant to these policies, $400,000 of cannabis revenue was committed towards this program for 2023.
E. The City’s grant review committee received and reviewed twenty-eight (28) applications and selected fifteen (15) projects, resulting in a total award amount of $408,625.
F. At least $4,638 was left unspent from the 2022 grant program allocation of $400,000.
G. Sufficient fund balance is available in the Cannabis special revenue fund to allocate additional funding and cover the remaining budgeted expense through the end of the fiscal year of 9/30/2023.
BASED ON THE FACTS SET FORTH IN THE BACKGROUND, BE IT RESOLVED, that the City Council of the City of South Lake Tahoe:
1. Appropriates additional allocation of the Cannabis Community Benefit Fee revenue to the City’s 2023 Cannabis Revenues Grant Program of $3,987.
2. Approves the amendment to the 2022-2023 budget in account 223-02120 as follows:
Expense 44032 Contributions/Sponsorship $3,987
Adopted by the City of South Lake Tahoe City Council on June 20, 2023 by the following vote:
Yes:
No:
Absent:
1107
Resolution 2023-XXX June 20, 2023 Page 2 of 2
Abstain:
___________________________ Date:___________
Cristi Creegan, Mayor
Attest:
____________________________
Susan Blankenship, City Clerk
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council.
1108
Resolution 2023-016
Adopted by the City of South Lake Tahoe
City Council
March 14, 2023
Adopting the 2023 Cannabis Revenue Policy, Grant Program Process and Guidelines
BACKGROUND
A. On May 18, 2021 the City Council adopted the cannabis community benefit fee revenue allocation policy to create a community- wide benefit grant program. This program will provide funding opportunities to local schools, government agencies and non-profit organizations with programs or projects designed to mitigate potential impacts of the cannabis industry in South Lake Tahoe and which promote the priorities of the City Strategic Plan.
B. Cannabis businesses pay a business license tax pursuant to Measure G, adopted by voters on November 8, 2022, equivalent to six (6) percent of Gross Receipts and $20/square foot of canopy for cultivation.
C. The proposed 2023 community- wide cannabis revenue grant program application process and guidelines ( Exhibit A) to this Resolution have been developed to assist the City in an annual review of proposals for funding opportunities to local schools, government agencies and non-profit organizations with programs or projects designed to mitigate potential negative impacts of the cannabis industry in South Lake Tahoe and which promote the priorities of the City Strategic Plan.
D. The 2022 grant program pilot year has, to date, successfully managed 14 grant projects in the community. Projects will close out in spring and summer 2023.
BASED ON THE FACTS SET FORTH IN THE BACKGROUND, BE IT RESOLVED, that the City Council of the City of South Lake Tahoe:
1. Approves the 2023 Cannabis Revenue Policy, Grant Program Process and Guidelines attached hereto as Exhibit “ A.”
Adopted by the City of South Lake Tahoe City Council on March 14, 2023 by the following vote:
Yes: Creegan, Friedrich, Robbins and Wallace
Recused: Bass
Date:_________
Cristi Creegan, Mayor
Attest:________________________
Susan Blankenship, City Clerk
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council.
Res 2023- 016
Sue Blankenship ( Mar 15, 2023 10: 46 PDT)
Cristi Creegan ( Mar 16, 2023 15: 36 PDT)
Cristi Creegan Mar 16, 2023
1109
CANNABIS REVENUE POLICY
GRANT PROGRAM
2023 Process & Guidelines
To assist the City Council in the evaluation of the community- wide cannabis revenue grant program, the following process and guidelines have been developed to assist the City in an annual review of proposals for funding opportunities to local public agencies and nonprofit organizations with programs or projects designed to mitigate potential negative impacts of the cannabis industry in South Lake Tahoe and which promote the priorities of the City Strategic Plan. The City’s Strategic Priorities are Built Environment, Recreation and Equitable Access, Community for All, Economic Development and Continuous Improvement. The Strategic Plan can be found here: https://www.cityofslt. us/DocumentCenter/ View/15828/City-of-SLT- StrategicPlan-web- version Please note that this is a grant program for project funding. It is not a donation or sponsorship program. Strong applications will directly address one or more Strategic Priorities while also addressing potential negative impacts of the cannabis industry.
GRANT DETAILS
Grant amounts will range from $1,000 to $50,000.
Funds must be expended within one year
No more than a 10% de minimus indirect cost rate allowed; unless the organization can provide a separate approved federal cognizant agency indirect cost rate.
The City shall disburse 90% up front, and the final 10% shall be reimbursed upon successful completion of final reporting.
Detailed documentation of eligible expenses is required.
WHEN CAN I APPLY?
The City grant program will open on April 15, and the submittal period will remain open until 11:59 p.m. on May 15.
ELIGIBILITY
You must have a current City of South Lake Tahoe Business License at the time of application submittal.
Your entity and proposal must be focused on efforts to mitigate potential impacts of the cannabis industry in South Lake Tahoe and promote the priorities of the City Strategic Plan.
Your entity must be located within the city limits or serve the community of South Lake Tahoe, CA.
One application per entity
If you are a past year recipient you must be in compliance with the annual reporting requirement, which includes the submittal of a written report detailing how your previous award was expensed to the City no later than March 31 following a previous year’s grant award.
Must meet all requirements outlined in the city’s “Financial Policy for Granting Funds for Res 2023- 016 1110 Community Benefit and Enhancement”
APPLICATION REVIEW
Please be sure your application is complete when you send it in. The City reserves the right to not consider incomplete applications.
Applications will be reviewed by the grant committee, consisting of the Mayor, one City Council Finance Committee member, the City Manager and the City’s Finance Director.
The grant committee will make recommendations to the City Council no later than June 30 annually for consideration and approval.
To provide transparency, the City of South Lake Tahoe will post a list on the City’s website showing all grant recipients and the amount received. By signing and submitting a grant program application with the City of South Lake Tahoe, you agree to have your entity’s name along with the grant amount listed on the website. Please note that anything submitted to the City is considered public record and can be made available via a public records request.
SUBMITTING YOUR APPLICATION
You will be required to submit the following required documentation along with your signed application form:
1. A photo or copy of your current City of South Lake Tahoe Business License
2. A current IRS Form W-9 showing your Taxpayer ID
3. For nonprofits, attach your IRS letter with proof of tax-exempt status and a screenshot of Secretary of State Business Search website showing ACTIVE status of your nonprofit
4. For governmental agencies, attach federal TIN documentation
5. Federal tax return 990/990-PF or previous year audited financial statement OR a previous year audited financial statement
Please submit the application form and the supporting documentation via email to Grantprogram@cityofslt. us
Or
Send to:
City of South Lake Tahoe City Hall
Attn: Grant Program
1901 Lisa Maloff Way, Suite 210
South Lake Tahoe, CA 96150
Or bring to the Finance drop box at the above address.
To be considered for the grant, your materials must be in by 11:59 p.m. on May 15.
Res 2023- 016 1111
Contact the City of South Lake Tahoe at Grantprogram@cityofslt. us with questions.
Res 2023- 016 1112
Res 2023-016 Cannabis Revenue Policy
Process and Guidelines
Final Audit Report 2023- 03-16
Created: 2023- 03-15
By: jo Mcdonough ( jmcdonough@cityofslt. us)
Status: Signed
Transaction ID: CBJCHBCAABAAzOgEHvQJpUogwkDSfE23YAC_ r5sjw0pU Res 2023-016 Cannabis Revenue Policy Process and Guidelin es" History
Document created by jo Mcdonough ([email protected]) 2023- 03- 15 - 5:38:34 PM GMT- IP address: 128. 92.136. 146 Document emailed to Sue Blankenship ([email protected]) for signature 2023- 03- 15 - 5:39:53 PM GMT
Email viewed by Sue Blankenship ( sblankenship@cityofslt. us) 2023- 03- 15 - 5:46:20 PM GMT- IP address: 104. 47.64.254 Document e-signed by Sue Blankenship ([email protected]) Signature Date: 2023- 03-15 - 5:46:33 PM GMT - Time Source: server- IP address: 128. 92.136. 146 Document emailed to [email protected] for signature 2023- 03- 15 - 5:46:35 PM GMT
Email viewed by [email protected]
2023- 03- 16 - 10:35:39 PM GMT- IP address: 47.25.118. 95 Signer [email protected] entered name at signing as Cristi Creegan 2023- 03- 16 - 10:36:02 PM GMT- IP address: 47.25.118. 95 Document e-signed by Cristi Creegan ([email protected]) Signature Date: 2023- 03-16 - 10:36:04 PM GMT - Time Source: server- IP address: 47.25.118. 95 Agreement completed.
2023- 03- 16 - 10:36:04 PM GMT
Names and email addresses are entered into the Acrobat Sign service by Acrobat Sign users and are unverified unless otherwise noted. 1113
City of South Lake Tahoe
Agenda Item Executive Summary
Joe Irvin, City Manager
Meeting Date: June 20, 2023
Agenda Item #: 19
Agenda Item: Authorization of Overlap for the Assistant City Clerk Position for Training Purposes and Budget Allocation of $18,308
Executive Summary: The Assistant City Clerk will be retiring in October 2023. The City Clerk's Department is seeking budget authorization and approval to conduct an early recruitment ans fulfillment to allow overlap for the incumbent Assistant City Clerk to provide training to the new hire. Anticipated hire date of the new Assistant City Clerk is in August of 2023.
Requested Action / Suggested Motions: Pass a Resolution authorizing budget allocation of $18,308 from General Fund Undesignated Excess Reserves into the City Clerk Payroll Account and approving an overlap in the Assistant City Clerk position beginning August 1, 2023, until the incumbent Assistant City Clerk's retirement in October.
Responsible Staff Member: Susan Blankenship, City Clerk and Ember Buckman, Human Resources manager
Responsible Staff Member: Susan Blankenship, City Clerk (530) 542-6005 Ember Buckman, Human Resources Manager (530) 542-6050
Reviewed and Approved By:
Olga Tikhomirova, Finance Director
Heather Stroud, City Attorney
Attachments:
01 - Staff Report - Additional Assistant City Clerk Position.docx 02 - Resolution - Additional Assistant City Clerk Position.docx 03 - Position Allocation 22-23 June 2023 (Exh. 1 to Reso).pdf 1114
Council Agenda Report- June 20, 2023 Page 1 of 1
City of South Lake Tahoe
Report to City Council
Meeting Date: June 20, 2023
Title: Budget Allocation and Authorization for Overlap of the Assistant City Clerk Position Location: Citywide
Responsible Staff Member: Susan Blankenship, City Clerk and Ember Buckman, Human Resources Manager
Background:The City Clerk’s Department consists of one (1) full-time (elected) City Clerk and one (1) full-time Assistant City Clerk position. On May 19, the Assistant City Clerk announced their retirement effective in October 2023 (exact date to be determined).
Issue and Discussion: The City Manager and Director of Finance authorized an early recruitment process for replacement of the Assistant City Clerk position. This will allow overlap of the position in order for the current incumbent to train the newly hired Assistant City Clerk. The anticipated start date of the new Assistant City Clerk is in August 2023, contingent on City Council approval. This overlap in position is necessary for a seamless transition and continuity in the City Clerk Department. The incumbent will train the new hire on City Clerk platforms and processes beginning in August until her retirement in October.
Financial Implications: The cost of the overlap for the Assistant City Clerk position for 2 months is $18,308. This amount will be appropriated from General Fund Undesignated Excess Reserves to City Clerk Payroll accounts. The attached resolution also amends the FY 22/23 List of Allocated Permanent Positions increasing the Assistant City Clerk allocation from 1 FTE to 1.17 FTEs for the two months overlap.
Environmental Considerations: The proposed action is not a “project” subject to review under the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15378(b)(4) (creation of government funding mechanisms or government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment).
Policy Implications: This proposed personnel addition supports the City’s strategic priorities to deliver high quality services to the community.
1115
Resolution 2023-XXX June 20, 2023 Page 1 of 2
Resolution 2023-XXX
Adopted by the City of South Lake Tahoe
City Council
June 20, 2023
Budget Allocation and Authorization for Overlap of the Assistant City Clerk Position
BACKGROUND
A. The City Clerk’s Department consists of one (1) full-time (elected) City Clerk and one (1) full-time Assistant City Clerk position.
B. On May 19, Assistant City Clerk McDonough announced her retirement effective October 2023 (exact date to be determined).
C. The City Manager and Director of Finance authorized an early recruitment process for the Assistant City Clerk position. This will allow overlap of the position for training purposes. The anticiapted start date of the new Assistant City Clerk is in August 2023, contingent on City Council approval.
D. This overlap in position is necessary for a seamless transition and continuity in the City Clerk Department.
BASED ON THE FACTS SET FORTH IN THE BACKGROUND, BE IT RESOLVED, that the City Council of the City of South Lake Tahoe:
1. Resolves that the above recitals are true and a substantive part of this resolution.
2. Authorizes amendment to the FY 22/23 List of Allocated Permanent Positions increasing the Assistant City Clerk from 1 FTE to 1.17 FTEs for a two (2) months overlap of the position in the current fiscal year (attached hereto as Exh. 1).
3. Authorizes amendment to the FY 22/23 budget to support this overlap by appropriating a total of $18,308 from General Fund Undesignated Excess Reserves to be allocated into the City Clerk 100-01310 Payroll Accounts.
Adopted by the City of South Lake Tahoe City Council on June 20, 2023 by the following vote:
Yes:
No:
Absent:
1116
Resolution 2023-XXX June 20, 2023 Page 2 of 2
Abstain:
________________________ Date:_________
Cristi Creegan, Mayor
Attest:
________________________
Susan Blankenship, City Clerk
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council.
1117
Allocated Permanent Positions
Authorized/ Authorized/ Authorized/ Authorized/ Authorized/ Appropriated Appropriated Appropriated Appropriated Frozen Positions Positions Positions Positions Positions
Department/Positions 21/22 Adopted thru May'22 22/23 Adopted thru June'23 22/23 Budget
CITY COUNCIL
Council Member (Elected) Department Total 5.00 5.00 5.00 5.00 0.00
CITY CLERK
City Clerk (Elected) 1.00 1.00 1.00 1.00
Assistant City Clerk 1.00 1.00 1.00 1.17
Department Total 2.00 2.00 2.00 2.17 0.00
CITY TREASURER
City Treasurer (Elected) Department Total 1.00 1.00 1.00 1.00 0.00
CITY MANAGER DEPARTMENT
City Manager 1.00 1.00 1.00 1.00
Assistant City Manager 0.00 0.00 0.75 0.75
Assistant to the City Manager I 1.00 1.00 0.25 0.25
Assistant to the City Manager II 1.00 1.00 0.25 0.25
Communications and Project Specialist 1.00 1.00 1.00 1.00 Sustainability Coordinator 1.00 1.00 1.00 1.00
5.00 5.00 4.25 4.25
Human Resources
Human Resources Manager 0.00 0.00 1.00 1.00
Principal &/or H.R. Analyst 1.00 1.00 1.00 1.50
Total 1.00 1.00 2.00 2.50 0.00
Department Total 6.00 6.00 6.25 6.75 0.00
CITY ATTORNEY
City Attorney 1.00 1.00 1.00 1.00
Assistant City Attorney 1.00 1.00 1.00 1.00
Risk Manager 1.00 1.00 1.00 1.00
Paralegal 1.00 1.00 1.00 1.00
Department Total 4.00 4.00 4.00 4.00 0.00
FINANCE DEPARTMENT
Director of Finance 1.00 1.00 1.00 1.00
Total 1.00 1.00 1.00 1.00 0.00
Financial Services
Financial Services Supervisor 1.00 1.00 1.00 1.00
Accountant I, II 1.00 1.00 1.00 1.00
Accountant I / Payroll Coordinator 1.00 1.00 1.00 1.00
Principal Management Analyst - Purchasing and Grants 1.00 1.00 1.00 1.00 Total 4.00 4.00 4.00 4.00 0.00
Revenue
Accounting Technician I, II 2.00 2.00 2.00 2.00
Supervising Accounting Technician 1.00 1.00 1.00 1.00
Accountant I/II 1.00 1.00 1.00 1.00
Total 4.00 4.00 4.00 4.00 0.00
1 of 4
1118
Allocated Permanent Positions
Authorized/ Authorized/ Authorized/ Authorized/ Authorized/ Appropriated Appropriated Appropriated Appropriated Frozen Positions Positions Positions Positions Positions
Department/Positions 21/22 Adopted thru May'22 22/23 Adopted thru June'23 22/23 Budget
FINANCE DEPARTMENT (CONTINUED)
Information Systems
Information Systems Supervisor 1.00 1.00 1.00 1.00
Network Systems Administrator 1.00 1.00 1.00 1.00
Information Systems Technician 1.00 1.00 1.00 1.00
Total 3.00 3.00 3.00 3.00 0.00
Department Total 12.00 12.00 12.00 12.00 0.00
DEVELOPMENT SERVICES DEPARTMENT
Director of Development Services 1.00 1.00 1.00 1.00
Administrative Clerk I, II 1.00 1.00 1.00 1.00
Total 2.00 2.00 2.00 2.00 0.00
Planning
Planning Manager/Environmental Planner 1.00 1.00 1.00 1.00 Associate Planner, Assistant Planner 2.00 2.00 2.00 2.00 Sr. Planner 0.00 0.00 1.00 0.42
Development Services Technician 0.00 0.00 0.00 0.00 1.00 Total 3.00 3.00 4.00 3.42 1.00
Housing
Housing Manager 1.00 1.00 1.00 1.00
Associate Planner, Assistant Planner- Housing 1.00 1.00 1.00 1.00 Associate Management Analyst 0.00 0.00 1.00 1.00
2.00 2.00 3.00 3.00 0.00
Building and Safety
Building Official 1.00 1.00 1.00 1.00
Pr Bldg & Sr Bldg Inspector, Bldg Inspector, Hsng Insp. 4.00 4.00 4.00 4.00 Sr. Permit Center Technician, Permit Center Technician 2.00 2.00 2.00 2.00 Program Coordinator 1.00 1.00 0.00 0.00
Total 8.00 8.00 7.00 7.00 0.00
Department Total 15.00 15.00 16.00 15.42 1.00
PUBLIC WORKS DEPARTMENT
Director of Public Works 1.00 1.00 1.00 1.00
Capital Improvement Projects Manager 1.00 0.50 0.00 0.00 Capital Program and Facilities Program Manager 0.00 0.50 1.00 1.00 Office Manager 1.00 1.00 1.00 1.00
Total 3.00 3.00 3.00 3.00 0.00
Engineering
Construction Engineer 0.00 0.00 0.00 0.00 1.00
Stormwater Program Coordinator 1.00 0.50 0.00 0.00
Complete Streets Program Manager 0.00 0.50 1.00 1.00
GIS Analyst 1.00 1.00 1.00 1.00
Resident Engineer / Resident Inspector 1.00 1.00 1.00 1.00 Engineering Manager 1.00 1.00 1.00 1.00
Associate Civil Engineer, Assistant Engineer 1.00 1.00 1.00 1.00 Engineering Technician 1.00 1.00 1.00 1.00
Total 6.00 6.00 6.00 6.00 1.00
2 of 4
1119
Allocated Permanent Positions
Authorized/ Authorized/ Authorized/ Authorized/ Authorized/ Appropriated Appropriated Appropriated Appropriated Frozen Positions Positions Positions Positions Positions
Department/Positions 21/22 Adopted thru May'22 22/23 Adopted thru June'23 22/23 Budget
PUBLIC WORKS (CONTINUED)
Maintenance Operations / Snow Removal
Maintenance Manager 2.00 2.00 2.00 2.00
Lead Maintenance Technician 2.00 2.00 2.00 2.00
Maintenance Technician I, II, III, IV, V 14.00 14.83 16.00 16.00 Total 18.00 18.83 20.00 20.00 0.00
Fleet Maintenance
Maintenance Manager - Fleet 1.00 1.00 1.00 1.00
Equipment Mechanic I, II, III 5.00 5.00 5.00 5.00
Fleet Control Specialist 1.00 1.00 1.00 1.00
Total 7.00 7.00 7.00 7.00 0.00
Airport
Airport Manager 1.00 1.00 1.00 1.00
Airport Maintenance Supervisor 1.00 1.00 1.00 1.00
Maintenance Technician I, II, III, IV, V 1.00 1.00 1.00 1.00 Total 3.00 3.00 3.00 3.00 0.00
Department Total 37.00 37.83 39.00 39.00 1.00
PARKS AND RECREATION DEPARTMENT
Director of Parks and Recreation 1.00 1.00 1.00 1.00
Total 1.00 1.00 1.00 1.00
Recreation
Administrative Assistant I, II 1.00 1.00 1.00 1.00
Recreation Manager 1.00 1.00 1.00 1.00
Events Coordinator 1.00 1.00 1.00 1.00
Head Pool Lifeguard 0.00 0.00 1.00 1.00
Total 3.00 3.00 4.00 4.00
Parks
Maintenance Manager - Parks 1.00 1.00 1.00 1.00
Lead Maintenance Technician 1.00 1.00 1.00 1.00
Maintenance Technicians I, II, III, IV,V 7.00 7.00 7.00 7.00 Total 9.00 9.00 9.00 9.00
Department Total 13.00 13.00 14.00 14.00 0.00
FIRE DEPARTMENT
Fire Chief 1.00 1.00 1.00 1.00
Deputy Fire Chief / Fire Marshall 0.00 0.75 0.00 0.00
Fire Marshall 0.00 0.00 1.00 1.00
Fire Battalion Chief 3.00 3.00 3.00 3.00
Fire Captain 9.00 9.00 9.00 9.00
Fire Engineer 9.00 10.00 10.00 9.00
Firefighter, Paramedic 9.00 8.00 8.00 9.00
Firefighter, Paramedic (SAFER Grant) 7.00 7.00 7.00 7.00 Fire Safety Inspector I, II 1.00 1.00 1.00 1.00
Executive Assistant to the Fire Chief 1.00 1.00 1.00 1.00 Department Total 40.00 40.75 41.00 41.00 0.00
3 of 4
1120
Allocated Permanent Positions
Authorized/ Authorized/ Authorized/ Authorized/ Authorized/ Appropriated Appropriated Appropriated Appropriated Frozen Positions Positions Positions Positions Positions
Department/Positions 21/22 Adopted thru May'22 22/23 Adopted thru June'23 22/23 Budget
POLICE DEPARTMENT
Chief of Police 1.00 1.00 1.00 1.00
Police Lieutenant 2.00 2.00 3.00 3.00
Police Sergeant 6.00 6.00 6.00 6.00
Police Officer 30.00 30.00 30.00 30.00 1.00
Police Officer (cannabis) 1.00 1.00 1.00 1.00
Police Officer (Tobacco grant) 1.00 1.00 1.00 1.00
Public Safety Dispatch Supervisor 1.00 1.00 1.00 1.00
Police Records Supervisor 1.00 1.00 1.00 1.00
Community Service Officer Supervisor 0.00 0.00 0.00 1.00 Public Safety Dispatcher 9.00 9.00 9.00 9.00
Senior Police Records Tech, Police Record Tech 2.00 2.00 2.00 2.00 Administrative Assistant I 1.00 1.00 1.00 1.00
Senior Evidence/Prop Tech, Evidence/Prop Tech 2.00 2.00 2.00 2.00 Lead Community Services Officer 1.00 1.00 1.00 0.00
Sr Community Svcs Officer, Community Svcs Officer 5.00 5.00 5.00 4.00 Parking Ambassador* 0.00 0.00 0.00 3.00
Code Compliance Investigator 1.00 1.00 1.00 1.00
Administrative Assistant II 1.00 1.00 1.00 1.00
Department Total 65.00 65.00 66.00 68.00 1.00
Total City Employees 200.00 201.58 206.25 208.34 3.00
*Reflects a change from 2 FTEs approved effective 10/1/2022 to 4 FTE approved 2/28/2023 with a partial year for 2 additional FTEs. 4 of 4
1121
City of South Lake Tahoe
Agenda Item Executive Summary
Joe Irvin, City Manager
Meeting Date: June 20, 2023
Agenda Item #: 20
Agenda Item: Agenda Planning Calendar
Executive Summary: The Agenda Planning Calendar is a projection of items coming before City Counci, for consideration.
Requested Action / Suggested Motions: A Councilmember may request that an item be placed on a future agenda. Upon the support of one (1) additional Council Member, direction shall be given to the City Manager to calendar the item for a convenient future agenda, but no sooner than the second meeting after the request was made, and/or modify the Agenda Planning Calendar as desired.
Responsible Staff Member: Joseph Irvin, City Manager
Responsible Staff Member: Joseph Irvin, City Manager (530) 542-6043 Reviewed and Approved By:
Susan Blankenship, City Clerk
Attachments:
APC - 06 15 2023.pdf
1122
2023 Agenda Planning Calendar (Updated 06 15 2023)
Agenda Item Agenda Section
Aug 8, 9 a.m. City Manager TRPA Regional Grant Program (EV Charging/Pioneer Project) Via cost analysis of municipal fixed-route and microtransit service Dev Services Permit Tracking and Public Portal Software PSA Award CDBG CV-1 Subrecipient Agreement-Boys & Girls Club
REACH Code options
Inclusionary Housing Ordinance
Finance Business License and TOT Software PSA Award
Recreation & Aquatic Center Bonds
Cell Phone Policy
Fire ALS Monitors Lease
Public Works CIP Presentation
Award Contract - Rec Center Project
Chain Control Ordinance (First Reading)
New Fire Station 3 Feasability Analysis/Interim Fire Station 3 Upgrades UB Bellamy Parking Garage Phase 1 Award
Department
1123
2023 Agenda Planning Calendar (Updated 06 15 2023)
2022-2023 Winter Storm Reconciliation/Budget Appropriation Award Police Department Roof Design Services
Heavenly/Vail Update Parking Agreement
Residential Parking Permit Ordinance (First Reading)
Aug 22, 9:00 a.m. Budget Workshop
City Attny Franchise Agreement with South Tahoe Refuse
Public Works Award of Ski Run Park ADA
Sep 12, 9 a.m. City Attorney Local Hire Ordinance (first Reading) Dev Services Pro-Housing Designation
PLHA Formula Grant Amendment
3900/3908 Lake Tahoe Blvd DDA
City/CTC land exchange agreement
4139 Lake Tahoe Blvd (Chateau) update
Waiting list for Housing Needs
Public Works Hwy 50/89 Concrete/Pavement Option
Financing Options for Snow Operations (Service Area 3 Parcel Tax) 1124
2023 Agenda Planning Calendar (Updated 06 15 2023)
Snow removal from City Sidewalks
Sep 26, 5:30 p.m. Public Works Broadband PPP Contract
Dev Services Employee Housing Bill of Rights
Local Housing Funding Analysis:TOT
Oct 17, 5:30 p.m.
Nov 7, 9 a.m.
Nov 21, 5:30 p.m.
Dec 12, 5:30 p.m.
City Attorney
City Attny/PW Amendments to Small Cell Policy
City Clerk Records Management Policy (Updated)
Policy - Use of Personal Devices for City Business
City Manager Comprehensive Energy Services Contract
Electric Vehicle Charging Contract
Electric Municipality - Legal Feasability Analysis
Unscheduled/Pending
1125
2023 Agenda Planning Calendar (Updated 06 15 2023)
SEED Solar Photovoltaic Project PPA
Dev Services Plan Area Statement Update for Tourist Accommodation Uses Resiliency Center Grant
Single Room Occupancy Program Amendments
Finance Software Purchase
Fire Weed abatement/nusance Program - Defensable Space Policy Type III Fire Engine Purchase
Public Safety Pier at Ski Run Marina
Parks & Rec Parks Foundation MOU
Amendment 1 to Bijou Bike Park Association Maintenance Agreement Tahoe Swim Team Use Agreement
Bijou Golf Course "Rock the Lake" Event and Review
Public Works Award Contract EV Charging 1700 Shop Street 1126