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HomeMy WebLinkAbout2011-05-04 PacketCITY OF UKIAH CITY COUNCIL AGENDA Special Meeting Civic Center Council Chambers 300 Seminary Avenue Ukiah, CA 95482 May 4, 2011 4:30 p.m. WORKSHOP ROLL CALL 2. PRESENTATION a. Presentation of Tyler Technologies Financial Software under purchase consideration by City of Ukiah. Presentation will include an interactive component to allow City Councilmembers an opportunity to view system's functionality. Staff and members of the Ukiah Valley Sanitation District (UVSD) have been invited to attend the workshop in interest of answering questions related to system's functionality with regard to District's financial records. 3. PUBLIC COMMENT 4. ADJOURNMENT Please be advised that the City needs to' be notified 24 hours in advance of a meeting if any specific accommodations or interpreter services are needed in order for you to attend. The City complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. Materials related to an item on this Agenda submitted to the City Council after distribution of the agenda packet are available for public inspection at the front counter at the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, CA 95482, during normal business hours, Monday through Friday, 8:00 am to 5:00 pm I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue, Ukiah, California, not less than 24 hours prior to the meeting set forth on this agenda. Dated this 29th day of April, 2011. JoAnne M. Currie, City Clerk CITY OF UKIAH CITY COUNCIL AGENDA Regular Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 May 4, 2011 6:00 p.m. ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. PROCLAMATIONS/INTRODUCTIONS/PRESENTATIONS a. Presentation of Munis Financial Software by Tyler Technologies 4. PETITIONS AND COMMUNICATIONS 5. APPROVAL OF MINUTES a. Regular Council Meeting of 10/16/10 6. RIGHT TO APPEAL DECISION Persons who are dissatisfied with a decision of the City Council may have the right to a review of that decision by a court. The City has adopted Section 1094.6 of the California Code of Civil Procedure, which generally limits to ninety days (90) the time within which the decision of the City Boards and Agencies may be judicially challenged. 7. CONSENT CALENDAR The following items listed are considered routine and will be enacted by a single motion and roll call vote by the City Council. Items may be removed from the Consent Calendar upon request of a Councilmember or a citizen in which event the item will be considered at the completion of all other items on the agenda. The motion by the City Council on the Consent Calendar will approve and make findings in accordance with Administrative Staff and/or Planning Commission recommendations. a. Report To Council Of The Expenditure Of $6,625.05 To HD Supply, Portland For The Purchase Of 500 KCM And 350 KCM Conductor For Stock For The Electric Utility Department. (EUD) b. Approval Of Settlement Agreements With DFM Car Stereo, Inc. And McCarty Auto Body And Authorization Of City Manager To Sign Agreements C. Adopt Resolution Authorizing The Application And Acceptance Of A Grant From The Water Recycling Facilities Planning Grant Program In The Maximum Amount Of $75,000 And Rescind Resolution 2010-41 8. AUDIENCE COMMENTS ON NON-AGENDA ITEMS The City Council welcomes input from the audience. If there is a matter of business on the agenda that you are interested in, you may address the Council when this matter is considered. If you wish to speak on a matter that is not on this agenda, you may do so at this time. In order for everyone to be heard, please limit your comments to three (3) minutes per person and not more than ten (10) minutes per subject. The Brown Act regulations do not allow action to be taken on audience comments in which the subject is not listed on the agenda. 9. COUNCIL REPORTS 10. CITY MANAGER/CITY CLERK REPORTS 11. PUBLIC HEARINGS (6:15 PM) a. Conduct A Public Hearing In Accordance With California Redevelopment Law For The Use Of Ukiah Unified School District's School Capital Outlay Funds From The Ukiah Redevelopment Agency For The Construction Of The Administration And Education Resources Office Project; And Consider Corresponding Resolution Authorizing The Release Of Up To $4 Million To The District For The Project. 12. UNFINISHED BUSINESS a. Receive Status Report From The Paths, Open Space And Creeks Commission, And Provide Any Direction b. Status Report On Equipment In Well/Pump House #7 And #8 (Verbal Report) C. Consideration Of And Direction To Staff For Proposed Letters Of Intent Regarding Comprehensive Efficiency And Conservation Measures Program With Honeywell International Related To Four Capital Project Components: (1) Replacement Of Water Meters, Installation Of Leak Detection Equipment; (2) Energy Saving Retrofits And Refurbishment To Conference Center; (3) Biogas Cogeneration At Waste Water Treatment Plant; (4) Ukiah Municipal Golf Course Irrigation Improvements, Renovation And Driving Range Creation 13. NEW BUSINESS a. Introduction Of Ordinance Amending A Portion Of Division 3, Chapter 1 Of The Ukiah City Code Pertaining To The Adoption Of Appendix G In The 2010 California Building Code And Repealing Existing Flood Plain Management Regulations Contained In Division 9, Chapter 6 Of The City Code b. Approve Resolution And Authorize The City Manager To Execute All Of The Necessary Agreements Associated With The Lodi Energy Center Natural Gas Purchase Program. (EUD) C. Approval To Purchase Utility Easement From North Coast Railroad Authority (NCRA); And Authorization For The City Manager To Negotiate And Execute Agreement To Purchase A Utility Easement From NCRA And All Corresponding Paperwork; And Approval Of The Corresponding Budget Amendment (EUD) 14. CLOSED SESSION - Closed Session may be held at any time during the meeting a. Conference with Legal Counsel -Existing Litigation Government Code Section 54956.9 Name of case: (Ukiah Valley Sanitation District v. City of Ukiah, SCUK1057183 b. Conference with Labor Negotiator 54957.6) Agency Representative: Jane Chambers, City Manager Employee Organizations: Police, Fire, Electric, Miscellaneous, Management, and Department Head Units C. Conference With Legal Counsel - Anticipated Litigation Significant exposure to litigation pursuant to Government Code Section 54956.9(b)(1) and (3)(B) - over and under payments for City furnished utility service. (2 cases.) d. Conference with Real Property Negotiators 54956.8) Property: 3495 Taylor Drive Negotiator: Jane Chambers, City Manager Negotiating Parties: City of Ukiah and David Koball and Amy Smith Under Negotiation: Price & Terms e. Conference with Real Property Negotiators 54956.8) Property: Parcel located between Waugh Lane and Perkins Street Negotiator: Jane Chambers, City Manager Negotiating Properties: City of Ukiah and NCRA Under Negotiation: Price & Terms of Payment 15. ADJOURNMENT Please be advised that the City needs to be notified 72 hours in advance of a meeting if any specific accommodations or interpreter services are needed in order for you to attend. The City complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. Materials related to an item on this Agenda submitted to the City Council after distribution of the agenda packet are available for public inspection at the front counter at the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, CA 95482, during normal business hours, Monday through Friday, 8:00 am to 5:00 pm. I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue, Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda. Dated this 29th day of April, 2011. 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Roll was taken with the following Councilmembers present: Landis, Crane, Rodin, Baldwin, and Mayor Thomas. Councilmembers absent: None. Staff present: City Manager Chambers, Assistant City Manager Sangiacomo, City Attorney Rapport, Director of Public Works and City Engineer Eriksen, and City Clerk Currie. 2. PLEDGE OF ALLEGIANCE 3. PROCLAMATIONS/INTRODUCTIONS/PRESENTATIONS a. Wastewater Treatment Plant Employees Acknowledgement Director of Public Works/City Engineer Eriksen presented the item and introduced Randy Barton, JoAnn Walts, Joan Kelly, Ken Judd, Steve Stump, Allen Hodge, Gary Smith, and Andy Luke. 4. PI a. Dennis Slota, on behalf of the Mendocino County Storm Water Management Plan. He announced the storm drain art project which highlights the critters at risk from storm drain pollution. Mr. Slota requested City Council consider this project and enter into a storm drain art maintenance agreement. This item will be added to a future agenda. 5. APPROVAL OF MINUTES 6. RIGHT TO APPEAL DECISION 7. CONSENT CALENDAR a. Report to Council of the Change in Vendors From General Pacific, Inc. to the Okonite Company for the Purchase of 4500 Feet of #2 STR Aluminum Conductor in the Amount of $9,219.83 for Inventory Stock for the Electric Utility Department (EUD) b. Report of Disposition of Surplus Materials, Used Equipment, and Supplies C. Report to City Council Regarding the Purchase of Pulsar Plus Chlorine Page 1 10/6/2010 Briquettes From Lincoln Equipment Co, Inc. for the Ukiah Municipal Swimming Pools in the Amount of $5,002.50 d. Approve Amended Technical Service Support Agreement with Physio-Control e. Award Professional Services Contract to Ann Baker Landscape Architecture in an Amount Not to Exceed $17,300 for Consulting Services Related to the Completion of Observatory Park Funded by the Land and Water Conservation Fund f. Report of Acquisition of Professional Consulting Services for Solid Waste Rates and Transfer Station Fee Adjustment and Approve Associated Budget Amendment g. Update Report on Local Emergency Declaration Regarding Drought and Water Shortage Status h. Update Report Regarding Status of Water Emergency Conditions Necessitating Emergency Resolution to Expedite Construction of Oak Manor Drive Water Well MOVED to New Business 11`:b Adoption of Resolution Approving Contract to Share Proceeds of County Imposed Transaction and Use Tax and Authorizing City Manager to Sign Agreement Councilmember Baldwin requested item 7i be pulled; it will become item 11 b. M/S Rodin/Baldwin to approve items 7a-7h and 7j. Motion carried by the following roll call votes: AYES: Councilmembers Landis, Crane, Rodin, Baldwin, and Mayor Thomas. NOES: None. ABSENT: None. ABSTAIN: None. 8. AUDIENCE COMMENTS ON NON-AGENDA ITEMS 9. PUBLIC HEARINGS (6:15 PM) 10. UNFINISHED BUSINESS a. Discussion and Possible Introduction of Mobile Home Rent Stabilization Ordinance City Manager Chambers presented the item and directed attention to communications to the City Council that arrived today in opposition to the item. Recommended Action(s): Vote to introduce ordinance by title only, have city clerk read the title, and introduce the ordinance. Recessed 6:24 pm Reconvened 6:29 pm Public Comment Opened 6:44 pm Public speaking in support: Jay Twig, Rancho del Rey resident; Jon Burton; JR Rose; Gina Scott, Manor Oaks; Albert McQuiry, Rancho del Rey resident; David Vilner; Bart Clark, Manor Oaks residence; Page 2 10/6/2010 Public speaking in opposition of the item: Doug Johnson, WMA Western Manufactures Association. Public Comment Closed 7:12 pm M/S Baldwin/none to approve introduction of ordinance by title only. Motion Failed due to lack of a second. M/S Baldwin/none to approve introduction of ordinance by title only. Motion Failed due to lack of a second. M/S Baldwin/none to approve introduction of ordinance by title only. Motion Failed due to lack of a second. M/S Baldwin/None to approve introduction of ordinance by title only with a mandatory review in one year. Motion Failed due to lack of a second. M/S Rodin/Baldwin to approve introduction of the ordinance by title only with three changes to the ordinance, 1) remove "equal to the lesser" on page 8, 2704B, 2) remove "or the average of the three highest space rents in the park then in effect. This in-place rent increase may be implemented for a maximum of three in-place transfers of the mobilehome in that space." in 3704B, and 3) a mandatory review in one year. Motion carried by the following roll call votes: AYES: Councilmembers Landis, Rodin, Baldwin, and Mayor Thomas. NOES: Councilmember Crane. ABSENT: None. ABSTAIN: None. M/S Baldwin/Landis to apprm following roll call votes: AYES: Mayor Thomas. NOES: Counci AI..-- Recessed at 8:08 pm Reconvened at 8:17 pm b. Discussion a Creek Bridge cduction of ordinance. Motion carried by the cilmembers Landis, Rodin, Baldwin, and ber Crane. ABSENT: None. ABSTAIN: of the Function and Future of the Orr Director of Public Works/City Engineer Eriksen presented the item. Recommended Action(s): Discuss and give direction to staff on the future use and function of the Orr Street Bridge. Pubic Comment Opened 8:25 pm Public Speaking in support of the item: Diane Zucker presented a power point by Alan Nicholson; Susan Sure; Judy Pruden; Neil Davis, president of trail group; Porter Digner; Jamie Connerton, member of the POSC and citizen, POSC has heard this item and their position is both pedestrian and bike keeps with the community's and city's vision; Bruce Alfono, CEO RCHDC Housing, the area is going to be redesigned; Susan Knopf; Linda Sanders, Friend of Gibson Creek; Page 3 10/6/2010 Sue B.; Connie Diamond; Mary Misseldine; and Jennifer Smart, organizes the First Friday Community Bike Ride for Walk and Bike Mendocino. Public Speaking not in support of the item: Jack Cox. Public Comment Closed 9:10 pm Councilmember Rodin left Dais at 9:24 pm Councilmember Rodin returned to Dais at 9:25 pm By consensus, City Council directed staff to move forward with the Wagenseller's community concepts and produce a cost estimate with pros and cons of making the bridge a pedestrian and bike bridge while retaining its capacity for future use. C. Consideration of Approval of a Resolution Encouraging the Marine Life Protection Act Initiative Blue Ribbon Task Force and California Fish and Game Commission to Support and Adopt the Regional Stakeholder Group Marine Protected Area (MPA) Array Proposal (Unified MPA Array); and Possible Appointments of Two Agency Representatives City Manager Chambers p recommends adoption of t Protection Act Initiative Blue Commission to support an Proposal that was develope three of the North Coast possible appointments of twc James Martin was available to Mayor Thomas left Dias at 9:45 pm; Vice Mai Mayor Thomas returned 9:49 pm M/S Rodin/Landis to approve following roll call votes: AYES: and Mayor Thomas. NOES: Ni Adjourned to Ukia Reconvened as City rented the item. Recommended Action(s): Staff Resolution which encourages the Marine Life ribbon Task Force and California Fish and Game adopt the Unified Marine Protected Area Array by the Regional Stakeholder Group during round 3rine Life Protection Act Initiative process; and r questions and addressed City Council. assumed the gavel. signing the resolution. Motion carried by the Councilmembers Landis, Crane, Rodin, Baldwin, one. ABSENT: None. ABSTAIN: None. Agency at 9:55 pm pm 11. NEW BUSINESS a. Consideration and Possible Introduction of An Ordinance of the City Council of the City of Ukiah Amending Section 1965 and Adding Section 2000.3 to Chapter 12 (Parks and Recreation Facilities) of Division 1 (Government) of the Ukiah City Code Assistant City Manager Sangiacomo presented the item. Recommended Action(s): Introduce the ordinance by title only, direct the City Clerk to read the title, and pass a motion to introduce the ordinance. Page 4 10/6/2010 M/S Landis/Rodin to approve introducing the ordinance by title only. Motion carried by the following roll call votes: AYES: Councilmembers Landis, Crane, Rodin, Baldwin, and Mayor Thomas. NOES: None. ABSENT: None. ABSTAIN: None. City Clerk Read the title of the Ordinance. M/S Landis/Rodin to approve introducing the ordinance. Motion carried by the following roll call votes: AYES: Councilmembers Landis, Crane, Rodin, Baldwin, and Mayor Thomas. NOES: None. ABSENT: None. ABSTAIN: None. b. Confirm Continuance of City Council Ad Hoc Committee Members Crane and Baldwin for Discussions with Ukiah Valley Sanitation District (UVSD) (was item 7i) City Manager Chambers presented the item. Recommend Action(s): Confirm continuance of City Council Ad Hoc Committee Members Crane and Baldwin for Discussions with UVSD. M/S Landis/Crane to approve Recommended Action. Motion carried by the following roll call votes: AYES: Councilmembers Landis, Crane, Rodin, Baldwin, and Mayor Thomas. NOES: None. ABSENT: None. ABSTAIN: None. 12. COUNCIL REPORTS Councilmember Landis reported that Councilmember Rodin and she are part of a committee working on the revised business plan based on the CALED report for EDFC. Councilmember Crane left the Dias 10:43 pm Councilmember Crane returned 10:45 pm 13. CITY MANAGER/CITY CLERK REPORTS City Manager Chambers reported UVSD requested changing the date of the quarterly meeting scheduled for October 14 to November 4 or 18. The consultant (Mr. Smith) is facilitating with agenda preparation. City Manager Chambers reported staff was asked to report specifically on the wastewater state fines City Council recently approved to pay. Director Eriksen is questioning two of the items. The state recommended the City defer payment until the items are clarified. Therefore, the City Manager selected option 2 and held the check as suggested by the state. Adjourned to closed session 10:46 pm. 14. CLOSED SESSION - Closed Session may be held at any time during the meeting a. Conference with Legal Counsel - Anticipated Litigation Government Code Section 54956.9(b)(1) - Significant exposure to litigation (1 case) b. Conference with Real Property Negotiators (§54956.8) Page 5 10/6/2010 Property: APN 180-080-57, 58, 59, 62, 63, 64, 65, 66, 67, and 180-110-08, 09, 10 Negotiator: Jane Chambers, City Manager Negotiating Parties: Ukiah Redevelopment Agency and Northwest Atlantic (Costco) Under Negotiation: Price & Terms Not Heard C. Conference with Labor Negotiator 54957.6) Agency Representative: Jane Chambers, City Manager Employee Organizations: Miscellaneous Unit and Management Unit d. Conference with Real Property Negotiators (§54956.8) Property: APN 002-232-12, 13 and 002-282-18 and 19 APN 002-232-09, 10, 11 Negotiator: Jane Chambers, Executive Director Negotiating Parties: Ukiah Redevelopment Agency, City of Ukiah, North Coast Railroad Authority, Weston Solutions Inc, and Administrative Office of the Courts Under Negotiation: Price and Terms Not Heard "Ilkk e. Conference with Real Property Negotiators (§54956.8) Property: APN 002-192-01, 02, 03, 11, 14 and 18 Negotiator: Jane Chambers, Executive Director Negotiating Parties: Ukiah Redevelopment Agency, City of Ukiah, and Administrative Office of the Courts Not Heard Reconvened in Open Session at 11:10 pm with no reportable action. 15. ADJOURNMENT There being no further business, the meeting adjourned at 11:10 pm. JoAnne M. Currie, City Page 6 10/6/2010 City of-'ZJfjah ITEM NO.: 7a MEETING DATE: AGENDA SUMMARY REPORT May 4, 2011 SUBJECT: REPORT TO COUNCIL OF THE EXPENDITURE OF $6,625.05 TO HD SUPPLY, PORTLAND FOR THE PURCHASE OF 500 KCM AND 350 KCM CONDUCTOR FOR STOCK FOR THE ELECTRIC UTILITY DEPARTMENT. (EUD) Pursuant to the requirements of Section 1522 of the Municipal Code, this report is being submitted to the City Council for the purpose of reporting the expenditure costing more than $5,000 but less than $10,000. This is to report the purchase five (5) reels, one thousand (1000) feet each of XLPE conductor, three (3) reels of 500 KCM and two (2) of 350 KCM for Electric Utility in the amount of $6,625.05. This conductor is to replenish backup stock for the Electric Utility Department and will be charged to the inventory account until it is used--at which time it then would be charged to the appropriate maintenance account. Staff obtained pricing from four (4) sources for the conductor. Listed below are the results. HD Supply, Portland $6,625.05 General Pacific $8,071.74 HD Supply, Benicia $7,253.63 Platt $7,438.50 HD Supply - Portland was awarded the order on PO #040291. Fiscal Impact: X❑ Budgeted FY 10/11 ❑ New Appropriation F F Not Applicable Budget Amendment Required Amount Budgeted Source of Funds (title and Account Number Funds are available for the purchase to restock inventory and will be expensed from the appropriate Materials and Inventory Accounts (800.3728.690.000 and 800.3729.690.000) at the time of use. Recommended Action(s): NO ACTION NEEDED - REPORT TO COUNCIL ONLY Alternative Council Option(s): None Needed Citizens advised: N/A Requested by: Colin Murphey, Electrical Supervisor Prepared by: Mary Williamson, Buyer, Colin Murphey, Electrical Supervisor Coordinated with: Mary Horger, Purchasing Supervisor Attachments: N/A Approved: Jane hambers, City Manager ITEM NO.: MEETING DATE: City of uk?ah UKIAH CITY COUNCIL AGENDA SUMMARY REPORT May 4, 2011 SUBJECT: APPROVAL OF SETTLEMENT AGREEMENTS WITH DFM CAR STEREO, INC. AND MCCARTY AUTO BODY AND AUTHORIZATION OF CITY MANAGER TO SIGN AGREEMENTS (EUD) SUMMARY: Settlement agreements will resolve under and overpayments for electricity by DFM Car Stereo, Inc. and McCarty Auto Body, respectively. As a result of confusion as to which electric meters served different businesses in the same building, McCarty Auto Body paid for electricity that was actually serving the DFM Car Stereo business and DFM Car Stereo paid for electricity that was actually being used by McCarty. The DFM used substantially more electricity than McCarty during the 5 years before the error was discovered. As a result, DFM underpaid for the electricity it used and McCarty overpaid. Under the agreements, McCarty is refunded the amount of the overpayment without interest. DFM pays for six months of underpayments in monthly installments over a two year period. The City Council has previously discussed these claims in closed session. Staff recommends approval of the agreements. It is staff's intention to provide signed agreements to the City Council at its May 4 meeting prior to consideration of the consent calendar. Fiscal Impact: Budgeted FY 10/11 ~ New Appropriation Not Applicable Budget Amendment Required ❑ F-1 Fx Amount Budgeted Source of Funds (title and Account Number Addit. Appropriation Requested $45,192.84 Contractual Services 800.3733.250.005 Recommended Action(s): Approve agreements submitted at the City Council meeting and authorize the City Manager to sign them. Alternative Council Option(s): Do not approve the agreements and provide further direction to staff. Citizens advised: Sean Brodoski and Darrin McCarty Requested by: Mel Grandi, Electric Utility Director Prepared by: David J. Rapport, City Attorney Coordinated with: Jane Chambers, City Manager, Mel Grandi, Electric Utility Director Attachments: 1. Agreement and Release (DFM) 2. Agreement and Release (McCarty) Approved: ' Ja Chambers, i y Manager/ Agency Executive Director AGREEMENT AND RELEASE Shawn Brodoski and DFM Car Stereo, Inc. ("Brodoski") and the City of Ukiah ("City"), a general law municipal corporation, enter this Settlement Agreement and Mutual General Release ("Agreement") on 2011 ("Effective Date") in Ukiah, Mendocino County, California. } RECITALS , 1. Between July 2006 and January 2011 Brodoski was billed and paid $45,192.84 less for electricity supplied by City's electric utility than he and his business actually used. The underpayment resulted from a mix up in reading electrical meters in a building Brodoski's business shared with Darrin McCarty dba McCarty's Auto Body. 2. Brodoski has agreed to pay to City without interest the amount of the underpayment for the period August 2010 to January 2011, totaling $5,725.20 and City has agreed to accept this payment in full satisfaction of its claim for electricity furnished to Brodoski. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows. 2. INCORPORATION OF RECITALS. The Recitals contained in paragraphs. 1-2 are incorporated by reference into the body of this Agreement. 3. BINDING EFFECT. This Agreement governs the rights of, binds, 1 and inures to the benefit of each and every party hereto; their respective predecessors and successors; their past, present, and future subsidiaries, affiliates, joint ventures, partnerships, joint venturers, partners, assigns, officers, directors, shareholders, employees, agents, consultants, subcontractors, insurers, sureties, attorneys, administrators, executors, nominees, heirs, and representatives and all others, acting on thein.behalf or or behalf- of any of them. It binds the City and Brodoski. 4. AGREEMENT. Brodoski will pay to City the total amount of $5,725.20 ("Settlement Amount") in 24 equal monthly payments of $238.55, commencing on June 1, 2011 and continuing on the first day of each month thereafter (the "Payment Date") until the Settlement Amount is paid in full. At City's option, the monthly payments may be added to Brodoski's utility bill each month until paid in full (treating the payments as a utility payment, subject to the City's remedies for non-payment of utility bills or he shall make the payment separately to the City. If making the payments separately from his utility bill, each payment must be received by the City's Finance Department at 300 Seminary Avenue by 4 pm on the Payment Date. A payment will be considered delinquent, if not received by the loth day of the month. Delinquent payments will incur interest at 1.5% per month until paid. In addition, Brodoski will pay all costs incurred by City, including attorneys' fees to collect delinquent payments. 2 5. RELEASE OF CLAIMS. In consideration of full performance of paragraph 4 of this Agreement, and the payment of the full Settlement Amount, City absolutely discharges and releases Brodoski, and his officers, agents and employees, from any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, liens, actions, attorney's fees and causes of action in any way connected with City. Charges. for .electrical service ,et Yea s. busines for any period prior to the Effective Date, whether any such claim is currently known or unknown, suspected or unsuspected, and whether or not asserted prior to the Effective Date. 6. COVENANT NOT TO SUE. City covenants that it will never commence or prosecute, or assist in any way in the commencement or prosecution of any claim, demand, or cause of action of any nature whatsoever that is based upon any claim, demand, damage, debt, liability, obligation, cost, expense, lien, action, or cause of action hereby released. 7. WAIVER OF SECTION 1542 OF CALIFORNIA CIVIL CODE. City has considered the possibility that it may not now fully know the number or magnitude of all the claims for electricity furnished prior to the Effective Date that it has or may have had against the Brodoski, or his officers, agent or employees, but, nevertheless, intends to assume the risk that it is releasing such unknown claims.' City agrees that this Agreement is a full and final release of any and all such claims, and expressly waives, as to such claims, the benefits of 3 Sections 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. C 8. COMPROMISE. It is understood and agreed that this Agreement is the result of a good faith compromise settlement of any potential :,claims,,.and•.,that: this Agreement and the releases .:cohtained~ herein shall not be taken or construed to be an admission of any liability, responsibility, fault, or wrongdoing by any of the parties hereto. 9. REPRESENTATION BY COUNSEL. This Agreement is entered into freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice or had ample opportunity to secure such representation in the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. Each of the parties hereto executes this Agreement with full knowledge of its significance and with the express intention of effecting its legal consequences. 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto pertaining to the settlement of the disputes and obligations between the parties. This Agreement supersedes all prior and contemporaneous agreements not specifically identified in this Agreement, and all prior representations and understandings of the parties, which are merged into this Agreement. 4 Each party has made its- own independent investigation of the matters settled, has been advised or had ample opportunity to secure advice concerning the terms of this Agreement by.counsel of its choice, and is not relying upon any representation not specified herein. 11. ATTORNEYS' FEES. In the event of any dispute between the. parties hereto arising out of, or in connection with, the provisions of this Agreement .,or, any .doFcuments "ecut d ..and; iela,vergd puarsuarit to this Agreement, the prevailing party shall". `be entit'led` to reasonable attorneys' fees, costs of suit, and necessary disbursements, in addition to whatever damages or other relief said prevailing party is entitled to in connection with such dispute. 12. APPLICABLE LAW. This Agreement shall be construed under and shall be deemed to be governed by the laws of the State of California, without giving effect to any principles of conflicts of law if such principles would operate to construe this Agreement under the laws of any other jurisdiction. 13. CONSTRUCTION Or AGREEMENT. This Agreement is the product of negotiation and preparation by and among each party hereto and its attorneys. Therefore, the parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by one party or another, and that it shall be construed accordingly. 14. MODIFICATION OF AGREEMENT. No supplement, modification, waiver or amendment with respect to this Agreement shall be binding unless executed in writing by the party against whom enforcement 5 n I, of such supplement, modification, waiver,. or amendment is sought. 15. COUNTERPARTS OF AGREEMENT. This Agreement may be~sgned in counterparts by the parties hereto and shal'1 be valid and binding on each.party as if fully executed all on one copy. 16. SIGNATORIES' AUTHORITY. The signatories to this Agreement on behalf of all the parties hereto warrant and represent that they have authority to execute -this. Agree, ent, and to bind the 'azt; es on whose behalf they execute this Agreement. 17. REASONABLE COOPERATION. The parties hereto shall reasonably cooperate with each other, including executing all necessary further documents, if any, to carry out the purpose and intent of this Agreement. 18. EFFECTIVE DATE. The parties hereto deem this Agreement to be signed and of binding legal effect as of the Effective D te. CITY OF UKTAH SHAWN BRODOSKI.,,. ~ DFM Car Ster _ ; Inch, By: BY: Jane Chambers, City Manager Shawn Brodoski ATTEST: JoAnne Currie, City Clerk 6 AGREEMENT AND RELEASE Darrin McCarty ("McCarty"), doing business as McCarty's Auto Body and the City of Ukiah ("City"), a general law municipal corporation, enter this settlement Agreement and Mutual General Release ("Agreement") on , 2011 ("Effective Date") in Ukiah, Mendocino County, California. RECITALS 1. Between July 2006 and January 2011 McCarty was billed and paid $45,192.84 more for electricity supplied by City's electric utility than he and his business actually used. The overcharge resulted from a mix up in reading electrical meters in a building McCarty's business shared with DFM Car Stereo, Inc. 2. The City has agreed to refund to McCarty without interest the amount of the overcharge and McCarty has agreed to accept this payment in full satisfaction of his claim for reimbursement. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows. 2. INCORPORATION OF RECITALS. The Recitals contained in paragraphs 1-2 are incorporated by reference into the body of this Agreement. 3. BINDING EFFECT. This Agreement governs the rights of, binds, and inures to the benefit of each and every party hereto; their respective predecessors and successors; their past, present, and 1 future subsidiaries, affiliates, joint ventures, partnerships, joint venturers, partners, assigns, officers, directors, shareholders, employees, agents, consultants, subcontractors, insurers, sureties, attorneys, administrators, executors, nominees, heirs, and representatives; and all others acting on their behalf or on behalf of any of them. It binds the-City and McCarty. 4. AGREEMENT. On or before May 16, 2011, City shall pay McCarty $45,192.84. 5. RELEASE OF CLAIMS. In consideration of the performance of paragraph 4 of this Agreement, McCarty absolutely discharges and releases City, and its officers, agents and employees, from any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, liens, actions, attorney's fees and causes of action in any way connected with City charges for electrical service at his business for any period prior to the Effective Date, whether any such claim is currently known or unknown, suspected or unsuspected, and whether or not asserted prior to the Effective. 6. COVENANT NOT TO SUE. McCarty covenants that he will never commence or prosecute, or assist in any way in the commencement or prosecution of any claim, demand, or cause of action of any nature whatsoever that is based upon any claim, demand, damage, debt, liability, obligation, cost, expense, lien, action, or cause of action hereby released. 2 7. WAIVER OF SECTION 1542 OF CALIFORNIA CIVIL CODE. McCarty has considered the possibility that he may not now fully know the number or magnitude of all the claims related to the provision of electrical service at his business prior to the Effective Date that he has or may have had against the CITY, or its officers, agent or employees, but, nevertheless, intends to assume the risk that he is releasing such unknown claims. McCarty agrees that this Agreement is a full and final release of any and all such claims, and expressly waives, as to such claims, the benefits of Sections 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 8. COMPROMISE. It is understood and agreed that this Agreement is the result of a good faith compromise settlement of any potential claims, and that this Agreement and the releases contained herein shall not be taken or construed to be an admission of any liability, responsibility, fault, or wrongdoing by any of the parties hereto. 9. REPRESENTATION BY COUNSEL. This Agreement is entered into freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice or had ample opportunity to secure such representation in the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. Each of the parties 3 hereto executes this Agreement with full knowledge of its significance and with the express intention of effecting its legal consequences. 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto pertaining to the settlement of the disputes and obligations between the parties. This Agreement supersedes all prior and contemporaneous agreements not specifically identified in this Agreement, and all prior representations and understandings of the parties, which are merged into this Agreement. Each party has made its own independent investigation of the matters settled, has been advised or had ample opportunity.to secure advice concerning the terms of this Agreement by counsel of its choice, and is not relying upon any representation not specified herein. 11. ATTORNEYS' FEES. In the event of any dispute between the parties hereto arising out of, or in connection with, the provisions of this Agreement or any documents executed and delivered pursuant to this. Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs of suit, and necessary disbursements, in addition to whatever damages or other relief said prevailing party is entitled to in connection with such dispute. 12. APPLICABLE LAW. This Agreement shall be construed under and shall be deemed to be governed by the laws of the State of California, without giving effect to any principles of conflicts of law if such principles would operate to construe this Agreement 4 under the laws of any other jurisdiction. 13. CONSTRUCTION OF AGREEMENT. This Agreement is the product of negotiation and preparation by and among each party hereto and its attorneys. Therefore, the parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by one party or another, and that it shall be construed accordingly. 14. MODIFICATION OF AGREEMENT. No supplement, modification, waiver or amendment with respect to this Agreement shall be binding unless executed in writing by the party against whom enforcement of such supplement, modification, waiver, or amendment is sought. 15. COUNTERPARTS OF AGREEMENT. This Agreement may be signed in counterparts by the parties hereto and shall be valid and binding on each party as if fully executed all on one copy. 16. SIGNATORIES' AUTHORITY. The signatories to this Agreement on behalf of all the parties hereto warrant and represent that they have authority to execute this Agreement and to bind the parties on whose behalf they execute this Agreement. 17. REASONABLE COOPERATION. The parties hereto shall reasonably cooperate with each other, including executing all necessary further documents, if any, to carry out the purpose and intent of this Agreement. 18. EFFECTIVE DATE. The parties hereto deem this Agreement to be signed and of binding legal effect as of the Effective Date. 5 CITY OF UKIAH By: Jane Chambers, City Manager ATTEST: JoAnne Currie, City Clerk DARRI MCCARTY 6 city cJ,-'ZJkirzfi ITEM NO.: 7c MEETING DATE: May 4, 2011 AGENDA SUMMARY REPORT SUBJECT: ADOPT RESOLUTION AUTHORIZING THE APPLICATION AND ACCEPTANCE OF A GRANT FROM THE WATER RECYCLING FACILITIES PLANNING GRANT PROGRAM IN THE MAXIMUM AMOUNT OF $75,000 AND RESCIND RESOLUTION 2010-41 Background: On September 1, 2010 City Council approved the draft request of proposals for Engineering Services for the preparation of a Recycled Water Master Plan and authorized staff to distribute to Engineering Firms. Proposals were sent out on September 14, 2010 and were received at the Department of Public Works until 5 p.m. on October 12, 2010. On December 15, 2010 City Council awarded a contract to Carollo Engineers for the project per the review committee's recommendation. Discussion: Staff identified a Grant Program through the California State Water Resources Control Board which will pay a maximum of $75,000 towards the preparation of a Public Agency's Recycled Water Master Plan. Authorization from the governing body of the City of Ukiah by way of resolution is required for the application into this grant program. A requirement of the the Department of Water Resources specifies that the adopted resolution must include a maximum dollar amount of the grant funds to be accepted. On November 3, 2010 City Council adopted a resolution approving the application of grant funds. At this time, staff is requesting an amendment to Resolution 2010-41 to include the language: "in the maximum amount of $75,000." Water Board staff has indicated that the City's application is under review and strong consideration however the resolution must contain the specific language. Fiscal Impact: Budgeted FY 10/11 ❑ New Appropriation X❑ Not Applicable ❑ Budget Amendment Required Amount Budgeted Source of Funds (title and Account Number Addit. Appropriation Requested N/A $0 Recommended Action(s): Adopt the amendment to resolution 2010-41 authorizing the application and acceptance of grant funds from the Water Recycling Facilities Planning Grant Program for the maximum amount of $75,000. Alternative Council Option(s): None recommended Citizens advised: Requested by: Tim Eriksen, Director of Public Works/City Engineer Prepared by: Jarod Thiele, Public Works Administration Coordinated with: Jane Chambers, City Manager Attachments: 1) Resolution 2011- 2)Resolution 2010-41 Approved: - J Chambers, City Manager ATTACHMENT I RESOLUTION NO. 2011- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH ENDORSING THE APPLICATION OF GRANT FUNDS FOR IMPROVEMENTS RELATED TO THE RECYCLED WATER MASTER PLAN IN THE MAXIMUM AMOUNT OF $75,000 AND REPLACING RESOLUTION 2010-41 WHEREAS, Resolution 2010-41 is rescinded and replaced with this resolution; and WHEREAS, the City of Ukiah (City) operates and maintains water, sewer, electrical and storm water utilities infrastructure; and WHEREAS, from time to time regional, state and federal agencies make available grant and loan funding to support activities that allow for improvements to the City's infrastructure; and WHEREAS, the City wishes to take advantage of funding opportunities when the purpose of the funding program aligns with the City's goals for providing service. NOW, THEREFORE BE IT RESOLVED by the City Council hereby: 1. Authorizing and encouraging the filing of grant and loan applications that support the City's purpose and mission; and 2. Authorizing and designating the Director of Public Works to sign such grant or loan applications; and 3. Authorizing and designating the Director of Public Works as its representative in negotiations with various funding agencies for the purpose of securing funding for City's activities. PASSED AND ADOPTED this 4th day of May, 2011 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Mari Rodin, Mayor ATTEST: JoAnne M. Currie, City Clerk Attachment # RESOLUTION NO. 2010. 41 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH ENDORSING THE APPLICATION OF GRANT FUNDS FOR IMPROVEMENTS RELATED TO THE RECYCLED WATER MASTER PLAN WHEREAS, the City of Ukiah (City) operates and maintains water, sewer, electrical and storm water utilities infrastructure; and WHEREAS, from time to time regional, state and federal agencies make available grant and loan funding to support activities that allow for improvements to the City's infrastructure; and WHEREAS, the City wishes to take advantage of funding opportunities when the purpose of the funding program aligns with the City's goals for providing service. NOW, THEREFORE BE IT RESOLVED by the City Council hereby: 1. Authorizing and encouraging the filing of grant and loan applications that support the City's purpose and mission; and 2. Authorizing and designating the Director of Public Works to sign such grant or loan applications; and 3. Authorizing and designating the Director of Public Works as its representative in negotiations with various funding agencies for the purpose of securing funding for City's activities. PASSED AND ADOPTED this 3'd day of November, 2010 by the following roll call vote: AYES:Councilmembers Landis, Rodin, Baldwin, and Mayor Thomas NOES: None ABSENT: Councilmember Crane ABSTAIN: None TT~ST: J Anne M. Currie, City Clerk r Benj Tho as, Mayor City of LIMA Cafffoft Certified To Trw ar Exaq 0nm Cw% Date jokm M e% City ITEM NO.: lla MEETING DATE: May 4, 2011 city aJ- T-1 i afi AGENDA SUMMARY REPORT SUBJECT: CITY COUNCIL: CONDUCT A PUBLIC HEARING IN ACCORDANCE WITH CALIFORNIA REDEVELOPMENT LAW FOR THE USE OF UKIAH UNIFIED SCHOOL DISTRICT'S SCHOOL CAPITAL OUTLAY FUNDS FROM THE UKIAH REDEVELOPMENT AGENCY FOR THE CONSTRUCTION OF THE ADMINISTRATION AND EDUCATION RESOURCES OFFICE PROJECT; AND CONSIDER CORRESPONDING RESOLUTION AUTHORIZING THE RELEASE OF UP TO $4 MILLION TO THE DISTRICT FOR THE PROJECT. UKIAH REDEVELOPMENT AGENCY: AUTHORIZE THE EXECUTIVE DIRECTOR TO NEGOTIATE AND EXECUTE A RELEASE OF FUNDS AGREEMENT WITH THE DISTRICT FOR THE PROJECT; AND APPROVE CORRESPONDING BUDGET AMENDMENTS. Background: Under the original 1990 agreement with Ukiah Unified School District, the Ukiah Redevelopment Agency (URA) maintains a Capital Outlay Fund for the benefit of the District. Each year, the URA credits the fund with an amount of money equal to the increases in the assessed value of the taxable property in the URA's project area above the sum of the Base Year Roll which would have been calculated and paid to UUSD annually if the redevelopment project area had not been established. Funds accumulated in the Capital Outlay Fund may be used by the District for capital improvement projects when such improvements are found to be of a benefit to the project area and no other reasonable means of financing such improvements exists. Continued on Page 2 Recommended Action(s): City Council: 1) Conduct a Public Hearing to consider Ukiah Unified School District's request for the release of funds from the District's School Capital Outlay Fund (and other Agency funds reserved by agreement for the benefit of the District) for the construction of the Administration and Education Resources Office Project; and 2) If appropriate, approve the corresponding resolution making the necessary finding for the use of funds in accordance with California Redevelopment Law. Ukiah Redevelopment Agency: 1) If appropriate, authorize the Executive Director to negotiate and execute an agreement with Ukiah Unified School District for the release of funds; and 2) Approve the corresponding budget amendments. Alternative Option(s): Request additional information from the District to support the required findings and/or provide additional direction to staff. Citizens advised: N/A Requested by: Ukiah Unified School District Prepared by: Sage Sangiacomo, Assistant City Manager and David Rapport, City Attorney Coordinated with: Jane Chambers, City Manager/Executive Director Attachments: 1. Draft Resolution and Supporting Documentation 2. Draft Release of Funds Agreement Approved: Ja hambers, City Manager/Executive Director Subject: Ukiah Unified School District Administration and Education Resources Office Project Meeting Date: May 4, 2011 Page 2 of 2 Under a 2003 amendment to the original 1990 agreement, the District may request in accordance with the 1990 agreement annual payments from the Capital Outlay Fund, but in amounts as specified in a schedule attached to the 2003 agreement. The URA is required to disburse requested payment in accordance with Section 3 of the 1990 agreement. The 1990 and 2003 agreements are included as attachments for review. When the request for funds from the Capital Outlay Fund is to pay for all or part of the cost of installation and construction of publicly owned buildings, facilities, or improvements, Section 3 requires the URA to comply with Health and Safety Code Sections 33679 and 33445 before permitting the use of redevelopment funds for these purposes. Section 33445 requires the legislative body to make the following findings: 1. That the publicly owned buildings, facilities, structures, or other improvements to be acquired, constructed or improved are of benefit to the project area. 2. That no other reasonable means of financing the buildings, facilities, structures, or other improvements are available to the community. 3. That the payment of funds for the cost of buildings, facilities, structures, or other improvements will assist in the elimination of one or more blighting conditions inside the project area. Discussion: In March of 2010, the District requested the release of funds from the District's Capital Outlay Fund to pay for the cost of renovating their current District Administration Office to a new expanded facility at its existing location at 925 North State Street. During the public hearing, concern was expressed with regard to the limited size of the existing property and potential circulation problems. While funds were released for the project, the District continued to explore other potential locations and has since purchased property at 511 Orchard Avenue. The District is requesting approval to use its funds for the project at the new location in lieu of renovating their existing facility. The property at 511 Orchard Avenue is within the Agency's Project Area and is owned by the District. The request letter from the District is included with the attached documentation and further details the Administration and Education Office Project. The District has requested the disbursement of up to $4 million of which $2,293,045 has already been released. The remaining funds would be disbursed as increment is credited to the District's Capital Outlay Fund in future years. In accordance with California Redevelopment Law (CRL) and the Pass-Through Agreement with the Agency, the District requests that the City Council conduct a public hearing and consider the required findings documented in the attached draft resolution and project summary. If appropriate, the City Council will have to approve the resolution and the URA will have to authorize the Executive Director to negotiate and execute a release of funds agreement and approve the corresponding budget amendments. The public notice for the hearing was published in the Ukiah Daily Journal on Wednesday, April 20th and 27th and on the City's website. As required by CRL, a copy of the project summary was available for public review at the front counter of the Ukiah Civic Center since April 20th. Fiscal Impact: X Budgeted FY 10/11 0 New Appropriation 0 Not Applicable x~ Budget Amendment Required Source of Funds (title) Appropriation Requested URA and UUSD School District Capital Funds $4,000,000 ATTACHMENT #1 RESOLUTION 2011- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH, CALIFORNIA, MAKING THE FINDINGS REQUIRED BY SECTION 33445 OF THE CALIFORNIA REDEVELOPMENT LAW; DETERMINING THE NEW UKIAH UNIFIED SCHOOL DISTRICT ADMINISTRATION AND EDUCATION RESOURCES OFFICE PROJECT IS OF BENEFIT TO THE UKIAH REDEVELOPMENT PROJECT AREA; AND AUTHORIZING THE RELEASE OF FUNDS FROM THE DISTRICT'S CAPITAL OUTLAY FUND FOR THE PROJECT WHEREAS, 1. The Ukiah Redevelopment Agency (the "Agency") is a public body, corporate and politic, duly established and authorized to transact business and exercise powers under and pursuant to the provisions of the Community Redevelopment Law of the State of California (the "Law"), including the power to expend funds for public improvements for the benefit of the Ukiah Redevelopment Project Area ("Project Area"); and 2. The City of Ukiah ("City") is the legislative body for the community in which the Project Area is located and pursuant to Health & Safety Code Section 33445 is required to consent to payments to be made by its Agency for capital improvements; and 3. The Ukiah Redevelopment Plan adopted on November 15, 1989 provides for the funding of public improvements within the Project Area; and 4. The primary source of income to the Agency is "tax increment," which is the portion of ad valorem real property tax that results from the increase in assessed value of real property in the Agency's redevelopment project area over the "base year," which is the year the redevelopment plan is approved. The increment is composed of two parts: the annual 2% increase authorized by Cal. Revenue and Taxation Code Section 110.1(f) ("Inflation Adjustment"), and the increase resulting from reassessment of real property after a sale or after the construction of improvements; and 5. Under a 1990 agreement with Ukiah Unified School District (District), the Ukiah Redevelopment Agency maintains a Capital Outlay Fund for the benefit of the District. Each year after calendar year 1990, also called "the Base Year," the Agency credits the fund with an amount of money equal to the increases in the assessed value of the taxable property in the Agency's redevelopment project area above the sum of the Base Year Roll resulting from the Inflation Adjustment which would have been calculated and paid to District annually if the redevelopment project area had not been established; and 6. The District may request in accordance with the 1990 agreement payments from the Capital Outlay Fund for projects, including land acquisition and renovation and/or construction of facilities; and 7. The City approved Resolution 2010-13 on March 17, 2010, approving the release of funds in the amount of $3 million for the Ukiah Unified School District Administration and Education Resources Office Project ("District Administration Project") at 925 North State Street; and 8. The District has since selected a new location for the District Administration Project due to concerns about density and has submitted a new request (included in Exhibit A) to change the project location; and 9. The new site for the District Administration Project is located within the Project Area at 511 Orchard Avenue and will be owned by the Ukiah Unified School District; and 10. The District Administration Project is consistent with the Agency's Five Year Implementation Plan and a benefit to the Project Area as detailed in Exhibit A; and 11. Before the City Council may approve a disbursement of Agency funds for a public improvement, the City Council must conduct a public hearing in compliance with Health and Safety Code Section 33679; and 12. Health and Safety Code Section 33679 requires notice of the public hearing to be published for two successive weeks prior to the hearing in a newspaper of general circulation in the City and a summary of the proposal to be available for public inspection during that two week period; and 13.As required by law, notice was published in the Ukiah Daily Journal on Wednesday, April 20, 2011 and Wednesday, April 27, 2011 and a project summary was available for inspection during the required period at the City Clerk's Office (300 Seminary Avenue) and on the City's website (www.cityofukiah.com); and 14. Health and Safety Code Section 33679 requires the City Council to determine the total funds to be disbursed from the fund and to make specified findings before it can approve the disbursement of said funds; and 15. In making the findings as set forth below, the City Council has considered the factual information provided in Exhibit A and at the hearing conducted on May 4, 2011; NOW, THEREFORE, BE IT RESOLVED as follows: 1. The City Council hereby authorizes the Agency to disburse funds for the District Administration Project, subject to the approval of a site development permit for the Project; and 2 2. The total taxes to be disbursed by the Agency for the District Administration Project is $4 million dollars, which includes the $2,293,045 previously disbursed under Resolution 2010-13 with the remaining balance disbursed as increment is credited to the outlay fund in future years ; and 3. The City Manager is directed and authorized to enter a written agreement with the District to assure that the funds are disbursed and used in accordance with this resolution, the Community Redevelopment Law and 1990 agreement, as amended. 4. Based on the facts as set forth in the attached Exhibit A, the City Council hereby finds: a. The District Administration Project is of benefit to the project area; b. The District Administration Project will contribute to the elimination of blight. c. There are no other reasonable means of financing the District Administration Project available to the community. d. The Project is consistent with the Agency's Five Year Implementation Plan, adopted on August 15, 2007 and amended on August 18, 2010. DULY AND REGULARLY ADOPTED by the City Council of the City of Ukiah this 4t" day of May, 2011. AYES: NOES: ABSENT: ABSTAIN: APPROVED: Mari Rodin, Mayor ATTEST: JoAnne Currie, City Clerk 3 EXHIBIT "A" TO RESOLUTION SUMMARY OF PROPOSED EXPENDITURE OF THE UKIAH REDEVELOPMENT AGENCY FOR THE CONSTRUCTION OF THE NEW UKIAH UNIFIED SCHOOL DISTRICT ADMINISTRATION AND EDUCATION RESOURCES OFFICE PROJECT The City of Ukiah created a redevelopment agency ("Agency"), adopted a redevelopment plan, and established a redevelopment project area in 1989. The Agency uses a portion of property tax revenues to undertake projects and finance improvements to reduce or eliminate blighted conditions in the redevelopment project area. The primary source of income to a redevelopment agency is "tax increment," which is the portion of ad valorem real property tax that results from the increase in assessed value of real property in the Agency's redevelopment project area over the "base year," which is the year the redevelopment plan is approved. The increment is composed of two parts: the annual 2% increase authorized by Cal. Revenue and Taxation Code Section 110, and the increase resulting from reassessment of real property after a sale or after the construction of improvements. Under a 1990 agreement with Ukiah Unified School District (District), the Ukiah Redevelopment Agency maintains a Capital Outlay Fund for the benefit of the District. Each year, the Agency credits the fund with an amount of money equal to the increases in the assessed value of the taxable property in the Agency's redevelopment project area above the sum of the Base Year Roll which would have been calculated and paid to District annually if the redevelopment project area had not been established. Funds accumulated in the District's Capital Outlay Fund may be used by the District for capital improvement projects when such improvements are found to be of a benefit to the project area and no other reasonable means of financing such improvements exists. Under a 2003 amendment to the original 1990 agreement with Ukiah Unified School District, the District may request annual payments from the District's Capital Outlay Fund, but in amounts as specified in a schedule attached to the 2003 agreement. The Agency is required to disburse requested payment in accordance with Section 3 of the 1990 agreement. The 1990 and 2003 agreements are included as Attachments #1 and #2 for review. The District is requesting the release of funds from its Capital Outlay Fund to pay for the cost of constructing the Ukiah Unified School District Administration and 4 Education Resources Office Project ("District Administration Project") at 511 Orchard Avenue. The property is within the Agency's Project Area and is owned by the District. The request letter from the District is included as Attachment #3 and further details the District Administration Project. The City and Agency must comply with Health and Safety Code Sections 33679, 33445, and other provisions of Community Redevelopment Law (CRL) before permitting the use of redevelopment funds for the purpose of paying all or part of the value of the land for, and the cost of installation and construction of, any public owned buildings, facilities, or improvements. Two weeks prior to conducting the hearing, the City is required to make a summary available for public review. The summary must state the total amount of taxes proposed to be used for the construction of the building and other improvements, and it must include the facts supporting the findings, which are required by Health & Safety Code §33445. Those findings are as follows: (1) That the buildings, facilities, structures, or other improvements are of benefit to the project area or the immediate neighborhood in which the project is located. (2) That no other reasonable means of financing the buildings, facilities, structures, or other improvements, are available to the community. (3) That the payment of funds for the acquisition of land or the cost of buildings, facilities, structures, or other improvements will assist in the elimination of one or more blighting conditions inside the project. The findings are supported as follows: A. Estimate of taxes proposed to pay for the improvement and construction of The Ukiah Unified School District Administration and Education Resources Office is $4 million. B. There is no other reasonable means of financing the rehabilitation project. The total cost of constructing the new facility and purchase of real property is $4 Million. The District plan is to finance the project solely through the use of RDA Funds. The annual tax increment owed to the School District through the Redevelopment Agency that has currently accrued, the 2010 fiscal year apportionment due June 2011 and its apportions through the year 2013 will be used to fund the construction of the new facility. Unlike other district projects no other source of funding is available for the development of the service center. In order to benefit from the current real estate market the District used funds earmarked for other projects outside the redevelopment area to purchase the site. Reimbursement for the purchase of the property will allow the district to pay back funds otherwise not intended for the development of the district service center. C. Facts supporting findings under Health & Safety Code Section 33445. 1. The Ukiah Unified School District Administration and Education Resources Office is of benefit to the project area and contributes to the elimination of blight. The site at 511 S. Orchard is located in the redevelopment area and considered blighted. Construction of the New Ukiah Unified School District facility will benefit its immediate neighborhood and may serve as an impetus for other property improvements. The current District Office was constructed as a mortuary in 1962 and renovated as the District Office in about 1987. Presently its current condition also contributes to a blighted condition along the North State Street commercial corridor. The District preliminary plan is to repurpose the building for its district wide technology and data center though no plan has yet been approved by the Board of Trustees. The presence of the facility and its approximate onsite workforce of 35 employees at 511 S. Orchard will promote and encourage commerce in the immediate neighborhood. The repurposing of 925 N State Street will reduce congestion at that location by reducing its workforce population from approximately 20 down to about 5. 2. The Ukiah Unified School District Administration and Education Resources Office is consistent with Ukiah Redevelopment Agency's Redevelopment and Implementation Plans. The use of redevelopment funds is consistent with the redevelopment plan adopted by the Agency pursuant to CRL. Specifically, (1) The elimination of blighting influences and the correction of environmental deficiencies in the Project Area, including, obsolete and aged building types, incompatible and uneconomic land uses, substandard, inadequate or deteriorated public improvements and facilities, (2) The replanning, redesign and development of underdeveloped areas which are stagnant or improperly utilized, and (3) The providing of opportunities for participation by owner (City) and tenant (School District) in the revitalization of their property. 6 ii. The use of redevelopment funds is consistent with the implementation plan adopted by the Agency pursuant to Health & Safety Code §33490. Specifically, (1) Eliminate and prevent the conditions which lead to the spread of blight by providing the renewal, redevelopment, and restoration of the Redevelopment Project Area, (2) Promote public safety and economic growth through an improved system of streets, utilities, and public facilities, (3) Plan, design, and develop area which are currently stagnant or underutilized, iii. The purchase of the property has completed California Environmental Quality Act ("CEQA") review process and declared categorically exempt. Before any construction can occur on the property, Ukiah Unified School District will require a site development permit from the City of Ukiah. CEQA will require the City to conduct an initial study to determine whether to approve and certify a negative declaration or an environmental impact report prior to acting on the application. Accordingly, full environmental review under CEQA will occur before any action is approved which could have an adverse impact on the physical environment. 7 Attachment DUPLICATE ORIGINAL AGRE@WT BE11' HEM THE UKIAH REDEVELOPMEW AGENCY AND THE UKlAH UNIFIED SCHOOL DISTRICT PURSUANT. TO HEALTH AND SArM CODE S=XON 33401 THIS AGREENMT (the "Agreement") is made and entered into this 17th day of January, 1990, by and between the' UKIAH REDEVff"X 1'1' AGENCY (the - lgency and the UKIAH UNIFIED SCHOOL DISTRICT (the '"District")'.' RDCITA'LS A. The City Council of the City of Ukiah (the "City Council") adopted and approved a Redevelopwnt Plan (the "Redevelopment Plan") for the Ukiah Redevelopment Project (the "Project") by Ordinance • No.. 895 on November, 15, 1989. B. Pursuant to. the Cbm mitt'. Redevelopment Law of the State of California (Health and Safety Code Section 33000 at seq.), the Agency is charged with the responsibility of carrying out the Redevelopment Plan for the Project. C. The District is a taxing agency with territory located within the boundaries of the Project (the "Project Area"). D. Pursuant to Article XVI, Section 16, of the California. Constitution, Section 33670 at seq. of the Health and Safety Gode.and the Redevelopment Plan, increases in the assessed values of the property within the Project Area above the sum of the-assessed values as shown on the 1989-90 assessment r611 (the "ease Year Roll") will result in that portion of property taxes levied each year on such increases in assessed values being paid to,the Agency as tax increments (and not including any amounts paid to affected taxing entities pursuant to Section 33676 of the Health and Safety Code) C'Tax Incr(ments") to pay the.principal of and interest on loans, monies advanced to or indebtedness incurred by the Agency to . finance . or refinance, -in whole or 'in part'" redevelopment in accordance with the Redevelopment Plan. E. Section 33401 of the Health and-Safety Code allows a redevelopment., agency to make any payments necessary to. alleviate any financial burden. or detriment caused to any affected taxing agency by a redeveloprent project. F. Section 33445 of the Cmumity Redevelopment Law provides that .a redevelopment agency may, with the consent of the legislative body,. pay all or part of the cost of installation and construction of publicly-cwned buildings, facilities or improvements if the legislative body determines that such buildings, facilities or improvements are of benefit to the project area and that there are no other reasonable means of financing such buildings, facilities or improvements.. G. Section 33679 of the Community Redevelopment Law provides that prior to committing tax increment monies for the purpose of paying all or part of the value of land or the installation and construction of publicly-owned buildings, the legislative body must prepare a sucmra T of such proposed expenditures, hold a hearing and make certain specified findings. H. Section 33678 of the Community Redevelopment Law provides. that the allocation and payment of tax increment monies to redevelopment -agencies shall not be deemed. proceeds of taxes within the 'meaning of Article XIII-B of the California Constitution only if those tax increment monies are used for. redevelopment activities which: (1) are redevelopment as defined in Sections 33020 and 33021 of the Canmxnity Redevelopment Lawl (2)'pritwily- benefit the project area= and (3) are not used for the payment,of employee or contractural services, unless directly related to - the purposes of . Sections 33020 and 33021 of the Commnity Redevelopment Law. I. The Agency has determined that because it will use funds to increase or improve the supply of lour- and moderate-income housing within the City which may generate. additional -students and increase the need for District services, facilities or improvements, certain ••actions as set forth below are necessary to alleviate the burden and detriment or potential burden and detriment to the District. J. The purpose of this Agreement is to provide for a'procedure pursuant. to which the Agency may provide' for payments to be made by the Agency to the District to reimburse, and//or pay for, part of the cost of land and/or certain capital improvements, including .buildings, . facilities and improvements incidental thereto, and improvements to existing buildings and facilities which are determined by the'City Council of the City of Ukiah. and the Agency to meet the requirements of the Commmnity Redevelopment Law. K. The Agency and the District recognize that until specific low- and. . moderate-income housing programs are established, it is not possible ,to determine at this time which specific services and facilities will be reg,ired of the District as a result of the Project. THE AGENCY AND THE DISTRICT HEREBY AGREE AS FOLLOGO'S: SECTION 1.' Definitions. As used herein: a. ,Camwni ty Redevelopment Law" means the California Community Redevelopment Law as set forth in California Health and Safety Code Section 33000.et seq. b. "Final EXR!' means the Draft Environmental Impact Report on the Redevelopment Plan for the Ukiah Redevelopment Project and the commnents and responses thereto.' c. "Ordinance" means ordinance No. 895 adopted by the City Council. on November 15, 1989, approving and adopting the Redevelopment Plan. d. "Project" means the Ukiah Redevelopment Project. e. "Project Area" means the land area within the boundaries of the Ukiah Redevelopment Project as shown and described in the Redevelopment Plan. - 2 - f. "Redevelopment Plan" means the Redevelopment Plan for the Ukiah Redevelopment Project. SECTION 2. Subject to the conditions and limitations set forth in Seetions3 and '4 of this Agreement, the Agency agrees to,.. a. Pass through to the. District increases in the rate *of tax imposed for the benefit of the District, which levy occurs after the tax year in which the ordinance becomes effective; and b. Set aside in a fund for District capital bVrovem►ents (the "Capital Outlay Fund') an .amount equal to increases in the. assessed value of the taxable property in the Project Area above the sum of the Base Year Roll which are, or othexwise would be, calculated and paid annually to the District pursuant to subdivision (f) of Section 110.1 of. the Revenue and Taxation Code, and to make paym ants to the District from' the Capital Outlay 'Fund. in accordance with and subject to the conditions set forth in Section 3 of this Agreement. The Agency shall invest monies held by it in the Capital Outlay Fund. Any interest earned on the Capital Outlay E1uid shall accrue to the. Capital Outlay Fund. 0. Explore with the District methods by which the Capital Outlay Fund could be increased by amounts of Tax Increments which are not required by the Agency for the purpose of other Agency indebtedness or future Agency projects, or amounts required to be set aside for low- and moderate-income housing. SECTION 3. The Agency's obligation to make payments to the District from the Cap a0utlay Rmd pursuant to- Section .2.b. above is subject to the . following conditions: a. By January 1st of each year, the Agency shall provide to the District a statement bf the funds available as of the end of the previous fiscal year in the Capital'Outlay Fund. . b. ,Prior to March lot of each year, the District. shall present to the Agency a list of prioritized projects which the District has found are. required by the financial burden or. detriment caused by the Project' or are projects which benefit the Project Area., c. . Prior to Jluly 1st of. each year, the Agency and the City Council shall hold a public hearing in accordance with section 33679 of the Cmmunity Redevelopment Law. The Agency's, review of the proposed projects under this. Agreement shall be limited to whether the projects meet the Agency's requirements under the Community Redevelopment Law. The Agency shall approve those projects which meet the Om munity Redevelopment Law, including, but not limited to, Sections 33401; 33445, 33678 and 33679, which approval shall not be unreasonably withheld. d. in no event shall the Agency's annual payment from the Capital Outlay Fund to "the, District required pursuant to the provisions of this Agreement exceed the amount specified in. Section 2.b. of this Agreement. - 3 - SECTION 4. In no event shall payments be made to the District by the Agency: a. Which violate the expenditure limitation for the District under Article XIII 8 of the California Constitution; or' be Which are contrary to the provisions of Sections 33401, 33445, 33678 or 33679 of the Community Redevelopment Law or violate any other provision -of the Community Redevelopment Law -or the laws of the State of California. SECTION 5. Pursuant to Section 33334.2 of the Community Redevelopment Law, the Agency must set aside twenty percent (20%) of its Tax Increments for. low- and moderate-income housing (the "Housing Funds"). The Agency agrees to• consult with the District on-expenditure of the Housing Funds and the impact it may have on the District and to include the District on the Agency's low- and-Moderate-Income Housing Committee to be established pursuant to Agency Resolution No. 90-10. . SECTION 6. In order to assist the District with the development 'of addi ona District facilities and improvements, the Agency agrees. to acquire certain real property located adjacent to the Oak Manor. School fromi the City of Ukiah for disposition to the District (the "Sales Property"). "The Sales Property is described in the "Description of the Sales Property," attached hereto as Exhibit A and incorporated herein. by reference. The Agency's obligation to acquire the Sales Property and convey it to the District shall. be in accordance with and subject to the following conditions: a. The Agency agrees to sell the Sales Property to the District for a purchase price of one Dollar ($1.00). be The Sales property is currently used for park. purposes, including tennis courts (the "Existing Park - Uses and Facilities"). The District covenants and agrees that (1) -as long as the Existing. Park. Uses and Facilities remain on the Sales Property, the City shall have joint use of the Sales Property and the Existing Park Uses and Facilities. and the•District' agrees to maintain the Existing Park Uses and Facilities at the level at which it is currently maintained= and (2) prior to the District changing the Existing. Park Uses 'and Facilities 'on toe Sales Property, the District. shall have provided for. the Existing Park Uses and Facilities on other property with equivalent facilities, including tennis courts, within the general area of the Oak Manor area, except that the number-of parking spaces to be provided skull be determined by the Agency and the District based on, the appropriate parking requirements for the park and school uses. The 'Agency shall have the•right to approve, which right shall not be'unreasonably,withheld, the location and the kind of facilities to determine if they are equivalent to the Existing Park' Uses and Facilities. The covenants in this subsection be skull be included in the grant deed conveying the Sales Property to the District and shall, without regard to technical classification and designation, be binding for the benefit and in favor of -the Agency, its successors and assigns, the City and any successor in interest to the Sales Property or any part thereof. SECTION 7. in the event that in the future the District becomes a "basic aid" entity as defined under state law or the current method of State school -4W Yn district financing changes in a mangier that adversely. affects the District's financing due to the existence of the Redevelopment Plan, the Agency agrees to meet immediately in good faith with the District and attempt to find ways to alleviate such adverse fiscal detriment caused by the Project consistent with the intent of this - Agreement and also consistent with the ability of the Agency to carry out the Redevelopment plan. if the District- claims such adverse fiscal detriment, it shall be obligated to submit written documentation to the Agency sh(xdng the nature and extent of such adverse fiscal detriment. SECTION 8. The District agrees to authorize the Agency to subordinate' its irite ast-Herein and to allow the Agency to pledge : all or any portion of the Tax Increments otherwise' payable to the District under this Agreement in order to secure the repayment of Agency indebtedness incurred for the Project: provided the Agency demonstrates, to the reasonable satisfaction of the District, its ability to make payments due to the District under the terms of this Agreement. Nothing in this Agreement. shall give the District the right to approve Agency indebtedness,. except as the Agency may request the District to subordinate its rights.to-payments under this Agreement. SECTION 9. This Agreement shall constitute an indebtedness of the Agency incu2ge-d-12 -carrying out the Project and a pledging of Tax Increments from the Project to repay such indebtedness under the provisions of Article XVI, Section 16, of the California Constitution and Sections 33670-33677 of the Health and.Safety Code. SECTION 10. Section 2.b. of this Agreement is conditioned upon the District r'es nding its resolution to elect to receive the increases pursuant to Health and Safety Code Section 33676 (a). 'This Agreement shall .be effective as of the-date that the Agency executes this Agreement or the-District rescinds its resolution to receive the increases pursuant to Health and Safety Code Section 33676(x), whichever occurs later. SECTION 11. The Agency and the District agree not to file and..the Distr ct agrees not -to engage in any litigation to directly or indirectly test or challenge the validity' of the Project, the Redevelopment Plan, the Final EIR, the Ordinance or this Agreement; however, this Section shall not preclude the Agency from initiating a bond validation suit if it is deemed necessary by the Agency to assure adequate financing for the Project. SECTION 12. In the event litigation is initiated by any party attacking the va~3fft_yof the Redevelopment Plan, the Project, the Final EIR or the Ordinance, the effect of this Agreement shall be suspended and the'Agency shall not have any obligations under this Agreement until a judgment becomes final upholding the validity of the Redevelopment Plan, the Project, the Final EIR or the Ordinance. SECTION 13. This agreement shall terminate upon the earlier of the expira07oon or termination of the Redevelopment Plan or of the provisions of the Redevelopment Plan authorizing the allocation to the Agency of tax increments for the Project. Upon termination of this Agreement, all obligations of the Agency to make payments to the District shall cease. - 5 - IN WnNESS• WHEREOF, the Agency and the District have executed this Agreement as of the date first above written. UKI BY R:URA BY UKI BY - 6 - Y i I~ i W awoo a O Z a Ni r' O O ?a ~9g•0~ 1831$ . EXHIBIT A Attachment -%A - "a Ukiah Unified $dhooT :C is;triet a unifi.od &eh?.01. district. of, the State of Gal°ifor•ni tki and. the :Redeirelopment Oency of the C3 ty of" Ukiah .r,.edss-010P.~ent +agenoy of the State. Of C4.1fS2: ernte.r thia s'ettleinsnt Aejfeemant end wife ai Re7 ease .(,%9F,-team rit") J-p Ukiah, M.0Pdocihb Gounty;• Cai:i,farr~.a.; 'RECTTAL0 1. in. January, 1..990, 00.96 and the RDA• entered an agreement regarding {"the redevelopment pur&.u- nt• to lidra ,.th. -and Safety Coder Seotei,oh .39901 ,R.edeivelapmen~G A:9Yeameni*":') . 2. ?0.01144t. to :Settitsn 2..b of the Re~ieveiop~leAi: ~I.~Ji eemeritr the RpA argraeo t4 s:et as.fde .iri ~ "Ga~i:te.i. Outlay Fuind" itsr caiii,tai itnprovgmet~tpxojeots. withi i UUSD anti th'o rd00V*IbPA6ht :ptojeat area. an amount equal to the IttaXeas'as. in the a>sfs~es'sed -value of" the taxable property in the RDA' s redevelopment. project arsa above. the sum of they 9ase Year Roll which would 'have been. calculated and paid to U.USb annually, if. the redevelopment project area had not heea estab!is(hgd;.. chess_ amounts .shall be refexre_d: to herein as 'r- 3a TbO U A raceritly . l acovered thOt it 44d . coz*itto.0 an .Arrex, in aaldulating t#O . 00unt- of money that sh6iu;d have been $eet Abide in WUPPI-8 gapital :Q#tIp;y j'ugd pursuant to the 96davelopment Agfeement. Lass than the .fu11 amount required: by the Redevalopment Agreement -has been set aside since the Base ;lear in 19d: AUNT 4. The parties agree that •t~he AM shall reca]:_culate the amount of 'the .set aside for .elf. -tax years. since :1990.; and shag . set saAAe fn the Capital Out'18`j► Dind-additio.Da1: fclndg for .thosd ye.sr8 :equal, t"o the diffsrdnce bat' 000n 1 Aqz. Nov..ember 2.0., 20,62 tbe[ amount already set aside and the amount. that should 'have been sef aside .a. .(.The .corracied.:calculat,ions for each year and using the ,corxsat calculation the total additional amount owing for those gears is set 48rth in the. attAched Zx.hlb ft A,) In aciOU:. on.,. the RDA a4reae. to. c:Or a;ct'ly PAIA1,4a_t•s .the i3et esirle amount :fob tart yea'r` 20 0. And eyeYy fu't:e yeax to wliBh• the Redeve]opmpnt Agreement, applig)s. S., Tht RDA agrees. to disbuzse to' UUSD in fiscal year 2.069*05,. $::A2,: Q5 for capital improvement identified by DUSD for the bak• Manor modernizatilon project, An. accordance wi-th Section 3 of •the Redevelopment Agreement. Trheraaftex, VIVS.0 'may x'ep O.t 4.npual payments from the :'BOA as .indicated in e.000-90 0101416n to Vkhib# A headed jkk ?4yrnal t to .UUSncJ ud be94n.Ai40 :4ri JULY: 1, c0.0.6., .psyt'Rfitet: oia deterred, :amcurit a45 iiid cat.ed ~aa Ekboo A, The -am .alsal_] 'd:isbiurse said: ;iaymants 4.0. apo6r4ah.04 q.#4, so#ion 3 G'f tho, ROOOV4-uprwent Agreement' 5, the obilptions set torth in.-this: agreement shall :fully ,resolve :any. dlaim by •[IOSD against the RDA concerning the KoWs failure to.'proper.-ly. Calculat;e L-he set aside. Each party Abaci .1utely. discharges and: releases. the othe.x party-1.and Yk officers:, .agents and .emplpyees.,• trgm any. .and al claims, ;dQittahda,, :d0magea., delots.y lxat? lita ev; obgat~ on.s,PSti.r d3tperi8$:r iF3TLe, acticrrs:, sttorney's fe'as 'd uses, Of 60tiOn. in an eugh c ms4 Wh. sthe ar .sing in ligW or in, agu?.t,y,.t. knoian or unit own., suspeict4o or iunsuspoctedy whether ox, not, asserted prior to the effaot_3ve date pf' tO~-d Agreement:. 7. Each party. .covenants that it ,will never commence or prosecute, or, except as may be required or compelled by legal. process., as:si:s.t in..any way in .the commencement ar pros.ecu.tia.n 'of any Claim,, demand, or Calls. e. Of ,act c n of any ,nature whatsoevsr tl*t •s based upon any chain, demand,, damage,. debt., ,2 November 20, 2:0`02. liability, obZgatian, .00et:ixperrss, li.s, aat.i_bn:t vk gauss .ciC act`.or~. hereby released. 9: the. parties 'hqreto- deem this Agr~efi6ot tq b'e. g#gn6. 8ri{3. of binding legal effect as of the! date :orb 4 4 ci, the x :st: s gne tiny h®:x~stP. signs thee: Agreem®:nt:. 5. This Agreement shah not prevent .t.e .party es from agr.ea ng tb prnii t e. u'ss c $t a;scle fu»dr #cr. p.therurpaaes. 'of the: Redevelopment. AOOkpy as disci ssecl xtti.'the; HoeXd of. Fducs;tibn. i RADEUEIQ.FMENT AGENCY OF OXIAH Rhin Ash,:•, Thai . p~i~ i Datzd~ sdeva7 op0®w' Agoiid ' :..::erary 1~ated= ~ ~~/a~ A9F.-:e; s.D.: ra, o'o Noveanbar ~;p, 2062 ReealculaVon of. Uk(Ah ,USa WIM A CapltOl Outlay Funding Plan. ' Peymettt on 9ealnrilag Interest Interest AM* Capital Agreement+ ' .URA Peytger►t t?~eferted Y'ear;e . tfdfng PrOX Y.Oat Ye.0,84100e Role 8ernfnga" lleptsait• Iptet9.st toUU$D Afttoynt. Balance 20QQ ^ OUT 1,205,789 * 4,501 39,860. '240,063' x78;923 3170,000 1 155;712 2001 + 2002 mbg, .i2 4;604! 52;487 284,582 317,049 4 1;482 769 9001 - 2003 1;482,761. 4{t % 06;724. X89,811 356,335 , 1;830 096: ' 2003 20 4 1.,A8Qi~98 44014 81,789 915;131 :1'B?,~90. , j~.36 986 2004 - 2005 23ti~1~e6 4.91)%a 10 96;'1 341;162 429;474, . 426,474. r '~23$ 98B 2+jD8 • 2006 '9,2 40.9.86 4.60'16 8419'17 387,71:3' 491,830 451,830 , 2;288;966 200.,6 • :EOQ~ $,236;886, 4.8046 90;470: 394;79a 49f;289. 491;286 93;2178 2,14 ; 8 - 20.08 2;143,778. 4.50% 92,276 .422,416 .514,etf5 1:4; srz :93 2D8 .2;OSQ;671 20118 p . 0 '2,0$0,679 ASS'. ea~061 480.;69(`' 6'36.;678 598;6.7:.8 93;208 1,967;363: 2009 2910 1;9b7;363: 4:50 63887 479;333 863;222 593;222 95;209 1;81;4,1:65, 2010 = 2(1.11 1,864;155 4:60.y6 79;699 608;049 698;,342 ,400;942 9308 1;;779;947 1011 2012 1;770;9.47 4,6§O% 76,AS 636;5$0 614;0:4 81.4046 93;20$ 1,677 740 20°12 - 2013 1e77i740 1.1,3174 569;1x49 84G;353: 'GAb,363° 83;20+ , . 1,584,532 20.i•3' - x014 1;68?1,632 4, 0% 0.4.10. 000,164( .667,268 887;258 R .AA 1,_4.91,324 10 14. - .201:b 1,4 .$24 4A% 02;916: G3IA% 0304,604.• 694,894 Q3,2tIB 1;396,116 201H . 201;6 1;309,110: 4.510% 88,721 894,299: 7~~2,976 X2;976 93209 1;304;505 2018 - 2017 1;304,9D9 4X6O% 64;627 071,247 7;b1;794 7,6l.,794 93;206 1;211;701 017 901:8. '1.;291 4.66.°/0 50;332. 730;94.1 1611,273 781AM, 93;20.6 J. -.93 2018 ~ 201.9 1;1:1.81493 4.b0% 46;138 785;26.'7 81.1,42& :811,426 tt.~;2D8 1,025,285- 2D19 - 9020 1,046;265 466% 41;943 890;62.1 8424., 8421204 J3,;E08' 932"We 202D, - 201. 932,078 4.50°x+ 37;749. 63$;1156 873,804. 873;8174 99,269 638,470 2021 - 2022 83.6,870 4.60% 33;605: 1372;'50.4' 906,169 9016,059, 93;20$: 745,682; 2822 2023 1468.82 4-50% 29,:860. ' s09,t;81 ` :939042 989;044: , 93;206 652,464 2023: • 2024. .421.04 4,40% 26,1.64, 847,68& 072,768 972:;788 B3i200 6513,247 9024 •2026. 669'247 4;~~ % 20,872: '880N 83, 1;0471236 1,6D7;2b8 93',20,9' 4t3Q 49 9 20k5 2026 4.88;038 4,60°4 18,777 1;02#x7'37 .1;04;.2;614 1,04~;6l4 9 3r2A6 . 87;';83 1 2026 « 2027 . 372;83:1 4;40,°~ 92;883 1.;Q6s;579 9,078;562 1:07:6;582 . 93;208 . 879$23 i 2027 .2928 ^s7®,132:9 .4,401% 8:385 1407-i027 1;1'1`5;4'16 1 ild';4A6 83;2:08 16$;6 19 2028 - '02. 1,85,1{78 ' 4,60:9p 4i194 1,1411896 1,153;049: 1',163;0>3!3 63;20.8 8;1;204 2029 2030 031406 4.8816 111.81;80'1 11, 01,001 10.1:,601 93.;28,6 rQtEiIS :.$5;1.89;$6:1. 1.,tif38,89$ `20;~i.tt3,147 . , 21';7311018 2p 6Q;6'113 2128,6,1;'80 ';;UIJ.SgAnnual`DaRHaI tieposh fs ploJectad at:36,488t3:1e,° :9ttlte 7°~ prflpergc tex:nn the asserr3etl:valuatlongrowfh. This sharew111 cEeng9 With ttte'ad0al.;share as datermined iromyi'at.to:yeer ltih'eesaegs ad value 3rowth laiess tharf<2i~ lhe Yearlli.share wlllbe •deterrtlltied, t7Y 1;110 ac1{tel r3`sseesddvalue .cfien~e: . + "":Inlerest:rate is.O.rpJQed at 45410o- The artuallnterestpaidw711:be 6efetm(netl:$yi thb Redevelopment Agenny'spabled1nte 'restOarjililg§. ' rate,: es'determthed f am year to Y00.r.•,_ Ititbfesf eetiflhgs ete:dtstrlbuted et'fis . oe t yetir'eb'd.pbsed' $'n (Ile Jiihe 30 awounibAme I (e00foa Ot etued revenuel, This ealculefion &esui8bs'that IlUS17;i vt11 ieguest:peyment on ari'annual lias(s . ThOlAfk*t osClulatfons_ may vary slgnlflCantlli:I(NOW disbursemenis are not made; : . i i i t' .Rda t)Op.(tbt: (ijalysls:= May 26020dfited 10/1 102 i 1JF15D 6xhltift;i4 Roc9lcri sPon 6f 111dah. USD Exhil ft B Praji3ctlon o.#4iS.ye. or E9RItal. Ftittding VUSD 2%141/, prpwth Pro1go y"of ;Pe'y! ar Y°/A cf.:ofvmh l!U$A °rb.d •064" f QU.SD Yeve Share. y, CurnulelNe. Share Interost Reti~* 1nteresk Eamtngs Year Eqd. Betene@ 1968:. 1090. 286;206;997 No Year. VgIjuL 1000 a 1891: 28i,381 '►37 u w% 61;241 34.918ti57 A 17.483 17;488 (?;483.00 198.1 `r. 1992 266;6.62;780 2s00A%o 101,ki 34;908639% 0 35M8 52,1'89 4;76.% 832 53 620:00 1882 - 1893 27.1,1188;916 2.OQp% 1.fi6;t118 3a,9~e9359 6 , 53,604 108;292 081 ; 9,561 , i08,1376.00: 199$ 1.884 :27732.8.6.93 ;,004VA :21:1 87 04.4462lavA 72;74'! 179,?'039; 4:76% 5,218 107.;8 :110 1904 1896 282,873;2,x.1 2:060% 266,862 -35:45378,1% 0 04,om 274;114 -416% 4,12a ;291,0.43.0.Q 19$5' - 19$6 268;630;$02 21100%x 323;79,1 311;4807.60% 1irt~ti3 .391;eG9 4:78% 13;076 423,373:00 1.986 - 1597 2&4.;301,305 `1:110DVi6 38Aag.43 .37,0372761A 141,091 533;060 4:784' 20142 . 5 84,BUE1;G0' 1807 • 1e98 300;18.7,382 2OOD9o 438;8011 .31.40.840$A ,l ' 1},788 897;8+18 4 rfi°Io 27,813. . 777,207;00. 1889 • 1999. :306;191',0%8 P.000 90 999;1of 37 699030, 188,365 867;233 4:78% . 3¢,977 1;003,149.00 1995. • ;ZO :3121M;900 2,OOOJq .711 O 3 80.8$°k 214,.,4.73 1.,1(11; o8, . 4;761!0 47;747 , 1;286;788.00 2000 Ot 318;681;193 2:000%. 623,542 38. 89618'.6 240;063 1.341;768 440° 66,960 1;582; 1200' '9661 t 2002 024;932;422 y2;000°A BQ7,'fN 35;408816%. 284;5$2 i,617b,861 MO% 70,326 1;807;730.00- 2062 + 1003 331;:431,070 21000% 751;hd1 38:4988163!8 299;6} t 1;x95,91'2. 4:6 011;386 9,272,739 •2003. •2604 33a;OC9,891 2;000%x x:18;527 35,489816% 2604 8 31.5,431: $;217;163_ 4.511% 102,,07,9 2,690,143 2006 344;82Q;866 2;O,,90% 866;139 38:4 9818, 0 341;182 9;852{265 4,60%° 1'910 •9,i ftsg 2005 - 2008 .351,1776309 2.0.Db% 858,163 38.~198818%x e~i,yi9 12;8.18;97@ 4;6,096 141;859 3;6817831 2008 - _2007 3,6.0,7%t,10.40 00% 1,025;447 48.400010% '004.1709. 3,314;773 4.501o 164;y67 1.3• 4,221:,6 2007 gOQe . ;368,926;682 x.000% 1;097-'161 38.•496816%0 423,4'19 3;137;182 4;110x% Moss 1 , 4,833,900 1008 20.0 37,8;248,216 1466% 1;170;3.82 .3814$9816°/;1 4D;596 +1,167;787 AM- . 17;62% P;5Q2;OZ0 2008 • 2610 380,710,1217 2 000.%d 1;285;031: 38 49991M 479`13`35 4 4;1387;122 At0°/d 247,691 . 0 420 04 5 20111 - 201'1 966;894;9'22 2Oft 113$:1;119 '30499618°A 508;848 5;475,771 4;60% 280;303 , . 7;0}7,896 9471 - ?012 48809Ck6ds 2,000°.b 1;3~Q,000 08.40981891, 638;560` ¢;714;3x1 AM 316;805' 7;81;2;263 2012 .2013. :4041014,826, '2,00036 .1,476,1!66 30:48987696 $69,049: 0;283,3;7A d,stio 354;261 8 9ra;89x 7 2.0:13 ;20,14 412,092;878 ,2,000%.. 138.x99596%e 6110,}611, 6;883;528 4.5010 38.6;600 , . 9,791 ,611 204 =1015 420, 34,738 2000°/n 1;64127. W499810k 831}689 7,515,417 4;M% 440,'0,1'8 . 10,884,01$ 2015 Y '2o.15 49,8;1"491834 21000 i,M-444 38.499816°,% .054;104 $,[79;671 400% 08¢;88:1 ,b17,T53 :2098.- 241'1 43,7;016;268 9.044% 1,81:1,093 88:01998!18% 087;967 6,678;'836 4;.801A 540;772 13,1156;192 1017 = 2098 448,082;594 2.040'/x 1,8!18;586 38,490818% 77041 9,607;67'9 446014 5116,480 14-.892;671' 2018 - 2010 -0:64;883,035 loft 1,981,769 38.+!99818°k 765;*7 •1.0;378;166 4- 856,218 16,064122' 2019: • :20117 464i083;512 21100% 2;078;765 38,499816% 60.0;32t 1.1,173,487 4.60% 720;18$ 1?,82/F,628 2020 •2021 473,305;"182 2.OOQti 2;171;5 38,489818°/x 83B;058: 1`d•,pU9;542; 0414 ,89,808' 19;149;291 2021 - 2022 182,832;480 211011% 2;26¢;256 :36998814%a 872,$04 12;Bt}R;O40 4:SQ°~fi 861;718 20,8881613' 2022 - 2623 ,992,489,136 21100% 2,362,827 76.499816% :809;661. 13x781;728' 4.513% 938,758 22;732,853 2023 • 2024 502;338;918 2;00096 214.69;3;19 30:4996:9596 X117;608 14;739;331 4.6ft .1,0$2;983 8 20244 .r 2695 fi9$;396;ti97 2;000111 • 2,55'1,74? . 8864'909;(6'!0 1356,283 .15,728;6fA 4:5096 1111,x;gep ;!4t32 28;;80 2619, - 9028 1122;633;411 2,0QO.$o 0.00.20 4 88.4991316'x, i,Q26;737 .1..8,7114;361. 4XVI f,-206;087 i 29;073;289 26211..; 2027 .533.1106;072 2.0.0.0°.k 2;786;791 36.499118% ' 1,c6~,979 1 r;al7;sa6 4.6096 1s3o6;49@ 3'1;404;763 097 r 21128 6437147 00 21104°0 2,`8 5,408 :88.498818% 1;1;Q7';OZ7 18,094,30 4 1,41:3109 33,926;019 2028. - `2029 554,091761 ZOO% , 664`6 38,498$1>Q%6 1.,148;$88, ~Qid73,262- 4;60°,(1. 11x26,8,12 2829 • 634 665,77.5;21:1 2:000%0 3,G6,U69 -30.490414% 11154/6.11 1%, ,853 4:50°X6 1;647,010 30,440;290 T:.Otal$ $8;681;891 21,204;863 ifl;175,437 UUSD.Project:sliere.ie.prolttcted,Qt3@;49981.6°r4. Thfi shsrewill:ch "gewith."a4tusl:eher4-aa:dOterrntned'ftmyeattd.,yop1, lithea seesed Volvo omwth is less>thAt► 2%O°& Yegr shafe'vutll`pe tleie mlw. by the, ebtuai assmedvelua ioMpge. Ifitete3ti4te ts.ltiJeetedaE4.b°~:. The achtallMetest.paidwflAO detefiiilripd py".tlae:lledevelopmentAg6n"ay!s:pooled ilrtelesi'eBmtOgsrata, as deiermtnei ffahl.yeartc:.ye ft wvsphl Anatysii - May.2002 Rftntetl 1011102 f]U6o P.Xhtdlt 8 Attachment # Ex A - 3 Ukiah Unified School District 925 N. State Street, Ukiah, CA 95482-3470 707-463-5200 Fax: 707-463-2120 www.uusd.net Lois J. Nash, Ed.D. i Superintendent April 5, 2011 City of Ukiah Redevelopment Agency c/o Sage Sangiacomo, Assistant City Manager City of Ukiah 300 Seminary Ave. Ukiah, CA 95482 Dear Mr. Sangiacomo: The Redevelopment Agency Resolution 2010-13 approved the release of RDA funds for the Ukiah Unified School District to develop a new administrative office at its current location 925 N. State Street. Several RDA board members had reservations about us developing the present site to a higher density. The RDA Board with those concerns encouraged the school district to continue exploring alternative sites. The Ukiah Unified School District took the RDA council's concerns under consideration and delayed the project development to explore alternative sites. The Ukiah Unified School District now brings forth 511 S. Orchard Street as an alternative site to develop. We anticipate the new building will be approximately 14 thousand square feet. The project budget for the new facility, including the purchase of the site is just under 4 million dollars. It is the desire of the District to use redevelopment funds to fund this project. Presently, the District has in its possession $ 2,293,045 of RDA funds. The request before you is to approve its expenditure to reimburse the site purchase and develop the new UUSD administrative office at 511 S. Orchard in lieu of developing 925 N. State street. Furthermore, The District seek the use of forthcoming'Redevelopment funds in 2010, through 2013 for the balance of construction funding: The District believes that this project redefined to develop 511 S. Main Street continues to fall within the guidelines for the use of the Redevelopment funds owed to the District, as the project will do the following: • The rehabilitation of the site is of benefit to the project area; • The construction of the facility will contribute to the elimination of blight. • There are no other reasonable means of financing the project available to the District. • The Project is consistent with the Agency's Five Year Implementation Plan, adopted on August 15, 2007. The District hereby requests that the redevelopment agency adopt these findings and release the fund balance currently held by the Redevelopment District for use on this project. The balance of funds will be requested as future Redevelopment funds become available. We appreciate your cooperation and will be pleased to provide any additional information required. Cince 1 Lois J. s , d.D. Superi ndent LJN/deb Attachments: Proposed Resolution, Budget Schedule, Conceptual Plan Focused on Success for All Educational Services 707-463-5213 Fiscal Services 707-463-5201 Personnel 707-463-5208 Personnel Commission 707-463-5205 Special Education Services 707-468-3315 Technology 707-463-5294 Transportation/Maintenance/Grounds 707-463-5233 District Office at Orchard Street between Perkins and Gobbi Ukiah Unified School District - District Office Project Source of Funds: Redevelopment Funds CONCEPTUAL BUDGET Description Schematic Budget Expeneded To Date, Remaining Balance_ Forecast Surplus (Shortfall) Planning & Environmental Review (oon E.I.R) - Prepare Environmental Review - 12,500 - - Site Appraisal 10,000 3,500 6,500 Project Management (Pre-Planning phase) - Demolition - - Construction (13,800 s.f.) 2,732,400 - 2,732,400 Tempoary relocation of Staff - - Construction Contingency 273,240 273,240 City Electric 15,000 15,000 Water Services 8,000 8,000 Telecommunications (Pac Bell) 15,000 15,000 Education Technology 100,000 100,000 Sewer Services 5,000 5,000 Fixtures and Furniture - - DSA Permit Fees City Pennit Fees 49,000 49,000 A / E Fees - Design 301,000 301,000 A / E Reimbursable - Design 10,000 - 10,000 Materials Testing and Inspection 12,000 12,000 Haz, Mat. Abatement - Haz. Mat.investig. - - Survey and Geotechnical Report 12,500 12,500 Geotechnical Construction Support 5,000 5,000 Feasibility study - - Site Purchase 370,000 370,000 Legal fees 10,000 10,000 County Office of Education - - County Attorney's Office - = Misc. legal notices etc. 5,000 5,000 Project Reserve 25,000 25,000 Assumes Negative Declaration for the need of a full EIR Purchase price inludes escrow estimate and geotech O In O O M ~n rn v o a O V N N N O~ O lq D N ID ~ M O M M 10 W t- IN 1- N H d 00 N n c O b y C ~r N u ~ O 'b L ~ a N c b V ~ O O L ..yi A 00 O M In I M 8 a O O O c~i V1 Q. M 00 M N V In 'O O N_ ~ r4 n t~ 'O N 10 ol M ~ ~ V In a O 'n N O o ~n lV O O C O O M M N fJ O in O eY O O O M O' ct N CV O ~n O a O O oO M V M - [V ~n O ~n O O O M O M a+ In V N d h N N O+ m b ro V c d N Ui E ~ 'a u U J N ab ~ O ~ o J V C ro c a H d N UUj 'V ~ m w ~ ~ E o ~ 0. U - yy - - - 1 u_ a'' ! Urn ~w ajN I I I i ~6AL T~~ e6 a H I,: -f - ~pp ~ H P1 i rn a ZO H 3 I- - - U + ti Z ~ w N VV ~i uViN OI-e a n ~t- o G C `~~g us 8 0aa ~ w ~ Aga s ~ ~iZZ, H p as ~ S O aj 'o~ - ~ ~ a Z Z~13 a= a rn i ' MSh.91 PSON68'hGl ~f z I I i i i i ~E 5 ~r I o~ I Li w ~ a a y 1 q-a _ al I J I I q 7. i a~ a@,~IIWg T5 I'I~IIIIII'II IIII ZOQI! li 9.'jj a! .~Q IIN8o I,I W a z I I III y''j 0,': Q i d• a .5 ~U ild llljlll I -.,i jl i; IE., (~I I ~ I I a~ R+:r x} oa. jl- III it ~j Np I I - I - - I i I I - `J _ I r~~ je I I ~ C C G C ❑ C Uri _ - ---ID grC CC~GC I- ] f~ CCC❑ cpE iJ L G G G CCU C r-, E: ❑ ~dn a nCr r-CCr Cf-- y f ! § rnrr'rr~E: r I~ ge j 9 r G r-C r C e❑ J J LL2 -q r p_q C GAG L- - - - ~ r e C C G C CIE El I j II I I i L t i~ y L~j U_ J > j r I CF L? - ar - :i = 1 A ' - T I it i I _ - - Ili - I - - III I - W'W I z NV I{~ I - , ICI IU° I I 4 i ~c,4' ra g i rr. ~ q~r ? I B~:' $M1 ie b'.b {5. F6 nrl g 8. i~: a I al sqy y~ ~ _ as a I T I I p -a fF~r I 'I{~Ii ul I II-L I I ii ~ r' 4 I I i i I? - 'll- I. _il I X11=: i-'~ i, I w~ ~ , I NQ 'p viV ~V7a I.I ~ ~i :i lm I I III I I k'1 F7 U 3 V ¢ :I III , I l i W I I ~ E I t S w V I I AA. IL -.J~1 I fi~i it . 3 r I ~ d b b~ gb i ~ 'pII ~>or rr ~ ~ ~ III I I I F, I# I Is: ~ I ly ~ ~ III : ii Wli J ~ I I_ ~ I~- pp L,I~~I ~ i I _II I I I III - I II I'I ' ill I' I JILT, LLL..~~~JJJ iii: i_t III I 119 I II i I, _ I 1 I t , t TIII> 'I I IT_ I ' I Il 1.:.:1 I I ! 7 - I I r - - 9~ €y5I, v Q c 4u 8 r Q w' z g { 12 a Attachment #2 AGREEMENT REGARDING USE OF UKIAH REDEVELOPMENT FUNDS FROM UKIAH UNIFIED SCHOOL DISTRICT'S CAPITAL OUTLAY FUND FOR THE UKIAH UNIFIED SCHOOL DISTRICT ADMINISTRATION AND EDUCATION RESOURCES OFFICE PROJECT This AGREEMENT is made on , 2011 (the "Effective Date"), in Ukiah, California, between the Redevelopment Agency ("Agency") for the City of Ukiah ("City"), and the Ukiah Unified School District ("District"). Collectively, Agency and District may be referred to in this Agreement as the "Parties." RECITALS: 1. Under an agreement (the "1990 Agreement") between the Agency and the District entered in 1990, the Agency maintains a Capital Outlay Fund for the benefit of the District. 2. Each year, the RDA credits the fund with an amount of money equal to the increases in the assessed value of the taxable property in the Agency's redevelopment project area above the sum of the Base Year Roll resulting from the annual increases required by Revenue and Taxation Code § 110.1(f) which would have been calculated and paid to the District annually, if the redevelopment project area had not been established. Funds accumulated in the Capital Outlay Fund may be used by the District for capital improvement projects within the District and the redevelopment project area ("the Project Area"). 3. Under a 2003 amendment to the 1990 Agreement, the District may request in accordance with the 1990 Agreement annual payments from the Capital Outlay Fund, but in amounts as specified in a schedule attached to the 2003 agreement. The Agency is required to disburse requested payments in accordance with Section 3 of the 1990 Agreement. 4. If the request is for money to make capital improvements to publicly owned buildings, Section 3 of the 1990 Agreement requires the Agency to comply with Health and Safety Code Sections 33679 and 33445, which are part of the Community Redevelopment Law. 5. Section 33679 requires the City to conduct a noticed public hearing and make the findings required by Section 33445 before permitting the use of redevelopment funds for these purposes. Section 33445 requires the City to find make the following findings: a. That the publicly owned buildings, facilities, structures, or other improvements to be acquired, constructed or improved are of benefit to the project area. b. That no other reasonable means of financing the buildings, facilities, structures, or other improvements are available to the community. c. That the payment of funds for the cost of buildings, facilities, structures, or other improvements will assist in the elimination of one or more blighting conditions inside the project area. 6. On May 4, 2011, the City conducted a public hearing and made the findings required by H & S Code §33445, and based on those findings authorized the Agency to disburse up to $4,000,000 to the District to be used by the District to construct the for the Ukiah Unified School District Administration and Education Resources Office Project ("the District Project") at 511 Orchard Avenue ("the Project Location"). 7. On May 19, 2002, the District requested disbursement of $3,000,000, $2,000,000 from the Capital Outlay Fund and $500,000 pursuant to the Agreement, dated March 8, 2010. The City approved those disbursements and has disbursed a total of $2,293,045 to the District. Those funds were approved for the construction of a District administration building at 925 North State Street. The current request is to use those funds to fund the acquisition of a new site at 511 Orchard Avenue and to design and construct the District Project at that site. 8. The District has not prepared or filed with the City" plans for the construction of the District Project or applied under the City's zoning or building codes for the permits required for the project. The City has not represented to District that the District Project can be constructed at the Project Location in compliance with applicable zoning or building codes or indicated or determined, what, if any, conditions may be contained in any such permits. In requesting the disbursements provided in this Agreement, the District has not relied on any statements or representations by the City, the Agency, or their officers, agents or employees concerning the design or construction of the Project at the Project Location. 9. This Agreement contains the terms and conditions upon which the Agency shall disburse and the District shall use the funds that the City Council authorized at its meeting on May 4, 2011. AGREEMENT: In consideration of and reliance upon the above-recitals and the terms and conditions as further stated below, the Parties agree as follows. 1. The Agency shall disburse a total not to exceed $4,000,000 to the District for its use to acquire property for and design and construct the District Project. In addition to funds already disbursed, as described in recital no. 7, as funds accrue in the Capital Outlay Fund, the Agency shall disburse not to exceed an additional amount of $1,706,955 to District. 2 2. The District shall complete the Project by , 20_. If the District fails to complete the Project by that date or the funds are used in violation of the requirements of the Community Redevelopment Law, the District shall repay the District's Capital Outlay Fund that portion of any funds disbursed pursuant to this Agreement which were not used in compliance with said requirements to design or construct the District Project, and the Agency shall have no obligation to disburse additional funds from the District's Capital Outlay fund pursuant to paragraph 1 of this Agreement. 3. The District shall properly account for the use of the funds disbursed pursuant to this Agreement and shall maintain adequate records of such expenditures in accordance with generally accepted accounting principles as applied to California school districts, which records shall be available at the District administrative offices for inspection, copying or audit by the Agency during the District's normal business hours. 4. The District shall fully indemnify, defend and hold harmless the Agency and its officers and employees from and against any claim, demand, liability, damage, cost or expense arising out of the District's receipt and use of the funds disbursed to District pursuant to this Agreement which claim, demand, liability, damage, cost or expense arises out of any act or omission of the District, or its officers, employees, contractors or agents, provided: a. A claim, demand or liability, includes a settlement or judgment based on the claim, demand or liability and the costs to the Agency of defending against the claim, demand or liability, including litigation expenses and the fees of attorneys, investigators, consultants, or experts to be paid when incurred and upon demand by Agency; and b. The District shall pay Agency for any damage, cost or expense, when incurred and not solely upon the Agency's payment therefor. 5. GENERAL PROVISIONS 5.1. This Agreement constitutes the entire agreement between the parties with respect to the terms and conditions upon which the Agency shall disburse and the District shall use the funds that the City Council authorized in Resolution No. _ and supersedes any and all other prior writings and oral negotiations. The terms of this Agreement shall prevail over any inconsistent provision in any other document, except Resolution No. _ 5.2 This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. 5.3 Any notices, documents, correspondence or other communications concerning this Agreement may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO DISTRICT: Ukiah Unified School District Attention: Superintendent 925 North State Street Ukiah, CA 95482 FAX: IF TO AGENCY: Ukiah Redevelopment Agency Attention: Executive Director Ukiah Civic Center 300 Seminary Avenue Ukiah, CA. 95482 FAX: 707-462-6204 5.4. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Mendocino County, California. 5.5. This Agreement shall not be assigned without the prior written consent of both parties. 5.6. This Agreement is entered into for the sole benefit of City and District and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.7. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 5.8. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. WHEREFORE, the Parties have entered this Agreement on the Effective Date. UKIAH REDEVELOPMENT AGENCY UKIAH UNIFIED SCHOOL DISTRICT By: Jane Chambers, Executive Director By: 4 ATTEST: By: ATTEST: By: Linda Brown, Agency Secretary AM* ITEM NO.: pir MEETING DATE: City 471'ZIkit1h May 4, 2011 AGENDA SUMMARY REPORT SUBJECT: RECEIVE STATUS REPORT FROM THE PATHS, OPEN SPACE AND CREEKS COMMISSION, AND PROVIDE ANY DIRECTION SUMMARY: The City of Ukiah Paths, Open Space and Creeks Commission would like to provide a status report to the City Council about its recent accomplishments, current activities, and potential future activities. The Commission is seeking any direction the Council may have about future projects and activities that could assist the City implement the Open Space and Conservation Element of the General Plan. The Commission prepared a Status Report of its activities (Attachment 1) and is prepared to discuss it with the City Council on May 4, 2011. Recommended Action(s): 1) Receive report and provide any direction to the Paths, Open Space and Creeks Commission. Alternative Council Option(s): Do not receive report Citizens advised N/A Requested by: City of Ukiah Paths, Open Space and Creeks Commission Prepared by: Charley Stump, Director of Planning and Community Development and the Paths, Open Space and Creeks Commission. Coordinated with: Jane Chambers, City Manager Attachments: 1)Status Report from the Paths, Open Space and Creeks Commission L Approved: C'-~~ Ja Chambers, City Manager ci Attachment # __L kiAh City of Ukiah Paths, Open Space and Creek Commission Status Report May 4, 2010 The City of Ukiah Paths, Open Space and Creek Commission (POSCC) was formed to assist with the implementation of the Open Space and Conservation Element of the Ukiah General Plan - to preserve and enhance paths, open spaces and creeks, and to assist in finding funding for these activities. The POSCC would like to use this status report to update the City Council on its activities over the past few years, its current activities, and to receive feedback and direction for the future. Recent Accomplishments Oak Manor Elementary School clean-up: POSCC commissioners, Friends of Gibson Creek, and community members worked with Oak Manor school teachers and students to educate them about the stream and to assist in clean-up efforts. City View Trail: Working closely with City staff and the Ukiah Valley Trail Group, POSCC helped facilitate, design, and via volunteer work parties, construct the City View Trail adjacent to Low Gap Park. Creek Maintenance Policies and Procedures: Working closely with City staff and the community, POSCC developed creek maintenance policies and procedures to guide City staff in the performance of maintenance practices in an ecologically sound manner. Current Activities Community Communication: POSCC has become more active in fielding questions and concerns regarding the Creek Maintenance Policies as well as questions about activities that fall outside those policies. We are working with City staff to create a website document that lists the appropriate City staff contacts for different activities, their phone numbers, and a broad process for who to contact for what reasons. City View Trail and Low Gap Park: POSCC is continuing to work with the Ukiah Valley Trail Group and City staff on final details with the City View Trail (e.g. signage). We have also been in contact with County staff regarding signage in Low Gap Park and would like to work with the County and the Trail group to develop maps, signs and perform improvements in Low Gap Park and on the City View Trail. City of Ukiah Paths, Open Space, and Creeks Commission Status Report to the City Council May 4, 2011 Page 1 Trail Opportunity Research: Over the past year, POSCC has been meeting with a variety of local community groups to discuss opportunities and needs for walking and biking trails and routes in the Ukiah area. We have met with: • Ukiah Valley Trail Group • Peregrine Chapter of Audubon Society • Mendocino County Office of Education • Mendocino County Public Health • Wagenseller's Neighborhood Group • Friends of Gibson Creek • The Ukiah Rod and Gun Club We have discovered consensus in areas of interest and locations for future trails and paths. There is a general consensus that the community would like more non-motorized access to natural areas and across the urban areas, especially safe places to travel from one place to another, for both children and adults, walkers and bikers. Locations that have frequently been mentioned include: • Route linking Ukiah with Mendocino College - either along the railroad grade or some route through the vineyard areas. • Rail and Trail along railroad right-of-way • Russian River frontage - linking Riverside Park with Talmage Road and also from Riverside Park north • Orr Creek greenway • Improved access to Vichy Springs area • A link between the ball fields and the neighborhoods west of the freeway • Generally speaking - safe routes to school that would promote kids safely getting to class under their own power We are not proposing any specific routes across any particular piece of private property, but rather presenting broad ideas. We understand that these are complicated and potentially expensive endeavors that would require significant community support and participation. Future Activities POSCC desires to use our energies to help the City Council, City staff and the community to continue to make Ukiah a very liveable community. We are here to serve. We are very interested in City Council's thoughts on how we could help, what specific projects would be helpful and useful, and how we can assist City staff in meeting their goals in this arena. City of Ukiah Paths, Open Space, and Creeks Commission Status Report to the City Council May 4, 2011 Page 2 c.:ity of ellkia1i ITEM NO.: 12c MEETING DATE: AGENDA SUMMARY REPORT May 4, 2011 SUBJECT: CONSIDERATION OF AND DIRECTION TO STAFF FOR PROPOSED LETTERS OF INTENT REGARDING COMPREHENSIVE EFFICIENCY AND CONSERVATION MEASURES PROGRAM WITH HONEYWELL INTERNATIONAL RELATED TO FOUR CAPITAL PROJECT COMPONENTS: (1) REPLACEMENT OF WATER METERS, INSTALLATION OF LEAK DETECTION EQUIPMENT; (2) ENERGY SAVING RETROFITS AND REFURBISHMENT TO CONFERENCE CENTER; (3) BIOGAS COGENERATION AT WASTE WATER TREATMENT PLANT; (4) UKIAH MUNICIPAL GOLF COURSE IRRIGATION IMPROVEMENTS, RENOVATION AND DRIVING RANGE CREATION Background: At a City Council Workshop Session April 14, 2011, representatives of Honeywell International presented findings of initial study with regard to the feasibility of combining four capital projects under a proposal by Honeywell to offer a turn-key program for design, implementation and financing of these projects that would result in improved efficiency, revenue generation from City owned assets, conservation savings, and operational improvements for the City of Ukiah. Prior to the April workshop, Honeywell had made a presentation to the City Council in January 2011 which outlined how projects such as the four proposed could be combined together and financed in such a turn- key program to the benefit of the community. That presentation also included the reasons why these four particular projects were selected out of several reviewed for possible inclusion into one turn-key project effort. Discussion: The presentation at the recent workshop indicated that each of the proposed projects were feasible, and if combined together, were estimated to produce possible savings in current costs for utilities of $117,700, and recovered/created new revenues of $619,000, for total savings/new revenues of $736,700 on an annual basis. Continued on Page 2 Recommended Action(s): Consideration Of and Direction to Staff For Proposed Letters of Intent Regarding Comprehensive Efficiency and Conservation Measures Program with Honeywell International Related to Four Capital Project Components: (1) Replacement of Water Meters, Installation of Leak Detection Equipment; (2) Energy Saving Retrofits and Refurbishment to Conference Center; (3) Biogas Cogeneration at Waste Water Treatment Plant; (4) Ukiah Municipal Golf Course Irrigation Improvements, Renovation and Driving Range Creation for consent agenda item May 18, 2011, after further review and comment by the City Attorney and City staff. Alternative Council Option(s): Provide alternative direction to City staff regarding these projects Citizens advised: Requested by: Prepared by: Jane Chambers, City Manager Coordinated with: Rob Falco, Honeywell; Mel Grandi, Electric Utility Director, Gordon Elton, Finance Direction Attachments: 1) Draft LOI non-Golf Course 2) Draft LOI Golf Course 3) Choice Connect l Approved: J rhambers, City Manager The investment to achieve these savings and/or new revenues was estimated at $7.1 M, with a pay-back for that investment time period of 9.7 years for the combined projects. Further detailed investigation is necessary to determine the scope and cost of the projects proposed, and that is what is provided through the letter of intent process. Because this initial study has yielded results that indicate the City of Ukiah could achieve significant new use and savings from the project components proposed, the City Council directed staff to return with the next step in the process, that of entering a Letter of Intent (LOI) with Honeywell, for the Council's further consideration. There are two draft LOI letters attached. The first is for the non-golf course projects (1) Replacement of Water Meters, Installation of Leak Detection Equipment; (2) Energy Saving Retrofits and Refurbishment to Conference Center; (3) Biogas Cogeneration at Waste Water Treatment Plant. The second attached draft LOI is for (4) Ukiah Municipal Golf Course Irrigation Improvements, Renovation and Driving Range Creation. The draft LOI's do not include provision for replacement of electric meters as initially proposed at the April workshop. Honeywell and city electric utility staff continue to work together to determine the most cost effective means of addressing this portion of the work. Staff recommends that the draft LOI letters be reviewed by City staff and the City Attorney in consultation with Honeywell, prior to the Council's next regular meeting of May 18, 2011. Staff and the City Attorney will incorporate any necessary changes in the LOI's for Council's consideration of a consent agenda item to authorize the City Manager to sign each of the LOI with Honeywell. As part of the April Workshop discussion, and in anticipation of some questions related to the concept and project components, Honeywell has offered the following further information regarding this proposal, and included Attachment #3 as information related to concerns about use of new meter technology: What benefit does the water rate paver receive from installation of a new meter? Conservation: It is critical to conserve this natural resource. Modern meters and leak detection sensors help reduce the amount of unaccounted for water that is introduced to the system and becomes lost, either through inaccurate meters or system leaks. Accuracy: As meters age, they become less accurate especially when measuring low flow. Approximately 16% of all domestic water consumption occurs at flow rates of less than one gallon per minute Equity in billing: Accurate meters require customers to pay for the water they are using. That policy rewards business and consumers who are conserving and removes them from subsidizing other consumers who may not be as conscientious with their water usage. Ukiah's rate structure was developed and adopted by the City to be fair for all consumers. New water meters help ensure that the City's rate structure will be applied fairly across the board as was intended when adopted. Will Honeywell be making unchecked profits in small-town Ukiah? Honeywell practices open-book pricing and Council will be able to view the due diligence of Honeywell's activities and bottom line profit. No surprises. What is the risk/impact to either General Funds or Enterprise Funds?: The program as proposed requires no upfront funds from the City. The program will be paid for entirely through a combination of energy savings and recovered or generated revenue, mitigating any risk to General or Enterprise funds. In addition, the program will substantially reduce maintenance and operating expenses, though these have not been calculated as a means to pay for the program. Can the Citv neaotiate directly with Honevwell? Whv doesn't the Citv bid evervthina out? Under the terms of California Code 4217 for Energy Savings Performance Contracts, Public Entities are permitted to negotiate with state approved Energy Service Companies (ESCOs). Honeywell has been willing to invest in the design, development and implementation of the proposed program and will assist in identifying third party funding sources. In addition, each LOI requires Honeywell to develop a contract that meets specific criteria. Will the City be able to negotiate terms and contract details with Honeywell? What flexibility does the Citv have in adjusting the amounts of anticipated savings/revenue from the identified measures? Honeywell will prepare a contract based on the proposed measures collective viability to either generate savings and/or revenue. Typically conservative estimates are offered; however, if the City wishes to negotiate these amounts, Honeywell is willing to discuss the pros/cons and amend per mutual agreement. Fiscal Impact: All four of these projects are accounted for in the City's financial system and budget as Enterprise Funds. This means that they are stand alone activities requiring that the revenues received fully support the cost of operations for these activities. Although the Golf Course and Conference Center are often considered to be directly supported by the City's General Fund, the fact remains that both of these activities have been operated independently of the General Fund. Combined, these two activities produced revenue of $1.2M for FY 2009/10. These earnings covered expenditures for the two operations by a margin of $32,648 last fiscal year. Often residents and employees alike tend to think closure of these two operations would generate either a significant savings in the General Fund or funds that could be used for other purposes. Neither is true, since these two operations are Enterprise funds, the result of closure of either enterprise would be loss of revenues with a corresponding reduction in expenditures, but no net appreciable gain to the General Fund to spend on other activities of the City's operations. One of the key reasons to consider the improvements proposed for both the golf course and conference center is to create the possibility of increased margins (earnings) for these operations, while at the same time, securing the community's previous investments in these assets for the next decade and beyond. Should the City decide not to proceed with a project as outlined in the draft LOI, for projects 1-3, the City would reimburse Honeywell $85,000. The Golf Course project has been separated from the others for the reasons stated in the draft LOI, and should the City decide not to proceed with that project as outlined in the draft LOI, the City would reimburse Honeywell $25,000. Staff recommends that the funds to make such a payment would be generated from the fund balances in each of the respective Enterprise Funds. In the case of the Sewer Fund (Waste Water Treatment Plant project), City staff recommends that the funding would come from the City only portion of the joint fund. It is certainly the intention of staff and Council to include Ukiah Valley Sanitation District in discussions regarding this project and possible financing, during the investigative work to be undertaken under the LOI. E Budgeted FY 10/11 E New Appropriation X Not Applicable E Budget Amendment Required City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 May 18, 2011 Robert Falco Energy Services Account Executive Honeywell International Inc. 353 A Vintage Park Drive Foster City, CA 94545 ATTACHPIIENTr Re: Letter of Intent Regarding Comprehensive Efficiency and Conservation Measures Program Dear Robert, This letter is to confirm that the City of Ukiah intends to proceed with Honeywell, Inc. toward finalizing a contract for energy efficiency, water conservation, operational and facility improvements of City-owned facilities and equipment. The purpose of the contract is for Honeywell to offer a turn-key program for design, implementation and financing, utilizing 3`d party financing vehicles such as a tax-exempt municipal lease instrument, for capital improvements resulting in improved efficiency, revenue generation from City owned assets, conservation savings, and operational improvements for the City. This Letter of Intent shall be effective for 180 days or until superseded by an executed contract between the parties. During the time this Letter of Intent remains in effect, the City of Ukiah shall not negotiate with any party other than Honeywell concerning comprehensive efficiency and conservation measures. Additionally, Honeywell will undertake certain activities including, but not limited to, an investment grade assessment and Contract documents creation for the following Scope of Services: 1. Comprehensive replacement of water meters with Advanced Meter Reading technology and leak detection equipment 2. Comprehensive Conference Center Equipment and Furnishings Refurbishment and Design including implementation of energy saving retrofits to include HVAC, Controls, Lighting, and Life Safety. 3. Biogas Cogeneration system for Ukiah Waste Water Treatment Plant. The City of Ukiah intends to enter into a contract with Honeywell International Inc., under the terms of California Code 4217 for Energy Savings Performance Contracts for Public Entities provided that Honeywell develops a contract that meets all of the following criteria: • The proposed project savings and/or additional revenue projections allow the project to be paid for in not more than 13-years out of savings in energy, operational costs and new revenue generation. • The proposed project costs do not increase the total energy and operational expenditures for the facilities above the level spent in 2010 beyond the adjustment for CPI. • Honeywell financially guarantees the proposed annual energy savings. The City of Ukiah uses the savings to pay the debt instrument. • The proposed project Contract Documents will address the overall intent of this Letter of Intent which is a project consisting of capital improvements paid for through energy savings, operational savings and/or additional revenue generation forecasts. Pagel of 2 If Honeywell meets the requirements listed above, and the City decides not to enter into a Contract for a final project with Honeywell, then the City shall reimburse Honeywell $85,000. The project's final scope of work, to include all asset improvement measures, will be co-authored and agreed to by both Honeywell and the City. Sincerely, Jane Chambers City Manager City of Ukiah Page 2 of 2 City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 May 18, 2011 ATTACHMENT 2 Attention: Robert Falco, Energy Services Account Executive, Honeywell Subject: Letter of Intent Regarding Comprehensive Efficiency and Conservation Measures Program Dear Robert: This letter is to confirm that the City of Ukiah intends to proceed with Honeywell, Inc. toward finalizing one or multiple contracts for energy efficiency, water conservation, operational and facility improvements of City- owned facilities and equipment. The purpose of the contract is for Honeywell to offer a turn-key program for design, implementation and financing, utilizing 3rd party financing vehicles such as a tax-exempt municipal lease instrument, for capital improvements resulting in improved efficiency, revenue generation from City owned assets, conservation savings, and operational improvements for the City. This Letter of Intent shall be effective for 180 days or until superseded by an executed contract between the parties. During the time this Letter of Intent remains in effect, the City of Ukiah shall not negotiate with any party other than Honeywell concerning comprehensive efficiency and conservation measures. Additionally, Honeywell will undertake certain activities including, but not limited to, an investment grade assessment and Contract documents creation for the following Scope of Services: 1. Design and implementation of Ukiah Municipal Golf Course irrigation improvements, "Flip-flop" renovation and Driving Range creation. The Investment Grade Assessment of the Ukiah Municipal Golf Course improvements is contingent upon the acquisition of a parcel of land adjacent to the golf course currently owned by the Ukiah Unified School District. Honeywell will proceed with Investment Grade Assessment activities as soon as the referenced parcel of land for this item is in escrow. Should negotiations with the District continue for a period of 180 days beyond the effective date of this Letter of Intent, the City will work with Honeywell to either extend the term of the Letter of Intent or abandon the golf course improvement program. Unless the City is successful in obtaining the property in question, the City will have no financial obligation to Honeywell for this item. The City of Ukiah intends to enter into a contract with Honeywell International Inc., under the terms of California Code 4217 for Energy Savings Performance Contracts for Public Entities provided that Honeywell develops a contract that meets all of the following criteria: • The proposed project savings and/or additional revenue projections allow the project to be paid for in not more than 13-years out of savings in energy, operational costs and new revenue generation. • The proposed project costs do not increase the total energy and operational expenditures for the facilities above the level spent in 2010 beyond the adjustment for CPI. • Honeywell financially guarantees the proposed annual energy savings. The City of Ukiah uses the savings to pay the debt instrument. • The proposed project Contract Documents will address the overall intent of this Letter of Intent which is a project consisting of capital improvements paid for through energy savings, operational savings and/or additional revenue generation forecasts. Page 1 of 2 If Honeywell meets the requirements listed above, and the City decides not to enter into a Contract for a final project with Honeywell, then the City shall reimburse Honeywell $25,000. The project's final scope of work, to include all asset improvement measures, will be co-authored and agreed to by both Honeywell and the City. Sincerely, Jane Chambers City Manager City of Ukiah age 2 of 2 ATTACHMENT ChoiceConnectTM 100 Series Radio Frequency FAQ Overview This document provides general information about radio frequency (RF) electromagnetic fields from Choice Connect TM wireless communication equipment. This information has been provided by Itron which has evaluated the ChoiceConnectTM equipment for RF emissions. The ChoiceConnectTM Equipment has been certified by the Federal Communications Commission (FCC). /,trap © 2010, Itron Inc. All rights reserved. /trap Frequently Asked Questions 1 What frequencies are used by the devices being installed? TM Choice Connect wireless communication equipment operates in the Industrial, Scientific and Medical (ISM) bands at frequencies from 902 megahertz (MHz) to 928 MHz. The Food and Drug Administration (FDA) and the FDA's Center for Devices and Radiological Health (CDRH) have classified radiation emitted by devices operating at these RF frequencies as non-ionizing. Other types of non- ionizing radiation include visible and infrared light. Non-Ionizing Radiation Low Frequency Radiofrequencies Fields tele~slon AC outlet Plug cell phone laptop cortfputet i radb Pawer -,lines Collector Visible Light sunshine Infrared Ulttaviolel remeto OR totatrol tanning bed 2 Where can I go to learn more The FCC's document OET Bulletin 65 Edition 97-01, Evaluating Compliance about Regulatory with FCC guidelines for Human Exposure to Radiofrequency Electromagnetic Compliance? Fields details how to measure or calculate levels of RF radiation and to determine compliance of RF facilities with exposure limits. Additionally, FCC OET Bulletin 65 Supplement C Edition 01-01 (known as OET-65C), provides further guidance on determining compliance for portable and mobile devices. These documents may be found at www.fcc.gov/oet/-rfsafety. 3 How often do the The Choice Connect'' endpoint devices transmit data in Mobile mode less TM ChoiceConnect devices than 1.5 minutes per day, with very short pulses. transmit data? 2 © 2010, Itron Inc. All rights reserved. Frequency in hertz (liz) Water SafeSource RF FAQs 4 What is the power output from the ChoiceConnect'M devices when they are transmitting data? TM The maximum power output for the ChoiceConnect Endpoint devices is less than % watt. In comparison, portable transmitters used by consumers typically operate over the output power range of less than 100 milliwatts (mW) to several watts. 5 Are there any health hazards The World Health Organization (WHO) notes in its Fact Sheet 304: associated with the "[T]o date, the only health effect from RF fields identified in ChoiceConnect devices? scientific reviews has been related to an increase in body temperature 1 °C) from exposure at very high field intensity found only in certain industrial facilities, such as RF heaters. The levels of RF exposure from base stations and wireless networks are so low that the temperature increases are insignificant and do not affect human health." See WHO Fact Sheet 304 for more information about RF fields at http://www.who.int/mediacentre/factsheets/fs304/en/index.html. Are there RF exposure The FCC has established rules requiring transmitting facilities to comply with standards for the RF exposure guidelines. The limits established in the guidelines are TM ChoiceConnect devices? designed to protect the public health with a very large margin of safety. We are informed that these limits have been endorsed by federal health and safety agencies such as the Environmental Protection Agency (EPA) and the FDA. The FCC has established exposure guidelines for RF devices operating in the 300 kilohertz (kHz) -100 GHz range. These safety guidelines are outlined in the publication, OET Bulletin 65 Edition 97-01, Evaluating Compliance with FCC guidelines for Human Exposure to Radiofrequency Electromagnetic Field and can be found at www.fcc.gov/oet/rfsafety. The general population exposure limits set by the FCC for the frequency range utilized by the Endpoint and other devices like cordless phones and baby monitors, is 0.6 milliwatts per centimeter squared (mW/cmz) at 902 MHz. When a typical endpoint device is transmitting at its maximum power level, the exposure to radio frequency energy at a distance of 20 centimeters from the endpoint is 0.08 mW/cmZ at 902 MHz, or almost 7.5 times lower than the exposure limit set by the FCC. For more information on the effects of RF energy exposure, please visit the following sites: FCC: Questions regarding potential RF hazards from FCC-regulated transmitters can be directed to the Federal Communications Commission, Consumer & Governmental Affairs Bureau, 445 12th Street, S.W., Washington, D.C. 20554; Phone: 1-888-225-5322; E-mail: rfsafety@fcc.gov; or go to: www.fcc.gov/oet/rfsafety. FDA: For information about radiation from microwave ovens and other consumer and industrial products contact: Center for Devices and Radiological Health (CDRH), Food and Drug Administration. htto://www.fda.izov/cdrh/radhealth/ OSHA: The Occupational Safety and Health Administration's (OSHA) Health 0 2010, Itron Inc. All rights reserved. /tron Response Team has been involved in studies related to occupational exposure to RF radiation. http:11www.osha.Z~_v/SLLC radiation nonionizinndex.html. WHO: The WHO's Electromagnetic Fields information page is located at: http://www.who.int/peh-emf/en/. ©2010, Itron Inc. All rights reserved. city 0. Ukiah ITEM NO.: 13a MEETING DATE: May 4, 2011 AGENDA SUMMARY REPORT SUBJECT: INTRODUCTION OF ORDINANCE AMENDING A PORTION OF DIVISION 3, CHAPTER 1 OF THE UKIAH CITY CODE PERTAINING TO THE ADOPTION OF APPENDIX G IN THE 2010 CALIFORNIA BUILDING CODE AND REPEALING EXISTING FLOOD PLAIN MANAGEMENT REGULATIONS CONTAINED IN DIVISION 9, CHAPTER 6 OF THE CITY CODE SUMMARY: The current flood plain management regulations contained in the City Code are inconsistent with new State and Federal regulations, as well as with new regulations for flood plain development contained in the City's adopted Building Codes. The purpose of this agenda item is to introduce an ordinance amending the City Code so that consistency with State and Federal regulations for development in flood plain areas is achieved, and to ensure internal consistency within the Ukiah City Code. BACKGROUND: As a participant in the National Flood Insurance Program (NFIP), the City of Ukiah is required to adopt and enforce floodplain management regulations that meet or exceed the minimum standards of the NFIP. Currently, Ukiah's floodplain regulations are contained in Division 9, Chapter 6 of the,,Ukiah City Code. Because of the recent building code changes adopted by the State and the City, ap-well as the minimum standards contained in the National Flood Insurance Program (NFIP),-the City's existing floodplain ordinance is outdated. Appendix G of the 2010.-Galifornia'Buildin Code provides administrative provisions and regulations for development activities .-in-f o zard areas, which, when combined with the other sections contained within the body of the Building Code, provide a single regulation for floodplain management. Accordingly, Staff is recommending that the City adopt Appendix G of the 2010 California Building Code and repeal the existing flood plain management code sections. As part of its map modernization efforts, new digital flood maps and flood study have been prepared by FEMA, effective June 2, 2011. Note that these new maps do not change the floodplain locations within the City of Ukiah; however, the City is required to officially adopt the new Flood Continued on Page 2 Recommended Action(s): Introduce ordinance by title only Alternative Council Option(s): Do not introduce ordinance and provide direction to Staff. Citizens Publicly noticed in the Ukiah Daily Journal advised: Requested by: David Willoughby, Building Official Prepared by: David Willoughby, Building Official Coordinated with: Jane Chambers, City Manager and Charley Stump, Director of Planning and Community Development Attachments: 1) Ordinance 2) Existing Floodplain Management regulations 3) Appendix G of the 2010 California Building Code Approved: Ja Chambers, Executive Director Subject: Flood Plain Regulations Meeting Date: May 4, 2011 Page 2 of 4 Insurance Study (FIS) and Flood Insurance Rate Maps (FIRM) prior to the new effective date of June 2, 2011. The adoption of Appendix G of the 2010 California Building Code and repealing Division 9, Chapter 6 of the City Code will also ensure the City of Ukiah's continued compliance with the NFIP requirements. WHAT ARE THE PRIMARY CHANGES? The minimum floor elevation for most buildings in the City (detached one and two family homes and townhomes not more than 3-stories above grade and their accessory structures) will not change - they will still be allowed to be constructed at the base flood elevation. The primary changes required in the new regulations are as follows: 1. Larger residential structures such as triplex structures, apartment buildings, single family residences/townhomes exceeding 3-stories and all commercial buildings would be required to be constructed a minimum of 1-foot above the base flood elevation rather than at the base flood elevation. 2. Hospitals, fire and police stations and other emergency related buildings would be required to have their floor elevations constructed 2-feet above base flood elevation. CONCLUSION: New State and Federal regulations for development in the floodplain have prompted Staff to review the existing flood plain regulations contained in the Ukiah City Code. The existing regulations are inconsistent with the State regulations and with the important National Flood Insurance Program (NFIP) regulations. Additionally, updated flood maps must be adopted prior to their June 2, 2011 effective date. Failure to comply with the minimum standards of the NFIP could increase rates or jeopardize flood insurance policies for property owners. Accordingly, Staff is recommending updating our local flood plain management regulations to be consistent with Federal regulations and with the provisions of the 2010 California Building Code. ENVIRONMENTAL (CEQA) DETERMINATION: Staff has determined that the code amendment project is exempt from the requirements of the California Environmental Quality Act, pursuant to Section 15061(b)(3) because based on the information contained in the record, it can be seen with certainty that there is no possibility that the code amendments would cause a significant effect on the environment. Fiscal Impact: Budgeted FYFI New Budget Amendment 10/11 Appropriation -XI Not Applicable ❑ Required A#tachment # ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING APPENDIX G TO DIVISION 3, CHAPTER 1 AND REPEALING DIVISION 9, CHAPTER 6 OF THE UKIAH CITY CODE, PERTAINING TO FLOODPLAIN MANAGEMENT. The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE. Ukiah City Code Section 3002 being part of Division 3, Chapter 1, of the Ukiah City Code, IS hereby amended and Sections 9600 through 9672 being part of Division 9, Chapter 6 are repealed as follows. § 3002: CALIFORNIA BUILDING CODE: The term "California Building Code" as used in this Chapter shall mean the publication published by the California Building Standards Commission entitled "California Building Code" including the following appendices: G (Flood-Resistant Construction), H (Signs) and J (Grading) with the year of the edition designated. § 9600 - 9672: FLOODPLAIN MANAGEMENT Repeal the chapter in its entirety SECTION TWO. EFFECTIVE DATE AND PUBLICATION. This Ordinance shall be in full force and effect on , 2011. Within fifteen days after its adoption, this Ordinance shall be published once in a newspaper of general circulation in the City of Ukiah. In lieu of publishing the full text of the Ordinance, the City may publish a summary of the Ordinance once 5 days prior to its adoption and again within 15 days after its adoption. Introduced by title only on May 4, 2011, by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Z~ Adopted on , 2011 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Mari Rodin, Mayor ATTEST: JoAnne Currie, City Clerk 2 §9600 CHAPTER 6 Attachment # 1 §9600 1 FLOODPLAIN MANAGEMENT ARTICLE 1. PURPOSE AND INTRODUCTION SECTION: §9600: Purpose §9601: Findings Of Fact §9602: Methods Of Reducing Flood Losses §9600: PURPOSE: The purpose of this article is to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas. by provisions designed: A. To protect human life and health; j B. To minimize expenditure of public money for costly flood control projects; C. To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; D. To minimize prolonged business interruptions; E: To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in areas of special flood hazard; F. To help maintain a stable tax base by providing for the second use and develop- ment of areas of special flood hazard so as to minimize future flood blight areas; October/2009 9186 2, §9600. §9602 G. To insure' that potential buyers are notified that property is. in an area of special flood hazard;.and H.- To. insure that those who occupy the areas 'of special flood hazard assume responsibility for their actions. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9601:: FINDINGS OF FACT: The flood hazard areas of the City are subject to periodic inundation which may result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief and impairment of the tax base,. ail of which adversely affect the public health, safety and general welfare. These flood losses are caused by the cumulative effect of obstructions In areas of special flood hazards. which increase . flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses. that .are inadequately floodproofed, elevated or otherwise protected from flood damage also contribute to the flood loss. (Ord. 789, §1, adopted 1982; amd. by Ord. 875,.§1, adopted 1988) §9602: METHODS OF REDUCING FLOOD LOSSES: In order to accomplish Its purposes, this ordinance includes methods. and provisions for; A. Restricting or prohibiting uses which are dangerous to , healthsafety, and property' due to water or erosion hazards or which result in damaging Increases in erosion or In flood heights or-velocities; B. Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected* against flood damage at the time of initial construction; • C. Controlling the alteration of natural flood plains, stream channels and natural protective barriers, which. help accommodate or channel flood waters; D. Controlling filling, grading, dredging and other development which may increase flood damage; and, E. Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards in other areas. {Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) .J 9187 CHAPTER .6 FLOOD PLAIN MANAGEMENT ARTICLE 2. DEFINITIONS SECTION: §9603: Definitions §9604: "Adversely Affects" Defined . §9605: "Appeal" Defined §9606: "Areas of Shallow Flooding". Defined §9607: "Base Flood" Defined '§9608: "Basement" Defined §9609: "Breakaway Walls" Defined §9610: "Development" Defined §9611: "Flood" or "Flooding" Defined §9612: "Flood Boundary and Floodway ' Map" Defined §9613: "Flood Insurance Rate Map (FIRM)" Defined §9614: "Flood. Insurance Study" Defined §9615: -"Flood Plain or Flood-Prone" Defined §9616: "Flood Plain Management" Defined §9617: "Flood Plain Management Regulations" Defined §9618: "Floodproofing" Defined 19619: "Fioodway." Defined . §9620: "Functionally Dependent Use" Defined §9621: Defined "Highest Adjacent Grade" §9622: . "Lowest Floor" Defined §9623: . "Manufactured Home" Defined §9624: "Manufactured Home Park or Subdivision" Defined §9625: "Mean Sea Level" Defined §9626: "New Construction" Defined §9627: "One Hundred Year Flood" Defined §9628: "Person" Defined, §9629: "Remedy A Violation" Defined §9630: "Riverine" Defined §9631: "Special Flood Hazard Area (SFHA)" Defined 9188 .r §9603 §9607 Section Catchlines (cont.) §9632: -"Start of Construction" Defined §9633: "Structure" Defined §9634: "Substantial Improvement" Defined §9635: "Variance" Defined §9636:. "Violation". Defined §9603: DEFINITIONS: Unless specifically defined below; words or phrases used* In this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this ordinance. its most reasonable application. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §11, adopted 1988) §9604:. "ADVERSELY. AFFECTS" DEFINED: "Adversely affects" means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not Increase the water surface elevation of the base flood more than one foot at any point. (Ord. 789, §1., 'adopted 1982; amd. by Ord. 875, §1, adopted 1988) . §9605: "APPEAL" DEFINED: "Appeal" means a request for a review of.the Flood Plain Administrator's interpretation of any provision of this Chapter or a request for a variance. (Ord. 789, §1, adopted 1982; amid. by Ord. 875, §1, adopted 1988) §9606: "AREAS OF SHALLOW FLOODING" DEFINED: "Area of shallow flooding" means a designated AO, AH or VO Zone on the Flood Insurance Rate Map (Firm). The base flood depths range from one to three feet (1' to 3'); a clearly defined channel does not exist; the path of flooding Is unpredictable and indeterminate; and velocity flow may be evident. (Ord. 789,.§1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9607: "BASE FLOOD" DEFINED: "Base flood" means the 'flood having a one percent chance of being equalled or exceeded In any given year (also called the 100-year Flood") (Ord. 789, §1,. adopted 1982; amd. by Ord. 875, §1, adopted 1988) 9189 §9608. §9611 §9608: "BASEMENT" DEFINED: "Basement" means any area of the building - having Its floor subgrade (below ground level) on all sides. (Ord: 789, §1, adopted 1982; amd. by Ord. 875, §1., adopted 1988) -19609: "BREAKAWAY WALLS" DEFINED: "Breakaway walls" are any type of walls, whether solid or lattice, and whether constructed of concrete, masonry, wood, metal, plastic or any other suitable building material which Is not part of the structural support of the building and which is designed to break away under abnormally high tides or wave action without causing any damage 4o the structural integrity of the building on which they are. used or any buildings to which they might be carried by flood waters. A breakaway Wall shall have a safe design loading resistance of not less than ten (10) and no more than twenty (20) pounds per square foot. Use of breakaway walls must be certified by a registered engineer or architect and shall meet the following conditions: A. Breakaway wall collapse, shall result from. a water load less than, that which would occur during the base flood; and B. The elevated portion of the building shall not incur any structural damage due to the effects of wind and water. loads acting simultaneously in_ the event of the base flood. §9610: "DEVELOPMENT" DEFINED: "Development" means .,any man made ,...J change to improved or unimproved real estate, including but not limited to buildings or other structures, mining;,.dredging, filling, grading, paving, excavation or drilling operations, located within the area of special flood hazard. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9611: "FLOOD" OR "FLOODING" DEFINED: "Flood" or "flooding" means a general and temporary condition of partial or complete inundation of normally.dry land areas from: A. The overflow of flood waters, B. The unusual and rapid accumulation or runoff of .surface waters from. any source, and/or C. The collapse or.subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually J 9190 J §9611 C) high water., level in a natural body of water, accompanied by a severe storm, or by 'an unanticipated force of nature, such as flash flood.. or an abnormal tidal surge,. or. by some similarly unusual and unforeseeable. event which results in flooding as defined. In this definition. (Ord. 789, §1, adopte0:1982 amd. 'by Ord. 875, §1, adopted 1988) §9617 §9812: "FLOOD BOUNDARY AND FLOODWAY MAP" DEFINED: • "Flood Boundary and Floodway Map" means the 'official map on which the Federal Emergency Management . Agency. or the. 'Federal . Insurance Administration has. delineated both the areas of'flood hazard and the floodway..*(Ord. 789, §1, adopted 1982; amd, by Ord. $75, 91, adopted-1988) §9613: "FLOOD INSURANCE RATE MAP (FIRM)" DEFINED: "Flood Insurance Rate Map (FIRM)" means the official map on..which 'the Federal Emergency Management Agency. or the Federal Insurance Administration has delineated both the special flood hazards and the risk premium zones applicable to the community. (Ord. 789, §1, adopted '1982; amd, by Ord. 875, §1, adopted 1988) §9614: "FLOOD INSURANCE STUDY" DEFINED: "Flood Insurance Study" means the official report provided by the . Federal Insurance. Administration that includes flood profiles, the FIRM, the Flood Boundary and Ffoodway Map and the, water surface elevation of the base flood.- (Ord. 789, §1, adopted 1982; amd. by Ord... 876,'§1, adopted 1988) §9615: "FLOOD PLAIN OR FLOOD-PRONE" DEFINED: "Flood Plain or flood- prone" area means any land area susceptible to being inundated by water from any source (see definition of "flooding"). (Ord: 789, §1, adopted 1982; amd: by Ord: 875, §1, adopted 19$8) §9616: "FLOOD PLAIN MANAGEMENT" DEFINED: "Flood Plain management" means the operation of an overall program of corrective and . preventive measures for reducing flood damage, Including but not limited to emergency preparedness plans, flood control works and. flood plain management regulations. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, 01, adopted 1988) §9617: FLOOD PLAIN MANAGEMENT REGULATIONS" DEFINED: "Flood Plain management regulations" means zoning ordinances, 'subdivision regulations, 9191 z-~ §9617' §9622 building codes, health regulations, special purpose ordinances. (such as flood plain ordinance, grading ordinance and 'erosion control ordinance) and other applications of police power. The -term 'describes such State or .local, regulations. in any combination thereof, which. provide standards for .the-purpose ' of flood' damage prevention and reduction. (Ord. 789, §1, adopted 1982; amd. by Ord. 875,'§1, adopted 1988) §9618: "FLOODPRO()FING" DEFINED:. "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents..(Ord. 789, §1., adopted 1982; amd. by Ord. 875, §1, adopted 1988) ' §9619: "FLOODWAY" DEFINED: "Floodway". means the channel ' of . a river or other watercourse and the adjacent land areas that must be reserved in order to. discharge the base flood without cumulatively increasing the water surface elevation, more than one foot. Also referred to as "Regulatory Floodway". (Ord. 789, §1, adopted 1982; amd. by Ord. -875, §1,. adopted 19$8) §9620: "FUNCTIONALLY DEPENDENT USE" DEFINED:. Functionally dependent use" means a use which cannot perform its intended purpose unless it Is located -or carried out in close * proximity to 'water. The term Includes only docking facilities, port facilltlei g.that. are necessary. for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not Include' long-term storage or related manufacturing facilities. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9621: "HIGHEST ADJACENT GRADE" DEFINED: "Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9622: "LOWEST FLOOR" DEFINED: "Lowest floor" means the lowest floor of the lowest enclosed area (including basement) An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable non-elevation. design requirements. of this ordinance. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) 9192 §9623 §9628 §9623: "MANUFACTURED HOME" DEFINED: "Manufactured home" means a structure that is transportable in one or..more. sections, .,built on a permanent chassis and .designed to be used with or without "a permanent , foundation. when connected to the required utilities: For flood plain management purposes. the term "manufactured .,home" also includes park trailers, travel trailers and other similar vehicles placed on.a site - for greater than one hundred eighty (180) consecutive days. (Ord. 789, §1, adopted 190; amd. by Ord. 875, §1, adopted.1988) §9624: "MANUFACTURED HOME PARK OR SUBDIVISION" . DEFINED: "Manufactured home park. or subdivision" means a parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for sale or rent. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9625: "MEAN SEA LEVEL" DEFINED: "Mean .sea level" means for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum.' (NGVD) of 1929 or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced: (Ord. 789, §1, adopted.1,982; amd. by Ord. 875, §1, adopted 1988) §9626: "NEW CONSTRUCTION" DEFINED: "New construction means, for flood plain management purposes, structures for which the "start of construction" commenced 'on or after the effective date of a Flood Plain Management regulation adopted by the City. (Ord. 789, §1, adopted 1982; amd. by. Ord. 875, §1, adopted 1988) §9627: "ONE HUNDRED YEAR FLOOD" DEFINED:. "One hundred year flood" or "100-year flood" means a flood which has a one percent (1%) annual probability of being equalled or exceeded. It Is Identical .to the "base flood", which will be the term used throughout this Chapter. (Ord. 789, §1, adopted 1982; amd, by Ord, 875, §1, adopted 1988) §9628: "PERSON" DEFINED: "Person" means an Individual or his/her agent, firm, partnership, association- or corporation, or agent of the aforementioned groups, or the State of California or Its agencies or political subdivisions. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) 9193 a_ 9' §9629 §9633 99629: "REMEDY A VIOLATION". DEFINED: "Remedy a violation" means to. bring the structure or other..development into compliance with State or local flood plain management regulations, or, if this is. not possible; 'to rbduce the impacts of its noncompliance. Ways..'.that impacts may be reduced include..protecting the structure or other affected development from flood damages;. Implementing the enforcement provisions of this .Chapter or otherwise deterring future similar violations, or reducing development. (Ord. 789, §1, adopted 1982; atnd:.by. Ord.. 875, §1, adopted 1988) §9630: "RIVERINE" : DEFINED.: "Riverine" means relating to, formed by, or resembling a river (including tributaries), stream, :brook, etc. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9631: "SPECIAL FLOOD HAZARD AREA (SFHA)" DEFINED: "Special flood hazard area (SFHA)" means an area .having. special . flood or flood-related erosion ha ards; .and shown on an FHBM or FIRM as Zone. A, AO, Al-30, AE, A99, AH, VO, V1-V30, .VE or V. (Ord. 789, §1, adopted 1982; amd. by Ord. '875,. §1, adopted .1.988) §9632:. "START OF CONSTRUCTION" DEFINED: '.'Start. -of construction" includes substantial Improvement, anal. means the date the. building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or. other improvement was within. one hundred eighty (180) days of the permit date. The actual start means either. the first placement of permanent. construction of -a structure on a site, such as the pouring of slabs or footings, the installation of piles, the construction of columns or any work beyond the stage of excavation. Permanent construction does not Include land preparation, such as clearing, grading 'and filling, nor does it Include the installation of streets and/or walkways; nor does it Include excavation for a. basement,. footings, piers or foundations or the erection of. temporary forms; nor does it Include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not as part of the main structure. (Ord. 789, §1, adopted 1982; amd, by Ord. 875, §1, adopted 1988) §9633: "STRUCTURE" DEFINED: "Structure" means including a gas or liquid storage tank that is well as a manufactured home. (Ord. 789, §1, adopted adopted 1988) a walled and roofed building principally above ground, as 1982; amd. by Ord. 875, §1, 9194 Z--/o §9634 §9636 §9634: "SUBSTANTIAL IMPROVEMENT" DEFINED: "Substantial improvement" means any repair, reconstruction or improvement. of a structure,, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure either: A. Before.the improvement or repair is started, or B. If the structure has, been damaged, and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: 1. Any project for improvement of a structure to comply with existing State or local health, sanitary or safety code specifications which are solely necessary to assure safe living conditions, or 2. Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places. (Ord. 789, §1, adopted 1982; Ord. 875, §1, adopted 1988) r §9635: VARIANCE DEFINED. Variance means a grant of relief from the requirements of this Chapter which permits construction in a manner that would otherwise be prohibited by this Chapter. (Ord. 789, §1, adopted 1982; Ord. 875, §1, adopted 1988) §9636: "VIOLATION" DEFINED: "'Violation" means the failure of a structure or other development to be fully compliant with Ukiah's flood plain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this Chapter Is presumed to be In violation until such time as that documentation is provided. (Ord. 789, §1, adopted 1982; Ord. 875, §1, adopted 1988) 9/98 9195 §9650 §96b2 . CHAPTER 6 FLOOD PLAIN MANAGEMENT ARTICLE 3. GENERAL PROVISIONS SECTION: §9650: Lands To Which This Ordinance Applies §9651: Basis For Establishing The Special Flood Hazard Areas §9652: Compliance §9653: Abrogation And Greater Restrictions §9654:. Interpretation §9655: Warning And Disclaimer Of Liability §9656: Severability §9650: LANDS TO WHICH THIS ORDINANCE APPLIES: This Chapter shall apply to all special flood hazard areas within the City. (Ord. 789, §1, adopted 1982; Ord. 875, §1, adopted 1988) _ §9651: BASIS FOR ESTABLISHING THE SPECIAL FLOOD HAZARD AREAS: The special flood hazard areas, identified by the Federal Emergency Management Agency or the Federal Insurance Administration in a scientific and engineering report entitled "The Flood Insurance Study for the. City of Ukiah" dated. August 6,..l 985, with an accompanying Flood Insurance Rate Map is hereby adopted by reference and declared to be a part of this Chapter. The Flood Insurance Study.is on file at the City Clerk's.off ice, 300 Seminary Avenue, Ukiah. This Flood Insurance Study is the minimum area of applicability of this Chapter and may be supplemented by studies for other areas which allow implementation of this Chapter and which are recommended by the Flood Plain Administrator. (Ord. 789, §1, adopted 1982; Ord. 875, §1, adopted 1988; Ord. 973, §1, adopted 1996) §9652: COMPLIANCE: No structure or land shall hereafter-be constructed, located, extended, converted or altered without full compliance with the terms of this 9/98 9196 §9652 §9656. Chapter and other applicable regulations. Violations of the provisions of.the Chapter by failure to comply with any of its requirements .(Including violations of conditions and safeguards established In connection with conditions) shall constitute a misdemeanor. Nothing herein shall prevent the City from taking such lawful action. as is necessary to prevent or remedy any violation. (Ord.. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9653: ABROGATION AND GREATER RESTRICTIONS: This Chapter is not intended to repeal, abrogate or Impair any existing easements, covenants or deed restrictions. However, where this Chapter and another chapter, ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. 789, § 1, ...adopted 1982; amd'. by Ord.. 875, §1, adopted 1.988) §9654: INTERPRETATION: In the Interpretation and application of this Chapter, all provisions shall be: A. Considered as minimum requirements; B. Liberally construed in favor of the governing body; and C. Deemed neither to limit nor repeal any other. powers granted under State statutes. (Ord. 789, §1, adopted 1982; send. by Ord. 875, §1, adopted 1988) §9655: WARNING AND DISCLAIMER OF LIABILITY: The degree of flood protection required by this Chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods may occur on rare occasions. Flood heights may be increased by man. made or natural causes. This Chapter does not imply' that land outside special flood hazard areas or uses permitted within such areas will be free from flooding or flood damages. This Chapter shall not create liability on the part of 'the 'City, 'any offioer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder: (Ord. 789, §1, adapted 1982; amd. by Ord. 875, §1, adopted 1988) §9656: SEVERABILITY: This Chapter and the various parts thereof are hereby declared to be severable. Should any section of the Chapter. be. declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the Chapter as awhole, or any portion thereof other than the section so declared to be unconstitutional or invalid. (Ord. 789; §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) 9197 §9660 CHAPTER 6 FLOOD PLAIN MANAGEMENT ARTICLE 4. ADMINISTRATION SECTION: §9660: §9661: §9662: Establishment of Development Permit Designation of Flood Plain Administrator Duties and Responsibilities of the. Flood Plain Administrator §9660: . ESTABLISHMENT OF DEVELOPMENT PERMIT: A development permit shall be obtained before construction or. development begins within any special flood hazard area established In §9651. Application 'for a development permit shall be made on forms furbished by the Flood Plain , Administrator and may include, but not be limited to: plans in duplicate drawn to scale showing the *nature, locations, dimensions and elevation of the area in question; existing or proposed structures, fill, storage 'of materials, drainage. facilities; and the location of the foregoing.. Specifically, the following information is required: A. Proposed elevation in relation to mean sea level of the lowest floor (including basement) of 'all structures; in Zone AO or VO elevation, of. highest . adjacent grade. and proposed elevation of lowest floor of all structures; S. Proposed elevation in .relation to mean sea level to which any structure will-be floodproofed; C. All appropriate certifications listed in §9662 of this Chapter; and, D. Description of the extent' to which any watercourse will be altered or relocated as a result of proposed development. (Ord. 789, §1., adopted 1982; amd. by Ord. 875, §1, adopted 1988) 9196 a-14- §9661 §9662 §9661: DESIGNATION OF FLOOD PLAIN ADMINISTRATOR: The City Engineer or his/her designee is hereby designated .the' Flood Plain Administrator to perform the duties of the Flood Plain Administrator and implement the provisions of this Chapter. (Ord. 789, §1, adopted 1982; Ord. 875, §1, adopted 1988; Ord.. 998, §.1; adopted 1998) §9662: DUTIES AND RESPONSIBILITIES OF THE FLOOD PLAIN ADMINISTRATOR: Duties and responsibilities of the Flood Plain Administrator shall include, but not be limited to: A. Permit Review: 1. Review all development permits to determine that the permit requirements of this Chapter have been satisfied. 2. All other required State and Federal permits have been obtained. 3. The site is reasonably safe from flooding. 4. The proposed development does 'not adversely affect the carrying capacity of the floodway. For, purposes of this Chapter, "adversely affects" means that the cumulative effect of the proposed., development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than one foot (1') at any point. B. Use Of Other Base Flood Data: When base flood elevation data has not been provided in accordance with Section 9651 of this Chapter, obtain, review and reasonably utilize any base flood elevation and floodway data available from a Federal, State or other source in order to administer Article 5 of this Chapter. C. Alteration Or Relocation Of Watercourse: Whenever a watercourse is to be altered or relocated: 1. Notify adjacent communities and the California Department of Water Resources prior to any alteration or relocation of a watercourse and submit evidence of such notification to the Federal Insurance Administration; and 2. Require that the flood carrying capacity of the altered or relocated portion of said watercourse is maintained. D. Certification: Obtain and maintain for public inspection and make available as needed: 9/98 9199 §9662 §9662. 1. The certification required in subsection 9665C1. of this Chapter (floor elevations). 2. The certification required In subsection 9665C2 'of'this Chapter (elevations in areas of shallow flooding). 3. The certification required in subsection 9665C3 of this Chapter (elevation of fioodproofing of nonresidential structures). 4. The certification required' in subsection 9665C4a or Cob of this Chapter (wet floodproofing standard). 5. The certified. elevation required in subsection 96678 of this Chapter (subdivision standards). 6. The certification required in Section 9669 of this Chapter (floodway encroachments). E. Interpretation Of Boundaries: Make interpretations where. needed as to the exact Location of the boundaries of special flood hazard areas. The person contesting the locations of. the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Article 6 of this Chapter. F. Remedy Violations: Take action to remedy violations of this Chapter as specified in Section 9652 of this Chapter. (Ord. 789, §1, adopted 1982; Ord: 875, §1, adopted 1988) 9/96 9200 z l lP §9665 CHAPTER 6. FLOOD PLAIN MANAGEMENT .ARTICLE .5. PROVISIONS FOR FLOOD HAZARD REDUCTION §9665 SECTION §9665: Standards of Construction §9666:. Standards for Utilities §9667: Standards for Subdivisions §9668: Standards for Manufactured Homes §9669: Floodways §9665: A. STANDARDS OF CONSTRUCTION: In all special flood hazard areas the following standards are required: Anchoring: 1. All new construction and.. substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structures. resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. 2. All manufactured homes shall meet the anchoring standards of §9668. B. Construction Materials and Methods: 1. All new construction and substantial improvements -shall be constructed with materials and utility equipment resistant to flood damage. 2. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. 9201 z-~7 §9665 §9665 . 8) 3. All new construction and substantial improvements shall 'be constructed with heating, ventilation, plumbing and air conditioning equipment and, electrical, other service facilities that are designed. and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. 4. Require 'within Zones AH, AO, or. VO, adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures. C. Elevation and Fioodproofing: 1. New construction and substantial improvement of any structure shall have the, lowest floor, including basement, elevated to or above the base flood elevation. Nonresidential structures may meet the standards in §9665C3. Upon completion of the. structure, the elevation of the lowest floor including basement shall be certified by a registered professional engineer or surveyor, or verified by the Building Official to be properly elevated. Such certification or verification shall be provided to the Flood Plain Administrator. 2. New construction and substantial improvement of any structure in Zone AH, AO, or VO shall have the lowest floor, including basement, elevated above the highest adjacent grade at least as high as the depth number specified in feet on the FIRM, or at least two feet (2) if no depth - number is specified. Nonresidential structures may meet the standards in §9665C3. Upon completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered professional engineer or surveyor or verified by the Building Official to be properly elevated. Such certification or verification shall be provided to the Flood Plain Administrator. 3. Nonresidential construction shall either be elevated in conformance with §9665C1 or 2 or together with attendant utility and sanitary facilities: a. Be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water; b.. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and . c. Be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certifications shall be provided to the Flood Plain Administrator. 9202 a -/,V §9665 §9667 C) 4, Require for all new improvements • construction and substantial, that fully enclosedareas below the lowest floor that : are subject to flooding shall be designed. to automatically equalize hydrostatic flood forces on - exterlor4alls by allowing, for the entry and. exit of.. floodwaters. Designs..'.-for meeting this requirement must either be. certified -by.a registered;. professional engineer or architect or meet or exceed the following minimum criteria: a. Either a minimum of two (2) openings having a total net area of not less than one square 'inch for every square foot of. enclosed area subject to flooding shall be provided.. The bottom of all openings shall be no higher than 'one foot above grade.. Openings may be equipped with screens, louvers, valves or other coverings or devices provided 'that they permit the automatic entry and exit of floodwaters; or b. Be, certified to comply with -a local . floodproofing standard approved by the Federal Insurance Administration. 5. Manufactured homes shall also meet the standards In §9668. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §11, adopted 1988) r §9666: STANDARDS. FOR UTILITIES: A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the' system and discharge from systems into flood waters; B. On site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9667: STANDARDS FOR SUBDIVISIONS: A. All preliminary subdivision proposals shall identify the flood hazard area and the elevation of the base flood. B. All final subdivision plans will provide the elevation of proposed structure(s) and pads. If the site is filled above the base flood, the final pad elevation shall be certified by a registered professional engineer or surveyor and provided to the Flood Plain Administrator. C. All subdivision proposals shall be consistent with the need to minimize flood damage. 9203 §9667 §9669 D. All subdivision proposals shall have public utilities and facilities such as sewer; gas, electrical and water systems located 'and constructed -to minimize flood damage. E. All subdivision proposals shall provide adequate drainage to reduce exposure to flood hazards. (Ord. 789, §1, adopted 1982; amd. by Ord..875, §1, adopted 1988) §9668: STANDARDS 'FOR MANUFACTURED HOMES: All new and replacement manufactured homes and additions to manufactured homes shall: A. Be elevated so that the lowest floor'is at:or above the base flood elevation; and B. Be. securely anchored to a permanent foundation system to resist flotation, collapse or lateral movement. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) §9669: FLOODWAYS: Located within special flood hazard areas established in §9651 are areas designated as floodways. Since the floodway is an extremely hakardous area due to the velocity of flood waters which carry debris, potential projectiles and erosion potential, the following provisions apply: A. -Prohibit . encroachments, including fill, new construction; substantial improvements and other development unless certification by 'a registered professional engineer or architect Is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of, the base .flood discharge., B. If §9669A is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of Article 5. C. If no floodway is identified then a setback of twenty feet (20') from the bank(s) of. the watercourse will be established where. encroachment will be prohibited. (Ord. 789, §1, adopted 1982; amd. by Ord. 875, §1, adopted 1988) 9204 §9670 CHAPTER 6 . FLOOD. PLAIN.. MANAGEMENT ARTICLE 6. APPEAL. AND VARIANCE PROCEDURE. SECTION: §9670: Appeals §9671: Variances . §9672: Conditions For Variances Z Z-0 §9670 " 09670: APPEALS: A. The Planning Commission of the City shall hear and decide appeals and requests for variances from the' requirements of this Chapter: B. The Planning Commission shall hear and decide appeals when It is alleged there Is an error in any requirement, decision or determination made by the Flood Plain Administrator in the enforcement or administration of this Chapter. C. In. passing upon such appeals, the' Planning Commission shall consider all technical evaluations, all relevant factors, -standards' specified In other sections of the Chapter, and: 1. The danger that materials may be swept onto. other lands to the Injury of others; 2. The danger to life and property due to flooding or erosion damage; 3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the Individual owner; §9670. §9671 C) 4. The . Importance of the services provided by the proposed facility* to the ~community; 5. The necessity to the facility of a waterfront location, where applicable; 6. The availability of alternative locations Jor the proposed use which are not subject to flooding or erosion damage; 7. The compatibility of . the proposed use with existing and anticipated development; 8. The relationship of the proposed use to the Comprehensive Plan and flood plain management program for that area; 9. The safety of access to the property in times of flood for ordinary and emergency vehicles; 10. The expected heights, velocity, duration, rate of rise.and sediment transport of the flood waters expected at the site; and,. 11. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities. and facilities such as sewer, gas, electrical and water systems, and streets and bridges. D. Appeals shall be made in writing to the Director of Community Development not less than eight (8) days prior to the Planning Commission meeting date at which this matter would be heard as a regular agenda Item. (Ord. 789, §1, adopted 1982; amd. by Ord. 876, §1, adopted 1988) §9671: . VARIANCES: A. Generally, variances may be issued for new' construction and substantial improvements to be erected on a lot of one-half ('/2) acre or less in size contiguous to and surrounded by lots with existing structures Constructed below the base flood 'level, providing items. (1-11.) in §9670C have been',fully considered. As the lot size increases beyond one-half ('/2) acre, the technical justification required for issuing the variance increases. B. Upon consideration of the factors of §9670C and the purposes of this Ordinance, the Planning. Commission may attach such.conditions to the granting of variances as it deems necessary to further the purposes of this Ordinance. 9206 §9671 §9672 C. The. Flood . Plain Administrator shall 'maintain the records of all appeal actions and report any variances to the Federal. Insurance Administration upon request. D. Variances from.. these regulations. shall- be considered. in the same manner as prescribed in §9208 et seq. (Ord. 789,, §1, adopted 1982; amd. by Ord. 875, §1,.. adopted 1988) §9672: CONDITIONS FOR VARIANCES: A. Variances may be Issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places without regard to the procedures set forth in the remainder of this Section; B. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result; C. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; D. Variances shall only be issued upon: 1: A showing of good and sufficient cause; 2. A determination that failure to grant the variance would result In exceptional hardship to the applicant; and 3. A determination 'that the granting of a variance will not result in increase flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. E. Variances may be issued for new construction and substantial Improvements and for other development necessary for the conduct of a functionally dependent use provided that the provisions of §§9672A through 9672D are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. F. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the regulatory flood elevation and that. the cost of flood insurance will be J 9207 §9672 §9672 ~ :t F) . commensurate. with the increased Ask resulting from the reduced lowest floor r elevation.` A' copy of: the notice shall be... recorded by the Flood plain .i AdniMistrator In the 'office of the 'Mendocino County., Recorder and shall be recorded in a manner so that. It appears in the chain of title of the affected parcel ' of land. (Ord. 789, §1, adopted 1982; amd. by Ord. 875; §1, adopted 1986) 9208 i Af achment # 3-/ i i i t ti Y c Title 24, California Buildit Based on the. 20 2010 California Hi 2010 California Exi I INTERNAil CNAI CODE COUNCIr (For Errata 2011 TY f PREFACE This document is Part 2 of 12 parts of the official triennial compilation and publication of the adoptions, amendments and repeal of administrative regulations to California Code of Regulations, Title 24, also referred to as the California Building Standards Code. This Part is known as the California Building Code. The California Building Standards Cade is published in its entirety every three years by order of the California legisla- ture, with supplements published in intervening years. The California legislature delegated authority to various state agencies, boards, commissions and departments to create building regulations to implement the State's statutes. These + building regulations or standards, have the same force of law, and take effect 180 days after theirpublication unless oth- erwise stipulated. The California Building Standards Code applies to occupancies in the State of California as anno- tated. - A city, county or city and county may establish more restrictive building standards reasonably necessary because of local climatic, geological or topographical conditions. Findings of the local condition(s) and the adopted local building standard(s) must be fled with theCalifornia Building Standards Commission to become effective and may not he effec- tive sooner than the effective date of this edition of California Building Standards Code. Local building standards that were adopted and applicable to previous editions of the California Building Standards Code do not apply to this edition without appropriate adoption and the required filing. Should you find publication (e.g., typographical) errors or inconsistencies in this code or wish to offer comments toward improving its format, please address your comments to: California Building Standards Commission 2525 Natomas Park Drive, Suite 130 Sacramento, CA 95833-2936 Phone: (916) 263-0916 Fax: (916)263-0959 Web Page: www.bse.ea:gov ACKNOWLEDGMENTS The 2010 California Building Standards Code (Code) was developed through the outstanding collaborative efforts of the Depart- ment of Housing and Community Development, the Division of State Architect, the Office of the State Fire Marshal, the Office of 4 Statewide Health Planning and Development, the California Energy Commission, and the Building Standards Commission (Com- mission). This collaborative effort included "'assistance of the Commission's Code Advisory Committees and many other volunteers that worked tirelessly to assist the Commission in the production of this Code. ; Governor Arnold Schwarzenegger Members of the Building Standards Commission Acting Secretary Tom Sheehy - Chair . 1'sam Hasenin -Vice-Chair Christina Jamison. James Barthman Stephen Jensen Craig Dailey Michael Paravagna , . Susan Dow Richard Sawhill Tony Hoffman Steven Winkel David Walls - Executive Director .f Thomas Morrison -Deputy Executive Director: . For questions on California state agency amendments; please refer to the contact list on the following page. 2010 CALIFORNIA Btlll.DINQ CODE III California Code of Regulations, Title 24 California Agency Information Contact List CaCifornia Emma Comm wk on Energy Hotline (800) 772-3300 or (916) 654-5106 Department o f Public Health Organized Camps Standards (916) 449-5661 Public Swimming Fools Standards , . (916) .449-5693 As MP; Standards (510) 620-2874 8. wilding Efficiency Standards. appliance Efflcienq Standards Compliance Manual/Forms Qalifarnia Stale lands___. mmo ft_s n Marine Oil Terminals . (562) 4994317 cahfor~a State Library Resources and lnfor ,motion (916) 654-0261 Government Publication Section.......... (916) 654-0069 Correeiions Standards Authori Local Adult Jail Standards (916) 3244914 Zocal Juvenlle Facility Standards (916) 324-1914 Dente 8r~ent of C~,~a~e~a~ ~,cu~ll~.~yre Board . O)Jice Standards . (916) 445-3021 4itartment of ConsumerAWh---Baard ofPharmacv Pltttrmacy Standards . , (916)574w7900 .tlenartment et Cansumgc4 airs Bureau afBarbertna a a cosmetalO y...' Barber and Beauty Shop and (916) 574-7570 College Standards (800) 952.5210 Doar"ent of Consumor4'airs Bureau of Home Furnishings and ThermallnsuMon Insulation Testing Standards (916) 574-2041 Department-of Consumer Affairs Structural Pest Control RAW Structural Standards (800) 737-8188 (916) 561-8708 Department of consumer Affairs veterinary Medical Board Veterinary Hospital Standards............ (916) 263-2610 frarlment of Foad and Agriculture Meat & Poultry Packing Plant Standards (916) 654-1447 Dairy Standards (916) 654-1447 penartment efffa~ing and Community Development Residential Hotels, Motels, Apartments Single-Family Dwellings (916) 445-9471 Permanent Structures in Mobilehome and Special Occupancy Parks (916) 445-9471 Factory»$uiltHousing, Mangfactored Housing and Commercial Modular...... (916) 445-3338 Mobilehomes-Permits & Inspections Northern Region (916) 255.2501 Southern Region... (951) 7824420 Employee Housing Standards (916) 445-9471 Dwpa ens of Water Resources Gray Water Installations Standards (916) 651-9667 Division he ,Mate Arch&_d_- cows -ce-w alliance Access Compliance Standards............ (916) 445-8100 Division o the State Archit eg&=S&4;taral Safely Public Schools Standards (916) 445.8100 Essential Services Building Standards , , . (916) 4..45-8100 Community College Standards (916) 445.8100 Division of the State Architect State historical is Softy Beard Alternative Building Standards (916) 445-8100 e of Statewide Health M-onina-and D-evelonment Hospital Standards (916)440-84.09 Skilled Nursing Facility Standards (916) 440-8409 Clinic Standards (916) 440-8409 Permits (916)440-8409 OW09f tie SW FIEV Marshal Code Development and Analysis.......... (916)445-82.00 Fire Safety Standards (916) 445-8200 Fireplace Standards (916) 445.8200 Day-Care Centers Standards (916) 445-8200 Exit Standards ........................(916)445-8200 Iv 2010 CALIFORNIA BUILDING CODE t ~ . 7 , i +l i 3 4- i) Q---- 0 Continuity 706.5, 706.6 Exterior walls Table 602, 706.5.1 Fire-resistance rating .................703, 706.4 Glazing, rated 715.5 Inspection ............................110.3.6 Joints ............................706.10, 714 Marking ...............................703.6 Materials . 706.3 Opening protection ...706.8, 706.11, 713.3, 715, 716.5.1 Penetration 706.9, 713.3, 713.4 Special provisions Aircraft hangars 412.4.6.2 Covered mass .......................402.7.3 Group H-5 ..........415.8.2.6 Private garages and carports 406.1.2 Structural stability . ...................706.2 FIRE WINDOWS (see OPENING PROTECTIVES) FIREBLOCKING . 717.2 Chimneys .....................717.2.5, 2113.20 Fireplaces ...2111.12 Wood construction ......717.2.1, 717.2.7, 1406.2.4 Wood stairs 717.2.4 FIREPLACES, FACTORY-BUILT.......... 2111.14.1 FIREPLACES, MASONRY 2102.1 Combustibles .........................2111.11 General provisions . 2111 Hearth extension 2111.9, 2111.10 Steel units ...........................2111.5.1 FIREWORKS 307.2, 307.3, 307.5 FITTING AND DRESSING ROOMS......... 1117B.8 FIXED GUIDEWAY TRA NSIST SYSTEMS..... 303.2, 483 Fire alarm and communication systems.... 907.2.26 FIXED OR BUILT-IN SEATING, TABLES, AND COUNTERS .......................1122'8 Height of work surfaces 1122B.4 Knee clearance .......................11228.3 Minimum number.... .........11228.1 Safes and service counters, feller windows, and Information counters 11228.5 Sealing . .11228.2 FLAMESPREAD 802, 803.1.1, Table 803.9 FLAMMABLE FINISHES ...............307.1, 416 FLAMMABLE LIQUIDS 307.4, 307.5, 406, 412, 414, 415 FLAMMABLE SOLIDS 307.5, 415 FLASHING Roof 1503.2,1503.6,1507.2.9 1507.3.9,1507.5.7,1507.7.7, 1507.8.8,1507.9.9,1510.6 1_ _yAll, veneer.._._.... 1405.4,1405.12.7 Administration G101 through G105 Elevation certificate....... .110.3.3 Existing 3403.2, 3404.2, 3405.5, 3409.2,3412.2-4.1 Flood elevation ..................107.2.5.1,1612 INDEX Flood loads ...1603.1, 1603.1.7, 1612, 3001.2, 3102.7 Flood resistance ....1403.5,1403.6 Flood resistant construction........... Appendix G Grading and fill ...............1804.4, 1805.1.2.1 Historic buildings G105.3 Interior finishes . 801.1.3 Manufacturered homes G501 Recreational vehicles G601 Site improvements 0401 Site plan .............................107.2.5 Subdivisions ............................G301 Tanks .................................0701 Temporary 0901 Utility . ......................G1001 Ventlation, under floor ..................1203.3.2 FLOOR CONSTRUCTION (see FLOOR CONSTRUCTION, WOOD) Draftstopping ....717.3 Finishes 804, 805,1003.4,1210.1 Fire resistance.. Table 601, 712 Loads (see FLOOR LOADS) Materials . Chapter 6 Penetration of fire-resistant assemblies.. . 712, 713.4, 716.2, 716.6 FLOOR CONSTRUCTION, WOOD Beams and girders ...........2304.11.2.1, 2308.7 Bridging/blocking 2308.8.5, 2308.10.6 Diaphragms . 2305.1 Fastening schedule.. .2304.9.1 Framing...... Table 602.4, 602.4.2, 602.4.4, 2304.4 Joists . ..............................2308.8 Sheathing .............................2304.7 FLOOR LEVEL 1003.5, 1008.1.5, 11208 Floorsurface . 1120x2 Floors within each story 11209.1 FLOOR LOADS Construction documents .107.2 Live . .........................1603.1.1,1607 Posting ................................106.1 FLOOR OPENING PROTECTION (see VERTICAL OPENING PROTECTION) FOAM PLASTICS Athos ........................719.1, 2603.4.1.6 Cold storage 2603.3, 2603.4.1.2, 2603.5 Concealed.. .603 Covered mall and open mall buildings..... 402.16.5 Crawl space 2603.4.1.6 Doors .2603.4.1.7 through 2603.4.1.9 Exterior walls of multistory buildings 2603.5 Interior finish 801.2.2, 2603.9, 2604 Label/identification 2603.2 Metal composite materials (MCM)........ 1407.1.1, 1407.13 Siang backer board 2603.4.1.10 Stages and platform scenery 410.3.6 Surface burning characteristics 2603.3 Thermal barrier requirements............ 2603.5.2 2090 OALIFORNtA BUILDING CODE 743 f D APPENDIX G FLOOD. RESISTANT CONSTRUCTION The provislons.coantained in this appendix are not mandatory unless sgiec#kaally referenced in the adopting Wigance. . SECTION 0101 ADMINISTRATION G1011 Purpose. The purpose of this appendix is to promote the public health, safety and general welfare and to minimize public and pxxvaW losses due to flood conditions in specific !J:~o hazar d areas through the establishment of comprehen- egulations for management of flood hazard areas deszgned, to:...:..... 1..Prevbntuanecessary disruption of commerce, access and public;seivice'duft times of flvacli~ig; 2.. Manage, the alteration of natural flood plains, stream cltatit►eis and shorelines; 1 MMAoe filling, gradling, dredging and other develop- meat W. hick may increaseflood damage or erosion poten- tial; 4.. Prevent or: regulate. the construction. of flood barriers which will divert floodwaters or which can increase. l .Rood haxsrds; aud. 5. Contribute to improved construction techniques in the flood plain. 0101,2 C)bjectives. The. objectives of this appendix are to pro- tect human life, minimize the expenditure of public money for flood control projects, minimize the need for rescue and relief efforts associated with f tooding, minimize prolonged business interruption, minimize damage to public facilities and utilities, help Waintain a stable tax base by providing for the sound use and development of flood-prone areas, contribute to improved conptruction techniques in the flood plain and ensure that potential owners and occupants are notified that property is within flood hazard areas. G101.3 Scope. The provisions of this appendix shall apply to all proposed development in a flood hazard area established in Section 1612 of this code, including certain building work exempt from permit under Section 105.2. G101.4 Violations. Any violation of a provision of this appen- dix, orfailureto comply with a permit or variance issued pursu- ant to this appendix or any requirement of this appendix, shall 4 be handled in accordance with Section 114. SECTION G102 APPLICABILITY G102.1 General. This appendix, in conjunction with the Inter- 4 ' national Building Code, provides minimum requirements for developmentlocatedinfloodhazardareas, including the subdi- vision of land; installation of utilities; placement and replace- ment of manufactured homes; new construction and repair, reconstruction, rehabilitation or additions to new construction, substantial improvement of existing buildings and. structures, including restoration after damage, temporary structures, and temporary. or perananent storage, utility and miscellaneous Croup V buiidi .gi. and structures, and certain building work exempt from permit under Section 105.2. G102.2 Establishment of flood Hazard; asreas. Flood.hazard, areas are. oatablished. in Section 1612,3 of the Interraationad Building Code,.adopted by the applicable.governing authority on [INSERT DATA]. SECTION G103 POwER$ AND DITTIES G103.1 permit applications. The building official shall review all permit applications to determine whether proposed development sites will be reasonably safe from flooding. H a proposed development site is in a f toad liazwo area, an spite development activities. (including grading, filling, utility installation and drainage modiftoatiou),, all new construction and substantial. improvements (including the placement of pre- fabricated buildings and manufactured homes) and certain building workexemptf om permitunder Secpon 105.2 shall be dealp.ed and constructed with methods, practices and ruateri- als that minimizeflQod damage and that are in accordance with this code said .ASCB 24. G103.2 Other permits. It shall be the responsibility of the building official to assure that approval of a proposed develop- ment shall not be given until proof that necessary permits have been granted by federal or state agencies having jurisdiction over such development. G103.3 Determination of design flood elevations. If design flood elevations are not specified, the building official is autho- rized to require the applicant to, 1. Obtain, review and reasonably utilize data available from a federal, state or other source, or 2. Determine the design flood elevation in accordance with accepted hydrologic and hydraulic engineering tech- niques. Such analyses shall be performed and sealed by a registered design professional. Studies, analyses and computations shall be submitted in sufficient detail to allow review and approval by the building official, The accuracy of data submitted for such determination shall be the responsibility of the applicant. G103A Activities in riverine flood hazard areas. In riverine flood hazard areas where design flood elevations are specified but floodways have not been designated, the building official shall not permit any new construction, substantial improve- ment or other development, including fill, unless the applicant demonstrates that the cumulative effect of the proposed devel- 2010 CALIFORNIA BUILDING CODE 697 3-(v APPENDIX G opment, when combined with all other existing and anticipated flood hazard area encroachment, will not increase the design flood elevation more than 1 foot (305 mm) at any point within the community. G103.5 Noodway encroachment. Prior to issuing a permit for any floodway encroachment, inoluding fill; new construction, substantial improvements and other development or land- dis-turbing activity, the building qfflcial shall require submission of a certifieition, along with supporting technical data, that demonstrates that such development will not cause any increase of the level of the base flood. G1035.1 Floodway revisions. A floodway encroachment that increases the level of the base flood is authorized if the applicant has applied fora conditional Flood Insurance Rate Map (FIR" revision and has received the approval of the Federal Emergency Management Agency (FEMA). G103.6 Watercourse alteration. Prior to issuing a permit for any alteration or relocation of any watercourse, the building official shall require the applicant to piovide notification of the proposal to the appropriate authorities of an affected adjacent government jurisdictions, as well as appropriate state agencies. A copy of the notification shall be maintained in the permit records and submitted to FEMA. G103A.1 Engineering analysis. The building official shall require submission of an engineering analysis which dem onstrates that the flood-carrying capacity of the altered or relocated portion of the watercourse will not be decreased. Such watercourses shall be maintained in a manner which preserves the channel's flood-carrying capacity. . G103.7 Alterations in coastal areas, Prior to issuing a permit for any alteration of sand dunes and mangrove stands in flood hazard area subject to high velocity wave action, the building offloial shall require submission of an engineering analysis which demonstrates that the proposed alteration will not increase the potential for flood damage. G103.8 Records. The building i i'cial shall maintain a perma- nentrecord of allpermits issued infloodhawd areas, includ- ing copies of inspection reports and certifications required in Section 1612. SECTION G104 PERMITS G104.1 Required.Anyperson,ownerorauthorizedagentwho intends to conduct any developmentin aflood bazard areashall first make application- to the building of "fetal and shall obtain the required permit. G104.2 Application for permit. The applicant shall file an application in writing on aform furnished by the building cfa- dal. Such application shall: 1. Identify and describe the development to be covered by the permit. 2. Describe the land on which the proposed development is to be conducted by legal description, street addregs or similar description that will readily identify and defi- nitely locate the site. { 3. Include a site plan showing the delineation of flood haz- ard areas, floodway boundaries, flood zones, design flood elevations, ground elevations, proposed fill and excavation and drainage patterns and facilities. 4. Indicate the use and occupancy for which the proposed development is intended. _ 5. Be accompanied by Construction documents, grading and filling plans and oilier information deemed appropri-. ate by the building official. 6. State the valuation of the proposed work. 7. Be signed by the applicant or the applicant's authorized ' C. agent. G104.3 Validity of permit. Theissuance of apermitunder this appendix shallnot be construed to be a permit for, or approval of, any violation of this appendix or any other ordinance of the jurisdiction. Theissuance of apemdt based on submitted doeu. ments and information shall not prevent the building a icial from requiring the correction of errors. The building official is authorized to prevent occupancy or use of a structure or site which is inviolation of this appendix or other ordinances of this jurisdiction. GI64.4 Expiration. Apermit shall become invalid if the pro- posed development is not commenced within 180 days afterits issuance, or if the work authorized is suspended or abandoned foraperiod of 180 days after the work commences. Extensions shall be requested in writing and justifiable cause demon- strated. The building o cial is authorized to grant, in writing, one or more extensions of time, for periods not more than 180 days each. G104.5 Suspension or revocation. The building official is authorized to suspend or revoke a permit issued under this appendix wherever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in viola- tion of any ordinance or code of this jurisdiction. SECTION G105 VARIANCES G1051 General.Tbe board ofrtppeak establishedpursuantto Section 112 shall hear and decide requests for variances. The board ofappeals shall base its determination on technical justi- fications, and has the right to attach such conditions to vari- ances as it deems necessary to further the purposes and objectives of this appendix and Section 1612. G105.2 Records. The building official shall maintain aperma- nent record of all variance actions, including justification for their issuance. G1053 Historic structures. A variance is authorized to be issued for the repair or rehabilitation of a historic structure upon a determination that the proposed repair or rehabilitation will notpreolude the structure's continued designation as a his- 6* 2010 CALIFORNIA 8UILDiNQ CODE -T- APPENDIX 0 toric•st<ucture, and the variance is the minimum necessary to / preserve the historic character and design of the structure. Exgep.994; Withiu, flood hazard areas, historic structures that l~ not; 1. Listed or preliminarily determined to be eligible for listing l.;I theNational Register of Historic Places; or 2, Determined by the Secretary of the U.S. Department of Interior as contributing to the historical signifr- pq n of a registered histoiiic district or a district pre- lim,manly determined to qualify as an historic district; or Designated. as historic under a state or local historic prEServattion program that is approved by the Depart- Wid of Intorior. 019S,4 Functionally dependent facilities. A variance is authorized be to issued for the construction or substantial improvement of a functionally dependent facility provided the criteria is Section 161ZJ are met and the variance is the mini- mum necessary to allow the construction or substantial imptoYemexat, and that all duo consideration has been given to methods and materials that minimize flood damages during the design flood and create no additional threats to public safety. Gii,W. Restrictions, Tire board of appeals shall not issue a variance for any proposed development in a floodway if any increase in. flood levels would result during the base flood dis- charge. G105.6 Cpnsideiratlons. In reviewing applications for vad- anees, the board of appeals shall consider all technical evalua- tions, all relevant factors, all otherportions of this appendix and the following: 1. The dangerthatmaterials and debris may be sweptonto other lands resulting in further injury or damage; 2. The danger to life and property due to flooding or ero- sion damage; 3. The susceptibility of the proposed development, including contents, to flood damage and the effect of such dargage, on current and future owners; 4, The importance of the services provided by the pro- posed development to the community; 3. The availability of alternate locations for the proposed development that are not subject to flooding or erosion; 6. The compatibility of the proposed development with existing and anticipated development; 7. The relationship of the proposed development to the comprehensive plan and flood plain management pro- gram for that area; 8. The safety of access to the property in times of flood for ordinary and emergency vehicles; 9. The expected heights, velocity, duration, rate of rise and debris and sediment transport of the floodwaters and the effects of wave action, if app] icable, expected at the site; and 10. The costs of providing governmental services during and after flood conditions including maintenance and 2010 CAUFORN1A BUILDING CODE repair.o€ public utilities and facilities such as sewer, gas, electrical and water systems, streets and bridges. G105.9 Conditions for Issuance. Variances shall only be issued by the board of appeals upon. 1. A technical showing of good and sufficient cause that the unique cbaracteristics of the size, configuration or topography of the site renders the elevation standards inappropriate; 2. A determination that failure to grant the variance would result in exceptional hardship by rendering the lot undevelopable; 3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, nor create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances; 4. A determination that the variance is the minimum neces- sary, considering the flood hazard, to afford relief; and 5. Notification to the applicant in writing over the signature of the building official that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance cover- age, and that such construction below the base flood level increases risks to life and property. SECTION 0201 DEFINITIONS G201.1 General. The following words and terms shall, for the purposes of this appendix, have the meanings shown herein. Refer to Chapter 2 for general definitions. G201.2 Dern itioM DEVELOPMENT. Any manmade change to improved or unimproved real estate, including but not limited to, buildings or other structures, temporary structures, temporary or perm a- nent storage of materials, mining, dredging, filling, grading, paving, excavations, operations and other land-disturbing activities. FUNCTIONALLY DEPENDENT FACILITY. A facility which cannot be used for its intended purpose unless it is located. or carried out in close proximity to water, such as a docking orport facility necessary for the loading or unloading of cargo or passengers, shipbuilding or ship repair. The term does not include long-term storage, manufacture, sales or ser- vice facilities. MANUFACTURED HOME. A structure ihatis transportable in one or more sections, built on a permanent chassis, designed for use with or without a permanent foundation when attached to the required utilities, and constructed to the Federal Mobile Home Construction and Safety Standards and rules and regula- tions promulgated by the U.S. Department of Housing and Urban Development. The term also includes mobile homes, park trailers, travel trailers and similar transportable structures that are placed on a site for 180 consecutive.days or longer. 699 APPENDIX G MANUFACTURED HOME PARK OR SUBDIVL5ION. A parcel (orcontiguous Parcels) Ofland divided into two or more manufactured home lots for rent or We. RECREATIONAL ''VEHICLE. A vehicle that is built on a single chassis, 440 square feet (37.16 ma) or less when mea- sured at the largest horizontal projection, designed to be self-propelled or permanently towable by 'a light=ditty truck, and designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel orseasonal use. Arecreational vehicleisreadyforhighwayuse If it is on its wheels or jacking system, is attached to the site only by quick disconnect-type utilities and security devices and has no permanently attached additions. VARIANCE. A grant of relief from the requirements of this section which permits construction in a manner otherwise pro- hibited by this section where specific enforcement would result in unnecessary hardship. VIOLATION A development that is not fullycompliant with this appendix or Section 1612, as applicable. SECTION G301 SUBDIVISIONS G301.1 General. Any subdivision proposal, including propos- als for manufactured home parks and subdivisions, or other proposed new development in a flood hazard area shall be reviewed to assure that: 1. All such proposals are consistent with the need to mini- mize flood damage; 2. All public utilitiesandfacilities.such as sewer, gas, elec- tric and water systems are located and constructed to minimize or eliminate flood damage; and 3. Adequate drainage is provided to reduce exposure to flood hazards. G301.2 Subdivision requirements. The following require- ments shall apply in the case of any proposed subdivision, including proposals for manufactured how parks and subdivi- sions, any portion of which lies within a flood hazard area: 1. The flood hazard area, including floodways and areas subjeetto high velocity wave action, as appropriate, shall be delineated on tentative and final subdivision plats; 2. Design flood elevations shall be shown on tentative and final subdivision plats; 3. Residential building lots shallbe provided with adequate buildable area outside the floodway; and 4. The design criteria for utilities and facilities set forth in this appendix and appropriate International Codes shall be met. SECTION 0401 SITE IMPROVEMENT G401.1 Development in floodways. Development or land dis- turbing activity shall not be authorized in dio loodway.unless it has been demonstrated through hydrologic and hydraulic Mud- yses performed in accordance with standard engineering prac- Lice that the proposed encroachment will not result in any increase in the level of the base flood. G401.2 Flood hazard areas subject to high-velocity wave action. In flood hazard areas subject to high-velocity wave action: 1. New buildings and buildings that are substantially improved shall only be authorized landward of the reach of mean high tide. 2. The use of fill for structural support of buildings is pro- bibited. G4013 Sewer facilities. All new or replaced sanitary sewer facilities, private sewage treatment plants (including all pump- ing stations and collector systems) and on-site waste disposal systems shall be designed in accordance with Chapter 7, ASCE 24, to minimize or eliminate infiltration of floodwaters into the facilities and discharge from the facilities into floodwaters, or impairment of the facilities and systems. G401.4 Water facilities. All new or replacement water facili- ties shall be designed in accordance with the provisions of Chapter 7, ASCE 24, to minimize or eliminate infiltration of floodwaters into the systems. G401.5 Storm drainage. Storm drainage shall be designed to convey the flow of surface waters to minimize or eliminate damage to persons or property. G40L6 Streets and'sidewalks. Streets and sidewalks shall be designed to minimize potential for increasing or aggravating flood levels. SECTION G601 MANUFACTURED HOMES G501.1 Elevation. All new and replacement manufactured homes to beplaced or substantially improved in aflood hazard area shall be elevated such that the lowest floor of the manufac. tured home is elevated to or above the design flood elevation. G5012 Foundations. All new and replacement manufactured homes, including substantial improvement of existing manu- factured homes, shall be placed on a permanent, reinforced foundation that is designed in accordance with Section 1612. G501.3 Anchoring. All. new and replacement manufactured homes to be placed or substantially improved In afdood hazard area shallbe installed using methods and practices which mini- mize flood damage. Manufactured homes shall be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. Methods of anchoring are authorized to include, but are not limited to, use of over-the-top or frame ties to ground anchors. This require. went is in addition to applicable state and local anchoring, requirements for resisting wind forces. SECTION 0601 (RECREATIONAL VEHICLES G601.1 Placement prohibited. The placement of recreational vehicles shall not be authorized inflood hazard areas subject to high velocity wave action and in floodways. 700 2010 CALIFORNIA B1JtI.DI a cODR .3 7 APPENDIX G T 0601.2 Temporary placement. Recreational vehicles inflood hazard areas shalt be fully licensed and ready for highway use, and shaltbe placed on a site for less than 180 consecutive days. G601T3 Perm.@Aent placement. Recreational vehicles that are not fully licensed and ready for highway use, or that are to be ,x placed on a site for more than 180 consecutive days, shall meet the requireztients of Section G501 for manufactured homes. SECTION 0701 TANKS G701.1 Untlerg3round tanks. Underground tanks in flood haz- ` and areas shall be anchored toprevent flotation, collapse or lat- eral movement resulting from hydrostatic loads, including the effects of buoyancy, during conditions of the design flood. G701.2 Above-ground tanks'. Above-ground tanks in flood hazard areas shall be elevated to or above the design flood ele- vation or shall be anchored or otherwise, designed and con- stracted 0 prevent flotation, collapse or lateral movement Xesu*8 from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of thedesign, f food. 0.701,3 Tanis inlets and vents. In flood hazard areas, tank inlets, fill openings, outlets and vents shall bee' 1. Ator above the design flood elevation or fitted with cov- ers designed to prevent the inflow of floodwater or out- flow of the contents of the tanks during conditions of the design flood. 2. Anchored to prevent lateral movement resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the design flood. SECTION G801 OTHER BUILDING WORK 0501.1 ltktached accessory structures. Detached accessory structures shall be anchored to preventflotation, collapse or lat- eral movement resulting from hydrostatic loads, including the effects of bouyaney, during conditions of the design flood. Fully enclosed accessory structures shall have flood openings to allow for the automatic entry and exit of flood waters. G801.2 Fences. Fences in floodways that may block the pas- sage of floodwaters, such as stockade fences and wire mesh fences, shall meet the requirement of Section 0103.5. G801.3 Oil derricks. Oil derricks located in flood hazard areas shall be designed in conformance with the flood loads in Sections 1603.1.7 and 1612. 0801.4 Retaining walls, sidewalks and driveways. Retain- ing walls, sidewalks and driveways shall meet the requirements of Section 1803.4. G801.5 Prefabricated swimaming pools. Prefabricated swim- ming pools in floodways shall meet the requirements of Section 0103.5. SECTION 0.901 TEMPORARY ISTRUCTORES AND TEMPORARY STORAGE G901.1 Temporary structures. Temporary structures shall be. erected for aperiod of lessthan 180 days. Temporary attuctures shall be anchored to prevent flotation, collapse or lateral move- meat resulting from hydrostatic. loads, including the effects of buoyancy, during conditions of the design flood. Fully enclosed temporary structures shall have flood openings to allow for the automatic entry and exit of floodwaters. 09014 Temporary storage, Tornporaxy storm includes stor- age o;F goads add rnaterials for a period of less than 18{3 days. 8fored materials shall not include hazardous materials, 0901.3 Floodway encroachment. Temporary structures and temporary storage in floodways shall meet the requirements of 0].03.5. SECTION 01001 UTILITY ANC MISCELLANEOUS GROUP U 01001.1 Utility and miscellaneous Group U. Utility and mis- cellaneous Group U includes buildings that are accessory in character and miscellaneous structures not classified in any specific occupancy in the lnternallonal Building Code, includ- log, but not limited to, agricultural buildings, aircraft h4n.gars (accessory to a one- or twc-fancily residence), barns, caiports, fences more than 6 feet (1829 mm.) high, gWn silos (accessory to a residential occupancy), greenhouses, livestock. shelters, private garages, retaining walls, sheds, stables and towers. G1001.2 Flood loads. Utility and miscellaneous Group U buildings and structures, including substantial improve lurch of such buildings and structures, shall be anchored to prevent no- tation, collapse orlateral movement resulting from flood loads, including the effects of buoyancy, during conditions of the design flood. G1001.3 Elevation. Utility and miscellaneous Group U build- ings and structures, including substantial improvement of such buildings and structures, shall be elevated such that the lowest floor, including basement, is elevated to or above the design flood elevation in accordance with Section 1612 of the Interna- tional Building Code. G1001.4 Enclosures below design flood elevation. Fully enclosed areas below the design flood elevation shall be at or above grade on all sides and conform to the following; 1. In flood hazard areas not subject to high-velocity wave action, enclosed areas shall have flood openings to allow for the automatic inflow and outflow of floodwaters. 2. In flood hazard areas subject to high-velocity wave action, enclosed areas shall have walls below the design flood elevation that are designed to break away or col- lapse from a waterload less than that which would occur during the design flood, without causing collapse, dis- placement or other structural damage to the building or structure. G1001.5 Flood-damage-resistant materials. Flood-dam- age-resistant materials shall be used below the design flood ele- vation. 2010 CALIFORNIA BUILDING CODE 701 APPENDIX O G1001AProtection of mechanical, plumbing and electrieai systea &Mechanical,plumbingandelectricalsystems,includ- ing plumbing fixtures, shall be elevated to or above the design flood elevation. Exception: Electrical systems, equipmentand components, and heating, ventilating, air conditioning, and plumbing appliances; plumbing fixtures, duct systems and. other ser- vice equipment shall be permitted to be located below the designflood elevation provided that they are designed and installed to prevent water from entering or accumulating within the components and to resist hydrostatic and hydro- dynamic loads and stresses, including the effects of buoy- ancy, during the occurrence of flooding to the design flood elevation in compliance with the flood-resistant construc- tioa requirements of this code,' Electrical wiring 'systems shall be permitted to be located below the design flood ele- vatlouprovided they conform to the provisions ofNF PA70. SECTION 61101 REFERENCED STANDARDS ASCE24-05 Flood Resistance Design 0103,1, and Construction 0401.3, 0401.4 HUD 24 CPR Manufacuu+ed Home G201 Part 3280 Constraodon and Safiety (1994) Standards IBC-06 international Building Code 0102.2 NPPA 7G-08 National Electrical Code 01001.6 3~~d 702 2010 CALIFORNIA BUILDING CODE ITEM NO.. MEETING DATE: Ci•~y ~jk~ak AGENDA SUMMARY REPORT 13b May 4, 2011 SUBJECT: APPROVE RESOLUTION AND AUTHORIZE THE CITY MANAGER TO EXECUTE ALL OF THE NECESSARY AGREEMENTS ASSOCIATED WITH THE LODI ENERGY CENTER NATURAL GAS PURCHASE PROGRAM. (EUD) Background: City of Ukiah ("City of Ukiah") is a Project Participant in the Lodi Energy Center and other natural gas fired generation facilities. The Lodi Energy Center is a 280 MW natural gas fired generation facility that is scheduled to become commercially operational by June 2012. As a result, City of Ukiah now has a need to procure natural gas through the use of forward market purchases to assure greater rate stability for our customers. Discussion: In response to this need, Northern California Power Agency ("NCPA"), through coordination with City of Ukiah staff, has developed a Natural Gas Purchase Program that can be used by City of Ukiah to purchase natural gas as fuel for electric power generation for the benefit of our customers. If City of Ukiah elects to become a Participant in the Natural Gas Purchase Program, by executing the Natural Gas Program Agreement, City of Ukiah may direct NCPA to purchase natural gas, through the use of forward market purchases or physical call options, to reduce the portion of its natural gas needs that would otherwise have to be obtained in a potentially volatile spot market; thereby assuring greater rate stability for our customers. The Natural Gas Program Agreement is included as Attachment 1 to this staff report. Participation in the Natural Gas Purchase Program will also provide a means for City of Ukiah to take advantage of reduced procurement costs through economies of scale, and will enable City of Ukiah to diversify its counterparty risk by subscribing to a more diverse portfolio of natural gas contracts than if City of Ukiah individually selected a single natural gas supplier. In addition to purchasing natural gas for physical delivery through the Natural Gas Purchase Program, City of Ukiah may also elect to have the opportunity to stabilize its long-term natural gas fuel costs and budgets through the use of financial market transactions. If City of Ukiah elects to use financial transactions to stabilize its natural gas fuel costs, it must execute the Financial Addendum attached to the Natural Gas Program Agreement as Exhibit C. Use of financial transactions, and execution of the Financial Addendum, is purely voluntary and is not required to participate in the Natural Gas Purchase Program. Natural Gas Purchase Program Procurement Process: City of Ukiah, as a Participant in the Natural Gas Purchase Program can direct NCPA to procure natural gas on its behalf from third parties using competitive bids submitted in response to a NCPA Request For Proposals, or through direct purchases from the State Recommended Action(s): APPROVE RESOLUTION AND AUTHORIZE THE CITY MANAGER TO EXECUTE ALL OF THE NECESSARY AGREEMENTS ASSOCIATED WITH THE LODI ENERGY CENTER NATURAL GAS PURCHASE PROGRAM. (EUD) Alternative Council Option(s): Citizens advised: Requested by: Mel Grandi, Electric Utility Director Prepared by: Mel Grandi, Electric Utility Director and Diann Lucchetti, Administrative Secretary Coordinated with: Dave Rapport, City Attorney Attachments: (1) Natural Gas Agreement (2) Resolution Approved: 41Z_tv~,_ J Chambers, City Manager Department of General Services ("DGS") Gas Program, or its successor program, so long as the DGS program is available. All procurement of natural gas under the Natural Gas Purchase Program must meet certain conditions, including 1) all market purchases of natural gas shall be consummated in accordance with all NCPA Energy Risk Management Policy requirements including those limiting the term and volume of Natural Gas transactions; 2) each market purchase of natural gas, including the purchase of physical call options for natural gas, shall be capable of physical delivery unless City of Ukiah executes the financial addendum to the Natural Gas Program Agreement, in which case City of Ukiah may direct NCPA to purchase financially equivalent transactions; 3) the third party Gas Purchase Agreements used to purchase natural gas shall be in the form of industry-standard forms of agreement for natural gas purchases, however, in any given instance, such agreement may be modified in the discretion of the NCPA General Manager and NCPA's General Counsel, after consultation with City of Ukiah, to include additional terms and conditions approved by City of Ukiah; and 4) any environmental attributes associated with a given natural gas purchase will be procured by NCPA for the proportionate benefit of the Participants, including City of Ukiah, that have subscribed to a given transaction. City of Ukiah, as a Participant in the Natural Gas Purchase Program will identify Designated Representatives to authorize NCPA and approve the form of third party Gas Purchase Agreement NCPA is to use to purchase natural gas by executing a Participant Purchase Confirmation substantially in the form of Exhibit A to the Natural Gas Program Agreement. Third Party Gas Purchase Agreements: NCPA will procure natural gas on behalf of City of Ukiah through use of industry-standard forms of agreement for natural gas purchases as provided in Exhibit B of the Natural Gas Program Agreement, including but not limited to the NAESB base contract. NCPA staff, working in conjunction with its Special Counsel, has developed a standard form NAESB base contract, and a set of special provisions that are attached to the standard form NAESB base contract, to be used to purchase natural gas under the Natural Gas Purchase Program. NCPA will use its standard form NAESB base contract with special provisions to negotiate master natural gas purchase agreements with credit worthy suppliers. In addition to NCPA's standard form NAESB base contract, NCPA has developed a model credit support addendum, and associated special provisions to the model credit support addendum, to be used in conjunction with the NCPA standard form NAESB base contract as required. Natural Gas Purchase Program Costs and Security Account: The costs for participating in the Natural Gas Purchase Program include 1) a monthly fixed charge of $600, 2) a proportionate share of variable program costs (referred to as Variable GPP Costs) based on City of Ukiah's activity in the program, 3) transaction specific costs associated with City of Ukiah's natural gas transactions, and 4) commodity costs specific to City of Ukiah's natural gas transactions. In addition to the costs listed above, City of Ukiah will be charged its proportionate share of program start-up costs, which include staff costs, legal costs, and costs associated with establishing the third party Gas Purchase Agreements that will be used under the Natural Gas Purchase Program. City of Ukiah's share of program start-up costs will be equal to its normalized Participation Percentage in the Lodi Energy Center. City of Ukiah, as a Participant in the Natural Gas Purchase Program will also be required to deposit funds into a Security Account held by NCPA prior to entering into any natural gas transactions. City of Ukiah will be required to deposit into the Security Account held by NCPA an amount equal to the highest three (3) months of estimated commodity costs for all natural gas transactions City of Ukiah has or will subscribe to as estimated by NCPA; provided, however, that such deposit may be satisfied in whole or in part either in cash or through a clean, irrevocable, letter of credit. City of Ukiah's Security Account deposit will be monitored by NCPA to ensure it is sufficient to support City of Ukiah's procurement activities, and to the extent City of Ukiah's Security Account is over or under funded NCPA will make adjustments to City of Ukiah's account by either refunding surplus funds, or demanding additional funds be deposited in the Security Account if the current level of funds is deficit. In addition to the regular process for funding the Security Account, NCPA has the right to request City of Ukiah make emergency deposits into the Security Account in order to support City of Ukiah's obligations. Fiscal Impact: The cost of developing the Natural Gas Purchase Program will be billed based on actual costs, and will be allocated to each member who elects to participate in the program, including City of Ukiah, in proportion to its normalized project participation percentage in the Lodi Energy Center. All prospective costs associated with management and administration of the Natural Gas Purchase Program will be included in the NCPA Annual Budget, and will be allocated to those members who elect to participate in the program, including City of Ukiah, in accordance with the Natural Gas Program Agreement. Environmental Analysis: This activity would not result in a direct or reasonably foreseeable indirect change in the physical environment and is therefore not a "project" for purposes of Section 21065 the California Environmental Quality Act. No environmental review is necessary. Recommendation: Ukiah's Electric Utility Department staff recommends that the City Council delegates authority to City Manager and Electric Utility Director to execute the Natural Gas Program Agreement to provide a means for. City of Ukiah to reduce the portion of its natural gas needs that would otherwise have to be obtained in a potentially volatile spot market, through the use of forward market purchases of natural gas; thereby assuring greater rate stability for its customers. ❑ Budgeted FY 10/11 ❑ New Appropriation ❑ Not Applicable ❑ Budget Amendment Required Amount Budgeted Source of Funds (title and Account Number Addit. Appropriation Requested $453,157.00 Purchased Power 800.3702.215.006 ATTACHMENT NATURAL GAS PROGRAM AGREEMENT NATURAL GAS PROGRAM AGREEMENT This NATURAL GAS PROGRAM AGREEMENT ("this Agreement") is made effective as of ("the Effective Date"), by and among the Northern California Power Agency, a joint powers agency of the State of California ("NCPA") and those of its Members who execute this Agreement ("Participants"). NCPA and the Participants are referred to herein individually as a "Party" and collectively as the "Parties". RECITALS A. NCPA and the Participants are interested in purchasing Natural Gas as fuel for electricity generation for the benefit of the Participants' customers. B. The Participants, through forward market purchases of Natural Gas, and physical call options for Natural Gas, seek to reduce the proportion of their Natural Gas needs that would otherwise have to be obtained in a potentially volatile spot market, thereby assuring greater rate stability for their retail customers. C. The Participants desire that NCPA negotiate and enter into term agreements to purchase Natural Gas from creditworthy suppliers that simultaneously allow Participants to diversify their counterparty risk by subscribing to a more diverse portfolio of Natural Gas contracts than if each Participant individually selected a single Natural Gas supplier. 2 NATURAL GAS PROGRAM AGREEMENT D. The Participants further desire to enable and obligate NCPA to conduct the foregoing activities, and deliver electric energy generated from these Natural Gas purchases to the Participants, and to enable and obligate the Participants to pay for such Natural Gas and to pay NCPA for the costs of undertaking the foregoing activities. E. The Participants may also desire to participate in NCPA gas-fired projects, including, for example, the Lodi Energy Center, for which the purchasing of Natural Gas will be necessary, and the Participants desire that such purchases be made through this Agreement. NOW THEREFORE, in consideration of the foregoing, and the mutual promises and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree and intend to be legally bound as follows: Section 1. Definitions. 1.1 Definitions. Whenever used in this Agreement (including the Recitals hereto), the following terms shall have the following respective meanings: 1.1.1 "Adjusting Participant" has the meaning set forth in Section 7.3.1. 3 NATURAL GAS PROGRAM AGREEMENT 1.1.2 "Agreement means this NCPA Natural Gas Program Agreement, including all Exhibits, attached hereto, as the same may be amended from time to time in accordance with the terms and conditions hereof. 1.1.3 "All Resources Bill" means the single, combined monthly bill from NCPA to a Participant with respect to all NCPA programs and projects. 1.1.4 "Allocating Participant" has the meaning set forth in Section 7.2. 1.1.5 "Annual Budget" means the budget for the ensuing Fiscal Year adopted by the Commission, as it may be amended from time to time. 1.1.6 "Associate Member" means an associate member of NCPA. 1.1.7 "Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time. 1.1.8 "Claims" has the meaning set forth in Section 10.2. 1.1.9 "Commission" means the NCPA Commission. 4 NATURAL GAS PROGRAM AGREEMENT 1.1.10 "Commodity Costs" means the cost billed to NCPA by a third party seller of Natural Gas for an Eligible Gas Purchase under this Agreement. 1.1.11 "Constitutive Documents" means, with respect to NCPA, the Joint Powers Agreement and any resolutions or bylaws adopted thereunder, and with respect to each Participant, the California Government Code and other statutory provisions applicable to such Participant, any applicable agreements, charters, contracts or other documents concerning the formation, operation or decision making of such Participant, including, if applicable, its City Charter, and any codes, ordinances, bylaws, and resolutions adopted by such Participant's governing body. 1.1.12 "Contract Price" means, with respect to any Eligible Gas Purchase under this Agreement, the price per MMBtu listed in the applicable Transaction Confirmation. 1.1.13 "Deal Capture System" means NCPA's internal database that includes all of the GPP transactions and related details, such as scheduling, payments, price, delivery dates, participant subscriptions, and the counterparties. 1.1.14 "Defaulting Party" has the meaning set forth in Section 9.1. 5 NATURAL GAS PROGRAM AGREEMENT 1.1.15 "Designated Representatives" means with respect to NCPA, its General Manager and its General Counsel; and with respect to each Participant, its Utility Director (an employee other than the Utility Director may be designated by resolution of the Participant's governing body) and its City Attorney or General Counsel. 1.1.16 "DGS Program" means the State of California Department of General Services Natural Gas Services Program or equivalent, including a successor program undertaken by a joint powers agency formed by the State of California Department of General Services for this purpose. 1.1.17 "Effective Date" has the meaning set forth in the preamble hereto. 1.1.18 "Electric System" means, with respect to each Participant except the San Francisco Bay Area Rapid Transit District ("BART"), all properties and assets, real and personal, tangible and intangible, of the Participant now or hereafter existing, used or pertaining to the generation for resale, transmission, transformation, distribution or sale of electric capacity and energy, or the utilization of such, including all additions, extensions, expansions, improvements and betterments thereto and equipment thereof; provided, however, that to the extent the Participant is not the sole owner of an asset or property or to the extent that an asset or property is used in part 6 NATURAL GAS PROGRAM AGREEMENT for the above described purposes, only the Participant's ownership interest in such asset or property or only the part of the asset or property used for electric purposes shall be considered to be part of its Electric System. 1.1.19 "Eligible Gas Purchase" means a market purchase of Natural Gas, or a market purchase of a physical call option for Natural Gas, from a third party that has been approved by any Party through their execution of Participant Purchase Confirmation as an Eligible Gas Purchase in accordance with Section 3 of this Agreement. 1.1.20 "Environmental Attributes" means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, directly attributable to an Eligible Gas Purchase. Environmental Attributes include but are not limited to: (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (C02), methane (CH4) and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere; and (3) the reporting rights to these avoided emissions such as Green Tag Reporting Rights. Environmental Attributes do not include: (1) any energy, capacity, reliability or other power 7 NATURAL GAS PROGRAM AGREEMENT attributes; (2) production tax credits associated with the construction or operation of the energy projects and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation; (3) fuel-related subsidies or "tipping fees" that may be paid to seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular pre- existing pollutants or the promotion of local environmental benefits; or (4) emission reduction credits encumbered or used by a generating unit(s) for compliance with local, state, or federal operating and/or air quality permits. 1.1.21 "Event of Default" has the meaning set forth in Section 5.5.3 and Section 9.1. 1.1.22 "Fiscal Year" means the NCPA fiscal year; currently the twelve month period beginning July 1 and ending on the next following June 30. 1.1.23 "GPA" or "Gas Purchase Agreement" means an agreement for the purchase and/or delivery of Natural Gas entered into by NCPA with Third Parties. The GPA shall be in the form of a standardized industry agreement, a separately negotiated agreement reflecting NCPA's preferred terms, or a combined purchasing agreement such as the DGS Program, with such modifications as have been approved by the 8 NATURAL GAS PROGRAM AGREEMENT Commission, provided that, in any particular instance, a GPA may be modified in the discretion of the NCPA General Manager and NCPA General Counsel, after consultation with the Participants, where such modifications are reasonably required in order to consummate or transact under the GPA. A list of currently approved GPAs is attached hereto as Exhibit B. 1.1.24 "GPP" or "Gas Purchase Program" means the NCPA Gas Purchase Program established by this Agreement, consisting of all Eligible Gas Purchases hereunder and all Participants hereto as program Participants. 1.1.25 "GPP Costs" includes Fixed GPP Costs and Variable GPP Costs (each including administrative and general overhead costs), other than Transaction Specific Costs and Commodity Costs associated with this GPP. "Fixed GPP Costs" are those costs deemed to be incurred by NCPA regardless of whether NCPA transacts with Third Parties under this Agreement, including start-up costs and attorneys' fees. "Variable GPP Costs" are those costs that are common to all Participants under this Agreement but are expected to vary with the size and scope of the GPP established under this Agreement, including NCPA staff time. 1.1.26 "Joint Powers Agreement" means that certain Amended and Restated Northern California Power Agency Joint Power Agreement dated as of January 1, 2008, as the same may be amended from time to time. 9 NATURAL GAS PROGRAM AGREEMENT 1.1.27 "Maximum Contract Price" means the applicable lawful ceiling price for Natural Gas at the time an Eligible Gas Purchase is consummated as determined by a jurisdictional regulatory authority. 1.1.28 "Member" means any Member of NCPA or Associate Member of NCPA. 1.1.29 "MMBtu" means 1,000,000 British Thermal Units. 1.1.30 "MMBtu/day" means MMBtu per day. 1.1.31 "Natural Gas" means methane, biomethane or any other gaseous fuel capable of being used to generate electricity at an NCPA Project to meet a Participant's load. 1.1.32 "NCPA" has the meaning set forth in the preamble hereto. 1.1.33 "NCPA Project" means any project which has progressed beyond the First Phase, and has been declared to be an NCPA Project by the Commission. 1.1.34 "Participant" has the meaning set forth in the preamble hereto. 1.1.35 "Participant Purchase Confirmation" means a Participant's written and properly executed confirmation of a transaction to acquire an Eligible Gas Purchase, substantially in the form of Exhibit A. 10 NATURAL GAS PROGRAM AGREEMENT 1.1.36 "Party" or "Parties" has the meaning set forth in the preamble hereto; provided that "Third Parties" are entities that are not party to this Agreement. 1.1.37 "Procure" and other forms of such verb, including Procurement, Procuring, and Procured, means acquiring Natural Gas through Eligible Gas Purchases with Third Parties. 1.1.38 "Procurement Conditions" has the meaning set forth in Section 3.1. 1.1.39 "Revenues" means, with respect to each Participant with the exception of BART, all income, rents, rates, fees, charges, and other moneys derived by the Participant from the ownership or operation of its Electric System, including, without limiting the generality of the foregoing: (a) all income, rents, rates, fees, charges or other moneys derived from the sale, furnishing and supplying of electric capacity and energy and other services, facilities, and commodities sold, furnished, or supplied through the facilities of its Electric System; (b) the earnings on and income derived from the investment of such income, rents, rates, fees, charges or other moneys to the extent that the use of such earnings and income is limited by or pursuant to law to its Electric System; and (c) the proceeds derived by the Participant directly or indirectly from the sale, lease or other disposition of all or a part of 11 NATURAL GAS PROGRAM AGREEMENT the Electric System, but the term Revenues shall not include (i) customers' deposits or any other deposits subject to refund until such deposits have become the property of the Participant or (ii) contributions from customers for the payment of costs of construction of facilities to serve them. In regards to BART, Revenues means, all income, rents, rates, fees, charges, grants, fares or tariffs, subventions and other moneys derived by the Participant from its operation including, without limiting the generality of the foregoing, (i) the earnings on and income derived from the investment of such income, rents, rates, fees, charges grants, fares or tariffs, subventions or other moneys and (ii) the proceeds derived by the Participant directly or indirectly from the sale, lease or other disposition of all or a part of its assets, but the term Revenues shall not include any moneys derived from sources the use of which is limited by law to expenditures other than operating expenses. 1.1.40 "Security Account" means the account established by NCPA and funded by the Participants in accordance with Section 5.3, the funds of which are available for use by NCPA in accordance with the terms and conditions hereof. 1.1.41 "Subscription Percentage" means that proportion of an Eligible Gas Purchase that a Participant subscribes to in writing through a 12 NATURAL GAS PROGRAM AGREEMENT Participant Purchase Confirmation in accordance with the terms of this Agreement. 1.1.42 "Term" has the meaning set forth in Section 8. 1.1.43 "Transaction Confirmation" means a document which is the confirmation of the terms of an Eligible Gas Purchase as defined in the GPA used by NCPA to Procure Natural Gas for an Eligible Gas Purchase. 1.1.44 "Transaction Specific Costs" means any and all costs, except for Commodity Costs, arising after execution of an Eligible Gas Purchase and directly or indirectly incurred by NCPA as a result of entering into a specific transaction to acquire an Eligible Gas Purchase. Transaction Specific Costs include, but are not limited to termination payments, or counterparty requests for assurances, related legal fees and associated staff time. 1.1.45 "Withdrawing Participant" has the meaning set forth in Section 7.3.1. 1.2 Rules of Interpretation. As used in this Agreement (including the Recitals hereto), unless in any such case the context requires otherwise: the terms "herein," "hereto," "herewith" and "hereof" are references to this Agreement taken as a whole and not to any particular provision; the term "include," "includes" or "including" shall mean "including, for example and without 13 NATURAL GAS PROGRAM AGREEMENT limitation;" and references to a "'Section," "subsection," "clause," or "Exhibit" shall mean a Section, subsection, clause or Exhibit of this Agreement, as the case may be. All references to a given agreement, instrument or other document shall be a reference to that agreement, instrument or other document as modified, amended, supplemented and restated through the date as of which such reference is made, and reference to a law, regulation or ordinance includes any amendment or modification thereof. A reference to a "person" includes any individual, partnership, firm, company, corporation, joint venture, trust, association, organization or other entity, in each case whether or not having a separate legal personality and includes its successors and permitted assigns. The singular shall include the plural and the masculine shall include the feminine, and vice versa. Section 2. Effectiveness of Agreement. This Agreement shall be effective as to each Participant on the Effective Date subject to the provisions for new Participants in Section 7.2 below. Section 3. Procurement Processes. NCPA may Procure Natural Gas either: (i) from third parties under competitive bids submitted in response to a NCPA Request For Proposals ("RFP Process"), or (ii) through direct purchases from the DGS Program, or if the DGS Program terminates, then through an equivalent program that replaces the DGS Program ("Direct Purchase Process"). 14 NATURAL GAS PROGRAM AGREEMENT 3.1 Procurement Conditions. All Procurements of Natural Gas shall meet the following conditions: (i) Each market purchase shall be an Eligible Gas Purchase, consummated in accordance with all NCPA Energy Risk Management Policy requirements including those limiting the term and volumes of Natural Gas transactions; (ii) Each market purchase of Natural Gas, including the purchase of physical call options for Natural Gas, shall be capable of physical delivery. However, financially equivalent transactions may be executed if the Participant in such financially equivalent transaction executes a financial addendum to this Agreement, in the form attached hereto as Exhibit C; (iii) The Contract Price for purchasing Natural Gas in an Eligible Gas Purchase shall not exceed the Maximum Contract Price; (iv) The GPA(s) utilized to Procure Eligible Gas Purchases shall be in the form of industry-standard forms of agreement for Natural Gas purchases as provided in Exhibit B; provided, however, that the GPA may, in any given instance, be modified in the discretion of the NCPA General Manager and NCPA's General Counsel, after consultation with the Participants, to include additional terms and conditions approved by the Parties' Designated Representatives; 15 NATURAL GAS PROGRAM AGREEMENT (v) Any Environmental Attributes associated with a given Eligible Gas Purchase will be Procured by NCPA for the proportionate benefit of the Participants according to their Subscription Percentage. 3.2 Participant Approval of Procurement Process and an Eligible Gas Purchase. Each Participant acknowledges and agrees to be bound by their Designated Representatives' execution of a Participant Purchase Confirmation substantially in the form of Exhibit A hereto for each corresponding GPA. Each Participant acknowledges and approves of the terms of the corresponding GPA for subscription to an Eligible Gas Purchase, and agrees to pay for its share of the Natural Gas purchased thereunder. 3.3 NCPA Approval of Procurement Process and an Eligible Gas Purchase. NCPA acknowledges and agrees, upon receipt of a Participant Purchase Confirmation substantially in the form of Exhibit A hereto to enter into the corresponding GPA for the Procurement of an Eligible Gas Purchase for the benefit of the Participant. Provided, however, that NCPA shall not enter into a GPA for any Participant which has (i) failed to maintain a fully funded Security Account as required by Section 5.3, or (ii) is otherwise in default under the terms of this Agreement. NCPA may, but is not obligated to, decline to enter into a GPA for any Participant which has failed to timely report the status of its Electric System operating reserve as required by Section 5.5.3. NCPA shall 16 NATURAL GAS PROGRAM AGREEMENT transmit a copy of each such status report to each Participant other than the Participant which submitted it within ten (10) business days after its receipt, but otherwise shall be under no duty or obligation to review such reports or to take any action or refrain from taking any action based upon the contents of such report. 3.4 Delivery of Natural Gas and Environmental Attributes. Any Natural Gas delivered to NCPA from an Eligible Gas Purchase shall be credited to each Participant in proportion to such Participant's Subscription Percentage for such Eligible Gas Purchase and each Participant shall accept and pay for its relevant percentage of such Natural Gas. To the extent NCPA is physically unable to accept such deliveries in full on behalf of a Participant, NCPA shall dispose of such surplus in its discretion, in a manner intended to maximize value to the Participant and consistent with any applicable project or operating agreements between NCPA and the Participant, without recourse by the Participant against NCPA. Environmental Attributes obtained by NCPA as a result of performance under this Agreement shall likewise be allocated to the Participants in proportion to their Subscription Percentage. 3.5 Payments to Counterparties. NCPA shall pay all costs incurred hereunder using funds received from Participants during the normal course of billing under the NCPA All Resources Bill, or as necessary from operating funds 17 NATURAL GAS PROGRAM AGREEMENT or Security Account funds, paid to NCPA in accordance with Section 5, or such other sources as may be agreed upon in writing by the Parties from time to time, or as specified in a Participant Purchase Confirmation. 3.6 Removal of Eligible Gas Purchases from GPP. Any Eligible Gas Purchase that delivers Natural Gas to NCPA under a GPA shall be automatically removed from the GPP on the date its Transaction Confirmation terminates or expires and all financial obligations thereunder are extinguished. Participants agree that any Eligible Gas Purchase which has not already been removed from the GPP as a result of an expiration or termination of its Transaction Confirmation shall continue to be included in the GPP until such time as NCPA in its discretion approves removing it from the GPP and approves the subsequent use of such Eligible Gas Purchase, including whether such Eligible Gas Purchase should be sold or otherwise disposed of by any means including assignment, book-out or offsetting transaction, or termination. Any proceeds or costs associated with removing an Eligible Gas Purchase from the GPP shall be allocated among the Participants in accordance with the Subscription Percentages unless otherwise agreed upon in writing by the Participants. Section 4. Cooperation and Further Assurances. Each of the Parties agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by 18 NATURAL GAS PROGRAM AGREEMENT any other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumption of obligations other than those provided for in this Agreement, in order to give full effect to this Agreement and to carry out the intent of this Agreement. Further, the Parties agree to cooperate and act in good faith in connection with obtaining any credit support required in order to Procure Natural Gas from an Eligible Gas Purchase, including with respect to negotiating and executing any agreements to implement any credit support arrangements. Section 5. Payment Obligations, Security Account, Invoicing. 5.1 Participant Payment Obligations. Each Participant agrees to pay NCPA each month the sum of (a), (b), and (c) as follows: (a) Fixed GPP Costs of $600, (which sum may be adjusted by the Commission each year in its discretion during the adoption of the Annual Budget to reflect increased costs with thirty (30) days' prior written notice to Participants), for each month a Participant is a party to this Agreement, and one-twelfth of the Variable GPP Costs as determined below in Section 5.2; plus (b) Transaction Specific Costs for each Eligible Gas Purchase that Participant subscribes to; plus (c) Commodity Costs. In addition, each Participant shall maintain working capital in accordance with NCPA's Annual Budget and maintain its Security Account as provided in this Agreement. 19 NATURAL GAS PROGRAM AGREEMENT 5.2 Calculation of and True-Up for GPP Costs. Participants' payment obligations for Variable GPP Costs under section 5.1 shall be calculated as follows. For each Fiscal Year, NCPA shall estimate the total Variable GPP Costs to be incurred under this Agreement and this total will be divided by the Participants' total MMBtu forecast during the Fiscal Year to determine the estimated Variable GPP Cost on a per MMBtu basis ("Variable GPP Unit Cost"). The Variable GPP Unit Cost will then be multiplied by the total monthly MMBtu subscribed to by each Participant to determine the amount owed by each Participant for Variable GPP Costs under section 5.1(a) above. Upon the conclusion of a Fiscal Year, NCPA shall compare each Participant's payment of all Fixed and Variable GPP Costs with the actual total GPP Costs incurred on behalf of Participant such that overpayments will be credited to, and underpayments will debited to each Participant's account in accordance with NCPA's Annual Budget settlements. 5.3 Security Account. Any deposits into a Security Account pursuant to this Agreement shall be separate from and in addition to any security accounts maintained pursuant to the Market Purchase Program Agreement between NCPA and certain Participants, or any other such security account required of NCPA Members. 20 NATURAL GAS PROGRAM AGREEMENT 5.3.1 Initial Amounts. Prior to subscribing to an Eligible Gas Purchase, a Participant shall deposit into the Security Account held by NCPA on account equal to the highest three (3) months of estimated Commodity Costs for all Eligible Gas Purchases Participant has or will subscribe to as estimated by NCPA; provided, however, that such deposit may be satisfied in whole or in part either in cash or through a clean, irrevocable letter of credit satisfactory to NCPA's General Manager. 5.3.2 Subsequent Deposits. Periodically, and at least quarterly, NCPA shall review and revise its estimate of all costs which Participant shall be obligated to pay under this Agreement. Following such review, NCPA shall determine whether each Participant has a sufficient balance in the Security Account. To the extent that any Participant's balance in the Security Account is greater than one hundred and ten percent (110%) of the amount required herein, NCPA shall credit such amount as soon as practicable to the Participant's next following All Resource Bill. To the extent that any Participant's balance in the Security Account is less than ninety percent (90%) of the amount required herein, NCPA shall add such amount as soon as practicable to such Participant's next All Resource Bill, or as necessary, to a special invoice to Participant. Credits or additions shall not be made to Participants who satisfy these Security Account requirements in whole 21 NATURAL GAS PROGRAM AGREEMENT through the use of a letter of credit, provided that the amount of the letter of credit shall be adjusted by the Participant as necessary in a like manner to assure an amount equal to the highest three (3) months of estimated Commodity Costs is available to NCPA. 5.3.3 Use of Security Account Funds. NCPA may use any and all funds deposited into the Security Account (or utilize a letter of credit provided in lieu thereof) to pay any costs it incurs hereunder, including making payments to counterparties under any GPA or for termination payments, requests for assurances by Third Parties, credit support, and related expenses under a GPA, without regard to any individual Participant's balance in the Security Account or proportionate share of GPP Costs and irrespective of whether NCPA has issued an All Resources Bill or invoice for such costs to the Participants or whether a Participant has made timely payments of All Resources Bills or invoices. Should Participant have satisfied its Security Account requirements in whole or part through a letter of credit, NCPA may draw on such letter of credit to satisfy Participant's obligations hereunder. If funds deposited into the Security Account, or provided through a letter of credit, are used by NCPA to pay any costs it incurs hereunder as described in Section 5.3.3, NCPA, pursuant to Section 5.3.5, will 22 NATURAL GAS PROGRAM AGREEMENT maintain a detailed accounting of each Participant's shares of funds withdrawn from the Security Account or letter of credit, and upon the collection of all or a part of such withdrawn funds, NCPA will credit back to each Participant the funds collected in proportion to such non-defaulting Participant's share of funds withdrawn from the Security Account or letter of credit. 5.3.4 Emergency Additions. In the event that the funds are withdrawn pursuant to Section 5.3.3 of this Agreement, or if the Security Account is insufficient to allow payment of an invoice, demand, request for further assurances by Third Parties, or Claims, NCPA shall notify all Participants and then prepare and send a special or emergency assessment to the Participants. Each Participant shall pay to N, CPA such assessment when and if assessed by NCPA within two (2) Business Days of the invoice date of the assessment or consent to and direct NCPA to draw on any existing letter of credit Participant has established for such purposes. 5.3.5 Accounting and Interest. NCPA shall maintain a detailed accounting of each Participant's deposits into and shares of withdrawals from the Security Account. Monies on deposit in the Security Account shall be invested by NCPA in accordance with the Investment Policy adopted by the NCPA Commission. Interest earned on the Security Account shall be 23 NATURAL GAS PROGRAM AGREEMENT proportionately credited to the Participants in accordance with the balances in each Participant's Security Account. Any losses in the Security Account caused by early termination of investments or otherwise shall be allocated among the Participants in accordance with their proportionate Subscription Percentages. 5.3.6 Return of Funds. On the termination of this Agreement with respect to a Participant or a permitted withdrawal of a Participant in accordance with this Agreement, the affected Participant or Participants may apply to NCPA for the return of their share of Security Account funds ninety (90) days after the effective date of such termination or withdrawal. NCPA shall, in its sole discretion, as determined by the General Manager, estimate the then outstanding liabilities of the Participant(s), including any estimated contingent liabilities and shall retain all such funds until all such liabilities have been fully paid or otherwise satisfied in full. After such determination by NCPA's General Manager, the balance of the Participant's share of the Security Account will be refunded to the Participant within sixty (60) days. 5.4 Invoicing. 5.4.1 Invoices. As part of NCPA's regular, monthly, advance billing (the "All Resources Bill") or by separate special invoice, as required in the circumstances, NCPA will issue an invoice to each Participant for its 24 NATURAL GAS PROGRAM AGREEMENT proportionate share of the Commodity Costs, GPP Costs and Transactions Specific Costs due (or any adjustments thereto) based on Sections 5.1 and 5.2 above. Such invoices may include estimated costs. Each invoice shall include: (i) the total Transaction Specific Costs and Commodity Costs attributable to Procurement activities under this Agreement for such month and the relevant Participant's share thereof; (ii) the total GPP Costs attributable to program services for such month and the relevant Participant's share thereof; (iii) the quantity of Natural Gas and Environmental Attributes, by Eligible Gas Purchase, received by NCPA on behalf of each such Participant (or an estimate thereof) and the unit price for such Natural Gas; (iv) appropriate settlement, or an estimate thereof; (v) any adjustments to prior invoices required based on actual data received that was estimated in a previous invoice; (vi) notice of the amount, if any, that NCPA has paid or expects to pay using funds available in the Security Account; and (vii) amounts due from (or credited to) such Participant under Section 5.3.2. 5.4.2 Payment of Invoices. All non-emergency invoices delivered by NCPA in the normal course of billing hereunder (including the All Resources Bill) are due and payable on the date indicated on such invoice, but in any event no later than thirty (30) days following receipt thereof; provided, however, that any amount due on a day other than a Business Day 25 NATURAL GAS PROGRAM AGREEMENT may be paid on the following Business Day. NCPA may apply a Participant's share of the Security Account to the payment of all or any portion of an invoice issued to such Participant (including that portion of an invoice relating to the GPP), provided that application of such funds from the Security Account shall not relieve the Participant from any late payment charges pursuant to Section 5.4.3. To the extent that NCPA applies funds from the Security Account to pay an amount due under an invoice, following receipt of payment of such invoice by the relevant Participant, NCPA shall deposit the relevant portion of the payment into the Security Account and credit such deposit to such Participant. Emergency invoices shall be due as indicated in section 5.3.4 above. 5.4.3 Late Payments. Any amount due and not paid by a Participant in accordance with Sections 5.3.4 and 5.4.2 shall bear interest computed on a daily basis until paid at the lesser of (i) the per annum prime rate (or reference rate) of the Bank of America NT&SA then in effect, plus two percent (2%) or (ii) the maximum rate permitted by law. 5.5 Settlement Data and Examination of Books and Records. 5.5.1 Settlement Data. NCPA will make settlement data available to the Participants. Procedures and formats for the provision of such data will be as established by the NCPA Commission from time to time. 26 NATURAL GAS PROGRAM AGREEMENT 5.5.2 Examination of Books and Records. Any Participant to this Agreement shall have the right to examine the books and records created and maintained by NCPA pursuant to this Agreement at any reasonable, mutually agreed upon time. 5.5.3 Participant Covenants and Defaults. Any failure of a Participant to meet its obligations hereunder or to cure such failure in a timely manner shall constitute an Event of Default and the Defaulting Party shall be subject to such remedies of NCPA as provided for herein. Each Participant covenants and agrees: (i) to continue to pay or advance to NCPA, from its electric department Revenues only or, in the case of BART, its tariffs, fees or other sources of Revenues provided that such sources shall not include any sums derived from sources the use of which is limited by law to expenditures other than operating expenses, its obligations under this Agreement. Each Participant further agrees that it will fix the rates and charges for services provided by its electric department, or in the case of BART, its general Revenues, so that it will at all times have sufficient money in its department Revenues funds to meet this obligation; (ii) to make payments under this Agreement from the Revenues of, and as an operating expense of, its Electric System, or in the case of BART, of its general Revenues; (iii) to make payments under this Agreement whether or not there 27 NATURAL GAS PROGRAM AGREEMENT is an interruption in, interference with, or reduction or suspension of services provided under this Agreement, such payments not being subject to any reduction, whether by offset or otherwise, and regardless of whether any dispute exists provided such interruption, interference or reduction in services is caused by forces constituting an Act of God and not reasonably contemplated by the Parties; (iv) to establish and maintain a general operating reserve, in addition to the Security Account established pursuant to this Agreement, containing sufficient funds to pay all costs to operate its Electric System and the business in connection therewith for a period of three (3) months, such operating reserve to be maintained either in Participant's own accounts or in its NCPA general operating reserve account; (v) to submit a report to NCPA once each quarter of the Fiscal Year as to the sufficiency of its general operating reserve established pursuant to Section 5.5.3(iv) on dates as established by NCPA; and (vi) to operate its Electric System and the business in connection therewith in an efficient manner and at reasonable cost and to maintain its Electric System in good repair, working order, and condition. Section 6. Administration of Agreement 6.1 General. Except for the approval by Participants of Eligible Gas Purchases pursuant to Section 3.2, the NCPA Commission has sole overall 28 NATURAL GAS PROGRAM AGREEMENT responsibility and authority for the administration of this Agreement. Any acts, decisions or approvals taken, made or sought by NCPA under this Agreement shall be taken, made or sought, as applicable, in accordance with NCPA's Constitutive Documents and Section 6.2 of this Agreement. 6.2 Action by Participating Members. 6.2.1 Forum: Whenever any action anticipated by or related to this Agreement is to be taken by the Participants, such actions shall be taken at a regular or special meeting of the NCPA Commission, but shall be participated in only by those Commissioners, or their designated alternates, who represent Participants. 6.2.2 Quorum: A quorum at NCPA Commission meetings for purposes of acting upon matters relating to this Agreement shall consist of Commissioners, or their designated alternates, representing the majority of Participants to the extent not inconsistent with Section 6.2.3(1), provided that as to matters related to a specific Eligible Gas Purchase case a quorum shall consist of Commissioners, or their designated alternates, representing a majority interest in the Eligible Gas Purchase based upon their Subscription Percentages. 6.2.3 Voting_ Each Participant shall have the right to cast one vote with respect to matters pertaining to this Agreement, with a majority 29 NATURAL GAS PROGRAM AGREEMENT vote of the Participants required for action subject to the following exceptions: i. Upon request of any Participant representative, the voting on an issue related to a specific Eligible Gas Purchase shall be by Subscription Percentage with a 65% or more favorable vote necessary to carry the action. ii. After any decision related to this Agreement, other than for a specific Eligible Gas Purchase, is taken by the affirmative vote of less than 65% of the Program Participants, the action can be reviewed and revised if a Participant gives notice of intention to seek such review and revision to NCPA and each of the other Participants within ten (10) days following the date on which such action was taken. Upon receipt of such a request for reconsideration, the Chairman of the Commission shall agendize the matter for reconsideration at the next regular meeting of the Commission or at a special meeting if the circumstances so warrant. The action shall be upheld upon the affirmative vote of authorized representatives of the Participants. Any action taken upon reconsideration shall be final. Section 7. Subscription Percentages; Admission and Withdrawal of Participants. 30 NATURAL GAS PROGRAM AGREEMENT 7.1 Subscription Percentages. The Subscription Percentages of each Participant shall be maintained in NCPA's Deal Capture System and summary reports therefrom will be provided to Participants upon request. 7.2 Admission of New Participants. Following the Effective Date of this Agreement, a Member may execute this Agreement and become a Participant provided that: 1) such joinder is approved by the NCPA Commission; and 2) the new Participant a) reimburses existing Participants for a proportionate share of the applicable costs identified during NCPA's Annual Budget process and any GPP Costs incurred to establish and administer this GPP Program, and b) satisfies all Security Account requirements under this Agreement. A new Participant shall not be entitled to any Environmental Attributes or Natural Gas from Eligible Gas Purchases consummated prior to the date it becomes a Participant unless one or more of the existing Participants ("Allocating Participants") elect to allocate a portion of its Subscription Percentage to such new Participant. Upon an agreement thereof and affirmative vote thereon by all Allocating Participants, NCPA shall prepare and distribute to each Participant the written agreement between the new Participant and the Allocating Participant(s) indicating the agreed upon change in the Subscription Percentage(s) for the designated Eligible Gas Purchase(s), a counterpart of this Agreement executed by the new Participant, and a report from NCPA's Deal 31 NATURAL GAS PROGRAM AGREEMENT Capture System reflecting the revised Subscription Percentages. Any reduction in any Allocating Participant's share of the Security Account shall be credited to the Allocating Participants in accordance with Section 5.3.2. 7.3 Withdrawal of Participants. 7.3.1 Requirements and Process. A Participant may voluntarily withdraw from this Agreement ("Withdrawing Participant") by providing two (2) years' advance written notice to NCPA and the other Participants. Upon the mutual agreement of two or more Participants, the Withdrawing Participant may assign some or all of its Subscription Percentage share of its Eligible Gas Purchases to another Participant ("Adjusting Participant") willing to assume the Withdrawing Participant's Subscription Percentage, if such withdrawal and assignment does not violate any applicable credit support conditions contained in any of the relevant agreements to which the Withdrawing Participant and/or the Adjusting Participant is a party to. The Withdrawing Participant shall provide to NCPA the applicable assignment agreement between the Withdrawing Participant and the Adjusting Participant(s) regarding any such assignments and NCPA shall reflect the change in its Deal Capture System recording the new allocation of Subscription Percentages. 32 NATURAL GAS PROGRAM AGREEMENT 7.3.2 Associated Costs. A Withdrawing Participant shall reimburse NCPA for any and all costs resulting from the withdrawal, including but not limited to the legal, accounting, and administrative costs of winding up and assuring the complete satisfaction and discharge of the Withdrawing Participant's obligations. A Withdrawing Participant will continue to be liable for all Eligible Gas Purchases entered into on its behalf which is not assumed by an Adjusting Participant. 7.3.3 No Effect on Prior Liabilities. Withdrawal by any Participant will not terminate any ongoing or un-discharged contingent liabilities or obligations resulting from this Agreement until they are assigned to an Adjusting Participant, or are otherwise satisfied in full, or such Withdrawing Participant has provided a mechanism reasonably acceptable to NCPA and the remaining Participants, for the satisfaction in full thereof. Section 8. Term and Termination. The Term of this Agreement shall commence on the Effective Date, continue for five (5) years, and shall be automatically extended for two (2) years on every other anniversary of this Agreement as to each Participant that has not withdrawn in accordance with Section 7.3 or otherwise voluntarily or involuntarily had their participation in this Agreement terminated. After the initial five (5) year term has expired, 33 NATURAL GAS PROGRAM AGREEMENT NCPA may terminate this Agreement upon two (2) years' advance written notice to all Participants. Section 9. Default and Remedies 9..1 Events of Default. An Event of Default under this Agreement shall exist upon the occurrence of any one or more of the following by a Party in default of its obligations hereunder ("Defaulting Party"): (i) if any Party fails to make any payment or to provide assurances as required of NCPA under a GPA when due hereunder within two (2) Business Days after receipt of notice given by NCPA of such non-payment; or (ii) the failure of the Defaulting Party to perform any other covenant or obligation under this Agreement where such failure is not cured within ten (10) calendar days following receipt of a notice from NCPA demanding cure (provided that this shall not apply to any failure to make payments (which is covered by Section 9.1 (i))); or (iii) if any representation or warranty of the Defaulting Party material to the transactions contemplated hereby shall prove to have been incorrect in any material respect when made and the Defaulting Party does not cure the facts underlying such incorrect representation or warranty so that the representation or warranty becomes true and correct within ten (10) calendar days of the date of receipt of notice from any other Party demanding cure; or 34 NATURAL, GAS PROGRAM AGREEMENT (iv) if a Participant is in default or in breach of any of its covenants under any other agreement with NCPA and such default or breach is not cured within the time periods specified in such agreement; or (v) the failure of NCPA to perform any covenant or obligation under this Agreement following a ten (10) calendar day notice to cure by any non-defaulting Member. 9.2 Cure of an Event of Default. An Event of Default shall be deemed cured only if such default shall be remedied within the time period specified in Section 9.1 above, as may be applicable, after written notice has been sent to the Defaulting Party from NCPA specifying the default and demanding that the same be remedied; provided, however, that the failure of a Party to provide such notice shall not be deemed a waiver of such default. 9.3 Participation Rights Of Defaulting Party. Notwithstanding anything herein to the contrary, upon the occurrence of an Event of Default and until such Event of Default is cured, the Participant that is the Defaulting Party shall not have the right to participate under Section 6.2 on any matters with respect to this Agreement. 9.4 Remedies in the Event of Default. 9.4.1 Remedies of NCPA. Upon the occurrence of an Event of Default where a Participant is the Defaulting Party, without limiting its other 35 NATURAL GAS PROGRAM AGREEMENT rights or remedies available under this Agreement, at law or in equity, and without constituting or resulting in a waiver, release or estoppel of any right, action or cause of action NCPA may have against the Defaulting Party Participant, NCPA may: (i) suspend the provision of services under this Agreement to such Defaulting Party, including the delivery of Natural Gas and other attributes of any Eligible Gas Purchases until the Event of Default is cured; and (ii) demand that the Defaulting Party provide further assurances to compel the correction of the default, including the collection of a surcharge, or such other actions as may be necessary to produce Revenues to secure the cure of the Event of Default; and (iii) terminate this Agreement as to the Defaulting Party, on ten (10) calendar days' prior written notice to the Defaulting Party and following approval of the non-defaulting Participants. 9.4.2 Sale/Transfer of Participant's Account Upon Default. Upon any Event of Default caused by a Participant due to the failure of such Participant to pay any sums due, and provided that such default is not cured in a timely manner, then NCPA shall use its best efforts to sell and transfer for the Defaulting Party's account all or a portion of the Defaulting Party's Natural Gas and/or Environmental Attributes for the remainder of the term of 36 NATURAL GAS PROGRAM AGREEMENT this Agreement. Notwithstanding that all or any portion of the Defaulting Party's capacity is so sold or transferred, the Defaulting Party shall remain liable for all of its obligations not otherwise satisfied by the sale or transfer of Defaulting Party's capacity hereunder unless released therefrom by NCPA upon assumption by a transferee or assignee. 9.4.3 Remedies of Participants. Upon the occurrence of an Event of Default where NCPA is the Defaulting Party, and following the applicable cure periods, the Participants may, without limiting their other rights or remedies available under this Agreement, at law or in equity, and without constituting or resulting in a waiver, release or estoppel of any right, action or cause of action the Participants may have against NCPA, terminate this Agreement in whole, subject to the provisions of Section 9.5.4. 9.4.4 Special Covenants Regarding Security Account. In the event that a Participant's balance of the Security Account is insufficient to cover all invoices for costs incurred under this Agreement sent to such Participant, then, without limiting NCPA's other rights or remedies available under this Agreement, at law or in equity, such Participant shall cooperate in good faith with NCPA and shall cure the default as rapidly as possible, on an emergency basis, taking all such action as is necessary, including, but not limited to, raising rates and charges to its customers to increase its Revenues 37 NATURAL GAS PROGRAM AGREEMENT to replenish its share of the Security Account as provided herein, drawing on its cash-on-hand and lines of credit, obtaining further assurances by way of credit support and letters of credit, and taking all such other action as will cure the default with all due haste. 9.5 Effect of Termination or Suspension. 9.5.1 Genes The suspension or termination of this Agreement will not terminate, waive, or otherwise discharge any ongoing or undischarged contingent liabilities or obligations arising from this Agreement until such obligations are satisfied in full, and all of the costs incurred by NCPA in connection with such suspension or termination, including reasonable attorney fees, the fees and expenses of other experts, including auditors and accountants, other costs and expenses that NCPA is entitled to recover under this Agreement, and other reasonable and necessary costs associated with any and all of the remedies, are paid in full. 9.5.2 Suspension by NCPA. If performance of all or any portion of this Agreement is suspended by NCPA with respect to a Participant in accordance with Section 9.4.1(i), such Participant shall pay any and all costs incurred by NCPA as a result of such suspension including reasonable attorney fees, the fees and expenses of other experts, including auditors and accountants, other reasonable and necessary costs associated 38 NATURAL GAS PROGRAM AGREEMENT with such suspension and any portion of the GPP Costs that were not recovered from such Participant as a result of such suspension. 9.5.3 Termination by NCPA. If this Agreement is terminated by NCPA with respect to a Participant in accordance with Section 9.4.1 (iii), such Participant shall pay any and all costs incurred by NCPA as a result of such termination, including reasonable attorney fees, the fees and expenses of other experts, including auditors and accountants, other reasonable and necessary costs associated with such termination and any portion of the GPP Costs that were not, or will not be, recovered from such Participant as a result of such termination; provided, however, if NCPA terminates this Agreement with respect to the last remaining Participant, then this Agreement shall terminate. 9.5.4 Termination by Participants. If this Agreement is terminated by all Participants in accordance with Section 9.4.3, or by unanimous consent of all of the Parties hereto, then the Participants shall pay to NCPA all previously unpaid GPP Costs incurred as of the date of such termination, and following such termination, the Participants shall cooperate and act in good faith to negotiate and agree upon the method of allocating among the Participants in proportion to their respective Subscription Percentages the costs and benefits of the Eligible Gas Purchases, all GPAs 39 NATURAL GAS PROGRAM AGREEMENT then in effect, and any financing agreements or commitments and any matters pertaining to the administration, management, control, operation and maintenance of the Eligible Gas Purchases. NCPA shall reasonably cooperate with the Participants in connection with implementing the foregoing and the Participants shall indemnify NCPA for any costs incurred in connection therewith, including reasonable attorney fees, fees and expenses of other experts, including auditors and accountants and other reasonable and necessary costs. If the Parties are unable to reach agreement as to the foregoing, then the Parties agree to submit the matter to mediation with a mutually agreed upon mediator. If the Parties are still unable to reach agreement following mediation, then the matter shall be submitted to binding arbitration subject to the rules of the American Arbitration Association, the costs of such arbitration being borne proportionally among the Participants. Section 10. Miscellaneous 10.1 Confidentiality. The Parties will keep confidential all confidential or trade secret information made available to them in connection with this Agreement, to the extent possible, consistent with applicable laws, including the California Public Records Act. It shall be the responsibility of the holder of the claim of confidentiality or trade secret to defend at its expense against any 40 NATURAL GAS PROGRAM AGREEMENT request that such information be disclosed. Confidential or trade secret information shall be marked or expressly identified as such. 10.2 Indemnification and Hold Harmless. Subject to the provisions of Section 10.4, each Participant agrees to indemnify, defend and hold harmless NCPA and its Members, including their respective governing officials, officers, agents, and employees, from and against any and all claims, suits, losses, costs, damages, expenses and liability of any kind or nature, including reasonable attorneys' fees and the costs of litigation, including experts ("Claims"), to the extent caused by any acts, omissions, breach of contract, negligence (active or passive), gross negligence, recklessness, or willful misconduct of that Participant, its governing officials, officers, employees, subcontractors or agents, to the maximum extent permitted by law. 10.3 Joint Liabilities. No Participant shall, in the first instance, be liable under this Agreement for the obligations of any other Participant or for the obligations of NCPA incurred on behalf of other Participants. Each Participant shall be solely responsible and liable for performance of its obligations under this Agreement, except as otherwise provided for herein. The obligation of each Participant under this Agreement is a several obligation and not a joint obligation with those of the other Participants. 41 NATURAL GAS PROGRAM AGREEMENT Notwithstanding the foregoing, the Participants acknowledge that any debts or obligations incurred by NCPA under this Agreement on behalf of any of them shall be borne solely by such Participants, and not by non-Participant Members of NCPA, pursuant to Article IV, Section 3(b) of the joint Powers Agreement. Notwithstanding the provisions of the Joint Powers Agreement and the general nature of the severability of liabilities in this Agreement, the Participants agree that, if a Participant defaults under this Agreement, the non-defaulting Participants will be jointly liable for the obligations of such defaulting Participant in proportion to each non-defaulting Participant's share of the total cost of all outstanding Eligible Gas Purchases entered into by all non-defaulting Participants during the five (5) years prior to the date of the default, unless and until NCPA is able to fully recover from the defaulting Participant. Provided, however, that any non-defaulting Participant with no outstanding Eligible Gas Purchases for the five (5) years prior the date of the default shall nonetheless have an obligation equal to one-half (1/2) that of the non-defaulting Participant with the lowest outstanding Eligible Gas Purchases during such five (5) year period, and that if no non-defaulting Participant has outstanding Eligible Gas Purchases during such five (5) year period, then each non-defaulting Participant shall share the obligation equally. In the event that the date of default occurs within the first five (5) years of the term of this Agreement, then such five (5) 42 NATURAL GAS PROGRAM AGREEMENT year period shall be shortened to include the time from the effective date of this Agreement until the date of the default. 10.4 No Consequential Damages. FOR ANY BREACH OF ANY PROVISION OF THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED IN THIS AGREEMENT, THE LIABILITY OF THE DEFAULTING PARTY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER DAMAGES OR REMEDIES ARE HEREBY WAIVED. IF NO REMEDY OR MEASURE OF DAMAGE IS EXPRESSLY PROVIDED, THE LIABILITY OF THE DEFAULTING PARTY SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE HEREBY WAIVED. IN NO EVENT SHALL NCPA OR ANY PARTICIPANT OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, REPRESENTATIVES, DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF GOODWILL, LOST REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NCPA AND EACH PARTICIPANT EACH HEREBY WAIVES SUCH 43 NATURAL GAS PROGRAM AGREEMENT CLAIMS AND RELEASES EACH OTHER AND EACH OF SUCH PERSONS FROM ANY SUCH LIABILITY. The Parties acknowledge that California Civil Code section 1542 provides that: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." The Parties waive the provisions of section 1542, or other similar provisions of law, and intend that the waiver and release provided by this section of this Agreement shall be fully enforceable despite its reference to future or unknown claims. 10.5 Amendments. Except where this Agreement specifically provides otherwise, this Agreement may be amended only by written instrument executed by the Parties with the same formality as this Agreement. 10.6 Severability. In the event that any of the terms, covenants or conditions of this Agreement or the application of any such term, covenant or condition, shall be held invalid as to any person or circumstance by any court having jurisdiction, all other terms, covenants or conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless the court holds that such provisions are not severable from all other provisions of this Agreement. 44 NATURAL GAS PROGRAM AGREEMENT 10.7 Governing Law. This Agreement shall be interpreted, governed by, and construed under the laws of the State of California. 10.8 Headings. All indices, titles, subject headings, section titles and similar items are provided for the purpose of convenience and are not intended to be inclusive, definitive, or affect the meaning of the contents of this Agreement or the scope thereof. 10.9 Notices. Any notice, demand or request required or authorized by this Agreement to be given to any party shall be in writing, and shall either be personally delivered to a Participant's Designated Representative and the Secretary of the Commission or transmitted to the Participant and the Secretary of the Commission at the address shown on the signature pages hereof. The designation of such address may be changed at any time by written notice given to the Secretary of the Commission who shall thereupon give written notice of such change to each Participant. 10.10 Warranty of Authority. Each Participant, and NCPA, represents and warrants that it has been duly authorized by all requisite approval and action to execute and deliver this Agreement and that this Agreement is a binding, legal, and valid agreement enforceable in accordance with its terms as to the Participant and as to NCPA. Upon execution of this Agreement, each Participant shall deliver to NCPA a resolution of the governing body of such 45 NATURAL GAS PROGRAM AGREEMENT Participant evidencing approval of and authority to enter into this Agreement and an opinion of legal counsel that such authority was duly exercised in accordance with such Participant's Constitutive Documents. 10.11 Counterparts. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument and as if all the signatories to all of the counterparts had signed the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon, and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more signature pages. 10.12 Assignment. Except as provided by Section 7 of this Agreement, no Participant may assign or otherwise transfer their interest in the Subscription Percentage or any other rights and obligations under this Agreement without the express written consent of NCPA. 10.13 Venue. In the event that a Party brings any action under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California. 46 NATURAL GAS PROGRAM AGREEMENT 10.14 Attorneys' Fees. If a Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that Party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.15 Interpretation. Each Party to this Agreement is sophisticated in the operation of electric utilities, and in the purchasing and financing of Natural Gas. Each Party to this Agreement was represented by counsel during the negotiation of this Agreement. Hence, this Agreement shall be interpreted as being equally drafted by all Parties and without reference to Civil Code Section 1654 requiring interpretation against Parties causing an ambiguity. 10.16 No Third Party Beneficiaries. Nothing contained in this Agreement is intended by the Parties, nor shall any provision of this Agreement be deemed or construed by the Parties or by any third person, to be for the benefit of any third party, nor shall any third party have any right to enforce any provision of this Agreement or be entitled to damages for any breach by the Parties of any of the provisions of this Agreement. 10.17 List of Exhibits. The Exhibits referenced herein shall be denoted as follows: 47 NATURAL GAS PROGRAM AGREEMENT Exhibit A - Participant Purchase Confirmation Exhibit A-1- Additional Transaction Terms and Conditions Exhibit B - List of approved Gas Purchase Agreements Exhibit C - NCPA Financial Addendum Exhibit C-1- Participant Confirmation - Financial Transaction Exhibit C-2 - Additional Transaction Terms and Conditions Exhibit C-3 - Commission-Approved Brokers, Exchanges and Contracts 48 NATURAL GAS PROGRAM AGREEMENT IN WITNESS WHEREOF, each Participant has executed this Agreement with the approval of its governing body, and NCPA has authorized this Agreement in accordance with the authorization of its Commission. NORTHERN CALIFORNIA POWER AGENCY [Address] [City, State, Zip] [Telephone] [Facsimile] CITY OF ALAMEDA [Address] [City, State, Zip] [Telephone] [Facsimile] By: Title: Date: Approved as to form: By: Its: Attorney Date: CITY OF BIGGS [Address] [City, State, Zip] [Telephone] [Facsimile] By: Title: Date: By:_ Title: Date: Approved as to form: By: Its: Attorney Date: CITY OF GRIDLEY [Address] [City, State, Zip] [Telephone] [Facsimile] By: Title: Date: 49 NATURAL GAS PROGRAM AGREEMENT Approved as to form: By: Its: Attorney Date: CITY OF HEALDSBURG [Address] [City, State, Zip] [Telephone] [Facsimile] By:_ Title: Date: Approved as to form: By: Its: Attorney Date: CITY OF LOMPOC [Address] [City, State, Zip] [Telephone] [Facsimile] By: Title: Date: Approved as to form: By: Its: Attorney Date: CITY OF LODI [Address] [City, State, Zip] [Telephone] [Facsimile] By:_ Title: Date: Approved as to form: By: Its: Attorney Date: CITY OF PALO ALTO [Address] [City, State, Zip] [Telephone] [Facsimile] By: Title: Date: 50 NATURAL GAS PROGRAM AGREEMENT Approved as to form: By: Its: Attorney Date: PLUMAS-SIERRA RURAL ELECTRIC COOPERATIVE [Address] [City, State, Zip] [Telephone] [Facsimile] Approved as to form: By: Its: Attorney Date: BART [Address] [City, State, Zip] [Telephone] [Facsimile] By: By:_ Title: Title: Date: Date: Approved as to form: By: Its: Attorney Date: PORT OF OAKLAND [Address] [City, State, Zip] [Telephone] [Facsimile] Approved as to form: By: Its: Attorney Date: CITY OF UKIAH [Address] [City, State, Zip] [Telephone] [Facsimile] By: By: Title: - Title: Date: Date: 51 NATURAL GAS PROGRAM AGREEMENT Approved as to form: Approved as to form: By: By: Its: Attorney Its: Attorney Date: Date: 52 NATURAL GAS PROGRAM AGREEMENT Exhibit A PARTICIPANT PURCHASE CONFIRMATION This document constitutes a "Participant Purchase Confirmation", as described in the Natural Gas Program Agreement ("Agreement"), dated as of . This Participant Purchase Confirmation shall supplement and form a part of the Agreement and shall be subject to the terms and conditions specified therein. Capitalized terms used but not defined in this Participant Purchase Confirmation shall have the meanings ascribed thereto in the Agreement. The undersigned NCPA Member and Participant in the Natural Gas Purchase Program hereby subscribes to the following Eligible Gas Purchase pursuant to Section 3 of the Natural Gas Program Agreement and the Gas Purchase Agreement (GPA) designated below, supplemented and modified as follows: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (1) (m) (n) (o) Procurement Process: Direct Purchase Process RFP Process Seller: Purchaser: NCPA Period of Delivery: From to Maximum Delivery Rate (MMBtu/day): Generator(s) Delivery Point(s): Commodity Type: Contract Quantity: MMBtu. Contract Price: See Attachment A-1 Transportation Path for the Transaction: Form of Gas Purchase Agreement: Special Terms and Exceptions: See Exhibit A-1 Security Account Amount Required Transfer from GOR Pay by Other (specify) Except to the extent herein provided for, no amendment or modification to the Agreement shall be enforceable unless reduced to writing and executed by both Parties. Those persons executing this Participant Purchase Confirmation and the Parties hereby warrant that they are authorized to do so. Member NCPA Utility Director Date Approved as to Legal Form Its Counsel General Manager Date Approved as to Legal Form Its General Counsel NATURAL GAS PROGRAM AGREEMENT -Exhibit A Exhibit A-1 Exhibit A-1 ADDITIONAL TRANSACTION TERMS AND CONDITIONS (Attach Seller's completed Exhibit A-1 to the RFP and applicable GPA) NATURAL GAS PROGRAM AGREEMENT -Exhibit A-1 Exhibit B NCPA Commission-Approved Forms of Agreements for Natural Gas Purchases A. Contracts Eligible for Direct Purchases DGS Procurement Agreement B. Commission-Approved Standard Industry Agreements to be used with the RFP Process's NAESB - Shell - JP Morgan #2 (to be developed) ISDA with Physical Gas Annex - Currently None EEI GAS Annex - Currently None Constellation Fuel Management and Supply Agreement *Including modifications indicated in Section 3.1Uv) of the Natural Gas Program Agreement 55 Exhibit C EXHIBIT C NATURAL GAS PROGRAM AGREEMENT FINANCIAL ADDENDUM This Natural Gas Program Agreement Financial Addendum ("Financial Addendum") is entered into by and between Northern California Power Agency, a joint powers agency of the State of California ("NCPA"), and those of its Members who are Participants to the Natural Gas Program Agreement (the "Agreement") who also execute this Financial Addendum ("Financial Participants" and each a "Financial Participant"). Capitalized terms used herein and not otherwise defined shall have the meanings given such terms in the Agreement, to which this Financial Addendum is attached. RECITALS This Financial Addendum is made with reference to the following facts: A. As signatories to the Agreement, the Financial Participants seek to avail themselves of the opportunity to stabilize part or all of their long-term Natural Gas fuel costs with forward transactions in the physical gas market. B. The Financial Participants also have the opportunity to stabilize their long-term Natural Gas fuel costs and budgets through financial market transactions. 56 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C C. The Financial Participants recognize that several factors, including but not limited to the evaluation of counterparty risk, operational risk, and liquidity requirements, may be relevant to the decision of whether to use physical or financial transactions to stabilize fuel costs. D. By executing this Financial Addendum to the Agreement, each signatory seeks the flexibility to stabilize its Natural Gas fuel costs with financial transactions in those cases where the Financial Participant believes the use of such transactions are appropriate and preferable to physical transactions. E. Each subscribing Financial Participant will have a participation interest in a corresponding financial transaction entered into by NCPA in accordance with the terms hereof. F. In consideration for the increased flexibility afforded to Financial Participants by this Financial Addendum, each Financial Participant acknowledges the need for the following terms and conditions to supplement the Agreement. Section 1. Supplemental Definitions 1.1 Supplemental Definitions. Whenever used in this Financial Addendum (including the Recitals hereto), the following terms shall have the following respective meanings: 57 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C 1.1.1 "Exchange" means an organized market on which financial transactions relating to Natural Gas, in the form of standardized contracts, are entered into. Examples of Exchanges include the New York Mercantile Exchange (NYMEX) and the Intercontinental Exchange (ICE). 1.1.2 "Financial Transaction" means a transaction between NCPA and either a third party or Exchange that is entered into to stabilize the fuel costs of one or more Financial Participants through monetary transfers to and/or from a third party or Exchange, without the physical delivery of Natural Gas and, therefore, without the operational risk associated with physical delivery. 1.1.3 "Financial Transaction Confirmation" means a Participant Confirmation - Financial Transaction, substantially in the form of Exhibit C-1 hereto. 1.1.4 "Financial Transaction Subscription Percentage" means that proportion of a Financial Transaction that a Financial Participant subscribes to in writing through a Financial Transaction Confirmation in accordance with the terms of this Financial Addendum. 1.1.5 "Governing Agreement" means an agreement governing Financial Transactions, including any bilateral agreement (e.g., an 58 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C ISDA agreement) between NCPA and any third party and any arrangement between NCPA and any Exchange. Section 2. Effectiveness and Precedence of Financial Addendum. This Financial Addendum shall be effective as to each Financial Participant as of the date it is last executed by NCPA or by a Financial Participant. The provisions of this Financial Addendum are in addition to, and supplement those provided for in the Agreement for the purpose of carrying out the terms and conditions of this Financial Addendum. The remaining provisions of the Agreement are incorporated by reference to the extent they are not inconsistent with the provisions of this Financial Addendum. In the event of a conflict between the Agreement and this Financial Addendum, the Agreement will control, except with regard to Financial Transactions, in which case this Financial Addendum will control. Section 3. Financial Transactions. NCPA may execute Financial Transactions either: (1) on a Commission-approved Exchange or (2) under a Commission-approved bilateral contract or arrangement. A Financial Transaction may, at NCPA's discretion, be centrally cleared or entered into through the use of a broker. 59 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C 3.1 Financial Transaction Conditions. NCPA shall only enter into Financial Transactions pursuant to this Financial Addendum that meet the following terms and conditions: (i) Each Financial Transaction shall be consummated in accordance with all NCPA Energy Risk Management Policy requirements including those limiting the term and notional quantities of transactions; (ii) NCPA shall negotiate and enter into Governing Agreements and any related or incidental documents, including brokerage agreements, at the discretion of the NCPA General Manager and NCPA General Counsel and as approved by the Commission. Each Financial Transaction Confirmation shall specify the relevant Governing Agreement for a contemplated Financial Transaction and, by subscribing to a Financial Transaction, a Financial Participant shall be deemed to have agreed to the use of such Governing Agreement; and (iii) Financial Transactions shall be limited to only those eligible products listed in NCPA's Energy Risk Management Policy. 3.2 Financial Transaction Subscription Process. From time-to-time, NCPA will propose that one or more Financial Participants subscribe to a contemplated Financial Transaction by delivering a Financial Transaction Confirmation to each Financial Participant. Each such Financial Participant 60 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C Confirmation shall specify, among other things, the notional quantity and maximum rate or price (or "not to exceed rate/price") of the contemplated Financial Transaction. Each Financial Participant shall promptly review such Financial Transaction Confirmation and determine whether to subscribe to the contemplated Financial Transaction by executing and returning the Financial Transaction Confirmation to NCPA. NCPA may, but is not required to, enter into a Financial Transaction in accordance with this Financial Addendum based on the terms (including the notional quantities and maximum rate or price) subscribed to by the Financial Participants. NCPA shall promptly notify a Financial Participant of its election to enter into a requested Financial Transaction. 3.3 Financial Participant Agreements. By executing this Financial Addendum, each Financial Participant agrees to (i) be bound by the terms of any Governing Agreement specified in a Financial Transaction Confirmation executed by such a Financial Participant in connection with subscribing to a Financial Transaction, (ii) take such actions necessary for NCPA to comply in a timely manner with terms and conditions of any Governing Agreements, including any credit support arrangements thereunder, whether through a broker or otherwise and (iii) pay for its proportional share of (x) any amounts that may from time-to-time become due and payable under any Financial 61 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C Transaction to which it subscribes, including in connection with the termination and liquidation thereof, and (y) any fees, costs or other amounts payable in connection with the execution, arrangement or maintenance thereof. 3.4 NCPA Agreements. By executing this Financial Addendum, NCPA agrees to (i) be bound by the terms contained in this Financial Addendum, (ii) enter into, at its discretion, Financial Transactions from time-to-time based on subscriptions received from Financial Participants and (iii) be bound by the terms and conditions of each Financial Transaction it enters into, as such may be confirmed between NCPA and either a third party or Exchange, whether directly, through a broker or otherwise. Section 4. Cooperation and Further Assurances. In addition to the provisions of Section 4 of the Agreement, each Financial Participant agrees to cooperate and act in good faith in connection with obtaining and delivering in a timely manner any credit support required to execute or maintain a Financial Transaction to which it has subscribed. Section 5. Additional Provisions for the Security Account. Additional Security Account funds may be required from a subscribing Financial Participant to commence a transaction, satisfy a margin call or terminate and liquidate a Financial Transaction. Prior to executing a Financial Transaction, NCPA's Chief Financial Officer, or designee, will notify each subscribing Financial Participant 62 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C of the necessary amount to be funded in such Financial Participant's Security Account by inserting such amount in the relevant portion of the Financial Transaction Confirmation. At any time after executing a Financial Transaction, NCPA's Chief Financial Officer, or designee, may request increased contributions to each subscribing Financial Party's Security Account, as required by an Exchange or broker or third party in accordance with the terms and conditions of any Governing Agreement or brokerage agreement. If the Financial Participant does not comply with the request of the Chief Financial Officer within the time period requested, NCPA may terminate and liquidate the Financial Transaction to the extent of such Financial Participant's proportional share and the Financial Participant will become immediately liable to NCPA for any corresponding breakage, termination or similar amounts owed by NCPA in connection with such a termination, in addition to any amounts then held in such Financial Participant's Security Account. Section 6. Admission and Withdrawal of Financial Participants. 6.1 Admission of Financial Participants. After the initial execution of this Financial Addendum, any Participant of the Agreement may execute this Financial Addendum and become a Financial Participant, provided that such Participant: (i) reimburses existing Financial Participants for a proportionate share of the applicable costs identified during NCPA's Annual Budget process 63 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C and any GPP Costs incurred to establish and administer this Financial Addendum, as determined by the existing Financial Participants, and (ii) satisfies all Security Account requirements under the Agreement and this Financial Addendum. A new Financial Participant shall not be entitled to participate in any Financial Transactions consummated prior to the date it becomes a Financial Participant unless one or more of the existing Financial Participants (each, an "Allocating Financial Participant") elect to assign all or a portion of their Financial Transaction Subscription Percentage in one or more such Financial Transactions to such new Financial Participant. Upon an agreement thereof and affirmative vote thereon by all other Financial Participants, NCPA shall prepare and distribute to each Financial Participant (i) the applicable agreements between the new Financial Participant and the Allocating Financial Participant(s) regarding such assignment, (ii) a counterpart of this Financial Addendum executed by the new Financial Participant and (iii) a report from NCPA's Deal Capture System reflecting the new allocation of Financial Transaction Subscription Percentages. Any fees relating to such assignment shall be settled exclusively between each Allocating Financial Participant and the new Financial Participant. In connection with each such assignment, any reduction in an Allocating Financial Participant's Security Account requirements shall be credited back to the Allocating Participant in accordance with Section 5.3.2 of the 64 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C Agreement and Section 5 of this Financial Addendum and the new Financial Participant shall immediately be required to satisfy such requirements by funding its own Security Account. 6.2 Withdrawal of Participants. 6.2.1 Requirements and Process. A Financial Participant may voluntarily withdraw from this Financial Addendum ("Withdrawing Financial Participant") and still remain a Participant in the Agreement by providing two (2) years' advance written notice to NCPA and the other Financial Participants. Upon the mutual agreement of two or more Financial Participants, the Withdrawing Financial Participant may assign some or all of its Financial Transaction Subscription Percentage in one or more of its Financial Transactions to one or more Financial Participants (each, an "Adjusting Financial Participant") willing to assume the Withdrawing Financial Participant's Financial Transaction Subscription Percentage, provided that such withdrawal and assignment does not violate of any applicable credit support conditions contained in any of the relevant agreements to which the Withdrawing Financial Participant and/or the Adjusting Financial Participant is party. The Withdrawing Financial Participant shall provide to NCPA the applicable agreements between the Withdrawing Financial Participant and the Adjusting Financial Participant(s) 65 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C regarding any such assignments and NCPA shall reflect the change in its Deal Capture System, recording the new allocation of Financial Transaction Subscription Percentages. 6.2.2 Associated Costs. A Withdrawing Financial Participant shall reimburse NCPA for any and all costs resulting from the withdrawal, including but not limited to the legal, accounting, and administrative costs of winding up and assuring the complete satisfaction and discharge of the Withdrawing Financial Participant's obligations. A Withdrawing Financial Participant will continue to be liable for all Financial Transactions entered into on its behalf which is not assumed by an Adjusting Financial Participant. 6.2.3 No Effect on Prior Liabilities. Withdrawal by any Financial Participant will not terminate any outstanding or contingent liabilities or obligations resulting from this Financial Addendum until they are assigned to an Adjusting Financial Participant, or are otherwise satisfied in full, or such Withdrawing Financial Participant has provided a mechanism reasonably acceptable to NCPA and the remaining Financial Participants, for the satisfaction in full thereof. IN WITNESS WHEREOF, each Financial Participant has executed Financial Addendum with the approval of its governing body, and NCPA has 66 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C authorized this Financial Addendum in accordance with the authorization of its Commission. NORTHERN CALIFORNIA POWER AGENCY [Address] [City, State, Zip] [Telephone] [Facsimile] CITY OF ALAMEDA [Address] [City, State, Zip] [Telephone] [Facsimile] By: By:_ Title: Title: Date: Date: Approved as to form: By: Its Attorney Date: Approved as to form: By: Its Attorney Date: 67 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C CITY OF BIGGS CITY OF GRIDLEY [Address] [Address] [City, State, Zip] [City, State, Zip] [Telephone] [Telephone] [Facsimile] [Facsimile] By: By:_ Title: Title: Date: Date: Approved as to form: By: Its: Attorney Date: CITY OF HEALDSBURG [Address] [City, State, Zip] [Telephone] [Facsimile] By:_ Title: Date: Approved as to form: By: Its: Attorney Date: Approved as to form: By: Its: Attorney Date: CITY OF LODI [Address] [City, State, Zip] [Telephone] [Facsimile] By:_ Title: Date: Approved as to form: By: Its: Attorney Date: 68 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C CITY OF LOMPOC [Address] [City, State, Zip] [Telephone] [Facsimile] CITY OF PALO ALTO [Address] [City, State, Zip] [Telephone] [Facsimile] By: By:- Title: Title: Date: Date: Approved as to form: By: Its: Attorney Date: PLUMAS-SIERRA RURAL ELECTRIC COOPERATIVE [Address] [City, State, Zip] [Telephone] [Facsimile] By:_ Title: Date: Approved as to form: By: Its: Attorney Date: Approved as to form: By: Its: Attorney Date: BART [Address] [City, State, Zip] [Telephone] [Facsimile] By:_ Title: Date: Approved as to form: By: Its: Attorney Date: 69 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C PORT OF OAKLAND [Address] [City, State, Zip] [Telephone] [Facsimile] CITY OF UKIAH [Address] [City, State, Zip] [Telephone] [Facsimile] By: By:_ Title: Title: Date: Date: Approved as to form: Approved as to form: By: Its: Attorney Date: By: Its: Attorney Date: 70 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C-1 Transaction Confirmation (Financial) EXHIBIT C-1 PARTICIPANT CONFIRMATION - FINANCIAL TRANSACTION This document constitutes a "Financial Transaction Confirmation", as described in the Financial Addendum ("Financial Addendum") to the Natural Gas Program Agreement ("Agreement"), dated as of , under which [FINANCIAL PARTICIPANT] is a "Financial Participant." This Financial Transaction Confirmation shall supplement and form a part of the Financial Addendum and Agreement and shall be subject to the terms and conditions specified therein, including in connection with the execution by NCPA of the Financial Transaction subscribed to hereunder. Capitalized terms used but not defined in this Financial Transaction Confirmation shall have the meanings ascribed thereto in the Agreement. The undersigned Financial Participant hereby subscribes to a Financial Transaction having the following characteristics to be entered into by Northern California Power Agency ("NCPA") : (a) (b) (c) (d) (e) (f) (g) (h) (i) Party: NCPA Broker (if any): Exchange (if any): _ Third Party (if any): Commodity Type: _ Term: Governing Agreement: Security Account Amount Required (additional): Method of Satisfaction: (i) Transfer from GOR: (ii) Pay by Other (specify): Special Terms and Exceptions: See Exhibit C-2, the terms of which are hereby incorporated herein The undersigned Financial Participant hereby agrees that NCPA shall be entitled to negotiate any additional terms and conditions to the Financial Transaction subscribed to hereunder and shall be entitled to negotiate and execute any incidental agreements, certificates or other documents related thereto. 71 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C-1 Transaction Confirmation (Financial) Those persons executing this Financial Transaction Confirmation and the Parties hereby warrant that they are authorized to do so. Member Utility Director NCPA General Manager Date Approved as to Legal Form Its Counsel 72 Date Approved as to Legal Form Its General Counsel NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C-2 Transaction Confirmation (Financial) EXHIBIT C-2 ADDITIONAL TRANSACTION TERMS AND CONDITIONS [Actual additional transaction terms will depend on the transaction type.] 73 NATURAL GAS PROGRAM AGREEMENT - FINANCIAL ADDENDUM Exhibit C-3 EXHIBIT C-3 COMMISSION-APPROVED BROKERS, EXCHANGES AND CONTRACTS BROKERS: MAN FINANCIAL INC. EXCHANGES NEW YORK MERCANTILE EXCHANGE ("NYMEX") INTERCONTINENTAL EXCHANGE ("ICE") STANDARD INDUSTRY AGREEMENTS* INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC. ("ISDA") AGREEMENT ATTACHMENT RESOLUTION NO. RESOLUTION OF CITY OF UKIAH Approving Execution of the Natural Gas Program Agreement WHEREAS, City of Ukiah is a project participant in natural gas fired generation facilities, and has a need to procure natural gas through the use of forward market purchases to assure greater rate stability for its customers; and WHEREAS, in response to this need, Northern California Power Agency ("NCPA") has developed a Natural Gas Purchase Program that can be used by NCPA members to purchase natural gas as fuel for electric power generation for the benefit of their respective customers; and WHEREAS, City of Ukiah is a member of NCPA; and WHEREAS, City of Ukiah may elect to become a Participant in the Natural Gas Purchase Program by executing the Natural Gas Program Agreement, under which City of Ukiah can direct NCPA to purchase natural gas, through the use of forward market purchases or physical call options, to reduce the portion of its natural gas needs that would otherwise have to be obtained in a potentially volatile spot market; and WHEREAS, City of Ukiah, as a Participant in the Natural Gas Purchase Program may also elect to have the opportunity to stabilize its long-term natural gas fuel costs and budgets through the use of financial transactions, and in order for City of Ukiah to use financial transactions to stabilize its natural gas fuel costs, City of Ukiah must execute the Financial Addendum attached to the Natural Gas Program Agreement, and the election to use financial transactions is purely voluntary and is not required to participate in the Natural Gas Purchase Program; and WHEREAS, City of Ukiah, as a Participant in the Natural Gas Purchase Program may direct NCPA to procure natural gas on its behalf from third parties using competitive bids submitted in response to a NCPA Request For Proposals, or through direct purchases from the State Department of General Services ("DGS") Gas Program, or its successor program, so long as the DGS program is available; and WHEREAS, all procurement of natural gas under the Natural Gas Purchase Program must meet certain conditions listed in the Natural Gas Program Agreement; and WHEREAS, NCPA will procure natural gas on behalf of City of Ukiah using industry-standard forms of agreement for natural gas purchases, including NCPA's standard form NAESB base contract, and associated special provisions, and such agreements for natural gas purchases may be modified in the discretion of the NCPA General Manager and NCPA's General Counsel, after consultation with City of Ukiah; and WHEREAS, NCPA has developed a mode provisions to the model credit support addendum, form NAESB base contract; and credit support addendum, and associated special to be used in conjunction with the NCPA standard WHEREAS, costs for participating in the Natural Gas Purchase Program include a) a monthly fixed charge, b) a variable charge that is allocated to each Participant, including City of Ukiah, in accordance with the Natural Gas Program Agreement, c) transaction specific costs associated with City of Ukiah's natural gas transactions, d) commodity costs specific to City of Ukiah's natural gas transactions, and e) initial start-up costs, including staff costs, legal costs and costs associated with establishing the third party gas purchase agreements that will be used under the Natural Gas Purchase Program; and WHEREAS, City of Ukiah, as a Participant in the Natural Gas Purchase Program is required to deposit funds into a Security Account held by NCPA equal to the highest three (3) months. of estimated commodity costs for all natural gas transactions City of Ukiah has or will subscribe to as estimated by NCPA, prior to entering into any natural gas transactions, and NOW, THEREFORE BE IT RESOLVED, that the [Body of Competent Jurisdiction] of City of Ukiah delegates authority to City Manager and Electric Utility Director to execute the Natural Gas Program Agreement to provide a means for City of Ukiah to reduce the portion of its natural gas needs that would otherwise have to be obtained in a potentially volatile spot market, through the use of forward market purchases of natural gas; thereby assuring greater rate stability for its customers. PASSED AND ADOPTED by the City of Ukiah, Council on May 4, 2011, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: Mari Rodin, Mayor JoAnne Currie, City Clerk -2- ~"ttJ nJ'-zrkaaF ITEM NO.. 13c MEETING DATE: AGENDA SUMMARY REPORT Not Applicable Fx] APPROVAL TO PURCHASE UTILITY EASEMENT FROM NORTH COAST RAILROAD AUTHORITY (NCRA); AND AUTHORIZATION FOR THE CITY MANAGER TO NEGOTIATE AND EXECUTE AGREEMENT TO PURCHASE A UTILITY EASEMENT FROM NCRA AND ALL CORRESPONDING PAPERWORK; AND APPROVAL OF THE CORRESPONDING BUDGET AMENDMENT (EUD) Discussion: Land negotiations to be discussed in Closed Session. If terms are approved, they will be reported in open session. Fiscal Impact: Budgeted FY 10/11 New Appropriation Transfer Amount Source of Funds (title and TBD Substation Maintenance May 4, 2011 Budget Amendment Required From Account Number 800.3642.930.000 To Account NumberAmount 800.3642.910.000 Recommended Action(s): APPROVAL TO PURCHASE UTILITY EASEMENT FROM NORTH COAST RAILROAD AUTHORITY (NCRA) AND APPROVE CORRESPONDING BUDGET AMENDMENT (EUD) Alternative Council Option(s): Citizens advised: Requested by: Mel Grandi, Electric Utility Director Prepared by: Diann Lucchetti, Administrative Secretary Coordinated with: Al Smatsky, Electric Utility Project Manager Attachments: Approved: f6 Chambers, City Manager e~ Mitch Stogner Executive Director North Coast Railroad Authority 419 Talmage Road, Suite M Ukiah CA 95482 6 City of Ukiah Proposal to Purchase Public Utility Easement Background In July of 2009, Al Smatsky, on behalf of the City of Ukiah Electric Utility Department (UEUD), approached the North Coast Railroad Authority (NCRA) with a request that an easement along the property owned by NCRA be granted to provide for an overhead (OH) medium voltage electric circuit(s) between Perkins Street and Hastings Street in the City of Ukiah, California. At that time, a proposed easement location drawing, a typical OH easement description drawing and a typical OH construction detail drawing were forward to NCRA and Dave Anderson, NCRA Project Manager, for review and comment. Since that time, the length of the requested easement has been shortened and the project drawing was changed to its present design; East Clay Street to Hastings Street. (The agreed upon project drawing is attached hereto as Attachment 1.) The requested easement totals 5,688 feet in length. During the fall of 2010, notice was sent to NCRA regarding this change. The proposed overhead medium voltage electric drawings were subsequently sent to NCRA and AndersonPenna for review. On April 6, 2011, the UEUD did review the draft Encroachment Permit Application prepared by Dave Anderson, NCRA Project Manager, and found that the UEUD could comply with all conditions detailed in this document. The City of Ukiah EUD will use materials, construction methods and standards that will meet or exceed GO 95 and GO 128 requirements for construction of overhead and underground electric circuits along or over railroad lines. Lease/Purchase Meeting On April 26, 2011, Mitch Stogner, NCRA Executive Director, Dave Anderson, Project Manager, Mel Grandi, City of Ukiah Electric Utility Director and Al Smatsky, UEUD Project Designer, met to discuss easement cost. After considerable discussion, both sides agreed to a one-time purchase price of $55,000 for a Utility Easement per detailed drawings. This offer is made in good faith and subject to City of Ukiah City Council approval. This matter will be presented to the City Council on May 4, 2011 for approval. Agreement: • Purchase Public Utility Easement for Overhead and Underground Electric Facilities as per detail drawing (Attachment 1). Approximately 28,440 ftz • Cost: $55,000 • Electric Utility will only be required to relocate facilities at its cost, if both of the following conditions are met: 1. When Electric Facilities are in conflict with future rail expansion; and 2. NCRA provides a mutually agreeable alternative location for Electric Facilities that NCRA wants the City of Ukiah to relocate. The City of Ukiah r ectively requests that NCRA considers this easement application. Mel cc: GraJa di Chambers, City Manager Dave Rapport, City Attorney City of Ukiah Director Jane Electric Utility 0 SEMINARY AVENUE K UKIAH, CA 707/463-6200 ax# 07/4 3 6204 Web ddress48www,cit ofukiah.com