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Home My WebLink About2004-10-06 Packet CITY OF UKIAH CITY COUNCIL AGENDA Regular Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 October 6, 2004 6:30 p.m. 1, a, c, ROLL CALL PLEDGE OF ALLEGIANCE PRESENTATIONS Presentation from Mendocino Council of Governments Presentation from the City of Ukiah's Paths, Open Space, and Creeks Commission Presentation from Wagner & Bonsignore Consulting Civil Engineers Concerning Russian River Water Hydrology 4. APPROVAL OF MINUTES a. Approval of Portions of Minutes from the September 1,2004 City Council Meeting b. Regular Meeting of September 15, 2004 c. Joint Meeting of the City Council & Planning Commission of September 29, 2004 1 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. 6. 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. Notification of Purchase of One Watson Marlow Chemical Feed Pump from JBI Water & Wastewater Equipment in the Amount of $5,829.04 b. Notification to Council Regarding Purchase of 4,500 ft. of #2 AWG Aluminum, 15KV, EPR Insulated Single Conductor, Jacketed Concentric Neutral, Underground Cable to American Wire Group in the Amount of $8,735.51 c. Award of Bid for High Voltage Line Clearing and Tree Trimming at Various Locations Within the City of Ukiah to Westcoast Arborists, Inc. in an Amount Not to Exceed $40,000 d. Allowance for Staff to File Necessary Applications to Become a Member of Water/Wastewater Agency Resource Network (WARN) and Direct City Manager to Enter Into Agreement e. Authorization to Execute Amendment No. 4 to the Service Agreement for Fuel Card Lock Services for Rino Pacific, Inc. f. Authorization to Execute Amendment No. 4 to the Service Agreement for Fuel Card Lock Services for Redwood Oil Company g. Report of Disposition of Surplused Used Equipment h. Rejection of Claims for Damages Received from Michael Center and Christopher Scott and Referral to Joint Powers Authority, Redwood Empire Municipal Insurance Fund i. Notification to City Council Regarding Execution of Exhibit C of Contract No. 96- SNR-00110 Between Western Area Power Administration and the City of Ukiah m 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. 8. PUBLIC HEARING (6:45 P.M.) a. Continuance of Major Subdivision Map Application No. 03-57 gm UNFINISHED BUSINESS a. Discussion and Direction to Staff Concerning Flood Control District Water Supply Contract b. Discussion of Selection of Replacement Trash and Recycling Receptacles and Bicycle Racks for Downtown 10. NEW BUSINESS a. Receipt of the Fifth Fiscal Year Report and Determination of Findings with Respect to the Airport Industrial Park Capital Improvement Fee Account b. Approval of Member Services Agreement Authorizing Use of $200,000 from the City's Northern California Power Agency (NCPA) Operating Reserve to Investigate Details to Restart the Lake Mendocino Hydro Facility c. Discussion and Possible Action Regarding Filling a Vacancy on the City Council 11. COUNCIL REPORTS 12. CITY MANAGER/CITY CLERK REPORTS 13. CLOSED SESSION a. CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code Section 54956.9(b) (1 case) 14. ADJOURNMENT The City of Ukiah complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. Mendocino Council of Governments 367 North State Street - Suite 206 - Ukiah, CA 95482 Phone (707) 463-1859 -- Fax (707) 463-2212 29 September 2004 Ukiah City Council 300 Seminary Avenue Ukiah, CA 95482 Re: 6 October 2004 Presentation to City Council - 2005 Update of the Mendocino County Regional Transportation Plan Dear Council Members: As part of its 2004/2005 Work Program, the Mendocino Council of Governments will be conducting an update of the 2001 Regional Transportation Plan. Although the RTP was only adopted last year (May 2003), we are expected by Caltrans to adopt a new or updated plan in 2005. Senate Bill 45 required that plans be adopted every four years, starting in 2001, therefore, making the next round of plans due in 2005. Other agencies throughout the state will also be conducting RTP updates at this time. This update of the RTP is expected to be relatively minor because of the proximate adoption of the last RTP and due to ongoing transportation funding reductions and delays. Because the majority of projects listed as high priority or short-range have yet to be completed due to funding delays, it is not anticipated that significant new projects will be added to the plan. We have reviewed the Regional Transportation Plan Guidelines and supplement to the Guidelines and determined areas in which the RTP is deficient. We have also examined the adoption process of the last RTP and identified two topics that should be addressed or reassessed as a result. The following is a summary of issues and areas of improvement that this update will focus on: Interagency Coordination and Public Involvement: More information and documentation need to be included in the plan relative to agency coordination and public involvement, including a discussion of the ways in which they impacted the plan and process. We will also include discussion of the interregional partnership process in which we've recently been involved. · Tribal Government Issues: We plan to include more specific information on each tribe, its transportation needs, and our consultation process with the tribes. Private Sector Involvement: The private sector, e.g. trucking firms and large employers, needs to be included in plan development. Any major plans of theirs that may impact transportation should be addressed. This will provide the private sector with an opportunity to be involved in the transportation planning process. C:~Documents and Settings\Nephele Barrett\My Documents~005 RTP\Ukiah City Council Letter 092904.doc September 29, 2004 Page 2 · List of Financially Unconstrained Projects: In the RTP update, we will include a 'list of financially unconstrained needed projects. · Designation of specific Level of Service on highways. · Discussion regarding school bus transportation as a form of transit. As part of the RTP process, we will assess the EIR to determine if an update of that document needs to be performed as well. Staff will consult with Leonard Charles, who prepared the EIR, in making the determination. It is anticipated that, if anything, only a minor addendum will be required. MCOG personnel will be working with its Technical Advisory Committee and local agency representatives to review and modify project listings and prioritization of projects. We will also be conducting public, interagency and Native American outreach efforts. Two public workshops have been planned in order to obtain public input and determine transportation needs. Workshops are scheduled for October 5 at the Fort Bragg Town Hall and October 6 at the Victory Theatre Building conference room in Ukiah, both from 4:00 to 6:00 p.m. In addition, presentations will be made to each City Council and the County Board of Supervisors in order to inform both elected officials and their constituents of the plan update. Efforts are also being made to include the Native American tribes in the RTP development process. Letters were sent to each tribe in Mendocino County in late August informing them of the RTP update, soliciting their input, and offering to make presentations to each tribal council. Phil appeared before the Redwood Valley Rancheria Tribal Council on September 19. To date, they are the only tribe that has expressed interest in this type of consultation. We will continue to make every effort to involve the tribes and their transportation needs throughout the RTP update process. These presentations and workshops will hopefully draw attention to any issues that the public, other agencies, and tribal governments have that should be addressed in the RTP. We will provide additional opportunities for public, agency, and tribal involvement at other points in the update process as well. Sincerely, Phillip j. Dow Executive Director ITEM NO: 3b DATE: October 6, 2004 AGENDA SUMMARY REPORT SUBJECT: PRESENTATION FROM THE CITY OF UKIAH PATHS, OPEN SPACE, AND CREEKS COMMISSION SUMMARY: The Paths, Open Space and Creeks Commission has prepared a presentation to inform the City Council of its activities over the past year. Dan Holbrook, Chairman of the Commission, will introduce the Commission members, review the Commission's responsibilities as established by the City Council, discuss the documents and recommendations it has prepared, and review its current projects and focus. Attached are copies of the presentation outline, Ordinance 1045 establishing the Commission, the June 18, 2003 City Council directive, mission statement, summary of completed work, western hills conservation and development recommendations, and recommendations conceming planning for the Brush Street Triangle. RECOMMENDED ACTION: Receive presentation from the City Paths, Open Space, and Creeks Commission. ALTERNATIVE COUNCIL POLICY OPTION: N/A Citizen Advised: N/A Requested by: Ukiah Paths, Open Space, and Creeks Commission Prepared by: Charley Stump, Director of Planning and Community Development Coordinated with: Candace Horsley, City Manager and Larry Deknoblough, Director of Community Services Attachments: , 2. 3. 4. 5. 6. Presentation Outline Ordinance 1045 and June 18, 2003 City Council Directive Paths, Open Space, and Creeks Commission Mission Statement Summary of Completed Work Western Hills Conservation and Development Recommendations Recommendations conceming planning for the Brush Street Triangle APPROVED: Candace Horsley, Cit~Manager POSCC CITY OF UKIAH OCT 6, 2004 PRESENTATION TOPICS & Format Introduction · Introduce Members of Commission · Howie Hawkes, Fred Koeppel, Bill Randolph, Jamie Connerton · Thanks to support staff · Shannon Riley · Karen Maguire · Larry DeKnoblough · Charley Stump · Candace Horsley · over view of responsibilities as designated by City Council · review of topics at monthy meetings and workshops - 03/04 Documents/Recommendations · Mission Statement & Operating Principles-Holbrook · Recommendations for Brush Street Triangle-Randolph · Recommendations for Western Hills-Hawkes Current Projects and Focus · City Hills & Trails Project-Connerton · Gibson Creek Protection and Restoration Project-Koeppel · Developing relationship with landowners & residents-Randolph · Open space acquisition & preservation, easements-Holbrook Attachment ORDINANCE NO. 1'045 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING DIVISION 1, CHAPTER 4, ARTICLE lB, SECTIONS 1020-1024 OF THE UKIAH MUNICIPAL CODE CREATING THE PATHS, OPEN SPACE, AND CREEKS COMMISSION The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE · Sections 1020-1024 are added to the Ukiah Municipal Code to read as follows- {}1020: CREATION: There is hereby created a Paths, Open Space, And Creeks Commission.' This advisory body shall report to the City Council. §1021- .MEMBERSHIP; APPOINTMENT: The Paths, Open Space, and Creeks Commission shall consist of five members. Members shall be appointed according to procedures established by resolution of the City Council. §1022:DUTIES AND POWERS OF THE COMMISSION- The Paths, Open Space, and Creeks Commission shall have the power and duty to recommend and advise regarding: Ao Efficient implementation of the Open Space and Conservation Element of the Ukiah General Plan. B. Efficient implementation' of the pathway sections of the Transportation Element of the Ukiah General Plan. C. Procedure and funding mechanisms for acquisition, preservation, and effective stewardship of' City paths, open space, and creeks. §1023:EXPENSES OF MEMBERS; NO COMPENSATION. The members of the Paths, Open Space, and Creeks Commission shall receive no compensation, except such traveling expenses as are authorized bY'law. §1024:CHAIRPERSON; OFFICERS: The Paths' OPen Space, and Creeks Commission shall elect a chairperson from among its members for a term of one year and may elect such other offiCers as it may determine. Page'1 of 2 Attachment # At its 6/18 meeting, the Ukiah City Council gave the following direction to the PATHS, OPEN SPACE, CREEKS COMMISSION 1. Review and understand Policies and Implementation measures in the Open Space & Conservation Element and the pathway sections of the Transportation Element of the Ukiah General Plan. ' 2. Discuss proposed revisions of the Hillside Development Regulations in relation to the Open Space and Conservation Element and make recommendations to this Council within six weeks of first POSCC meeting. 3. Complete an inventory of parks, creeks, public pathways, and publicly held open space within the City and its sphere of influence and provide this report to the Council within four months. 4. Explore strategy and funding mechanisms for open space acquisition or preservation and pathway easements or construction and report to the Council within ten months. 5. Invite spokespersons with expertise in open space preservation and/or pathway development as well as representatives from communities which have achieved successes in this arena to make educational presentations to the POSCC. ~6. Consider reasonable POSCC "field trips" to communities Which have achieved successes in this arena. 7. Thereafter and meanwhile, pursue the objectiVes listed in the ordinance establishing this Commission. . _ . · P . . Attachment # City of Ukiah Paths, Open Space, and Creeks Commission Mission Statement The Mission of the Paths, Open Space and Creeks Commission is to conserve and enhance the environments of the city and valley. The 'Commission advocates developing carefully, preserving natural habitat, restoring creeks and watersheds, and maintaining and creating paths, trails, and open space. General Operational Principals Preserve and maintain integrity of all creeks and watersheds within the City sphere of influence. Protect these waterways from encroachment, fragmentation, and degradation by development and other human influences. Enhance riparian habitat. II. Maintain, develop, and expand existing and new paths and trails, particularly seeking access to ridge tops. Paths and trails should be as natural, Iow- impact, and non-intrusive in natural enVironments as possible. Evaluate and recommend designations and enforcement for types of usage for paths, trails, and open areas. ./ III. Working with willing land owners, obtain rights-of-way and explore prescriptive rights-of-way and conservation easements for paths and trails through private property. Where possible, recommend purchase or lease of property to link/extend the hillside paths and trail network. IV. Respect and preserve the rights of property owners, while preserving sensitive natural environments and respecting the rights and interests of all citizens in the city proper and sphere of influence. Advocate for the protection and preservation of the natural beauty, health, and charm of our entire community. Vo VI. Preserve agricultural land within the city sphere of influence. Cooperate with property owners to conserve, agricultural land as an integral open space o- resource. . . Work with City and County toward creati0n'°f:a COunty,Wide Open Space and Parks District. Develop objecti~'es to meet Open Space and Conservation elements of the General Plan, and to recommend amendments to the General Plan where appropriate to further the preservation of ecologically healthy development of natural environments. Revised.07.22.04 Attachment # Paths, Open Space and Creeks Commission City of Ukiah 9/22/04 SUMMARY: POSCC WORK, AUG 03-AUG 04 Documents Created: 1. POSCC Mission Statement and Operating Principles 2. Recommendations for "Western Hills Development" 3. Recommendations for "Brush Street Triangle" Topics of Monthly Meetings & Workshops I · 2. 3. 4. 5. Hillside Zoning and Development Regulations City of Ukiah General Plan/Charley Stump Parks Facilities, Open Space, and City Properties / Lm'D' DeKnoblough Orr Creek Bridge and Orchard Avenue Extension Project & Environmental lmpact Report / LarD..' DeKnobloug~h ' Doolin Creek E~dmncement Plan / Charley Stump. Inland Mendocino County' Land Trust / Phyllis Curtis City of Davis Agricultural Preservation Program / Bill Randolph City of Ukiah Conservation Easements, Open Space Strategies and Land Trusts 9. Western Hills Constraints Analysis 10. Creek Enhancement and Public Access Plan 1 1. Bicycle and Pedestrian Master Plan/Gobbi Street bike lane / Rick Seanor Holbrook, P05CC.9.22.04 Attachment# ,,4,-"/ 12. Rail Feasibility Study 13. Riverside Park plans / Larry DeKnoblough 14. Mendocino County General Plan 15. Mendocino County Planning Commission / John McCowan 16. Depot Mini-Park/Skate Park Plan / Larry DeKnoblough l 7. Brown Acts & "Guide to Parliamentary Procedures 18. Natural Resources and Habitat Restoration Planning/Greg Guisti 19. Ukiah Valley Trail Group/Neil Davis 20. Numerous citizens bringing interests and concerns to POSCC Field Trips: 1. City Parks, Open Spaces, and Properties / Larry DeKnoblough 2. Orr Creek, Brush Street Triangle 3. Gibson Creek and Fish Hatchery / Judy Pruden, Bruni Kobbe, Gibson Creek 4. Redwood Business Park / Airport area Friends Current Projects & Focus: 04/05 1. Letter to Landowners and Area Residents 2. City Hills and Trails Project 3. Gibson Creek Protection and Restoration Project 4. EIR familiarization 5. Open Space Acquisition & Preservation, Trails and Easements 6. New issues requiring POSCC input 7. Communications and coordination with County Planning Holbrook, P05CC.9.22.04 ~ ~achment # POSC Commission Western Hills Conservation and Development Recommendations December 18, 2003 . Develop a walking 'path linking the south border of Low Gap Park through city owned hillside parcels, linking with city streets either along south border of the Golf Course or upper Standley Street. , Develop a linking path to the east border of Low Gap Park from Orr Creek footpath between Pomolita fields, preferably along very northern border of Golf Course, near south bank of Orr Creek. 3. Regain trail access to the city-owned Fish Hatchery On Gibson Creek, and the City parcel located west of San Jacinta Street. 4. Attempt to restore/expand the historical ridge top trail to link Orr Creek with Doolin Creek and/or points beyond. 5~ Preserve the integrity and health of the watersheds of all western hillside creeks. Specifically, prevent hillside erosion, contamination from septic systems and pesticides/herbicides, and creek degradation --- keeping in mind the City of Ukiah and Russian River are downstream. Encourage City to work with county and appropriate agencies to develop extensive Environmental Impact Reports. 6. Encourage careful, conservative practices in any hillside build-out. Avoid excessive build-out on Principle of preserving natural habitat and open space. 7. As necessary and advisable, amend the General Plan Land Use and Open Space elements to further best environmental and development practices. 8. Protect view sheds of hills surrounding Ukiah Valley, to preserve their beauty, in all planning issues. 9. Carefully consider the impact of increased traffic and property values on Standley Street due to potential increased hillside .deVeloPment. The relatively peaceful upper western extension of this residential street has no sidewalks, and is a traditional walking, biking, and jogging rOute. · . 10. Residential Regulations for second units-and accessory buildings in the Hillside Districts are consistent with the regulations for all residential districts within the --City. Revised 8/19/04 Attachment 14 June 04 Subject: FFOHI: Recommendations to City of Ukiah and Mendocino County Planning Departments regarding Specific Planning of the Brush Street Triangle. Paths, Open 'Space and Creeks Commission General Comments: The area known as the Brash Street Triangle is the largest tract of'undeveloped land remaining within the urbanized core of Ukiah. The .tract extends north of Orr Creek and is bounded by the rail tracks on the west, Highway 101 on the east, and Ford Road on the north. An oppommity now exists to plan an integrated communily for the Brash Street Triangle that benefits everyone -industry, business, neighborhood, city, and county alike. When developed, this area will have a huge impact, either positive or negative, on the City of Ukiah and the Ukiah Valley. Forward thinking, thoughtful planning, and responsible development of this key area is essential. Planning Issues' 1. Although the Brash Street Triangle is within the jurisdiction of the County of Mendocino, the proposed bridge across Orr Creek (on north Orchard.) is in the City of Ukiah. Development of this county land is thus dependent on access through City jurisdiction via Brush Street and Orchard Avenue, 2. Apparently this area is dependent on drinking water and waste water treatment services supplied by the City of Ukiah. Since the City facilities are already challenged in this. regard, what is the nature of the relationship between the City and County? What other city services (police, fire control, solid waste) would be used? 3. How will it address the provisions outlined m the Ukiah Valley Area Plan and the social, ~omic, and environmental needs of the greater community? How does the development of this area reflect. the open space and recreational elements of the Ukiah General Plan and the Orr Creek Bridge and Orchard Avenue ExterkSion EIR of 2002? What provisions will be made to provide transportati°n, recreation, and open space in the existing Clara/Ford Street neighborhood or in of the land developed north of Orr Creek? Attachment# ~u POSC Recommendations: 1. A Specific Plan for the entire triangle north of Orr Creek to the freeway must account for inevitable growth and development. Specific areas of interest are ~types of development,. densi~, open space, sensitive natural habitats, recreation, traffic (pedestrian, bikes, and motor vehicles), mass transit, schools, and services. 2. The proposed Orchard Street Bridge should be rerouted to theEast so it parallels the freeway and serves as a frontage road for furore development of the north triangle. This is important for several reasons: A. It minimizes fragmentation of the Orr Creek habitat, both north and south of the creek; B. It provides an-open space and recreational area for housing both no-'th and south of Orr Creek; C. It moves the potential high speed and high density vehicle traffic away from the existing neighborhood and new development north of the creek. 3. With input and assistance of California Fish and Gmme, considerations should be made to protect and improve fish and stream habitat. Prime considerations should be given to avoid fragmentation. 4. Substantial open space and recreational areas should be incorporated into all development plans. Buffer zones e,~t of the existing housings and on both sides of the Orr Creek should be provided for recreational green space. 5. The setback from Orr Creek to new structures to the North should be minimum of 100 feet from drip line of trees (Fish and Game recommends 300 feet) to mini_m_ize the impact of new construction on Orr Creek. 6. Side walks, bike lanes, and proper lighting must be provided to ensure sate and efficient transportation and recreation for these high densiW neighborhoods. (Look to Marlene Street & Walmart & Friedmans for positive and negative examPles.) 7. Provisions should be made to link and expand trails and bike paths both west and east. An opportunity exists to extend paths east under the freeway to provide (most of the year) access to the City athletic fields and east to the Russian River. 8. Insure thru the electrical w/ring and phone lines for all new construction is underground. 9. Conduct a detailed study on how the development of the Brush Street ~iangle will affect traffic in the entire area. With data in hand, plan roads that account for growth and minimize impact on the greater community.' 10. Integrate into all development plans considerations for services:.e.g~ public transit, safety, education, child care, accessible shopping/laundry, etc~' 11. Resist action on the Orchard Avenue Extension and Bridge until the City and County develops a joint Specific Plan for the Brush Street Triangle. 12. While developing an enforceable agreement, both agencies should invite and encourage public input in the planning process. Attachment ITEM NO: --~ ~- MEETING DATE: October 6, 2004 AGENDA SUMMARY REPORT SUBJECT: PRESENTATION FROM WAGNER & BONSIGNORE CONSULTING CI'VI'L ENGI'NEERS ~CONCERNI'NG RUSSI'AN RI'VER WATER HYDROLOGY The City's hydrologist specialist from the firm of Wagner & Bonsignore Consulting Civil Engineers, made a presentation to the Mendocino County Russian River Flood Control Water Conservation ]:mprovement District on September 13, 2004, regarding the general hydrology of the Russian River and the water right issues in the Ukiah Valley. Since this is such an important topic including the potential need for future studies in hydrology, this is being brought to the City Council for your information and discussion. A later agenda item will allow for further discussion of this information in regards to the contract language recently approved by the Flood District. RECOMMENDED ACTION: ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Candace Horsley, City Manager Candace Horsley, City Manager Wagner & Bonsignore Presentation Approved: Candace Horsley, Cit~M~anager 4:CAN/ASR. Russian RiverWaterHyd rology. 100604 · · · · · I I I I · ~ 0 ~ 0 0 · · · · · ~ 0 ~'~ s::: :::s o > / .< ~ o o o ~ · · · · · *ml 0 ~ 0 ~ o ITEM NO. 4a DATE: October 6, 2004 AGENDA SUMMARY REPORT SUBJECT: APPROVAL OF PORTIONS OF MINUTES FROM THE SEPTEMBER 1, 2004 CITY COUNCIL MEETING At the September 15, 2004 City Council meeting, Council approved the draft minutes of the September 1,2004 City Council meeting with the exception of corrections on page 7. Council directed that the revision on page 7 be brought back for Council approval. The revision is highlighted in Attachment #1 for Council's consideration. RECOMMENDED ACTION' By motion, approve the revised portion of the September 1,2004 City Council minutes. ALTERNATIVE COUNCIL POLICY OPTIONS: Direct staff to revise the minutes. Citizen Advised: Requested by: Prepared by: Coordinated with' Attachments: N/A Ukiah City Council Marie Ulvila, Deputy City Clerk ~ ~ Candace Horsley, City Manager 1. Draft City Council minutes of September 1,2004, page 7. Candace Horsley, City Manger ASR: City Council .Minutes-Correct ons of City design guidelines and on the issue of excusing some projects from paying their proportional share of mitigation costs. He discussed these changes in further detail and noted that, with these two changes, the subcommittee and City Staff recommend approval of the agreement. The Mendocino County Board of Supervisors is scheduled to consider a similar recommendation of the County subcommittee and staff at its next regular meeting following the City Council's meeting. Council discussed with the City Attorney and City Manager various aspects of the agreement. It was noted that Councilmember Rodin and M~ Larson attended the subcommittee meeting. Public comment opened: 8:55 p.m. Members of the audience that spoke to the issu City of Ukiah's Paths, Open Space, and Creek~ Bill R~ (member of the ')n) and J ~n. Councilmember Rodin thanked Ms. Pru~ should be a narrative document involving ti parties and for the Council to send. this docum~ Supervisors asking them to be su the docui to Co that there and othi interested Mendocino County Board of Public Comment closed: 9:04 p. Discussion followed wi1 City's Master Plan, does not s that develo County. !aster only occ~ ~til an be compatible with the Attorne; Rapport that the agreement ng to pay for mitigations. He also noted is adopted by the City and the M/S provi R( provement and Land Use Agreement and to Mendocino County. Di followed witl the obli~ of the that area, the County. power the agreement gives to a governing body, body, CEQA review, the possibility of the City annexing ia, and of the City establishing a better relationship with the Councilmember Smith called for the question to vote on the motion and to shut off discussion. Motion failed by the following roll call: AYES: Councilmember Smith and Mayor Larson. NOES: Councilmembers Rodin and Andersen, and Vice-Mayor Baldwin. ABSTAIN' None. ABSENT: None. Therefore, further discussion was allowed prior to Council voting on the motion. Discussion continued with regard to the document and future planning, traffic impacts, the feasibility of Caltrans installing hook ramps. It was noted by the City Attorney that the agreement tries to balance the City and County as separate jurisdictions. Tape 3b Regular City Council Meeting September 1, 2004 Page 7 of 11 Motion carried on the original motion Smith/Rodin by the following roll call vote: AYES: Councilmembers Rodin, Andersen, Smith, and Mayor Larson. NOES: Councilmember Baldwin. ABSTAIN: None. ABSENT: None. 10. NEW BUSINESS 10a. Adoption of Resolution Making Appointment to the Parks~ Recreation~ and Golf Commission Deputy City Clerk Ulvila advised that the City Clerk's office PrOvided a News Release extending the deadline for applications for one vacancy on Recreation, and Golf Commission, and the only application received by Mr. Jonah Freedman. M/S Rodin/Baldwin nominating Johan Freedman Commission; carried by the following roll call Andersen, Smith, Baldwin, and Mayor Larsc ABSENT: None. C( None. ecreation, and Golf members Rodin, ;TAIN: None. M/S Baldwin/Smith adopting Resolution Freedman) to the Parks, Recreation and Golf call vote: AYES: Council m~ ,din, And Larson. NOES: None. ABSTAIN: ENT: appointment (Johan ; carried by the following roll Smith, Baldwin, and Mayor 9:30 p.m.: Mayor Larson excused h 9:30 p.m.: Vice Mayo~ assum 10. NEW BUSl 10b. Intr~ Ordina Entitled Public explain to m perm,' sig Dis~ Ut of monitoring antities. Ar1 nation S' Article 17 to the Ukiah City Code~ ,n and Dis of Waste his Staff Report to Council and ce pro the discharge of fats, oils and grease treatment plant. It requires the installation and interceptors and/or traps, and allows for the of facilities using fats, oils, and grease in 17 fulfills requirements anticipated in the National Pollutant permit. It was noted b~ that a survey was sent to all businesses in the City and staff has bee with many of the establishments on this matter. Staff will notify the businesse~ work with them to enact a grease interceptor over a period of time. The goal is to have all of the businesses comply with the new ordinance within 36 months. Jerry Gall, Wastewater Treatment Plant Supervisor, explained that in order to ensure the interceptors are property maintained on a regular basis, staff will guide the business and address issues of the establishments as they arise. Regular City Council Meeting September 1,2004 Page 8 of 11 MINUTES OF THE UKIAH CITY COUNCIL REGULAR MEETING WEDNESDAY, SEPTEMBER 15, 2004 The Ukiah City Council met at a Regular Meeting on September 15, 2004, the notice for which had been legally noticed and posted, at 6:30 p.m. Roll was taken and the following Councilmembers were present: Rodin, Andersen, Smith, Baldwin, and Mayor Larson. Staff present: Wastewater Treatment Plant Supervisor Gall, .City Manager Horsley, Wastewater Treatment Plant Operator Jamison, City Attorney Community Services Supervisor Sangiacomo, Planning Director Stump, Public Util rector Ziemianek, and Deputy City Clerk Ulvila. 2. PLEDGE OF ALLEGIANCE Wastewater Treatment Plant Supervisor Gall led ge of Al ce. Mayor Larson announced that there is a ne( action came to the attention of the City Urgency Item concerns: Approval for Rea Units (ESSUs). immediate ~ent to th~ agenda uivalent the need for The System M/RC Smith/Baldwin to add the Unfinished Business, item 7e, and unanim( ,ncy Item to the Agenda under vote of the Council. 3. APPROVAL OF MINUTES 3a. Reqular Deputy City Clerk U Proclamation: Satu~ name should be s 1 spellir lub Ce~ on page second paragraph under 3a. for "Katerzyna Rolzinski's" name. Her Councilmember Smi clarificati( Septef the vote. to the last paragraph, and requested followed regarding the motion in the Smitl were of the opinion that they voted "no" on the m~ Mayor Lar: who noted th~ sentence should first sentence shoi Ordinance and to le 1, second to the last paragraph, and clarified that it was he the word "infraction", not Councilmember Rodin. The Larson noted a correction to page 7, third paragraph; that the "City Attorney Rapport discussed enforcement of the Noise changes to violations so they could be considered an infraction." He explained that Councilmember Rodin should be credited with making the correction to the paragraph in which she stated, "It was her opinion that the District Attorney dropped the ball in this situation, not the Police Department." M/S Andersen/Rodin to approve the minutes of September 1, 2004 as amended, and carried by a unanimous voice vote of the Council. Regular City Council Meeting September 15, 2004 Page 1 of 6 M/S Rodin/Andersen to reconsider approval of the September 1, 2004 minutes, and carried by a unanimous voice vote of the Council. M/S Andersen/Baldwin to approve minutes of September 1, 2004, as amended on page 1 and that the revision on page 7 to be brought back for Council approval at the next meeting; carried by unanimous consent of the Council. 4. RIGHT TO APPEAL DECISION ~,:=~iiii~i!iii!~i~i~:~ ..... Mayor Larson read the appeal process. 5. CONSENT CALENDAR ~i~i~i!~===:,~=~ '-~i~. M/S Andersen/Smith approving item "a" through "k" of t~Snse~lendar as follows: a. Approved Disbursements for Month of August b. Awarded Bid to Hoblit-Haynes in the Amount c. Authorized Expenditure of $23,638 for Envi Solid Waste Disposal Site; d. Authorized Execution of Amendment No. Amount not to Exceed $53,868 for Envir~ e. Adopted Ordinance No. 1057 Ad~ Entitled Sewer Lateral Testing; f. Adopted Ordinance No. 1058 (Woodbury Main Street Garden A 2/P-D (Medium Density g. Received Notificatior Aluminum, 15 KV. to Champion Wi h. Received Re for the Ukiah M $7,500; i. Recei Fe~ k. A Reimbu Cable ii Council R ~t of $5,705 Ordinanc~ Low and ~t to New Artk Compliance S~~S at the Ukiah with EBA Er~"~i~ering in an the Corporation Yard; City of Ukiah Municipal Code .2 arcel Number 003-2-302-55 Density Residential) to R- ncil of 2,884 ft. of 4/0 AWG !, :oncentric Single Conductor Cable ~e Amot $9,897.89; the of a Triplex 16 HP Vanguard Mower kiah Men's Golf Club in the Amount of Purchase of Anderson's 19-3-19 Green :lty Products for the Ukiah Municipal Golf Course in the New Article 17 of the Ukiah City Code, Entitled :1 Disposal of Waste Income Down Payment Assistance Loan and Development Commission of Mendocino County. Motion carried Smith, Baldwin, owing roll call vote: AYES: Councilmembers Rodin, Andersen, ~r Larson. NOES: None. ABSTAIN: None. ABSENT: None. 6. AUDIENCE COMMENTS ON NON-AGENDA ITEMS Mike Deckard, Ukiah, discussed his electric bill, billing for 30-gallon garbage cans, and problems he has on his property. Ana Araiza, Ukiah, advised that October is "Domestic Violence Month" and invited Council to attend Project Sanctuary's "The Clothesline Project" opening ceremony on October 1, 2004. She also noted that tomorrow, September 16th, is Mexican Independence Day. The Alliance Regular City Council Meeting September 15, 2004 Page 2 of 6 for Human Rights is putting on a silent peaceful march from Alex Thomas Plaza to the Courthouse from 1:00-6:00 p.m. John McCowen requested Council reconsider its action regarding the garbage rates that were approved by Council at its last meeting. 7. UNFINISHED BUSINESS 7a. Update Re~arding the Value Engineering Review of Plant Design Director of Public Utilities Ziemianek discussed his Staff the commencement of the Value Engineering (VE) design of the proposed Wastewater Treatment Plant. He reported that staff will review the results and consult with Brown and Caldwell to discuss o Treatment of to Council with regard to engineering details and to Council. He rE Review, and will City Manager Horsley noted that one ma and Caldwell's proposal and the reasoning was the h of Brown plants poor ~n. Director Ziemianek explained that fundamental treatment facility with Review is placed on the Ukiah Val meeting next week. He will report back'~ Brown ity the Ci n Distr :hat ill proposal will provide a good ,oking for. He noted that the VE enda for discussion at their !g. City Manager Horsley meetings of the discuss various There she and Ziemianek about holding joint times during the year to reement by Council. 7 UNFINI~ 7b. U PI~ Dir~ inte potential of in coo~ presented ~r of Lake Mendocino Hydro a er O al Components discussed his Staff Report to Council concerning an ~t plenum, Tainter Valve, and various control valves that Ihe Army Corps of Engineer's annual dam inspection s hydro plant operational components relating to a He advised th; met with him yesterday and they discussed the plant and alternatives for ~lant back into operation. After their inspection of the plant, they reported it in "exce ;ondition. There are some minor things to do if we start using the plant, but overall, the ~nspection went very well. He reported that the City will be going out for a Request for Proposal (RFP) for preliminary engineering for the structural design for the Tainter valves/gates. He and the NCPA hydro engineering staff will begin consulting with Noah Fisheries. Staff is working well with Army Corps of Engineers and they are supportive of the City's endeavor. The dam and hydro inspector from FERC visited the site today and staff thinks the City is on firm footing with FERC. Regular City Council Meeting September 15, 2004 Page 3 of 6 7. UNFINISHED BUSINESS 7c. Approval of Agreement Extension with Jarvis and Fay in the Amount of $307000 for Legal Fees Related to Litigation by River Watch Director of Public Utilities Ziemianek discussed his Staff Report to Council concerning Staff's request for approval of budgeted operational expenses of $30,000 within the Sewer and Wastewater Treatment Utility Administration and General Budget Fund. Authorization is required to pay for legal fees which are being incurred as a result of continuing litigation by River Watch. Tape I b City Attorney Rapport explained that the matter will be Council's next meeting and staff will provide Council with for Closed Session at )n. It was the consensus of Council for Staff to prei for Council's next meeting. Ses~ on this matter M/S Baldwin/Andersen approving agreement $30,000 for legal fees related to litigation by vote: AYES: Councilmembers Rodin. ,ndersen, None. ABSTAIN: None. ABSENT: and Fay amount of by the follOwing roll call Iwin, and Mayor Larson. NOES: m 7d. Earthwork Rel~ Site Director of Public additional water to be sited on the discussed the constru, sites. spoils. and anal, UNFINISHED BUSINESS Al~[~roval of Budget Amendmt the City 'oresee to Provide for Extra the Reservoir Construction ek ,roved pi exi signific that in order to meet State requirements for the construction of water reservoir tanks reservoirs above the Golf Course. He ~graphy and geology in developing these ges necessary to accommodate the excess Contractor prepared a number of options, related costs the extra work entails. M/S Bi n/Rodin a additi~ on AYES: ABSTAIN: Non( ~nt to the 2004/05 budget authorizing $236,756 of ~nse to account 840.3850.250.000 to pay for earthwork ~tion site, and carried by the following roll call vote: Andersen, Smith, Baldwin, and Mayor Larson. NOES: None. None. 7e. URGENCY : Approval for Reapportionment of Equivalent Sewer System Units (ESSUs) Director of Public Utilities Ziemianek discussed the rationale for recommending that the existing 77%/23% proportion be changed to 60%/40%. He reported that both he and Planning Director Stump reviewed a new report on the number of undeveloped properties in the City limits and now have a better rationale for their recommendations. He discussed proportion ESSUs, the proposed ESSU proportionment with regard to existing conditions and projected conditions, projected Wastewater Treatment Plant costs for the capacity project and the upgrade/rehabilitation project, and projected project costs. The Ukiah Valley Regular City Council Meeting September 15, 2004 Page 4 of 6 Sanitation District will be meeting next week and will consider an agreement with this revised proportionment. Staff wanted Council to consider the matter before it goes to the Sanitation District. Tape 2a Considerable discussion ensued with regard to Staff's proposal and the number of units that would be apportioned to the City and to the Sanitation District. Mark Ashiku, Ukiah, explained that Council should consider U.S. and that the City and County will feel these pressures connections, the City is restricting housing, and when housing increases. Councilmember Smith noted that, based on c~ a lot of interest right now within the City limits with local growth in the By restricting sewer restricted, the cost of there may be M/S Smith/Rodin to approved Staff's recomm~ the split of 60/40%. ion to the reap'i for Discussion continued with regard to the County may experience from dc Wastewater Treatment Plant were als development within the City limits. e City',, reg pressure that both the City and r supply and expansion of the being able to supply future Motion carried by Smith, Baldwin, r Larso call ~cilmembers Rodin, Andersen, ABSTAIN: None. ABSENT: None. 8. COUNCIL RE Councilmember And; and will Counci in N~ wife have decided to move out of Ukiah this year. His official last day on the City will be attending a NCPA meeting next week. Coun~ ~er Baldwin Councilm~ ~n League of Cai regard to airport ,uired if Council will receive a report on options for filling ¢. He advised that he will be attending a meeting of the He hopes to speak with the City of Santa Monica with courteous flying. Mayor Larson reporti that he participated in the unveiling of a beautiful mural by students in the AODP program at the Alex Thomas Plaza. Last night he attended a meeting at the skating arena for the Neighborhood Watch program, which consisted mainly of citizens outside of the City limits. They are determined to not have a minority of residents in their area dictate their lifestyles. He discussed residential vacancy rates in areas where there is no Neighborhood Watch and strongly recommended other members of the Council attend these meetings. . CITY MANGER/CITY CLERK REPORTS Regular City Council Meeting September 15, 2004 Page 5 of 6 City Manager Horsley reported that the Police Department had their first workshop on "How to Become an Officer" and 25 people attended their workshop. Ten of the attendees were bilingual. She advised that a retirement party is planned for Budget Officer/Risk Manager Mike Harris, who has been working for the City for 28 years, and for Finance Director/City Clerk Gordon Elton, on October 1st at the Sun House. She distributed a bulletin that will be included in the utility bill utility rates and garbage containers. She reported that she a total audit of the City's system and they have ordered large demand, they will have them in stock. to save money with ~olid Waste Systems to do lion inserts. If there is a Deputy City Clerk reminded Council of the joint Council on September 29th at the Conference Adjourned to sit as the Ukiah Redevelo Reconvened' 8:50 p.m. Adjourned to Closed Session at: 8: ,.m. with the PI, Commission and 10. CLOSED SESSION a. Government Code Employee Negotiations: Electr Negotiator: C~ Reconvened at: 9: otiator 11. AD, There being further was adjourned at 9:20 p.m. M la, Deputy Regular City Council Meeting September 15, 2004 Page 6 of 6 MINUTES OF THE UKIAH CITY COUNCIL Special Joint Meeting of the Ukiah City Council And Ukiah Planning Commission General Plan Implementation Strategies Local and Regional Planning Issues Wednesday, September 29, 2004 :~ .... The Ukiah City Council met at a Special Joint Meeting with the September 29, 2004, the notice for which had been legally the Ukiah Valley Conference Center, 200 South School and the following Councilmembers were present: Ro( Councilmember absent: Andersen. Staff present: Lohse, Planning Director Stump, and Deputy City Ivila. lb. Planninq Commission - Roll Call Ukiah Planning Commission Members Mulheren. Commissioner absent: Puser. er H~ ~'Planning Commission on ~nd posted, at 5:00 p.m. in alifornia. Roll was taken and Mayor Larson. Associate Planner s, Wallen, ~fi'd Chairman 2. AUDIENCE COMMENTS ON No one came forward to address the C ITEMS' the Pla )n. 3. NEW BUSINES a. Consideration of Priority List Planning Director annual joint planning issues in t implementing the Gen discuss explain discuss G, Hills regul A~ 'lan. Staff wo~ Sign ~nce is a prior matter si going to has been on the Element in th~ lan and Approval of 2004-05 the ~Council and Planning Commission conduct an ral Plan and land use and environmental of the meetings is to review progress in projects for the coming year, and local an~ planning issues. Specific Implementation the past year include the Sign regulation revisions, the and the Doolin Creek Habitat Enhancement and Public working on these three projects. He noted that the been working with an ad hoc committee, and the g Commission for review soon. Associate Planner Lohse in Creek Plan. Staff recommended implementing the Housing b. Discussion and Regional Land Use and Environmental Planning Issues Discussion followed ng the City Council, Planning Commission, City Staff, and the audience with regard to the following matters: The City hired an annexation consultant and it was noted that Staff met with the Mendocino County CAO and the matter is on hold until after the November election. Allowing accessory dwelling units with a Use Permit and state legislative regulations that intrude on local authorities, enforcement of the law, and increasing affordable housing in the community. Special Joint Meeting of Ukiah City Council and Ukiah Planning Commission September 29, 2004 Page 1 of 4 "Smart growth" and it was noted by Staff that they would like to begin working on the Zoning Ordinance as an Implementation project in order to facilitate Mixed Use developments and items concerning density bonus. It was noted that "smart growth" is a way for cities to use resources wisely and have pedestrian oriented development. It also means that were people shop is within walking distance of their residence. The need for more housing in the community was also addressed. - Water and sewer hookups. This topic was expanded with Ukiah Valley Sanitation District and the City's ability to meet discussion with regard to affects of growth in the City o traffic, water usage, the wastewater treatment plant, an~ - There was discussion concerning smart planning fo~ concerning areas of future development, such plant. - Even though membership on the City Staff will continue to run the day to day and input is invaluable to them. - Providing landscaping and greenery to projects - Investigating the possibility of ann and limits. - Judy Pruden requested looking working with the County to develop into the City's GIS system. She Staff noted that the was suggested by regard, with s surround the viewed - There was discu~ role in annexation be a districl .n - of th6 nsultants are It was noted Plato north-so continue - The possibilii reconsidering h - Commissioner in of hookups within the and demand. There was rastructure and impacts to '. was also discussion property a nt to the Masonite ing Commissioi research. change, City community ing structures. ~trol development outside the City an~ capac the Ukiah Valley and the City program that is tied ity money for this project. to get the job done. It dy condu~ d by the City and County in this ~d the Ukiah Valley Sanitation District, which )r, Formation Commission (LAFCO) and its that LAFCO is currently working on the service capabilities and objectives for lation Study is nearly complete. It was noted by Staff that the Ukiah Valley Area Plan (UVAP) to obtain a broader ning Commission were provided a copy of the Study, 'rman Mulheren stated that it would be prudent to open more to take pressure off of Orchard Avenue so that traffic does not areas. oper constructing apartments above parking lots and the City ts to provide for more growth. voiced his opposition to raising the dam and felt there are ways to conserve water through education and good planning. He discussed having a settling basin underground in which water could be stored. City Manager Horsley explained that the City has looked at underground water retention at the Civic Center lawn area and using it for drainage control. Mayor Larson discussed the use of permeable concrete that would allow water to filter through and recharge the groundwater system. Special Joint Meeting of Ukiah City Council and Ukiah Planning Commission September 29, 2004 Page 2 of 4 - The importance of obtaining public input on community matters was noted. It was hoped that Omni Means would conduct another workshop in Ukiah that would include all levels of government as well as the County. - Mayor L. arson discussed his alternative proposal of eliminating parking along State Street and reducing the number of lanes to three, providing a bike lane, and that the middle lane used for a left turn lane. This proposal would provide more for landscaping and pedestrians. - There was discussion concerning the City and County vision and how it could be implemented for the Ukiah valle' - There was discussion concerning the County adoptin areas that may impact the City. ... - The topic of establishing a Historical Preset Councilmember Rodin. Planning Director Stu City to pursue it and it is somewhat of a high the next step is to begin working on a the City Council. - City Manager Horsely advised that some Supervisors meeting and members of the Board liked the owners and the community that ne. an important part of that project. that the City draft a letter for the with the County ion Considerable di~ betterment of th( creative and other special disti Pr, g on noted if it staff, not Pla Commissio~ will areas County'~ to attend the gether to adopt a shared for development is brought up by that the G Plan directs the i. The inventory was ~d in 1996 and ,~e, up~ 'ection from W Mayor attended a Board of along the City limits, and some ot just the agencies, but the land ese things mean. Education is Andersen had suggested :ii( the City would like to work and working collectively for the :o issues. There is also a need to look at to ;ment some of these projects. The need for islons was noted. follow and to provide some sense of for proje, that the City Council increase the Planning Department's definitive standards. She felt there is a need for more iS. was of the opinion that the biggest impact to the City ~e City and in the County's jurisdiction. The City should invite the types of meetings. Discussion followed on how to structure meetings with various County agencies. ~inion that it is very important that the City and County have a non- behave professionally so as not to intimidate others. - Mark Ashiku adversarial relat - Councilmember dwin noted that the size of the wastewater treatment plant was based on a historical study of growth in the valley for the next 10 to 20 years and also on growth based on past projections. The vote by the City Council was unanimous to recommend a change in percentages to the Ukiah Valley Sanitation District. - Planning Commissioner Chairman Mulheren was of the opinion that the City should maintain control rather than giving it to the County. - There was discussion with regard to soliciting more public input on community planning matters. Special Joint Meeting of Ukiah City Council and Ukiah Planning Commission September 29, 2004 Page 3 of 4 Members of the audience that addressed the Council and Commission were: Don Larson, Judy Pruden, Toni Ashford, Mark Ashiku, Dwayne Hill (RCHDC), John McCowen, and Jacqueline Lamar. The City Council and the Planning Commission commended Associate Planner Lohse for the excellent work. Staff was dire~ Plan as recommended in the Staff Report. ing Director Stump and implement the General It was noted by City Manager Horsley that the Council Council and the Ukiah Valley Sanitation District. oint meetings of the City 4. ADJOURNMENT Mayor Larson adjourned the meeting at 6:35 p. Marie Ulvila, Deputy City Clerk Special Joint Meeting of Ukiah City Council and Ukiah Planning Commission September 29, 2004 Page 4 of 4 ITEM NO. 6a DATE: OCTOBER 6, 2004 AGENDA SUMMARY REPORT SUBJECT: NOTIFICATION OF PURCHASE OF ONE WATSON MARLOW CHEMICAL FEED PUMP FROM JBI WATER & WASTEWATER EQUIP. IN THE AMOUNT OF $5,829.04 Pursuant to Section 1522 of the Ukiah City Code, this report is submitted to notify the City Council of the acquisition of equipment costing between $5,000 and $10,000. Due to various problems encountered over the last three months it became apparent that the current system for reliably feeding Ferric Chloride to the primary clarifiers as part of the CEPT program at the wastewater treatment plant was inadequate. To provide the necessary reliability and redundancy, an additional chemical feed pump was required. The Watson Marlow pump was selected in order to maintain continuity with chemical applications and chemical pump specifications by Brown and Caldwell in the Wasterwater Treatment Plant (WWTP) upgrade. This pump will be relocated and used in the plant upgrade at the appropriate time. JBI Water & Wastewater Equipment is the sole source vendor and the cost of the equipment is $5,829.04. Funds for this equipment are available in maintenance account 612.3580.302.000. RECOMMENDED ACTION: Receive And File Notification Of Purchase Of One Watson Marlow Chemical Feed Pump From JBI Water & Wastewater Equip. In The Amount Of $5,829.04. ~. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Bernie Ziemienek, Director of Public Utilities Jerry Gall, Wastewater Treatment Supervisor Candace Horsley, City Manager None Candace H(~sley~ City'~anager ITEM NO. 61~ DATE: October 6, 2004 AGENDA SUMMARY REPORT SUBJECT: NOTIFICATION TO COUNCIL REGARDING PURCHASE OF 4,500 FT. OF #2 AWG ALUMINUM, 15KV, EPR INSULATED SINGLE CONDUCTOR, JACKETED CONCENTRIC NEUTRAL, UNDERGROUND CABLE TO AMERICAN WIRE GROUP IN THE AMOUNT Of $8,735.51. In compliance with Section 1522 of the City of Ukiah Municipal Code, this report is being submitted to the City Council for the purpose of reporting the acquisition of material costing more than $5,000 but less than $10,000. A Request for Quotation (R.F.Q.) through the informal bid process was sent to eight suppliers. Four bids were received by the Electric Department on September 23, 2004, at 1:00 p.m. Staff evaluated the bids; American Wire Group was the lowest bidder. A purchase order was issued in the amount of $8,735.51 including tax and freight. This cable will be placed in warehouse stock for planned future projects and has been budgeted in the 2004/2005 Fiscal Year in Account Number 800.3646.690.000. Sufficient funds are available for this purchase. RECOMMENDED ACTION: Receive and file report regarding the award of bid to American Wire Group in the amount of $8,735.51. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachment: N/A Stan Bartolomei, Electrical Supervisor Judy Jenney, Purchasing & Warehouse Assistant Candace Horsley, City Manager Bid results APPROVED: Candace Horsley, City IV~ager ATTACHMENT NO. 1 BID RESULTS #2 AWG ALUMINI3M, 15 KY, EPR INSULATED SINGLE CONDUCTOR, JACKETTED CONCENTRIC NEUTRAL UNDERGROUND CABLE American Wire Group Lake County Electric Champion Wire & Cable Western States Electric (7,500' not stranded) $8,735.51 $8,745.17 $9,425.67 $9,700.76 AGENDA SUMMARY ITEM NO. 6c DATE: October 6, 2004 REPORT SUBJECT: AWARD OF BID FOR HIGH VOLTAGE LINE CLEARING AND TREE TRIMMING AT VARIOUS LOCATIONS WITHIN THE CITY OF UKIAH TO WESTCOAST ARBORISTS, INC. IN AN AMOUNT NOT TO EXCEED $40,000 Included in the 2004/05 Budget, Account No. 800.3728.250.000 is $40,000 for tree trimming. Bid packages were sent to seven tree trimming contractors. Two bids were received and opened by the City Clerk on September 2, 2004 at 2:00 p.m. Westcoast Arborists, Inc. submitted a bid based on an hourly rate of $177.00 with terms of 2% net 10 (2% savings if payment is within 10 days) for a three person crew. Davey Tree Surgery Company submitted a bid based on an hourly rate of $174.00 for a three person crew The terms quoted by Westcoast Arborists, Inc. results in an actual hourly rate of $173.46. Westcoast has provided all required documentation to verify high voltage line clearing experience as required in the bid package. Therefore, staff recommends that the bid be awarded to Westcoast Arborists, Inc., the Iow bidder, in an amount not to exceed $40,000. RECOMMENDED ACTION: Award Bid For High Voltage Line Clearing And Tree Trimming At Various Locations Within The City Of Ukiah To Westcoast Arborists, Inc. In An Amount Not To Exceed $40,000. ALTERNATIVE COUNCIL POLICY OPTIONS: Reject all bids and provide direction to staff. Citizen Advised: N/A Requested by: Stan Bartolomei, Electrical Supervisor Prepared by: Judy Jenney, Purchasing & Warehouse Assistant Coordinated with: Candace Horsley, City Manager Attachment: None Candace Hor~ley, City M~ger AGENDA SUMMARY REPORT ITEM NO. (id DATE: October 6, 2004 SUBJECT: ALLOWANCE FOR STAFF TO FILE NECESSARY APPLICATIONS TO BECOME A MEMBER OF WATER/WASTEWATER AGENCY RESOURCE NETWORK (WARN) AND DIRECT CITY MANAGER TO ENTER INTO AGREEMENT Submitted for the City Council's consideration and action is staff's request for the City of Ukiah to become a member of the Water/Wastewater Agency Resource Network (WARN). It is the City's responsibility to supply a safe, adequate, and reliable water to its customers. WARN is an effort through the California Emergency Services Act to provide mutual assistance in times of emergencies, similar to the City's Fire Department mutual aid agreements for fire disaster response. By becoming a member of the Water/Wastewater Agency Resource Network (WARN), the City would, in the event of a natural or man-made catastrophe, dramatically minimize the effect and duration of such a catastrophic event as WARN members share staff, materials, and equipment during these times. If through WARN, the City were to be the recipient of applicable services, the City, under SEMS/ICS, would be reimbursed for all costs through the Federal Emergency Management Agency (FEMA). If, through WARN, the City were to provide support, the City would then be allowed to bill the receiving agency for all costs incurred by the City. This support system is designed to be a benefit for all members. It is an opportunity to be prepared for emergencies and able to manage the crisis, rather than just react. Staff believes this is a valuable program and recommends authorization to participate. RECOMMENDED ACTION: Allow Staff To File The Necessary Application Forms With WARN And Direct City Manager To Enter Into The Agreement With the Water/Wastewater Agency Resource Network (WARN), ALTERNATIVE COUNCIL POLICY OPTION: Reject proposal and provide direction to staff. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Bernie Ziemianek, Director of Public Utilities Alan Jamison, Water Treatment Plant Supervisor Candace Horsley, City Manager 1. Coastal Region WARN contacts and Brief description of the WARN program; 2. WARN Articles of Agreement 3. WARN Agreement 4. WARN Emergency Contact List 5. Coastal Region WARN member list Candace Horsley, City Ma~0~,ager Coastal Region II Page 1 of 1 Martin Falarski Coastal Region WARN Chair c/o East Bay Municipal Utilities District 375 Eleventh Street Oakland, California 94607-4240 Telephone No. (510) 287-1233 FAX No. (510) 287-1211 Email - Supporting Associations AWWA, Emergency Planning and Security Committee Ray Riordan (925) 830-9180 ~ayr!or~.~.n@~m_c~t.~_.e~ California Utilities Emergency Association Barbara McPhail (916) 845-8517 Department of Water Resources Sonny Fong (916) 574-2611 Department of Health Services Drinking Water Program Gary Hoffmann (916) 322-6264 California Rural Water Association (CRWA) Catherine Smith (800) 833-0322 California Sanitation Risk Management Authority Mike Cameron (510) 276-4700 No~e Humbotl Mee~c,,,cmo Lake Sonoma Napa :$olano Marm San Francisco San Mateo Santa Cruz Coastal Region (OES Region II} Mo~'~erey Attachment # I ,, Cos.',a Alameda Same Clara San Bem,,o This WARN program provides its member utilities with: A standard omnibus mutual assistance agreement and process for sharing emergency resources among members statewide. The resources to respond and recover more quickly from a disaster. A mutual assistance program consistent with other statewide mutual aid programs and the Standardized Emergency Management System (SEMS). A forum for developing and maintaining emergency contacts and relationships. New ideas from lessons learned in disasters. http://www.calwam.org/wam/region_2.htm 9/2/2004 Articles of Agreement Page 1 of 5 Articles of Agreement Water/Wastewater Agency Response Network WARN 2001 Omnibus Mutual Assistance Agreement THIS AGREEMENT is made and entered into by those water and wastewater agencies who have adopted and signed this agreement to provide mutual assistance in times of emergency in accordance with the California Emergency Services Act and the California Disaster and Civil Defense Master Mutual Aid Agreement; and to provide reimbursement for equipment, supplies and personnel made available on an emergency basis. All of said water and wastewater agencies being herein referred to collectively as "the parties." In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree to provide mutual assistance to one another in times of emergency as follows: Article I - APPLICABILITY. This agreement is available to all water and wastewater agencies, public and private, in the State of California. Article II -ADMtNtSTRATION. The administration of the WaterNVastewater Agency Response Network (WARN) will be through WARN Regional Steering Committees (RSC) and the WARN State Steering Committee (SSC). The WARN RSCs will be established by representatives from the signatory agencies in that region. A chair and co-chair will be elected and act as administrators for that region. The chair will represent the region on the WARN SSC. Each WARN RSC will sponsor an annual meeting for signatory agencies, maintain a data base of all water and wastewater agencies who have signed this agreement, and meet as a committee to address concerns and procedures for requesting mutual assistance in that region. The regions will be comprised of one or more of the six OES mutual aid regions. The WARN SSC will include the chairs of the regional steering committees, and a representative from the Department of Health Services (DHS), California Utilities Emergency Association (CUEA), Department of Water Resources (DWR), the American Water Works Association (AWWA) Emergency Planning Committee, California Rural Water Association (CRWA) and California Sanitation Risk Management Authority (CSRMA). At a minimum, the WARN SSC will meet annually and issue a list of participating agencies. The Emergency Equipment Data Base will be maintained on the WARN website, managed by a volunteer agency, as appointed by the SSC. Attachment http://www.calwarn.org/warn/articlesofagreement.htm 9/2/2004 · Articles of Agreement Page 2 of 5 Article III - DEFINITION OF EMERGENCY. "Emergency" means a condition of disaster or calamity arising within the area of operation of the parties, caused by fire, flood, storm, earthquake, civil disturbance, or other condition which is or is likely to be beyond the control of the services, personnel, equipment, and facilities of a party hereto and requires mutual assistance. Article IV - REQUESTS FOR ASSISTANCE. Requests for emergency assistance under this Agreement shall be directed to the appropriate designated official(s) from the list of participating water and wastewater agencies. VVhen more than one County is impacted by a disaster, requests for mutual assistance under this Agreement may be channeled through the CUEA Utility Operation Center to ensure maximum effectiveness in allocating resources to the highest priority needs. The party rendering assistance under this Agreement is referred to as LENDER; the party receiving assistance is referred to as BORROWER. Article V - GENERAL NATURE OF ASSISTANCE. Assistance will generally be in the form of resources, such as equipment, supplies, and personnel. Assistance shall be given only when LENDER determines that its own needs can be met while rendering assistance. The execution of this Agreement shall not create any duty to respond on the part of any party hereto. A potential LENDER shall not be held liable for failing to provide assistance. A potential LENDER has the absolute discretion to decline to provide any requested assistance. Resources are to be made available on a loan basis with reimbursement terms varying with the type of resource. Article VI - LOANS OF EQUIPMENT. Use of equipment, such as construction equipment, vehicles, tools, pumps and generators, shall be at LENDER'S current equipment rate and subject to the following conditions: (a) At the option of LENDER, loaned equipment may be loaned with an operator. (b) Loaned equipment shall be returned to LENDER within 24 hours after receipt of an oral or written request. (C) BORROWER shall, at its own expense, supply all fuel, lubrication and maintenance for loaned equipment. (d) LENDER'S cost related to the transportation, handling and loading/unloading of equipment shall be chargeable to BORROVVER. (e) In the event loaned equipment is damaged while being dispatched to BORROWER, or while in the custody and use http ://www. cai warn. org/wam/arti cl esofagreem em. htm 9/2/2004 Articles of Agreement Page 3 of 5 of BORROWER, BORROWER shall reimburse LENDER for the reasonable cost of repairing said damaged equipment. If the equipment cannot be repaired, then BORROWER shall reimburse LENDER for the cost of replacing such equipment with equipment that is of at least equal capability. If LENDER must lease a piece of equipment while LENDER'S equipment is being repaired or replaced, BORROWER shall reimburse LENDER for such lease costs. Article VII - EXCHANGE OF SUPPLIES. BORROWER shall reimburse LENDER in kind or at actual replacement cost, plus handling charges, for use of expendable or non-returnable supplies. Other supplies and reusable items that are returned to LENDER in a clean, damage-free condition shall not be charged to the BORROWER and no rental fee will be charged; otherwise, they shall be treated as expendable supplies. Article VIII - PERSONNEL. LENDER will make such employees as are willing to participate available to BORROWER at BORROWER'S expense equal to LENDER'S full cost, i.e., equal to the employee's applicable salary or hourly wage plus fringe benefits and overhead, and consistent with LENDER'S personnel union contracts or other conditions of employment. Employees so loaned will be under the supervision and control of the BORROWER. BORROWER shall be responsible for all direct and indirect costs associated with workers compensation claims. Costs to feed and house loaned personnel, if necessary, shall be chargeable to and paid by BORROWER. LENDER will not be responsible for cessation or slowdown of work if LENDER'S employees decline or are reluctant to perform any assigned tasks. Article IX - REIMBURSEMENT. The BORROWER agrees to reimburse the LENDER within 60 days from receipt of an invoice for assistance provided under this Agreement. Article X - L/ABILITY AND HOLD HARMLESS. Pursuant to Government Code Section 895.4, and subject to the conditions set forth in Article XI, BORROWER shall assume the defense of, fully indemnify and hold harmless LENDER, its Directors, Council Members or Supervisors, its officers and employees, from all claims, loss, damage, injury and liability of every kind, nature and description, directly or indirectly arising from the BORROWER'S work hereunder, including, but not limited to, negligent or wrongful use of equipment, supplies or personnel on loan to BORROWER, or faulty workmanship or other negligent acts, errors or omissions by BORROWER or by personnel on loan to BORROWER from the time assistance is requested and rendered until the assistance is returned to LENDER'S control, portal to portal. Each party hereto shall give to the others prompt and timely http://www.calwarn.org/wam/articlesofagreement.htm 9/2/2004 Articles of Agreement Page 4 of 5 written notice of any claim made or any suit instituted coming to its knowledge, which in any way, directly or indirectly, contingently or otherwise, affects or might affect them, and each shall have the right to participate in the defense of the same to the extent of its own interest. Article Xl - S/GNATORY INDEMNIFICATION. In the event of a liability, claim, demand, action or proceeding, or whatever kind or nature arising out of the rendering of assistance through this agreement, the parties involved in rendering or receiving assistance agree to indemnify and hold harmless each signatory to this mutual assistance agreement, whose only involvement is the execution and approval of this Agreement, in the transaction or occurrence which is the subject of such claim, action, demand or other proceeding. Such indemnification shall include indemnity for all claims, demands, liability, damages and costs, including reasonable attorneys' fees and other costs of defense, for injury, property damage and workers compensation. Article Xll - WORKER'S COMPENSATION AND EMPLOYEE CLAIMS. LENDER'S employees, officers or agents, made available to BORROWER shall, except as otherwise provided under Labor Code sections 3600.2 through 3600.6 be the special employees of BORROWER and the general employees of LENDER (as defined in Insurance Code 11663) while engaged in carrying out duties, functions, or activities pursuant to this Agreement. BORROWER will reimburse LENDER for all costs, benefits, and expenses associated with workers compensation and other claims. LENDER is responsible for providing workers compensation benefits and administering workers compensation claims subject to the reimbursement terms of this agreement. BORROWER will reimburse LENDER for workers compensation costs, benefits and expenses on a quarterly basis or on other terms mutually agreed upon by LENDER and BORROWER. Article XlII - MODIFICATIONS. No provision of this Agreement may be modified, altered or rescinded by individual parties to the Agreement. Modifications to this Agreement require a simple majority vote of signatory agencies to the Agreement within each region and unanimous agreement between the regions. The State Steering Committee will notify all parties of modifications to this Agreement in writing and those modifications shall be effective upon 60 days written notice to the parties. Article XIV - TERMINATION. This Agreement is not transferable or assignable, in whole or in part, and any party may terminate their participation in this Agreement at any time upon 60 days' written notice delivered or mailed to the appropriate WARN regional chair or to WARN SSC Chair. http://www, calwam, org/warn/arti cl e sofagreement, htm 9/2/2004 Articles of Agreement Page 5 of 5 Article XV - EFFECT. Agreement shall take effect for a new party immediately upon its execution by said party. Article XVI - PRIOR AGREEMENTS. To the extent that prior agreements between signatories to this Agreement are inconsistent with this Agreement, all prior agreements for mutual assistance between the parties hereto are hereby superseded. This Agreement supersedes the 1996 Omnibus Mutual Aid Agreement and the WARN 1997 Omnibus Mutual Aid Agreement. Article XVll - ARBITRATION. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Article XVIII - TORT CLAIMS. This Agreement in no way acts to abrogate or waive any immunity or defense available under California Law. http ://www. calwarn, org/warn/arti cl esofagreement.htm 9/2/2004 Signature Page Page 1 of 2 Water/Wastewater Agency Response Network (WARN) 2001 Omnibus Mutual Assistance Agreement Attachment # WHEREAS, the California Office of Emergency Services (OES), the Department of Water Resources (DWR), the Department of Health Services (DHS) and the Califomia Utilities Emergency Association (CUEA) have expressed a mutual interest in the establishment of a plan to facilitate and encourage water agency mutual assistance agreements between water agencies; and WHEREAS, the Water Agency Response Network (WARN) was originally created to provide a forum for the development of mutual assistance agreements between water agencies in the OES Coastal Region of California; and later expanded to all water agencies in the State of California, and WHEREAS, the Wastewater Agency Response Network (WWARN) was created to provide a similar plan for all wastewater agencies in the State of California, and WHEREAS, the WATER/WASTEWATER AGENCY RESPONSE NETWORK (WARN) 2001 OMNIBUS MUTUAL ASSISTANCE AGREEMENT is a continuation of the WARN 1996 OMNIBUS MUTUAL AID and the WWARN 1997 OMNIBUS MUTUAL AID AGREEMENT and sets forth the mutual covenants and agreements for water and wastewater agencies to provide mutual assistance to one another in times of emergency; and WHEREAS, State OES regulates the SEMS program, and this agreement is consistent with SEMS, and that it is necessary to have a mutual assistance agreement in place to support requests to FEMA for costs of using assistance during an emergency, and WHEREAS, the water or wastewater agency hereto has determined that it would be in its best interests to enter into an agreement that implements that plan and sets forth procedures and the responsibilities of the agency whenever emergency personnel, equipment and facility assistance are provided from one agency to the other; and WHEREAS, no water or wastewater agency should be in a position of unreasonably using its own resources, facilities, or services providing such mutual assistance; and WHEREAS, it is the intent of WARN to revise this agreement as necessary and to annually publish a list of all water and wastewater agencies participating in this agreement, as posted on www.calwam.org; and WHEREAS, such an agreement is in accord with the California Emergency Services Act set forth in Title 2, Division 1, Chapter 7 (Section 8550 et seq.) of the Government Code and specifically with Articles 14 and 17 (Section 8630 et seq.) of the Act. Now, THEREFORE, in consideration of the conditions and covenants contained therein, the (Agency) http://www.calwarn.org/warn/SignturePage.htm 9/2/2004 Signature Page Page 2 of 2 agrees to become a party to the WARN 2001 Omnibus Mutual Assistance Agreement. Date: By: Title: Please return a signed copy of this page, plus the information requested on Page 2 to: Martin R. Falarski, Chair WARN, State Steedng Committee c/o East Bay Municipal Utility District P. O. Box 24055 Oakland, California 94623 http://www, calwam, org/wam/SignturePage.htm 9/2/2004 Emergency Contact List Page 1 of 2 Water/Wastewater Agency Response Network (WARN) 2001 Omnibus Mutual Assistance Agreement Emergency Contact List Attachment # WARN Region: Water Wastewater Agency Name: Address: City: Zip Code: County: Website: Telephone No.: Primary Emergency Contact: Name: Telephone: ( , ) Cell Phone: ( ) E-Mail: Secondary Emergency Contact: Name: Telephone:( ) Cell Phone: ( ) E-Mail: Emergency Operation Center: http ://www. calwam, org/wam/Emergency_contact list.htm 9/2/2004 Emergency Contact List Name: Telephone:( ) Page 2 of 2 Cell Phone: ( ) E-Mail: Radio Call Signs: Frequency: No. of Services: The information provided on this page will be included in the WARN web site (www. calwarn.org). (Back tosigpat~[e.page) http://www, calwam, org/wam/Emergency_contact_li st. htm 9/2/2004 Coastal OES Region II Page 1 of 15 Coastal OES Region II Attachment Alameda County Water District 43885 S. Grimmer Blvd. Fremont, CA 94538-6375 Steve Dennis Telephone No. 510-668-6530 Email - steyo, d~_~ni_s@a_cwd._c_gm Antioch, City of 3rd & H Streets, P.O. Box 5007 Antioch, CA 94509 Joe Brandt Telephone No. 925-779-7050 Armstrong Valley Water & Rancho del Paradiso Water 16190 Main Street Guerneville, CA 95446 Phil Guidotti Telephone No. 707-869-2770 Bayshore Sanitary District 36 Industrial Way Brisbane, CA 94005 Richard Landi Telephone No. 650-366-1059 Email - Big Lagoon Commun. Svcs. District 386 Roundhouse Creek Rd. Trinidad, CA 95570 Bob Hiney Telephone No. 707-677-0540 Blue Lake, City of 111 Greenwood Blue Lake, CA 95525 Floyd Stokes (Police Chief) Telephone No. 707-668-5895 Burlingame Water Dept. 501 Primrose Road Burlingame, CA 94010 Paul Borg Telephone No. 415-696-7266 California Water Service Co. 1720 North First Street De[ Notre Humbolt Lake Napa Sonorna Marm San Francisco San Mateo Santa C;uz Coastal Region (OES Region II) Monterey So!a~o Cos',a A!ameOa Sa~a Clara San Bembo http://www, calwarn, org/wam/Memb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 2 of 15 San Jose, CA 95112 Rob Guzzetta Telephone No. 408-451-8243 California-American Water Co. (Monterey Division) 50 Ragsdale Dr., Suite 100 Monterey, CA 93940 Terry Ryan Telephone No. 831-646-3214 Email - tryao@ca!.am~ater_._~o_m Callayomi County Water District 21282 Steward St. Middletown, CA 95461 Frank Haas Telephone No. 707-987-2180 Camp Meeker Rec. & Park District P.O. Box 461 Camp Meeker, CA 95419 Hal Wood Telephone No. 707-887-7735 Email - rruwate_r_@.aq!_;c..o~ Canon Manor Water Co, 4984 Sonoma Highway Santa Rosa, CA 95409-4247 Karen Ball Telephone No. 707-833-5626 Carmel Area Wastewater District 3945 Rio Road Carmel, CA 93923 Mark Scheiter Telephone No. 831-624-1249 Email - scheiter@cawd.org. Castroville Water District 11499 Geil St. Castroville, CA 95012 Jody Lyons Telephone No. 408-633-2560 Central Marin Sanitation Agency 1301 Anderson Dr. San Rafael, Ca 94901 Dick Lindgren Telephone No. 4154591455/130 Email - dlindg~_en@marin,o~ http://www, calwam, org/wam/Members/region_2, asp 9/2/2004 Coastal OES Region II Page 3 of 15 Central Water District 400 Cox Road Aptos, CA 95001 Clarke Wales Telephone No. 831-688-2767 City of Millbrae 621 Magnolia Avenue Millbrae, CA 94030 Tom Coletti Telephone No. (650) 2592375 Email - tcole~i@_ci,mi!l.bme.~a.us_. Clearlake Oaks Co. Water District 12952 E Hwy 20/P.O. Box 709 Clearlake Oaks, CA 95423-0709 Ellen Pearson Telephone No. 707-994-1370 Email- clowd~_~inreach.com Contra Costa Water District 1331 Concord Ave. Concord, CA 94524 Dave Omoto Telephone No. 925-688-8023 Crockett-Valona Sanitary District P.O. Box 578 Crockett, CA 94525 Kent Peterson Telephone No. 510 787-2992 Email- cvsd@community.net Daly City, City of 153 Lake Merced Blvd. Daly City, CA 94015 Patrick Sweetland Telephone No. 415-991-8200 Delta Diablo Sanitary District 2500 Pittsburg-Antioch Highway Antioch, CA 94509-1373 Kerry Yoshitomi Telephone No. 925778-4040/240 Email - ker~.ro_g Diablo Water District 3100 Main St., Suite 278, P.O. Box 127 Oakley, CA 94561-0127 Danny Bowers Telephone No. 510-625-3798 http://www, calwam, org/wam/Memb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 4 of 15 Dublin San Ramon Services District 7051 Dublin Blvd. Dublin, CA 94568 Don Rhoads Telephone No. 510-426-3033 East Bay Municipal Utility District 375 Eleventh Street Oakland, CA 94607 Steve Frew Telephone No. 510-287-0881 Email - sfr~_w_.@e.~m~,cgm East Bay Municipal Utility District Wastewater 2020 Wake Ave Oakland, CA 94607 Ben Horenstein Telephone No. 510-287-1846 Email- bhorenst@ebmud.com Eureka, City of 531 K Street Eureka, CA Dennis Almand Telephone No. 707-441-4253 Fairfield-Suisun Sewer District 1010 Chadbourne Road Fairfield, CA 94585-9700 Taylon Sortor Telephone No. 707 429-8930 Email - tsortor@fssd.com Forestville County Water District 6530 Mirabel Road Forestville, CA 95436 George Roberts Telephone No. 707-887-1551 Fort Bragg, City of 416 N. Franklin Street Fort Bragg, CA 95437 Ted Steinhardt Telephone No. 707-961-2835 Gilroy, City of 7351 Rosanna Street Gilroy, CA 95020 http://www, calwarn, org/warn/Memb ers/regi on__2, asp 9/2/2004 Coastal OES Region II Page 5 of 15 Robert Connelly Telephone No. 408-848-0460 Great Oaks Water Co. 15 Great Oaks Blvd. San Jose, CA 95119 Bobby Dartez Email - bdartez@greatoaks~ate~:_co~ Hayward, City of 777 B Street Hayward, CA 94541 Alex Amed Telephone No. 510-583-4720 Healdsburg, City of 550 VVestside Road Healdsburg, CA 95448 Richard Pusich Telephone No. 707-431-3346 Heights Mutual Water Co. 7131 Mirabel Road Forestville, CA 95436 Hal Wood Telephone No. 707-887-1502 Email - RRUWATER@AOL.COM Hidden Valley Lake Comm. Svcs. Dist. 19400 Hartman Rd,, Box 5148 Middletown, CA 95461 Steve Shaw Telephone No. 707-987-9201 Email - sup¢~@jps, net Highlands Water Company 14774 Hillcrest Avenue Clearlake, CA 95422 Samuel Lambert Telephone No. 707-994-2393 Humboldt Bay Municipal Water District 828 7th Street Eureka, CA 95501 Carol Rische Telephone No. 707-443-5018 Email - hbmwd@n0rthcpast~p.m Humboldt Comm. Svcs. District P.O. Box 158 Cutten, CA 95534 http://www, calwarn, org/warn/Memb ers/region_2, asp 9/2/2004 Coastal OES Region II Page 6 of 15 Tom Cooke Telephone No. (707) 443-4558 Email - tcoo_ke@h~m_boidt!,~om Ironhouse Sanitary District 450 Walnut Meadows Drive Oakley, Ca 94561 Dennis Nunn Telephone No. (925) 625-2279 Email - dnunn@ecis.com JEA Jacksonville, FI 32225 Scott Kelley Email- Ke_!!SD@j~a.~om Kenwood Water Company 4984 Sonoma Highway Santa Rosa, CA 95409-4247 Karen Ball Telephone No. 707-833-5626 Konocti County Water District 15844 35th Ave. Clearlake, CA 95422 Bill Koehler Telephone No. 707-994-2561 Lake County - Special Districts Admin. 230A Main Street Lakeport, CA 95453 Steve Brodnansky Telephone No. 707-263-2273 Lake View Mutual Water Co. P.O. Box 630 Redwood Valley, CA 95470 Greg Montalvo Telephone No. 707-485-5968 Lakeport, City of 225 Park St. Lakeport, CA 95453 Mike Stevenson Telephone No. 707-263-5614 Lompico County Water District 11255 Lompico Road Felton, CA 95018 Michael Eggleston http://www, calwarn, org/wam/Memb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 7 of 15 Telephone No. 408-335-5200 Marin Municipal Water District 220 Nellen Avenue Corte Madera, CA 94925 Glenn Young Telephone No. 415-945-1580 Email - gyoung@mad _nwat~[..org Marina Coast Water District 11 Reservation Road Madna, CA 93933 Malcolm Crawford Telephone No. 408-883-9221 Martinez, City of 525 Henrietta Street Martinez, CA 94553 Jim Jakel (City Manager) Telephone No. 510-372-3440 McKinleyville Comm. Svc. District 1656 Sutter Road McKinleyville, CA 95521 Edd Mosley Telephone No. 707.839.3251 Email - edd@humboldtl .com Mendocino City Comm. Svcs. District P.O. Box 1029 Mendocino, CA 95460 Mike Kelley Telephone No. 707 937-5751 Email- mcc~d@m.cq;9[g Menlo Park Municipal Water District 701 Laurel Street Menlo Park, CA 94025 Randy Dwight Telephone No. (650)330-6785 Email - ddwig_h_t@mepJ_op_a_rk.o_rg Mid Peninsula Water District P. o. Box 129 Belmont, CA 94002 Paul Regan Telephone No. 650-591-8941 Milpitas, City of 455 E. Calaveras Blvd. Milpitas, CA 95035 http://www, calwarn, org/warn/Memb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 8 of 15 Steve Smith Telephone No. 408-586-2640 Email - ssmith@~i.~mi!pitas, _ca~ggy Montara Sanitary District PO Box 370131 Montara, Ca 94037 George Irving Telephone No. 650 728-3545 Email - .~d_@coastside.net Monterey Regional Water Pollution Control Agency 5 Harris Court, Bldg. D Monterey, CA 93940 Mark Malanca Telephone No. 831-883-1118 Email - markm@m~..r~_.pq~c~om Mountain View, City of 231 N. Whisman Ave. Mountain View, CA 94039-7540 David Serge Telephone No. 650-903-6239 Email - david~se[ge@c!~mtnv!ew.ca.us Mt. Konocti Mutual Water Company 9730 K Soda Bay Rd. Kelseyville, CA Alan Farr Telephone No. 707-277-7466 Mt. View Sanitary District P.O.Box 2757 Martinez, CA 94553 David Contreras Telephone No. 925-228-5635x18 Mt. Weske Estates Water Company 10500 Pelham Drive Windsor, CA 95492 Karin Hughes Telephone No. 707-838-2487 North Coast County Water District 2400 Francisco Blvd. Paciflca, CA 94044 Armand Cevasco Telephone No. 415-355-3462 North Gualala Water Company http://www, calwarn, org/wam/Me mb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 9 of 15 PO Box 1000 Gualala, Ca 95445-1000 John Bower Telephone No. 707 884-3579 Email - waterco@hot~i!,qom North Marin Water District 999 Rush Creek Place Novato, CA 94948 Chds DeGabdele Telephone No. 415-897-4133 Novato Sanitary District 500 Davidson St Novato, CA 94945 Edward Mann Telephone No. 415 892-1694 Email - e.d~@noyato_so.p..qqm Occidental Community Services District P.O. Box 244 Occidental, CA 95465 Hal Wood Telephone No. 707-887-7735 Email- rruwater@aol.com O'Connor Tract Coop. Water Co. P. o. Box 1375 Palo Alto, CA 94302 Judy Windt Telephone No. (650) 321-2723 Email - judy_windt@_compuse~e.com Odd Fellows Recreation Club P.O. Box 707 Guernville, CA 95446 David Horn Telephone No. 707-887-7055 Oro Loma Sanitary District 2600 Grant Ave San Lorenzo, CA 94580 Michael Cameron Telephone No. (510) 481-6969 Email- mcameron@oroloma.org Pajaro Valley Unified School District 294 Green Valley Road Watsonville, CA 95076 Ken Olds http://www, calwam.org/warn/Members/region_2.asp 9/2/2004 Coastal OES Region II Page 10 of 15 Telephone No. 831-786-2100 Palmer Creek Comm. Svcs. Dist. P.O.Box 309 Fortuna, CA 95540 John R. Stratford Telephone No. 707-725-0544 Palo Alto Park Mutual Water Company 2190 Addison Ave. East Palo Alto, CA 94303-1433 Kathedne Loudd Telephone No. 650-328-5012 Email- kloudd9030@aol.com Palo Alto, City of 250 Hamilton Ave. Palo Alto, CA 94303 Bill Gray Telephone No. 650496-6982 Email- Bi!LGr_ay@~ity,.pa!q-a_lto..~a._u~ Penngrove Water Company 4984 Sonoma Highway Santa Rosa, CA 95409-4247 Karen Ball Telephone No. 707-833-5626 Petaluma Water Resources, City of P.O. Box 61 Petaluma, CA 94953 Louis Hodge Telephone No. 707-778-4561 Email- Ihodge@ci,p_eta!uma,ca~us Pittsburg, City of 65 Civic Avenue Pittsburg, CA 94565 Walter Pease Telephone No. 925-252-6966 Email - W_p_eas_e@ci.pittsbu_urg.ca.us Purissima Hills Water District 26375 Fremont Road Los Altos Hills, CA 94022 Patrick Walter Telephone No. 650-948-1217 Email- pwalter@phwd.dst,ca.~us Redwood City, City of 1400 Broadway Redwood City, CA 94063 http://www, calwarn, org/wam/Me mb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 11 of 15 Peter Ingram Telephone No. 650-780-7466 Email - pingra_m@redwoodci~ Redwood Valley Co. Water Dist. P. o. Box 399 Redwood Valley, CA 95470 Keith Tiemann Telephone No. 707-485-0679 Rodeo Sanitary District 800 San Pablo Avenue Rodeo, CA 94572 Greg Modci Telephone No. 510-799-2970 Email - md@value.net Rogina Water Co., Inc. P.O.Box 310 Talmage, CA 95481 Daniel Rogina Telephone No. 707-462-4056 Russian River County Water District 7131 Mirabel Road Forestville, CA 95436 Hal Wood Telephone No. 707-887-1502 Email - RRUWATER@AOL Russian River Utility 7131 Mirabel Road Forestville, CA 95436 Hal Wood Telephone No. 707-887-7735 Email - RRUWATER@AOL San Bruno, City of 567 El Camino Real San Bruno, CA 94066 Scott Munns Telephone No. 650-616-7065 Email - smunns@ci.sanbruno.ca.us San Francisco PUC - Water, Power & Wastewater 1155 Market St., 11th FI., Attn: JCRodgers San Francisco, CA 94103 Kevin Barry Telephone No. 415-550-4900 Email- kbarry@sfwater,0rg http://www, calwarn, org/wam/Memb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 12 of 15 San Jose Municipal Water System 3025 Tuers Road San Jose, CA 95121 Wayne Kawasaki Telephone No. 408-227-3671 San Jose Water Company 374 West Santa Clara st. San Jose, CA 95196 George Belhumeur Telephone No. 408-279-7805 Sanitary District #1 of Marin County 2000 Larkspur Landing Circle Larkspur, CA 94939-1828 Barry Hogue Telephone No. 415 461-1122 Email - b.h~gp_e~acbell.net Santa Clara Valley Water District 5750 Alamaden Expressway San Jose, Ca 95118 Bob Fields Telephone No. 408 265-2600 Email - bfi__eUs@.va!!eyw_at~.,~om_ Santa Clara, City of 1500 Warburton Ave. Santa Clara, CA 95050 Robin Saunders Telephone No. 408-615-2011 Email - rsaunders@ci.santa-clara.ca, us Santa Cruz Water Dept., City of 809 Center St., Rm. 102 Santa Cruz, CA 95060 Bill Kocher Telephone No. 831-420-5200 Email - bk0cher@ci.santa-_cruz..ca, us Santa Cruz, City of 110 California St. Santa Cruz, CA 95060 Randy Bullock Telephone No. 831-420-6036 Email - rbu!lock@ci.s_apta Santa Rosa, City of 69 Stony Circle Santa Rosa, CA 95401 http://www, calwam, org/wam/Memb ers/region_2, asp 9/2/2004 Coastal OES Region I1 Page 13 of 15 Stephen Backman Telephone No. 707-543-4200 Email - SBackman@ci;~anta;ms_a-_q~.u~ Sausalito-Marin City Sanitary District #1 Fort Baker Rd., P.O. Box 39 Sausalito, CA 94966-0039 Robert Simmons Telephone No. 415-332-0244 Email- bob-smcsd@2xtreme.net Sewerage Agency of Southern Marin 450 Sycamore Mill Valley, CA 94941 David Coe Telephone No. 415 388-2402 Email - dcoe@_d_tyofmillvalley._o~r~ Solano Irrigation District 508 Elmira Road Vacaville, CA 95687 James Mitchell Telephone No. 707-448-6847x30 Email - jmitche.!!@sjdw_ate~r~;q~_rg Sonoma County Water Agency 2150 West College Avenue Santa Rosa, CA 95401 Mike Thompson Telephone No. 707-526-5370 Soquel Creek Water District P.O.Box 158 Soquel, CA 95073 John Nowak Telephone No. 408-475-8500 South Bayside System Authority 1400 Radio Road Redwood City, CA 94065 James Bewley Telephone No. 650/594-8411 Email - jbewley@~a,org Stege Sanitary District 7500 Schmidt Lane El Cerrito, CA 94530 Douglas Humphrey Telephone No. 510-524-4668 Sunnyvale, City of P.O.Box 3707 http://www, calwarn, org/warn/Memb ers/regi on_2. as p 9/2/2004 Coastal OES Region II Page 14 of 15 Sunnyvale, CA 94088-3707 Alex Sandigo Telephone No. 408-730-7560 Sweetwater Springs Water District P.O.Box 48 (17081 Highway 116, Suite B) Guerneville, CA 954446 Dave And res Telephone No. 707-869-4000 Email - sws_ @mo ~nito!~,n..et Vacaville, City of 650 Merchant Street Vacaville, CA 95688 David Tompkins Telephone No. 707469-6412 Valley of the Moon Water District 19039 Bay St. El Verano, CA 95433 John Stratford Telephone No. 707-996-1037 Watsonville, City of P.O.Box 50000 Watsonville, CA 95077-5000 Gayland Swain Telephone No. 831-728-6093 Email - gswain@d, wa.tsonwil.!e,ca~.us West County Wastewater Agency 2910 Hilltop Dr. Richmond, CA 94806 John Floey Telephone No. 510 222-6700 Email - j~_le~_cw__d.org Westborough Water District 2263 Westborough Blvd. So. San Francisco, CA 94080 Darryl Barrow Telephone No. 415-589-1435 Westhaven Comm. Svcs. District P.O. Box 2015 (446 B 6th Ave., Westhaven) Trinidad, CA 95570 Richard Swisher Telephone No. 707-677-0798 Email - wcsd@humboldtl .com Windsor, Town of http://www, calwarn, org/warn/Memb ers/regi on_2. asp 9/2/2004 Coastal OES Region II Page 15 of 15 P.O.Box 100 Windsor, CA 95492 John Johnson Telephone No. 707-838-1006 Email - jjohnsqp@towno.f~'_~ in. dsor.~co_m Zone 7 of the Alameda Co. Flood Control District 5997 Parkside Ddve Pleasanton, CA 94588 Jeff Jones Telephone No. 925-373-2450 Email - jjp_~zone7water.com http://www.calwam.org/wam/Members/region_2.asp 9/2/2004 AGENDA SUMMARY ITEM NO: 6e DATE: OCTOBER 6, 2004 REPORT SUBJECT: AUTHORIZATION TO EXECUTE AMENDMENT NO. 4 TO THE SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES FOR RINO PACIFIC, INC. On the September 1, 2004 Council Meeting, Council authorized negotiation with vendors to provide fuel services to the City. On July 9, 1998, the City entered a contract with Rino Pacific Inc. for purchase of fuel for City vehicles through a fuel card lock system. The City has been pleased with Rino Pacific's performance under this agreement. Rino Pacific has agreed to continue the current pricing schedule for two more years. This fourth amendment would extend the agreement through September 30, 2006. Funds have been identified in the FY 2004/2005 budget to cover expenses for all City Departments utilizing Rino Pacific for fuel services. Joy Williams of Rino Pacific has verbally agreed to the terms of the fourth amendment. Due to the timing of the preparation of this report, a signed copy of the amendment is not available. The City also has an agreement with Redwood Oil Co. for purchase of fuel for City vehicles through a fuel card lock system. Having these two fueling options provides maximum flexibility for City Departments. The City is currently exploring the option of opening a third contract with USA Petroleum Corporation. Staff will seek Council approval at a later meeting prior to entering into a contract. RECOMMENDED ACTION: Authorize the City Manager to execute Amendment No. 4 to the Agreement for Fuel Card Lock Services for Rino Pacific, Inc. ALTERNATIVE COUNCIL POLICY OPTIONS: Do not authorize execution of the Amendment and provide direction to Staff. Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Gordon Elton, Director of Finance Mary Horger, Purchasing Agent Rick Seanor, Dep. Dir. Of Public Works Candace Horsley, City Manager 1. Amendment No. 4 to the Agreement 2. Amendment No. 1 3. Service Agreement for Fuel Card Lock Services Approved: Candace Horsley, City M~ager CITY OF UKIAH AMENDMENT NO. 4 TO SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES DATED JULY 1, 1998 TERMS AND CONDITIONS All terms and conditions of the Service Agreement for Fuel Card Lock Services dated July 1, 1998; Amendment No. 1 dated May 6, 1999; Amendment No. 2 dated July 11, 2000; and Amendment No. 3 dated July 2, 2002 shall remain in force and effective through September 30, 2006, except as modified by this fourth amendment. AUTHORIZATION Upon execution of this amendment, service provider is authorized to provide the service described under "Scope-of-Services" of the original service agreement, in accordance with the revised Scope of Services and Basis for Compensation identified in Amendment No. 1. RINO PACIFIC, INC. CITY OF UKIAH BY: BY: PRINT NAME: TITLE: CANDACE HORSLEY City Manager DATE DATE CITY OF UKIAFi AMENDMENT NO. 1 TO SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES DATED JULY 1, 1998 TERMS AND CONDITIONS All terms and conditions of the Service Agreement for Fuel Card Lock Services Dated July 1, 1998 shall remain in force and effect through June 30, 2000, except as modified by this amendment. AUTHORIZATION Upon execution of this amendment, service provider is authorized to provide the service described under "Scope-of-Services" of the original service agreement, in accordance with the revised Scope of Services and Basis for Compensation. 2.1 Service Provider shall distribute vehicle cards and driver cards to City for use in p~lrchasing fuel through a card lock system located on Service Provider's premises. Card lock system is defined as a fueling facility which dispenses and records quantities of unleaded plus, regular unleaded, and diesel fuel activated automatically upon use of properly encoded optical cards. Service Provider shall provide accurate billings which include the following items as a minimum: vehicle number, employee identification number, date and time of [ueling, quantity and type of fuel purchased, odometer reading (entered in by driver) of vehicle fueled, and vehicle fund/depadment number. The Service Provider shall provide a billing format suitable to the City. In order to verify fuel prices, Service Provider shall provide a price verification report with a broakdown of costs whenever requested by the City. 4.1 Basis for Compensation. For the performance of the services of this Agreement, Service Provider shall be compensated at the discounted street pdce per gallon per respective fuel less taxes and/or lees which are not applicable to the City. The City shall only be liable to pay applicable taxes and fees. In order to verify fuel prices, Service Provider shall provide a price verification report with a breakdown of costs whenever requested by the City. Throughout the life of this Agreement the Service Provider shall honor a discount of $0.07 per gallon for unleaded plus gasoline (89 octane); $0.07 per gallon for unleaded regular gasoline (87 octane); and $0.07 per gallon for clear diesel fuel. A~efldmefll No I lo Service Agroement for Fuel Card Lock Services Page 1 of 2 /~ TTf:tL-H ~4 ~JT ~ 2~ RINO PACIFIC, INC. CITY OF UKIAH PRINT NAME:/~/)~/Z) y/ //2,0 :r~ ,5'~ DATE CANDACE HORSLEY City Manager DATE ,, Amendment No. 1 lo Semice Agreement tot Fuel Card Lock Semices Page 2 of 2 P.z_ SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES This Agreement, made and entered into this .. /~dayof~~ , 1998, by and between CITY OF UKIAH, CALIFORNIA, hereinafter referr~'~J ity" and RINO PACIFIC, INC. a California Corporation, hereinafter , referred as "Service Provider". RECITALS This Agreement is predicated on the following facts: a. City requires services which will involve the purchase of fuel through a card lock system. bo Service Provider represents that it has the qualifications, skills, experience, and facilities to provide these services, and is willing to provide them according to the terms of this Agreement. C. City and Service Provider agree upon the Scope-of-Services as specified in Paragraph 2.0 of this Agreement. 1.0 TERMS OF SERVICE AGREEMENT DESCRIPTION OF SERVICE 1.1 The fuel vendor shall sell fuel products to City through a fuel card lock system beginning with the execution date of this Agreement and ending June 30, 2000. 2.0 SCOPE-OF-SERVICES 2.1 Service Provider shall distribute vehicle cards and driver cards to City for use in purchasing fuel through a card lock system located on Service Provider's premises. Card lock system is defined as a fueling facility which dispenses and records quantities of unleaded plus, regular unleaded, and diesel fuel activated automatically upon use of properly encoded optical cards. Service Provider shall provide accurate billings which include the following items as a minimum: Ag~c~rncn~ for Fuel Card Page i of 5 2.2. 3.0 vehicle number, emPloyee identification number, date and time of fueling, quantity and type of fuel purchased, odometer reading (entered in by driver) of vehicle fueled, and vehicle fund/department number. The Service Provider shall provide a billing format suitable to the City. In order to verify fuel prices, Service Provider shall submit copies of their Inter-Company Transfer Prices (based on Computer Petroleum Corporation and Oil Price Information Service pricing) which indicates the base fuel price used to compute fuel rates during the billing period. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and Service Provider. The written Agreement shall be in the form of an Amendment to this Agreement. CONDUCT OF WORK 3.1 Hours of Service. Service Provider shall provide 24-hour access to fuel card lock facilities. 4.0 4.1 4.2 4.3 COMPENSATION FOR SERVICES Basis for Compensation. For the performance of the services of this Agreement, Service Provider shall be compensated at the discounted street price per gallon per respective fuel less taxes and/or fees which are not applicable to the City. The City shall only be liable to pay applicable taxes and fees. Service Provider shall submit copies of the Inter-Company Transfer Prices with each 'billing to enable the City to verify pricing. Throughout the life of this Agreement the Service Provider shall honor a discount of $0.07 per gallon for unleaded plus gasoline (89 octane);$0.07 per gallon for unleaded regular gasoline (87 octane); and $0.07 per gallon for clear diesel fuel. Changes. Should changes in compensation be required because of changes to the Scope-of-Services of this Agreement, the parties shall agree in writing to any changes in compensation. "Changes to the Scope-of-Work" means different activities than those described in Paragraph 2.0 and not additional time to complete those activities than the parties anticipate on the date they entered this Agreement. Sub-Service Provider Performance. The Service Provider shall not use sub- service providers or other service firms to perform a portion of the work of this Agreement without written authorization from the City. Agrcemcm for Fuel Card Lock PaSo 2 of~ 4.4 5.0 5.1 6.0 Terms of Payment. Payment to Service Provider for services and product rendered in accordance with this contract shall be based upon submission of semi-monthly invoices for the service satisfactorily performed and product provided prior to the date of invoice less any amount already paid to Service Provider, which amounts shall be due and payable upon receipt by City. Invoices shall be accompanied by documentation in accordance with Section 2.0 herein. Payment shall be made to Service Provider within 10-15 days from receipt of invoice. City may be held responsible to pay interest on any delinquent payments for invoices that are over 30 days past due. ASSURANCES OF SERVICE. PROVIDER Independent Contractor. Service Provider is an independent contractor and is solely responsible for its acts or omissions. Service Provider (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. CONTRACT PROVISIONS 6.1 6.2 6.3 6.4 6.5 Governing Law. Service Provider shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. .Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments, and the terms and conditions outlined on the Rino Pacific Application set forth the entire understanding between the parties. Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. Assignment. Service Provider's services are considered unique and personal. Service Provider shall not assign, transfer, or sub-contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. ^gn~cmcm for Fuel Card Lock Pag~ 3 of ~ 6.6 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 6.7 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay Service Provider for services provided under this Agreement; or 3) City has abandoned and does not wish to continue with the service for which Service Provider was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the non-breaching fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Service Provider. City shall pay the Service Provider only for services performed and expenses incurred as of the effective termination date. Service Provider shall be entitled to receive just and equitable compensation for any service and product provided hereunder, subject to off- set for any direct or consequential damages City may incur as a result of Service Provider's breach of contract. 6.8 Duplicate Originals. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. When so signed, each such document shall be admissible in administrative or judicial proceedings as proof of the terms of the Agreement between the parties. 7.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows: CITY OF UKIAH DEPARTMENT OF PUBLIC WORKS 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482 RINO PACIFIC, INC. POST OFFICE BOX 328 WILSONVILLE, OREGON 97070-0328 Agrecmem for Fu~! Card Lock Page 4 of 5 8.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written: CITY OF UKIAH BY CANDAC~ CITY MANAGER RINO PACIFIC, INC. ATTEST: MARIE ULVILA CITY CLERK APPROVED AS TO FORM' RINOPAC Agreemcm for Fuel CaJ'd Lock Pag~ 5 of 5 AGENDA SUMMARY ITEM NO: 6f DATE: OCTOBER 6, 2004 REPORT SUBJECT: AUTHORIZATION TO EXECUTE AMENDMENT NO. 4 TO THE SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES FOR REDWOOD OIL COMPANY At the September 1, 2004 Meeting, the City Council authorized negotiation with vendors to provide fuel services to the City. On July 9, 1998, the City entered a contract with Redwood Oil Company for purchase of fuel for City vehicles through a fuel card lock system. The City has been pleased with Redwood Oil's performance under this agreement. Redwood Oil has agreed to continue the current pricing schedule for two more years. This fourth amendment would extend the agreement through September 30, 2006. Fuel purchases have been included in the FY 2004/2005 budget to cover expenses for all City Departments utilizing Redwood Oil for fuel services. Bob Barbieri of Redwood Oil has verbally agreed to the terms of the fourth amendment. Due to the timing of the preparation of this report, a signed copy of the amendment is not available. The City also has an agreement with Rhino Pacific Inc. for purchase of fuel for City vehicles through a fuel card lock system. Having these two fueling options provides maximum flexibility for City Departments. The City is currently exploring the option of opening a third contract with USA Petroleum Corporation. Staff will seek Council approval at a later meeting prior to entering into a contract. RECOMMENDED ACTION: Authorize the City Manger to execute Amendment No. 4 to the Agreement for Fuel Card Lock Services for Redwood Oil Company. ALTERNATIVE COUNCIL POLICY OPTIONS: Do not authorize execution of the Amendment and provide direction to Staff. Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Gordon Elton, Director of Finance Mary Horger, Purchasing Agent Rick Seanor, Deputy Director of Public Works and Candace Horsley, City Manager 1. Amendment No. 4 to the Agreement 2. Amendment No. 1 3. Service Agreement for Fuel Card Lock Services Approved: Can--'~e 'l:lor~[ey,' ~ity M'~k~ger CITY OF UKIAH AMENDMENT NO. 4 TO SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES DATED JULY 1, 1998 TERMS AND CONDITIONS All terms and conditions of the Service Agreement for Fuel Card Lock Services dated July 1, 1998; Amendment No. 1 dated May 6, 1999; Amendment No. 2 dated July 11, 2000; and Amendment No. 3 dated July 2, 2002 shall remain in force and effective through September 30, 2006, except as modified by this fourth amendment. AUTHORIZATION Upon execution of this amendment, service provider is authorized to provide the service described under "Scope-of-Services" of the original service agreement, in accordance with the revised Scope of Services and Basis for Compensation identified in Amendment No. 1. REDWOOD OIL CO. CITY OF UKIAH BY: BY: PRINT NAME: TITLE: CANDACE HORSLEY City Manager DATE DATE CITY OF UKIAH AMENDMENT NO. 1 TO SERVICE AGREEMENT FOR FUEL CARD LOCK SERVICES DATED JULY 9, 1998 TERMS AND CONDITIONS All terms and conditions of the Service Agreement for Fuel Card Lock Services dated July 9, 1998 shall remain in force and effect through June 30, 2002, except as modified by this second amendment. AUTHORIZATION Upon execution of this first amendment, service provider is authorized to provide the service described under "Scope-of-Services" of the original service agreement, in accordance with the revised Basis for Compensation. 4.1 Basis for Compensation. For the performance of the services of this Agreement, Service Provider shall be compensated at the discounted street price per gallon per respective fuel less taxes and/or fees which are not applicable to the City. The City shall only be liable to pay applicable taxes and fees. Throughout the life of this Agreement the Service Provider shall honor a discount of $0.04 per gallon for unleaded plus gasoline (89 octane); $0.04 per gallon for unleaded regular gasoline (87 octane); and $0.04 per gallon for clear diesel fuel. REDWOOD OIL CO. CITY OF UKIAH BY: BY: PRINT NAME: TITLE: CANDACE HORSLEY City Manager DATE DATE Amendment No. I to Service Agreement for Fuel Card Lock Services SERVICE AGREEMENT FOR FUEL CARD LOCK' SERVICES This Agreement, made and entered into this ~-~1~ day of _~'~f/__~_ 199~', by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as '~City" and REDWOOD OIL CO., a California Corporation, hereinafter referred to as "Service Provider". RECITALS This Agreement is predicated on the following facts: al City requires services which will involve the purchase of fuel through a card lock system. b, Service Provider represents that it has the qualifications, skills, experience, and facilities to provide these services, and is willing to provide them according to the terms of this Agreement. C. City and Service Provider agree upon the Scope-of-Services as specified in Paragraph 2.0 of this Agreement. TERMS OF SERVICE AGREEMENT 1.0 DESCRIPTION OF SERVICE 1.1 The fuel vendor shall sell fuel products to City through a fuel card lock system beginning with the execution date of this Agreement and ending June 30, 2000. 2.0 SCOPE-OF-SERVICES 2.1 Service Provider shall distribute vehicle cards to City for use in purchasing fuel through a card lock system located on Service Provider's premises. Card lock system is defined as a fueling facility which dispenses and records quantities of unleaded plus, regular unleaded, and diesel fuel activated automatically upon use of properly encoded magnetic cards. Service Provider shall provide accurate billings which include the following items as a minimum: vehicle Agreement for Fuel Card I.~:k Page I of 5 number, date and. time of fueling, quantity and type of fuel purchased, odometer reading of vehicle fueled, and. vehicle fund/department number. The Service Provider shall provide a billing format suitable to the City. In order to verify fuel prices, Service Provider shall either submit verification of street price fuel rates during the billing period or provide a receipt at time of purchase indicating the street price fuel rate. 2,2. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and Service Provider. The written Agreement shall be in the form of an Amendment to this Agreement. 3.0 CONDUCT OF WORK 3.1 Hours of.Service. Service Provider shall provide 24-hour access to fuel card lock facilities. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the services of this Agreement, Service Provider shall be compensated at the discounted street price per gallon per respective fuel less taxes and/or fees which are not applicable to the City. The City shall only be liable to pay applicable taxes and fees. Throughout the life of this Agreement the Service Provider shall honor a discount of $0.06 per gallon for unleaded plus gasoline (89 octane); $0.06 per gallon for unleaded regular gasoline (87 octane); and $0.04 per gallon for clear diesel fuel. 4.2 Changes. Should changes in compensation be required because of changes to the Scope-of-Services of this Agreement, the parties shall agree in writing to any changes in compensation. "Changes to the Scope-of-Work" means different activities than those described in Paragraph 2.0 and not additional time to complete those activities than the parties anticipate on the date they entered this Agreement. 4.3 Sub-Service Provider Performance. The Service Provider shall not use sub- service providers or other service firms to perform a portion of the work of this Agreement without written authorization from the City. 4.4 Terms of Payment. Payment to Service Provider for services and product rendered in accordance with this contract shall be based upon submission of semi-monthly invoices for the service satisfactorily performed and product provided prior to the date of invoice less any amount already paid to Service Agreement for Fuel Card Lock Page 2 of 5 Provider, which amounts shall be due and payable upon receipt by City. Invoices shall be accompanied by documentation in accordance with Section 2.0 herein. Payment shall be. made to Service Provider within 15 days from receipt of invoice. City will not be held responsible to pay interest on any delinquent payments. 5.0 ASSURANCES OF SERVICE PROVIDER 5.1 Independent Contractor. Service Provider is an independent contractor and is solely responsible for its acts or omissions. Service Provider (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. 6.0 CONTRACT PROVISIONS 6.1 Governing Law. Service Provider shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 6.2 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments set forth the entire understanding between the parties. 6.3 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 6.4 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 6.5 Assignment. Service Provider's services are considered unique and personal. Service Provider shall not assign, transfer, or sub-contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. 6.6 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. Agrc~mem for Fuel Card Lock Page 3 of $ 6.7 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because' funds are no longer available to pay Service Provider for services provided under this Agreement; or 3) City has abandoned and does not wish to continue with the service for which Service Provider was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the non-breaching fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Service Provider. City shall pay the Service Provider only for services performed and expenses incurred as of the effective termination date. Service Provider shall be entitled to receive just and equitable compensation for any service and product provided hereunder, subject to off- set for any direct or consequential damages City may incur as a result of Service Provider's breach of contract. 6.8 Duplicate Originals. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. When so signed, each such document shall be admissible in administrative or judicial proceedings as proof of the terms of the Agreement between the parties. 7.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows' CITY OF UKIAH DEPARTMENT OF PUBLIC WORKS 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482 REDWOOD OIL CO. PO BOX 428 SANTA ROSA, CALIFORNIA 95402 Agreement for Fuel Card Lock Page 4 of 5 8.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written' CITY OF UKIAH ANDACE HORSLEY CITY MANAGER REDWOOD OIL CO. BY: ROBERT I. BARBIERI ATTEST MARIE ULVILA DATE CITY CLERK APPROVED AS TO FORM' CITY ATTORNEY, CITYJ31~IAH REDWOOD Agreement for Fuel Card Lock Page 5 of 5 AGENDA ITEM NO: ' 6§ MEETING DATE: October 6, 2004 SUMMARY REPORT SUBJECT: REPORT OF DISPOSITION OF SURPLUSED USED EQUIPMENT Per City of Ukiah Procedures for Sale of Surplus or Obsolete Materials, Used Equipment and Supplies dated September 19, 1996, this report documents the sale of equipment determined to be obsolete (no longer used) by the Landfill. Sale of the equipment is in accordance to City Code Section 1533 and the Surplus Procedure Statement that includes solicitation of specialty items in surplus. As it was reported to Council on July 17, 2002, Gruyot Heavy Equipment Appraisal Service appraised the four items of Caterpillar Heavy Equipment, and solicitations were mailed to 135 contractors, city and county landfills, building exchanges, and companies that purchase equipment for resale. Notice of Sale was published in the local newspaper and posted on the City website. At closing of bids, three were received; two no bids and one to purchase the 627 F Scraper for a net amount of $330,000. It was then determined that the other three pieces of equipment would be advertised in "heavy equipment for sale magazines", out of the area newspapers, and on the City's website. On September 10, 2004, the City of Ukiah received a bid for the 1975 Caterpillar 955L, SIN 085J09965 from P.A. Harmon, resident at 3250 Vichy Springs Road, Ukiah, in the amount of $6,971.25. The bid was accepted, and on October 1, 2004, a final Bill of Sale was prepared, and the sale consummated. Efforts continue to sell the remaining Landfill equipment. RECOMMENDED ACTION: Receive and file report regarding the disposition of surplused used equipment. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Gordon Elton, Director of Finance Mary Horger, Purchasing Agent Candace Horsley, City Manager 1. Procedure for Sales of Surplus or Obsolete Materials, Used Equipment and Supplies Statement 2. City Code Section 1533 3. Surplus disposition list Approved: Candace Horsley, City I~nager )dtochment ~ .... . i_1111 i i i I. PROCEDURES FOR SALES OF SURPLUS OR OBSOLETE MATERIALS, USED EQUIPMENT, AND SUPPLIES 9/18/96 .In order to process materials or equipment found to be surplus or obsolete within each City Department, the following procedure is established: . On a quarterly basis (July 1, October 1, January 1, April 1), each City Department Head completes and submits a prescribed form listing all materials and equipment found to be surplus or obsolete to the Director of Finance for approval. Copies of the completed form are distributed to the City Manager and PurchasingNVarehouse Supervisor. . Those items listed as surplus will continue t° be housed within the Department r. equesting disposition until a sale is completed or date of auction. . . Copies of the items listed as surplus are distributed by the Director of Finance to all Department Heads for possible recycling. Purchasing Officer shall have the authority to dispose"5~ surplus and file a report with the City Council setting forth a description of sale by the close of the agenda for the next regularly scheduled meeting. . The pUrchasing Department will follow City Code Section 1533, Procedures for Sale of the Surplus Items. ao Purchasing Department will solicit bids on surplus wire and scrap iron from local and outside dealers of these commodities. b. Purchasing Department will coordinate public auctions with the County of Mendocino, joining with them for sale of surplus items. The auctioneer will publicize the date of auction and items available for sale. C. Purchasing Department will coordinate the moving of surplus items to 'the auction site during the week immediately preceding the auction. do Following the auction, the auctioneer will proVide a list of items sold, the selling prices, and the funds received to the Purchasing Department. Specialty items as approved by the Purchasing Officer or extremely large items which cannot be moved to the auction site, will be advertised for sale in the local newspaper or through direct contact with governmental agencies or purchasers appropriate to the specialty surplus items by the Purchasing Department. The Purchasing Officer shall have the authority to solicit on the open market. During those times of the year that items are declared as surplus that do not coincide with the annual public auction conducted by the County, items for sale will be advertised by the Purchasing Department and closed-bids will be accepted by the City Clerk. Bids will be opened at a designated time and the high bidder will be notified by the Purchasing Department. In the event of the high bid ending in a tie for any item, all bids will be rejected and the bid process will be repeated, with the tie bid as the new minimum bid. . if after completing steps 1-5 above, any item is not sold or recycled, and it is not reasonable to assume that 'the item can be sold or recycled, the purchasing agent is authorized to dispose of such item by any safe and lawful method. C:h'vly Documcnts\WPDOCS~ROCEDURES FOR SALES OF SURPLUS OR OBSOLETE-96.doc §1530 B) · {}1534 .. Attachment.# .. 1. Recorded Explanation: The head of such department shall send to the Purchasing Officer a requisition and a copy of the delivery record together with a full written report of the circumstances of the emergency. The report shall be filed with the CounCil as provided in subSection A1 above. · · 2. Emergency Procedure: The Purchasing Officer shall prescribe by rules and regulations the procedure under which emergency purchases by heads of departments may be made. (Ord. 667, {}2, adopted 1975) {}1531- COOPERATIVE PURC.HASING: The 'Purchasing Officer Shall have the authority to join with other units of government in cooperative pur(~hasing plans when the best interests'of the Cit?,would be sel'ved thereby. (Ord. .667, {}2, adopted 1975) §1532: .iNSPECTION AND TESTING: The Purchasing Officer shall Inspect supplies and equipment delivered to determine their conformance with the specifications set forth in the order. The Purchasing Officer shall have authority to require chemical and physical tests of samples submitted with bids and samples of deliveries which are necessary to determine their quality and conformance with specifications. (Ord. 667, §2,. adopted 1975) ' '~:> §1533: SURPLUS SUPPLIES 'AND EQUIPMENT: All departments shall submit to the Purchasing Officer, at such times and in such forms as he shall prescribe, reports showing fill supplies and equipment which are' no longer used or which have become obsolete or worn out. The Purchasing Officer shall have authority to exchange for or trade in on new Supplies and equipment all supplies and equipment which cannot be used by any agency or which have become-unsuitable' for City use. The Purchasing Officer shall have the authority to dispose of surplus 'property by solicitation of bids or by public auction. (Ord. 667, {}2, adopted. 1975) {}1534: SEVERABILITY: If any section, subsection, ·subdivision, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or otherwise Invalid, such Invalidity shall not affect the validity of the entire ordinance or any of the remainlng portions thereof. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, subdivision, sentence, clause and phrase hereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses or phrases be-declared unconstitutional or otherwise invalid. (Ord. 667, §2, adopted 1975) ~ 1064 Attachment ITEM NO. 6~ DATE: OCTOBER 6, 2004 AGENDA SUMMARY REPORT SUBJECT: REJECTION OF CLAIMS FOR DAMAGES RECEIVED FROM MICHAEL CENTER AND CHRISTOPHER SCOTT, AND REFERRAL TO JOINT POWERS AUTHORITY, REDWOOD EMPIRE MUNICIPAL INSURANCE FUND The claim from Michael Center was received by the City of Ukiah on September 15, 2004 and alleges damages due to motorcycle impound on August 19, 2004. The claim from Christopher Scott was received by the City of Ukiah on September 17, 2004 and alleges damages due to a bicycle accident on South School Street on April 10, 2004. Pursuant to City policy, it is recommended the City Council reject the claims as stated and refer them to the Redwood Empire Municipal Insurance Fund (REMIF). RECOMMENDED ACTION: Reject Claims For Damages Received From Michael Center and Christopher Scott And Refer Them To The Joint Powers Authority, Redwood Empire Municipal Insurance Fund. ALTERNATIVE COUNCIL POLICY OPTIONS: Alternative action not advised by the City's Risk Manager. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Yes Claimants Michael F. Harris, Risk Manager/Budget Officer Candace Horsley, City Manager 1. Claim of Michael Center, pages 1-3; 2. Claim of Christopher Scott, pages 4-6. AP P ROVE D.~..~~-~4~, ~.. Ca~-dac~ H0~'sl(~y, Cit~Manager mfh:asrcc04 1006CLAIM File With: City Clerk's Office. City of Ukiah 300 Seminary Ave Ukiah, CA 95482 ~'~ CLAIM FOR MONEY OR DAMAGES AGAINST THE CITY OF UKIAH RESERVE FOR FILING STAMP ,°4 CITY OF UKIAH CIT'.."',g! :2..'<:('S 9Er:.A. RTME,~T A claim must be presented,: as prescribed by the Government Code of the State.of California, by the claimant or a persOn acting on his/her behalf and shall show the following: If additional space is needed to provide your information, please attach sheets, identifying the paragraph(s) being answered. , 1. Name and address of the Claimant: Aflochrnent .~ __ I -- ~ ii iii iii ii i i i Name of Claimant: ~ ;'~)~4~__.~ ~-1~)~-'~-~/''' , Address to which the person presenting the claim desires notices to be sent: Name of Addressee: ~_/"'c~l~'d C~ ,, Teleph°ne:70~ The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. Date of Occurrence: , Time of Occurrence: Location: o o General description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of the presentation of the claim. e _amd or names or [ne pumlc employee or employees causing the injuw, damage, or loss, if known. ' ~ ' ' ' -, · f Y- ' , ' ~ ~ ~ :r- M/M,,.F no. ¢o,'n,es fn .g I,'~1~=, If amount claimed totals less than $10,000: The amount claimed, if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury,. damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. ~SAm°unt~ ~2¢:~'°'~-claimed andb~basis for~r,,,. ,~c°mputati°n:"'T'~'~' If amount claimed exceeds $10,000: If the a~ount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. A limited civil case is one where the recove~ sought, exclusive of attorney fees, interest and coud costs does not exceed $25,000. An unlimited civil case is onejn which the recove~ sought is more than $25,000. (See CCP ~ Limited Civil Case " ~ Unlimited Civil Case l.ou are re.u,r.. ,o .rov,.e ,.e a.ov. ,n o..er ,o w,,. overn e., co.e ~9~o. , . 10. Claimant(s) Social Securi.ty Number(s): (optional) .Claimant(s) Date(s)of Birth: //_/,~_/~_~./' / Name, address and telephone number of any witnesses to the occurrence or transaction which gave rise to the claim asserted:' · ,~ , ' ,4-<; ¢--JY '7o7- 2'17- ?~-// If the claim involves medical treatment for a claimed injury, please provide the name, address and telephone number of any doctors or hospitals providing treatment: 11. If applicable, please attach any medical bills or reports Or similar documents supporting your claim. If the claim relates to an automobile accident: Claimant(s) Auto Ins. Co.: Address- Telephone: Insurance Broker/Agent: Address: Insurance Policy No.: Telephone: Claimant's Veh. Lic. No.: Vehicle Make/Year: Claimant's Drivers Lic. No.: Expiration' If applicable, please attach any repair bills, estimates or similar documents supporting your claim. Page 2 of 3 READ CAREFULLY For ali accident claims, place on the following diagram the name City of-Ukiah vehicle; location of City of Ukiah vehicle at time of of streets, including North, East, South, and West; indicate place of accident by "X" and by showing house numbers or distances to street corners.. If City of Ukiah vehicle was. involved, designate by letter "A" location of City of Ukiah vehicle when you first saw it, and by "B" location of yourself or your vehicle when You first saw accident by "A-l" and location of yourself or your vehicle at the time of the accident by "B-I" and. the point of impact by "X." NOTE: If diagrams below do not fit the situation, attach hereto a proper diagram signed by claimant. CURB ."~ ,. SIDEWALK PARKWAY · SIDEWALK CURB Warning: Presentation of a false claim is a felony (Penal Code §72). Pursuant to California Civil Prodecures §1038, the City/Agency may seek to. recover all costs of defenSe in the event an action is filed which is later determined not to have been brought in good faith and with reasonable cause. Signature: ~ ~~~_.~ Date: Page 3 of 3 File With: City Clerk's Office City of Ukiah 300 Seminary Ave Ukiah, CA 95482 CLAIM FOR MONEY OR DAMAGES AGAINST THE CITY OF UKIAH RESERVE FOR FILING STAMP · ? ] 7 2004 A claim must be presented, as prescribed by the Government Code of the State of California, by the claimant or a person acting on his/her behalf and shall show the following' If additional space is needed to provide your information, please attach sheets, identifying the paragraph(s) being answered. 1. Name and address of the Claimant: Affochrnen! ~1t ~. ........ Name of Claimant: Christopher Scott Address: 701 West Mill Street Ukiah, CA 95482 . Address to which the person presenting the claim desires notices to be sent: Name of Addressee: same Telephone: 707/463-0258 Address: . The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. Date of Occurrence: 4/10/04 Time of Occurrence: approx. 12:30 p.m. Location: School Street across from Alex Thomas Plaza Circumstances giving rise to this claim: Claimant was riding his bicycle on School Street when the front wheel of his bicycle slipped on an elevated electrical cord covered by duct tape. The wheel turned out and Claimant fell over sideways fracturinq his hip. Generaldescripti~n~ftheindebtedness~b~igati~n~inju~'damage~r~ssincurreds~farasitmaybekn~wnat thetimeofthepresentationoftheclaim. Claimant fractured his hip and bruised his knee and shoulder. The hip required emerqency surgery and fixation with metal screws. Claimant has been off work since the injury. He has had extensive physical therapy. The injury has not completely resolved, Thename~rnames~fthepub~icemp~yee~remp~yeescausingtheinju~'damage'~r~ss'ifkn~wn. The City of Ukiah and employees responsible for the safety, maintenance and repair of School electrical cord to be tape. Street, together with the employees who allowed an installed across the roadway and covered with duct Pagelof3 .- If amount claimed totals less than $10,000: The amount claimed, if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. Amount Claimed and basis for computation: If amount claimed exceeds $10,000: If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. A limited civil case is one where the recovery sought, exclusive of attorney fees, interest and court costs does not exceed $25,000. An unlimited civil case is one in which the recovery sought is more than $25,000. (See CCP § 86.) "~ Limited Civil Case ~-~-] Unlimited Civil Case IYou are required to provide the information requested above in order to comply with Government Codel §910. I Claimant(s) Social Security Number(s): (optional) 546-74-6737 Claimant(s) Date(s) of Birth' 8/8/53 Name, address and telephone number of any witnesses to the occurrence or transaction which gave rise to the claim asserted' Rick Paige; Caprice Egloff 707/894-9256 10. 11. If the claim involves medical treatment for a claimed injury, please provide the name, address and telephone number of any doctors or hospitals providing treatment' Ukiah Valley Medical Center (surgery) Kennth J. Hoek: M.D. (surgery) David DeBooy (Anesthesiologist) Uk,i. ah,Va,lley Mqdical ,Ce~t,¢r (physical, therapy) If applicable, p/ease attacn any mea/ca/ o/us or repons or similar aocumt~flts supporting your claim. If the claim relates to an automobile accident: N/A Claimant(s) Auto Ins. Co.: Telephone: Address: Insurance Policy No.: Insurance Broker/Agent: Telephone: Address: Claimant's Veh. Lic. No.: Vehicle Make/Year: Claimant's Drivers Lic. No.: Expiration: If applicable, please attach any repair bills, estimates or similar documents supporting your claim. Page 2 of 3 .. ~ -. READ CAREFULLY For all accident claims, place on the following diagram the name City of Ukiah vehicle; location of City of Ukiah vehicle at time of of streets, including North, East, South, and West; indicate place accident by "A-I" and location of yourself or your vehicle at the of accident by "X" and by showing house numbers or distances to time of the accident by "B-I" and the point of impact by "X." street corners. If City of Ukiah vehicle was involved, designate by letter "A" location of City of Ukiah vehicle when you first saw it, NOTE: If diagrams below do not fit the situation, attach hereto a and by "B" location of yourself or your vehicle when you first saw proper diagram signed by claimant. CURB SIDEWALK PARKWAY SIDEWALK CURB -- Warning: Presentation of a false claim is a felony (Penal Code §72). Pursuant to California Civil Prodecures §1038, the City/Agency may seek to recover all costs of defense in the event an action is filed which is later determined not to have been brought in good faith and with reasonable cause. Date: September 15, 2004 Page3of3 -~ -- TEM NO: DATE: OCTOBER 6, 2004 AGENDA SUMMARY REPORT SUBJECT: NOTIFICATION TO CITY COUNCIL REGARDING EXECUTION OF EXHIBIT C OF CONTRACT NO. 96-SNR-00110 BETVVEEN WESTERN AREA POWER ADMINISTRATION AND THE CITY OF UKIAH The City of Ukiah along with other preference power customers entered into an agreement in 1997 with the Western Area Power Administration and the Bureau of Reclamation for the funding of operation and maintenance for Central Valley Project (CVP) Facilities. The City of Ukiah is committed to share in the costs of Western CVP Facilities to ensure adequate operations and maintenance in order to minimize the potential for power outages and electrical shortages. Our share of the annual commitment is based on our Contract Rate of Delivery and amounts to $14,416.39. Payment for this amount has been authorized with the execution of Exhibit C of the agreement (attachment #1). Funds are budgeted for this expense in the purchased power account 800.3702.213.000. RECOMMENDED ACTION: Receive Report Regarding The Annual Payment To Western Area Power Administration For Central Valley Project Operations And Maintenance Costs In The Amount Of $14,416.39. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachment: N/A Bernie Ziemianek, Director of Public Utilities Cindy Sauers, Electrical Distribution Engineer Candace Horsley, City Manager Exhibit C, Revision 7 to Contract No. 96-SNR-00110 APPROVED' C.~_ ~i~~ Can~ace Horsley, Cil~Manager Exhibit C, Revision 7 City of Ukiah Contract No. 96-SNR-00110 Attachment Exhibit C (Individual Customer Commitment and Contribution) t This Exhibit C, Revision 7, to be effective and as a part of Contract 96-SNR-00110 (hereinafter called the Agreement) shall become effective upon execution, and shall remain in effect until either superseded by a revised Exhibit C or upon termination of the Agreement. 2. The City of Ukiah agrees to make a Contribution pursuant to Section 8 of the Agreement for the Fiscal Year and in the amount specified in Section 3 below. The Fair-Share Funding Level as defined in Section 8.2.4.1 of the Agreement is indicated in Column 2 of the table shown in Section 3 below. 3. Please specify the Contribution commitment level(s) in the appropriate row(s) for'l'l~ie applicable FY(s). k~: Column 1 Column 2 Column 3 Column 4 Column 5 Columh 6 .... FY Revised Revision NO'. 5 Revision No. 6 Revision No. 7 Fair-Share Fair-Share Amount Contribution Contribution Contribution Amount in Dollars Commitment Level Commitment Level. .Commitment in Dollars Amount in Dollars Amount in Dollms Level Amount in Dollars 2004 $193,091.75 $193,091:75 $19,724.62 $19,724.62 $19,724.62 2005 $172,996.69 $135,303.50 $14,416.39 $14,416.39 2006 $222,319.98 $208,450.68 $0 $0 2007 $238,336.19 $238,336.19 $0 $0 Fair-Share Funding Level amounts and Contribution Commitment amounts, if any, are not shown for fiscal years prior to fiscal year 2004 in the above table. For that information refer to an earlier revision of Exhibit C. The signature below commits the Customer named to make Contributions, for the specified Fiscal Years(s) up to but not greater than the level indicated in the latest revision of the Contribution commitment level for a specific FY. Cy:~~ _ Date of Execution: ~-~ 3C)-O ~ B _ - Title: Address: ! Page 1 of 1 ITEM NO.: 8-A DATE' October 6, 2004 AGENDA SUMMARY REPORT SUBJECT: CONTINUANCE OF MAJOR SUBDIVISION MAP APPLICATION NO. 03-57 SUMMARY: The Planning Department, with the consent of the applicants for this project, is requesting that the City Council continue this item to October 20, 2004. This continuance is requested to allow the full passage of the 30-day period required for the adoption of Ordinance No. 1058, which was approved by the Council on September 15th of this year to change the zoning for the subject property from R-2 to R-2 PD. The proposed subdivision is designed to divide the apartment complex on the subject property into individual townhouses, and the change to a Planned Development zoning designation must become effective before the non-standard lot dimensions proposed in the subdivision can occur. Planning Department staff will provide the Council with a full packet on the proposed subdivision prior to the October 20th hearing date. RECOMMENDED ACTION: 1. Open a public hearing regarding Major Subdivision Map Application #03-57 and continue the matter to October 20, 2004. ALTERNATIVE COUNCIL POLICY OPTION: 1. Do not continue the project and provide direction to staff. Citizen Advised: Legal notice published in the Ukiah Daily Journal Requested by: Stephen Woodbury, property owner Prepared by: Dave Lohse, Associate Planner Coordinated with: Candace Horsley, City Manager and Charley Stump, Planning Director Attachments: None APPROVED: CandaSe Horsley, Ci~anager AGENDA SUMMARY Major Subdivision Map No. 03-57: Woodbury ITEM NO. 9a DATE: October 6. 2004 AGENDA SUMMARY REPORT SUBJECT: Discussion and direction to staff concerning Flood Control District Water Supply TERMS OF WATER SUPPLY CONTRACT The Mendocino County Russian River Flood Control and Water Conservation Improvement District ("Flood Control District" or "District") has a permit to use 8000 acre feet of water per year, which is stored in Lake Mendocino during the winter and released during the summer. The District proposed and on September 17, 2004, has now approved a standard Water Supply Contract which must be signed by anyone wanting to use water under the District's water rights permit. (A copy of the agreement is Attachment 1 to this Report.) The letter accompanying the final contract gives each customer until November 4, 2004, to submit a signed contract to the District As written, the Contract requires each potential District customer to agree to purchase water for an annual fee. The District has established $25 per acre foot as the fee for the first year of the contract. The District has indicated that it will offer each entity or person who has used District water in the past [continued on page 2] RECOMMENDED ACTION: Accept report. Direct staff on additional information required by City Council. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Candace Horsley, City Manager David J. Rapport, City Attorney Candace Horsley, City Manager Water Supply Contract (Attachment 1), August 17, 2004, letter from Flood Control District (Attachment 2), redlined revised Water Supply Contract and summary of contract changes (Attachment 3), September 16, 2004 letter from Fetzer (Attachment 4), September 21, 2004 letter from Flood Control District to Mendocino Board of Supervisors Chairperson (Attachment 5), response letter from City to Chairman, Board of Supervisors (Attachment 6) Candace H~rsley, Cit~Manager [Continued from page 1] an amount of water based on that customer's "historic use" of District water. The customer will decide how much of that amount it wants to contract for. Under the Contact, each customer must install a water meter to measure the amount of water it diverts from the Russian River each year. Each year the customer will pay for the amount of District water it uses, based on readings of that meter reported to the District by the customer. After the first year and each year thereafter, if the customer does not use all of the water reserved to it under the Contract in the prior year, the unused amount reverts to the District and is allocated to new customers. This Report calls this provision of the Contract the "use-it-or-lose-ir' provision. The Contract has an initial term of 5 years, but each year is extended for an additional year beyond the termination date, unless by December 31 of any year, the customer or the District gives notice of non- renewal. In effect, the contract remains in effect, unless a notice of non-renewal is given four years in advance of actual contract termination. CITY CONSULTANT CONCERNS WITH CONTRACT Informally, the District made a copy of the draft contract available to City staff in July. It did not formally circulate the draft for public comment until August 17. City staff had the contract reviewed by Gary Weatherford, its water rights attorney, and Wagner and Bonsignore ("W & B"), its water rights engineers. They raised the following concerns about the contract: 1. The Contract does not accommodate customers with independent water rights. In a normal water year, for example, W & B estimates that there is sufficient "natural flow" in the Russian River to supply all of the water diverted by the City. The City has a right under its own water rights permit to divert this water and it does not need to rely on the District's permit in those years. Moreover, the City cannot double count its water use in reporting that use to the State Water Resources Control Board ("WRCB"). If it diverts the water under the District's permit, that use counts toward perfecting the District's water right and does not count toward perfecting the City's water right. Each water rights permit sets a deadline for putting the water available under the permit to beneficial use. Any water that is not put to beneficial within the time allowed may be lost, when the permit "goes to license." 2. The Contract relies exclusively on diversions to determine the use of the District's permit water. However, under the District's permit as approved by the WRCB in decision D 1030, its use is described as "depletion by consumptive use." This means that the water chargeable to the District's permit only includes the amount of water permanently lost to the watershed after it is diverted. Water used for domestic purposes or for irrigation that percolates through the ground back into the river does not count against the District's 8000 acre foot reservation. By relying exclusively on diversions to measure the use of the District's water, the Contract gives up the right of District residents to use these so-called "return flows." 3. Certain provisions in the Contract, particularly those concerning defaults, remedies and indemnification were one-sided and overbroad. (See Attachment 3, Summary, pp. 3-4.) 4. The Contract requires a customer to giVe up the right to challenge certain future District decisions, including setting the future rates for water and District decisions to seek additional water rights. PROBLEMS CREATED BY CONTRACT Items 1 and 2 above, in the opinion of the City's consultants, have the following adverse consequences: 1. They force customers with independent water rights to divert water and report that use under the District's permit, when they don't need it, in order to have that water available in the dry and critically dry years, when they will need it. 2. The use-it-or-lose-it feature of the Contract deprives potential customers who do not have independent water rights the opportunity to use that water, when customers who have their own permits don't need the District's water, thereby reducing the number of customers who could make beneficial use of the District's water. 3. The use-it-or-lose-it feature discourages water conservation. If a customer doesn't use the water in one year, because it doesn't need it that year, it loses the right to use that water permanently. Hence, the customer must use the District's water to preserve the customers right to use it in the future, whether the customer could avoid that use through conservation measures or not. 4. By forcing the customer to report water diversions under the District's permit, when it could divert that water under its own permit, the Contract reduces the amount of total water in Mendocino County subject to Russian River water rights permits that can be perfected under those permits. Rather than taking maximum advantage of water rights permits for the mutual benefit of all Russian River water users in Mendocino County, this Contract provision may reduce the amount of water available in the County. 5. By ignoring return flows, the Contract fails to take maximum advantage of the water available under the District's permit. Again, rather than maximizing water availability in the County, this Contract provision may give up water that could be put to beneficial use under the District's permit. EFFORTS TO BRING CONCERNS TO THE DISTRICT When the contract was formally circulated for public comment on August 17, the accompanying letter (Attachment 2) promised multiple meetings over a 2 month period to solicit and consider public comments on the draft Contract. The City staff attempted to bring the concerns of the City's consultants to the District Board. City staff requested a meeting with the Board for its consultants to make a presentation. The District agreed to an informal meeting on August 31 with City representatives, the District's Executive Director, its attorney, Marc Del Piero, and two District Board members, Judy Hatch and Tom Mon Pere. That meeting was dominated by Mr. Del Piero and the Consultants never had an opportunity make their presentation. The City did agree, however, to submit a redlined revised Contract to the District's attorney for his review and comment. The redlined revised contract was emailed to the District and its attorney on September 9. (A copy of the revised Contract and a summary of the changes and the reasons for them, entitled MODIFICATIONS TO WATER SUPPLY CONTRACT are Attachment 3 to this Report.) The City has never received any written response to those proposed revisions. The District scheduled a public hearing on the draft Contract for Monday, September 13 at 7 p.m. Because the City never got a chance to make its presentation, the District placed the City's presentation on its agenda for 6 p.m. that same evening at the Willow Water District offices on Laws Avenue. The City's consultant, Paula Whealan, was given about ~ hour to make the presentation. The District Board asked no questions and there was virtually no discussion of the presentation by the full Board. The public hearing convened at 7 p.m. at the Farm Bureau office on Talmage. A substantial number of speakers expressed concerns about the Contract, but the discussion was general and conceptual and did not address specific contract language. The hearing lasted about 1 ¼ hours. At the end, the District was asked: what would happen next? The answer was vague but implied to several persons present that there would be additional opportunity for specific comments. No mention was made of a special meeting to approve the Contract. Two days later, on Wednesday, a confusing notice of a special meeting set for "Monday," September 17, 2004, was posted with approval of the Contract as the only agenda item. Later that day or the next day a revised notice was issued clarifying that the special meeting was scheduled for Friday, September 17, at 6 p.m. Ostensibly in response to public comments, contract revisions were presented at the special meeting. No one had an opportunity to review those revisions before the meeting was convened. Because of its timing at the beginning of a week end, few people attended. Those who did were not allowed to address the draft Contract. The Board took the position that since an opportunity to comment had been afforded at the September 13 meeting, no further comments would be permitted. No comments were made about the proposed changes, because there had been no opportunity to review those changes with consultants or legal counsel. Without much discussion, the Board approved the revised Contract. The City never received any response to its proposed changes and none of them were adopted. On September 21, 2004, the Director of the Mendocino County Water Agency made a report to the Board of Supervisors on the Water Supply Contract and the process used by the District to approve it. In response, the Board asked him to prepare a letter for Board approval, requesting the District to undertake additional review of the Contract to consider the issues raised by the City and others. The letter from the Board states that the above-described process was not adequate. On September 28, 2004, the Board approved that letter and authorized the Board Chairman to send it. On September 28, 2004, the City received a copy of a letter from the Chairman of the District Board to the Chairman of the Mendocino County Board of Supervisors, responding to a letter from Susanne Zechiel of the Fetzer Winery. Fetzer criticized the process used by the District to approve the Water Supply Contract. (A copy of that letter is Attachment 4.) The City staff felt compelled to respond to the District's letter. (A copy of the response is Attachment 5.) CITY OPTIONS The City will have to decide whether to sign and return the Water Supply Contract, to continue making efforts to get the District to revise the Contract or to reject the Contract and rely on its independent water rights exclusively. City staff will be providing additional information to the City Council in a future closed session to aid it in making these decisions. Mendocino County Russian River Flood Control & Water Conservation Improvement District Attachment #_ / 151 Laws Avenue, Suite D Ukiah, CA 95482 Phone (707) 462-5278 FAX (707) 462-5279 September 23, 2004 Dear Water Users, Land Owners, and Residents: For the last five decades, the Board of Trustees of the Mendocino County Russian River Flood Control and Water Conservation Improvement District (MCRRFC & WCID) have faithfully provided its 8000 acre feet of water from Lake Mendocino for the benefit of the citizens, farmers, and communities of our District. Unfortunately, demands for our water are always going up, even though our allotment is not. Recently, the Board of Trustees chose to directly confront the ever-increasing demands that federal endangered species requirements and new water users are placing on our fixed and limited water supplies. The Board, pursuant to our District's Ordinance No. 00-1 that has now been legally upheld by both the Mendocino County Superior Court and the California District Court of Appeals, has approved both a water rate resolution and standardized water contract language. The Board has taken these actions is because it sincerely believes that it is necessary and prudent to allow our historic water users to apply for, and receive, written water agreements memorializing and confirming to them their historic and existing annual water allotments of District water. Additionally, we believe these actions appropriate so that those water users may preserve, protect, and continue their past and current beneficial uses of our water, which they consistently use annually. Further, the Board decided to fund and implement this management program, in part, to protect and preserve our farms and ranches, protect our economy, properly measure our water use, and to uniformly maximize the beneficial uses to which the District's water is put, while guaranteeing that water conservation is enforced and given a high priority within our District's service areas. We believe and intend that these actions will protect our precious and limited water fights and supplies in the future, as well as protecting the jobs, the health, and the safety of our citizens and residents. Enclosed with this letter are copies of the final and approved proposed agreemem language, the original information letter, and the adopted rate resolution. We ask that you please take the time to review these very important documents, particularly if you, your business, or your agency has historically used our District's water. President Vice President Treasurer Trustee Trustee Judy Hatch Tom Ashurst Bill Townsend Tom Mon Pere Bob Wood The Board of Trustees has approved this standardized agreement language so that those users of the District's water supplies who propose to enter into water agreements will submit offers to purchase water to the District that are fair, impartial, standardized, and uniform. The Board has decided that it will not entertain re-written, specially modified, or changed agreement ~e so that we can avoid any and all accusations or assertions of preference, favoritism, or unfair advantage. SUCH PROPOSED CHANGES WILL NOT BE ACCEPTED. If you wish to apply for the quantity of the District's water that you have historically used and put to beneficial use on an annual basis, please fill out and sign the attached agreement and return it to the District's office by mail or personal delivery by Thursday, November 4, 2004 by $:00 p.m. Applications received at~er this date will be processed based upon remaining water supplies. The return of this executed agreement by you will be construed by the District as an offer to purchase an allotment of the District's water on an annual basis. Upon its receipt, the District's Board of Trustees shall review and consider each said offer to purchase water for sufficiency and completeness, and take appropriate action. If you have any questions about the agreement, or you wish to discuss any aspect of this process, please contract the District's Executive Director Barbara Spazek at (707) 462-5278. We thank you for your kind consideration and cooperation in this process to protect our valley's water supplies while maximizing the water that is and will be available, currently and in the future, to you, our constituents and customers. S~cerely, Judy Hatch President UNIFORM WATER SUPPLY AGREEMENT THIS WATER SUPPLY AGREEMENT (Agreement), entered into as of the latest of the dates shown opposite the signatures of the Parties to this Agreement, is made by and between ~.~'~ ?-? !~..:'.~ ~:'~ (hereinafter "Customer") and MENDOClNO COUNTY RUSSIAN RIVER FLOOD CONTROL AND WATER' CONSERVATION IMPROVEMENT DISTRICT organized and operating pursuant to Water Agency Acts Chapter 54 (the "District"). Customer and District are sometimes referred to herein individually as a "Party" and collectively as the "Parties." The Parties hereby mutually agree to and confirm the following: RECITALS A. District is an improvement district organized and operating pursuant to the provisions of Chapter 54 of the Water Agency Acts entitled the Mendocino County Water Agency ACt. Pursuant to Sections 101 and 102 of that Act, the District has all the rights, duties, powers, liabilities, purposes, privileges, and immunities conferred and specified by the ACt on the Mendocino County Water Agency. Chapter 54 Section 3(s) of the ACt provides that District, as an improvement district within the Mendocino County Water Agency, has the power "to divert, produce, store, transmit, distribute, and sell or otherwise furnish surface waters and groundwaters for beneficial uses within or without the Agency". B. The District has been granted the right to divert East Fork Russian River water, redivert water released from storage in Lake Mendocino, and withdraw water from storage in Lake Mendocino in a total amount not to exceed 8,000 acre feet per year pursuant to Decision D-1030 and Permit No. 12947B issued by the California State Water Resources Control Board (hereinafter "Project Water"). C. Historically, the District, since securing its water rights pursuant to the provisions of SWRCB Decision 1030 and Permit No. 12947B, has provided to individual customers an amount of water annually that each of those customers has put to beneficial uses. For over forty years, these annual allocations of the District's water Uniform Water Purchase Agreement 09117/04 supply have been beneficially used by the District's customers and reported to the appropriate governmental and regulatory agencies. Those beneficial uses include permanent orchards, vines, vineyards, and existing and long-established agricultural, residential, commercial, and industrial uses that have greatly benefited and will continue to benefit and sustain the economy, the environment and environmental resources, the livelihoods, the health and safety, the jobs, and the communal and moral integrity of the residents of Mendocino County. D. Within the past several years and due, in part, to diminishing or threatened altemate water allocations and supplies from other sources of Russian River water, the District has received and is experiencing increased and new requests and demands for the use of its water to a greater extent than its current water supplies can satisfy. The District desires to conserve its water supply and to provide for and satisfy the historic needs of the existing and continuing beneficial uses of its water by its long-term customers referenced above before it develops or allocates existing or new water supplies for new or expanded areas or uses. Consequently, the District has adopted Ordinance No. 00-1. E. The District has adopted Ordinance No. 00-1 and Resolution No. 04-03 which provide a method by which Customers who wish to purchase a specific amount of the District's Project Water may file an application with the District to purchase such water and, upon approval of the application by District, enter into a Water Supply Agreement which provides that the Customer will install at its own expense a water meter or meters to measure the quantity of Project Water to be sold by the District to each such Customer. F. The purposes of said Ordinance and said Resolution are to provide a method by which the District can properly promote conservation and conserve its water resources, can accurately measure the amount of its Project Water used by each of its Customers, and can sell such water to its Customers, for their sole properties or services areas, in order to acquire funds sufficient to pay for the District's operational and administrative costs and to finance acquisition of additional water supply to meet current and increased demand for water necessitated by growth within the District's jurisdictional boundaries and designated places of use. In order to implement these purposes, the District finds that it is in the public's interest to accept written applications from its Customers, who wish to utilize a specific amount of Project Water, to enter into Water Water Purchase Agreement Final - 9/17/04 Supply Agreements in the form of this Agreement by which the District will agree to supply a specific amount of Project Water to each Customer submitting an application (for the Customer's consumptive use) for a period to be reflected in this Agreement and made a part in consideration for each such Customer agreeing to install at its own expense a water meter at each of Customer's Service Connections for the purpose of measuring the specific amount of Project Water utilized by each such Customer and payment of the "per acre foot purchase pdce to be charged" for water pursuant to Section 2 hereof. The amount of water agreed to be provided is not guaranteed and the availability of said water is based on the type of water year as designated in State Water Resources Control Board Decision D-1610 and explained in Section 9 below. The purpose of this Water Supply Agreement is (1) to enable the District both to accurately measure the demand for and usage of its Project Water by its customers during the terms of this agreement and to charge its customers for said Project Water and (2) to allow the District's Customers to utilize and consume a specific quantity of Project Water for uses specified in the District's water rights permits upon payment to the District of the required water charges. G. Customer is a public water agency and/or individual which seeks to acquire a water supply for all of its historic and long-term uses, including its domestic uses and consumption and its agricultural uses, from the District's Project Water, and which hereby acknowledges, confirms and agrees to comply with and uphold both the aforementioned Ordinance and Resolution. H. District expects to have a quantity of Project Water available for delivery to Customer during the term of this Agreement. I. To accomplish the foregoing objectives of the parties, District is willing to supply, and Customer is willing to pay for, receive and consume a specific quantity of Project Water that it has historically used under the terms and conditions set forth in this Agreement. J. The purpose of this Agreement is to set forth the terms and conditions under which Customer will take delivery from District of a specified quantity of Project Water for Customer's consumptive use pursuant to the beneficial uses allowed under the District's permit and California law as in effect on the effective date of this Agreement. The Project Water delivered by District to Customer pursuant to the terms of this Agreement shall be acquired by District pursuant to those water rights by which District Water Purchase Agreement Final - 9/17/04 3 is entitled to 8,000 acre feet per year of water stored in Lake Mendocino pursuant to Permit No. 12947B, and this Agreement shall have no effect on District's water dghts described in said Permit No. 12947B. The Parties hereto do not intend, and under this Agreement do not in any manner or way transfer, assign, encumber, or grant to Customer any ownership interest or control over any of District's water dghts. As part of the consideration for Distdct in this Agreement, Customer promises and agrees to use District's water only pursuant to and in compliance with each and all of the requirements and provisions of Permit No. 12947B, California Law, and D-1030. K. The Parties acknowledge that this Agreement will not become effective unless and until District has obtained any and all necessary authorizations, consents, and permits from certain governmental and public agencies necessary, if any, to deliver Project Water to Customer. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: SECTION 1 - DELIVERY OF PROJECT WATER 1. Subject to the terms and conditions hereof and to satisfaction and occurrence of all of the conditions precedent to the effectiveness of this Agreement set forth herein, District will cause to be delivered to Customer up to a maximum of acre-feet of Project Water at the Customer's Service Connection during the term of this Agreement. Customer agrees to propedy install and maintain at its own expense appropriately sized water meter(s) at its Service Connections to accurately measure its usage of Project Water as a condition precedent to accepting delivery from Distdct of that quantity of Project Water specified herein and further, agrees to pay for, purchase, use, and consume the water that customer diverts during the District's water year in which it was diverted pursuant to the provision herein. 2. The Parties hereto agree that at the termination of this Agreement neither the terms of this Agreement nor the conduct of the Parties and performance of this Agreement confers upon Customer any legal or equitable right or claim to the Project Water delivered. 3. Project Water subject to this Agreement shall be delivered to Customer at its Service Connection located on the Russian River for use upon or within Customer's Water Purchase Agreement Final - 9/17/04 4 real property, or within Customer's service area if Customer is a regulated public or pdvate agency, corporation, or municipal entity, created pursuant to the California Constitution, statute, or regulations of the California Public Utilities Commission and which is legally authorized to sell and deliver water to its customers. 4. Customer acknowledges and agrees that this Agreement is a contract for the delivery of Project Water from the District during the Term. The quantity of Project Water delivered pursuant to this Agreement shall be measured by meter(s) to be installed at the location(s) where Customer proposes to divert Project Water from the District's public water system in the Russian River, as the case may be (the "Service Connection'). Pdor to the effective date of this Agreement, Customer agrees to furnish and install meters of appropriate size at the Service Connection at Customer's sole cost and expense. The meters shall remain the property of Customer. District, as part of this Agreement, is granted and reserves the dght to read, inspect, test, and to require Customer to service said meters, if necessary, at any time. Customer shall have and accepts the obligation to maintain the meter in good working order for the benefit of the District at all times. Failure to install the aforementioned meters by the date specified shall cause this contract to be void and terminated. 5. If deliveries of Project Water under the provisions of this Agreement are prevented, delayed, or made impracticable due to extended drought, flood, fire, earthquake, or other natural disaster, federal or state regulatory limitations, stdke, unavailability of necessary materials, electrical power or fuel, civil doting, war or military conflict, inability of District to obtain any approval for conveyance of Project Water from any government agency, including without limitation the State Water Resources Control Board ("SWRCB'), or if the cost of complying with any environmental requirements renders this transaction economically or physically impractical (collectively a Force Majeure Event), District shall not be required to deliver and Customer shall not be required to accept that portion of the Project Water the delivery of which has been prevented, delayed or made impracticable, for the period of prevention, delay or impracticability. Project Water not delivered as a result of such prevention, delay or impracticability may be delivered to Customer on a make-up basis on a schedule to be reasonable and agreed upon by the Parties, if such deliveries can legally be made up by the end of the Term of this Agreement. Water Purchase Agreement Final - 9/17/04 6. Customer shall have the physical control of the taking of water from the Russian River at the point of its Service Connection. Customer shall bear all expenses of such taking, including but not limited to the furnishing and maintenance of intake facilities on the Russian River and shall obey the rules and regulations of the Corp of Engineers and any other public authority with jurisdiction over the installation and maintenance of such facilities. Customer shall provide to District meter readings reflecting the total amount of water used by Customer from the Russian River. Said meter readings shall be provided on the first of each month and at such other intervals as may be requested by District or its authorized representatives. SECTION 2 - PER ACRE FOOT PURCHASED PRICE TO ,BE CHARGED 7. Customer shall pay the "per acre foot purchase price to be charged' to the District in the amount of $ 23.00 per acre foot for each acre foot of Project Water which District contracts to deliver and that Customer diverts as specified in Paragraph 1 of this Agreement, whether such Project Water is actually used by Customer or not. Customer and District mutually hereby accept and agree that the annual "per acre foot purchase price to be charged' shall be calculated and adopted by resolution annually by the District, as follows: The "cost of administration" of the District in entering into, administering, and managing its water and Water Supply Agreements with Customers for each water year shall be divided by its 8,000 acre foot entitlement, or such other sum as is reserved to the District pursuant to State Water Resources Control Board Decision D-1030, or amendments thereto, to determine the District's costs of administration for each acre foot. The "cost of administration" of the District in administering and entering into the subject "Water Supply Agreements' shall include the following: (a) all of the District's costs of preparing and reviewing, the costs of processing, and all administration costs of evaluating Customer's Application to enter into the Water Supply Agreement; (b) all of the District's costs of administering and monitoring the installation of water meters by Customers as required by the terms of this Agreement; (c) all of the District's annual administrative costs, including but not limited to all monitoring and legal costs, and all of the District's annual environmental review and/or mitigation costs, including engineering and consultants costs and those costs involved in analyzing and responding to Customer Applications, and all costs encompassed in the managing, operating, monitoring, developing, expanding, Water Purchase Agreement Final - 9/17/04 preserving and defending, and administering of the District's water system(s) and facilities, water supplies, and the Delivery of Project Water to Customer pursuant to the terms of this Agreement; (d) all costs of water meter inspection, water meter reading, water meter testing, and all costs of all administrative, operational, and regulatory reporting, and compliance requirements, entitlements, obligations, or duties. The total "per acre foot purchase pdce to be charged" payable by Customer pursuant to the terms of this Agreement is the charge per acre foot times the number of acre feet of Project Water diverted by Customer as set forth in Section 1 hereof. 8. The "per acre foot purchase pdce to be charged" is due and payable monthly by Customer to District after this Water Supply Agreement is accepted by the District and both parties execute this Agreement. Customer's obligation to pay the "per acre foot purchase pdce to be charged", which will be due pursuant to this Agreement and upon diversion of water by Customer, shall be an absolute unconditional obligation of Customer, not subject to deduction, setoff, pdor notice, demand, or inability of Customer to use, store or resell Project Water after delivery and diversion by Customer. Customer shall have no obligation to accept delivery of any Project Water in excess of the maximum amount diverted by Customer as specified in Section 1 hereof. Pursuant to the provisions of Paragraph 1, Section 1 herein, the maximum amount of water that may be delivered to Customer shall be acre-feet annually. Because the demands for District water resources generally exceed the District's supplies and after the first full calendar year of this Agreement, and every year thereafter, the District shall review the total annual use of the District's water by Customer. If the annual use of District's water by Customer, based upon monthly meter readings and monthly billings, is less that the amount of water reserved for Customer, as referred to in Paragraph 1, Section 1 of this Agreement, the District shall reduce Customer's reserved water allotment to reflect actual use in the prior years. The unused water will then be made available to other water users at the sole discretion and determination of the District for the maximum beneficial use of the District's water resources. SECTION 3- TERM 9. The Term of this Agreement and for the delivery of Project Water pursuant to this Agreement shall commence on ,2004, the Effective Date, and shall continue through December 31, 2010, the Termination Date, subject to the Water Purchase Agreement Final - 9/17/04 ? renewal provisions provided for herein. Either party to this Agreement may provide to the other party Notice to Terminate this Agreement subject to the following terms: a. Upon the 31a of December of each calendar year after the Effective Date of this Agreement, if neither party to this Agreement has submitted to the other party a Notice to Terminate this Agreement in the pdor 12 months, this ^greement and all of its terms shall be automatically be extended for an additional 12 months (1 year) beyond the Termination Date in effect on the aforementioned 31'~ of December. b. Any Notice to Terminate this Agreement, except for breach of its terms, shall be personally delivered by the party which seeks to terminate this Agreement to the other party not later than 5 P.m. (PST) on the 30a of December, five (5) years pdor to the Termination Date in effect on the aforementioned 30th of December. 10. As used in this Agreement, the term "Effective Date" shall mean the date on which all of the conditions precedent set forth in Section 5 below have been satisfied or have occurred. At such time as all of said conditions precedent have been satisfied or have occurred, the Parties shall execute a supplement to this Agreement specifying a revised Effective Date. SECTION 4 - FIRST OPTION TO PURCHASE PROJECT WATER 11. In consideration for entering into this Water Supply Agreement with the District, Customer shall have an option to purchase additional Project Water, if such water is available. This option shall not become effective (effective date) until after the District has completed new rate studies, water demand studies, and has completed accepting and processing appliCations from other Customers to purchase Project Water from the District. At such time as the District completes the application and approval process for other Customers to purchase Project Water from the District, Customer shall have the right to have its additional Application for Purchase and Delivery of Project Water considered upon providing written notice of such desire to the District. District solely shall have the right to determine the effective date of the option and shall notify Customer as to the date of completion of the aforementioned process. Said Water Purchase Agreement F~al - 9/17/04 option shall entitle the Customer to have its additional Application for Purchase and Delivery of Project Water considered by the District prior to the consideration by District of any other Applications for Water Purchase submitted by parties who have not entered into a Water Supply Agreement by the completion of the aforementioned process and the effective date. SECTION $ - CONDITIONS PRECEDENT TO DISTRICT'S OBLIGATIONS 12. The obligations' of Distdct to deliver Project Water and the resulting obligations of Customer to accept and consume deliveries of Project Water are conditioned upon the satisfaction or occurrence of the following conditions precedent: (a) The installation of appropriately sized water meters by Customer at Customer's expense at Customer's Service Connection; (b) The approval and consent of the SWRCB, if applicable, for the water to be delivered and sold to Customer hereunder;, (c) full and complete compliance by Customer, if necessary, with the requirements of the California Environmental Quality ACt ("CEQA'), including the completion of an initial study, and if it is determined that the project is not exempt from CEQA, either (a) there shall have been adopted a negative declaration or a mitigated negative declaration, or (b) a final environmental impact report, all costs of CEQA compliance shall be borne by Customer, shall have been completed and approved, and the time shall have expired within which a judicial proceeding may be instituted challenging the validity or completeness of any such determination of exemption, or adoption of a negative declaration or of a mitigated negative declaration, or approval of a final environmental impact report. The Parties acknowledge and agree that they are proceeding with this Agreement on the basis that the transaction contemplated hereby is exempt from the requirements of CEQA due to Customer's historic use. 13. The Parties may agree to extend the date by which any of these conditions precedent may be satisfied or waived. 14. If the conditions precedent specified herein are not timely satisfied or waived, then this Agreement will be void and all rights granted by this Agreement will be terminated and forfeited. Water Purchase Agreement Final - 9/17/04 SECTION 6 - PERMITS AND AUTHORIZATIONS 15. Customer agrees to support District in obtaining any Permits, Authorization, Environmental Approvals, or Approvals necessary to make this Agreement effective; and to fully cooperate with District in implementing all of the terms of this Agreement and achieving its objectives. 16. This Agreement may be terminated and abandoned at any time by written notice from either party if the SWRCB or any other governmental entity with jurisdiction over the subject matter of this Agreement rejects or fails to approve the transactions contemplated by this Agreement, or reduces or modifies District's water rights supply, or conditions its approval to such transaction on factors beyond the Parties' individual or collective practical and/or economic ability to accommodate; or the transactions contemplated by this Agreement are enjoined or otherwise prohibited by a court of competent jurisdiction; or the Parties mutually agree the completion of the transactions contemplated by this Agreement are not feasible. Upon such termination and abandonment, this Agreement shall become null and void and each party shall be responsible for its own expenditures and out-of-pocket costs incurred in connection with this Agreement subject to the provisions of this Agreement with respect to Indemnification set forth below. 17. The delivery of Project Water pursuant to this Agreement shall not confer any appropriative, public trust, or any other right to water of any nature on any person or entity. Nothing in this Agreement shall act as a forfeiture, diminution or impairment of any rights or discretion that District may enjoy to the full use of the water to which it is entitled pursuant to State Water Resources Control Board Decision D-1030 and Permit No. 12947B, or from future sources, or shall in any way prejudice any of District's rights, title or interest thereto. The Parties hereto agree that Project Water deliveries under this Agreement and this Agreement itself is evidence of the beneficial use of the Project Water agreed to be delivered and consumed hereunder. The only rights granted to Customer as a result of this Agreement are those for use of the Project Water delivered pursuant to this Agreement as expressly set forth in this Agreement. SECTION 7 - REPRESENTATIONS AND WARRANTIES OF DISTRICT District makes the following representations, warranties and covenants to Customer, as of the date this Agreement is fully executed: Water Purchase Agreement Final - 9/17/04 ]0 18. District is an improvement distdct formed within the Mendocino County Water Agency organized and operating pursuant to the provisions of Chapter 54 of the Water Agency Acts; 19. District has the dght, power and authority to enter into this Agreement and to perform its obligations herein, and the persons executing this Agreement on behalf of District have the dght, power and authority to do so; 20. This Agreement constitutes a legal, valid and binding obligation of Distdct enforceable against District in accordance with its terms; 21. The execution and performance of this Agreement by District does not breach or constitute a default by Distdct under any law, regulation, ruling, court order, agreement, indenture, or undertaking or other instrument to which Distdct is a party or by which Distdct or any of its property may be bound or affected. SECTION 8 - REPRESENTATIONS AND WARRANTIES OF CUSTOMER Customer makes the following representation, warranties and covenants to District, as of the date this Agreement is fully executed: 22. Customer, by signing this Agreement, is not waiving, releasing, altering, or transfening any other water right or facilities held by Customer, or right to use water, vested or otherwise, that Customer may have or acquire, or which may be granted to Customer by the State Water Resources Control Board. Customer does acknowledge and agree that the District may seek to secure permits for, acquire, develop, construct, and operate additional water facilities and systems in the future that will benefit Customer and Customer's businesses and properties. This Agreement shall not diminish, impair, supercede or otherwise affect any of the Customer's water rights, and Customer's signature on this Agreement does not constitute a waiver, release, alteration or transfer of any such rights, vested or otherwise, which Customer may have, acquire, or which may be granted to Customer by the State Water Resources Control Board. 23. Customer acknowledges that, as a condition and partial consideration of this Agreement, Customer shall not deliver, use, allow to be used, store, or resell District's water granted to or used by Customer to any areas, lands or users outside of the District's boundaries and/or the designated place of use for the District's water rights as determined by the California State Water Resources Control Board. Further, Customer Water Purchase Agreement Final - 9117/04 ' acknowledges that it shall not sell water from its contract allocation to any entity for use outside the District's designated place of use and/or the District's boundaries, and also acknowledges and agrees that the "per acre foot purchase price to be charged" includes water charges, capacity charges, water connection fees, and services charges. 24. Customer is a public water agency duly organized, valid and existing, and in good standing under the laws of the State of California, and is qualified to do and is doing business in the State of California and/or Customer is actively involved in agriculture and/or is a private property owner of agricultural lands located within the District's boundaries and place of use for its water supplies and resources; 25. Customer has the dght, power, intent, and authority under this Agreement to perform all of its obligations hereunder, and the persons executing this Agreement on behalf of Customer have the right, power, intent, and authority to do so; 26. This Agreement, and all of its provisions, terms, and obligations herein, constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; 27. The execution, delivery and performance of this Agreement by Customer will not breach or constitute a default under or grounds for the acceleration of maturity of any agreement, indenture, or undertaking or other instrument to which Customer is a party or by which Customer of any of its property may be bound or affected. SECTION 9 - REDUCTIONS IN SUPPLY OF WATER AS A RESULT OF SHORTAGE CONDITIONS 28. In the event that a drought, reduction of supply, or shortage condition is declared by the District with respect to its water dghts or supply in Lake Mendocino and the east fork of the Russian River, and evidence of such drought, reduction of supply, or shortage condition is of sufficient magnitude, in the District's sole opinion or findings, to require a reduction in diversions by District pursuant to its Permit, then District shall be entitled to reduce the amount of Project Water it is required to deliver to Customer pursuant to the terms of this Agreement in the manner set forth below without any form or manner of liability. District and Customer will share prorate in the reduction in District's allowed diversions from the Russian River and/or Lake Mendocino, as the Water Purchase Agreement Final - 9117104 12 case may be. District's delivery to Customer will be reduced by Customer's prorata share of the reduction in allowed diversions, calculated as: District's delivery obligation to Customer in a normal flow year divided by District's dght to 8,000 acre feet per year multiplied by the amount of reduction in Project Water available to District under its Permit. 29. In the event of such shortage, District shall deliver a written "Notice of Impending Shortage" to Customer. Within thirty (30) days of delivery of such a Notice of Impending Shortage, the Parties shall conduct a meet and confer session for the purpose of negotiating a mutually acceptable "Supplemental Agreement" for the delivery by District of Project Water to Customer. This Supplemental Agreement shall contain the terms and provisions under which Distdct will deliver Project Water to Customer for the period dudng which the shortage condition prevails. 30. Other events which will trigger a prorata reduction in any amount of Project Water that the District is required to deliver to Customer pursuant to this Agreement are as follows: (a) An adverse regulatory, legal or environmental determination to District, if not pursued or supported by the Customer, restricting District from diverting and using the entire 8,000 acre feet per year pursuant to its Permit based on public trust issues, environmental or endangered species protection issues or on theories of equitable apportionment, forfeiture, abandonment or other theory related to District's use; (b) the consent of District to restriction on its right to divert and use the entire 8,000 acre feet per year pursuant to its Permit; (c) the consent of District to, or an adverse determination against District, if not pursued or supported by Customer, finding that Distdct is no longer reasonably and beneficially using all of its water; or (d) the risk of an unexpected event disrupting District's ability to transfer the water to be delivered to Customer, or an unexpected event disrupting Customer's ability to receive the water delivered by District, such as a flood, earthquake, tire, act of war or like emergency. SECTION 10 - CONSERVATION PLAN 31. Customer, and each and any third parties to whom Customer may sell, give, or shall allow to be transferred District's water acquired pursuant to the provisions of this Agreement, shall comply with the requirements of a comprehensive water conservation program and enforcement plan adopted by Customer and approved by District as partial consideration for this Agreement. Customer shall, within 90 days of the Water Purchase Agreement Final - 9117/04 execution of this agreement, prepare, adopt, and present to the Executive Director of the District, a complete water conservation program and enforcement plan. Such programs and plans shall mandate and utilize California development, domestic, agricultural, and irrigation water conservation guidelines, including California Urban Water Association (CUWA) water conservation standards and agricultural irrigation conservation techniques as recognized by the California Department of Food and Agriculture as appropriate. Within 120 days of the execution of this agreement, the Executive Director shall approve the submitted plan, propose changes to the plan to Customer, or, in the case of the failure of Customer to submit the required plan, notify Customer of the termination of this Agreement due to the failure of consideration and breach of the terms of this Agreement. Upon approval by the Executive Director, Customer shall fully implement and enforce, in favor of the District, the plan and its provisions during the balance of the term of this Agreement. Failure of Customer to fully implement and enforce the conservation plan and its provisions within its service area and against third parties (to whom it may sell, give, or allow the transference of District's water), for the benefit of District, shall constitute a breach of this agreement. SECTION 11 - DEFAULT 32. Each of the following constitutes an "Event of Default" by Customer under this Agreement: (a) Payment. If Customer fails to pay the "per acre foot purchase price to be charged" when due and payable pursuant to the provisions of Section 2, or any other amount due and payable pursuant to this Agreement by the due date, said failure to pay shall constitute a default in this Agreement and any such delinquent payment will bear interest at the rate of ten percent (10%) per annum until paid in full. (b) Promises. Customer fails to perform, comply with, or observe any term, covenant, obligation, or undertaking in this Agreement that it is to perform or observe, and such default continues for ten (10) days after written notice of default has been sent by District to Customer. This provision shall include, but not be limited to, Customer's excessive use of water which exceeds that water and water allocation that the Parties have agreed to pursuant to the terms of this Agreement. Any use of District's water by Customer which exceeds the Water Purchase Agreement Final - 9/17/04 ] 4 'amount of water herein referred to and which is the subject of this Agreement, and which is not authorized in writing by the District, shall constitute a breach and a default of this Agreement. (c) Warranties and Representations. Any warranty, representation, or other statement made by or on behalf of Customer and contained in this Agreement or any other document furnished in compliance with or in reference to this Agreement is, on the date made or later proves to be false, misleading, or untrue in any material respect. SECTION 12 - REMEDIES 33. In the event of any such default by Customer, District shall have the following dghts and remedies, in addition to any dghts and remedies now or hereafter provided by law. All such remedies are cumulative and may be exercised concurrently or separately: (a) Upon default by Customer, District, at District's sole determination, may terminate this Agreement and discontinue furnishing water to Customer pursuant to the terms of this Agreement. (b) In the event of default by Customer, District shall have the option to suspend delivery of water to Customer's Service Connection until such time as the default is remedied by Customer. (c) In the event of default by Customer, District may, by mandamus or other action or proceeding or suit at law or in equity, enforce its rights against Customer, or by suit in equity enjoin any acts or things which are unlawful or violate the rights of District. 34. A waiver of any default or breach of duty or contract by District shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract by Customer. No delay or omission by District to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein. 35. No remedy herein conferred upon or reserved to Distdct is intended to be exclusive of any other remedy, and each such remedy shall be cumulative and shall be Water Purchase Agreement Final - 9/17/04 in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or othenvise and may be exercised without regard to any other remedy conferred by any other law. SECTION 13 - INDEMNIFICATION 36. Customer shall fully defend, indemnify, and hold harmless the District, its officers, directors, employees and agents, and each and every one of them, from and against any and all actions, liability, damages, claims, suits, proceedings, judgments, settlements, losses and expenses (including reasonable legal fees and expenses of attorneys chosen to represent District), including all expenses of every type and description to which it or they may be subjected or put to arising out of or related to: (1) Any breach or alleged breach of any express representation, warranty, covenant, provision, promise or agreement of Customer contained in this Agreement or in any document, instrument or agreement executed and delivered by Customer in connection herewith; (2) any loss, injury, adverse impact, or damage or alleged loss, injury, adverse impact, or damage to any person, entity, party, or property arising out of or related in any way to this Agreement or to the Project Water delivered by District to Customer pursuant to this Agreement after delivery thereof to Customer's Service Connection, it being understood that District shall not be liable to Customer for any loss or damage to person or property caused by flood, earthquake, theft, fire, act of God, acts of a public enemy, dot, strike, insurrection, war, court order, requisition or order of governmental body or authority, or any other causes, or any consequential damages or inconvenience which may arise from or relate to use of the Project Water after delivery by District to Customer's Service Connection. This indemnification is effective and shall apply whether or not any such action is alleged to have been caused in part by District as a party indemnified hereunder. This indemnification shall not include any claim arising from the sole active negligence or willful misconduct of District or any of its directors, officers, employees or agents. 37. District shall defend, indemnify and hold harmless Customer, its officers, directors, employees and agents, and each and every one of them, from and against any and all actions, liability, damages, claims, suits, proceedings, judgments, settlements, losses and expenses (including reasonable legal fees and expenses of attorneys chosen to represent Customer including expenses of every type and Water Purchase Agreement Final - 9/17/04 ].6 description to which it may be subjected or put to arising out of or related to: (1) Any willful breach or alleged breach of any express representation, warranty, covenant, promise or agreement of District contained in this Agreement or in any document, instrument or agreement executed and delivered by Distdct in connection herewith. 38. Customer acknowledges and agrees that, as a condition and consideration of this Agreement, Customer, its officers, directors, employees, agents, or consultants, and each and every one of them, shall take no action of any kind, nor assist any other individual, party, or entity in any action or in any way to limit, diminish, impair, interrupt, or prohibit, either temporarily or permanently, the District's water rights, entitlements, or ability to perform its obligations under this or any other Agreement that the Distdct may enter into to provide or deliver water to landowners within its boundaries. Further, Customer shall maintain in favor of District, dudng the entire term of this Agreement, a policy of general liability insurance in an amount of $1,000,000 naming District as an additional insured for the purposes enumerated in Paragraphs 35, 36, and 37 herein. Evidence of said policy shall be provided to the Executive Director of Distdct Failure to comply with this provision shall constitute an immediate default of this Agreement, notwithstanding the provisions of Section 10 hereto. SECTION 14- DEFENSE OF CLAIMS 39. No right to indemnification under the preceding paragraph shall be available unless the Party seeking indemnification (the "Indemnified Party") shall have given to the Party obligated to provide indemnification (the "lndemnitor") a notice (a "Claim Notice') describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after receipt of knowledge of the facts upon which such claim is based. Any delay or failure to so notify the Indemnitor shall relieve the Indemnitor of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to a claim of a third party, such Indemnitor shall assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in the defense or prosecution thereof and shall fumish such records, information, and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith. If the Indemnitor Water Purchase Agreement Final - 9/17/04 ! 7 assumes such defense as provided above, the: (a) the Indemnitor shall have the right in its sole discretion, to settle any claim for which indemnification has been sought and is available hereunder, provided the Indemnified Party is fully released from all known and unknown claims of such third party and the Indemnified Party is not obligated to perform any actions or pay any money on account of such settlement. If the Indemnitor does not assume such defense as provided above: (a) The Indemnified Party shall have the right to employ its own counsel in any such case, and all of the fees and expenses of such counsel shall be the responsibility of Indemnitor which hereby agrees to promptly reimburse the Indemnified Party fully for such expenses; and (b) the Indemnified Party shall have the right, in its sole discretion, to settle any claim for which indemnification has been sought and is available hereunder, at the expense of Indemnitor, who hereby agrees to promptly reimburse the Indemnified Party all costs and expenses incurred by the Indemnified Party with respect to such settlement. SECTION 15 - GENERAL PROVISIONS 40. No Third Party Rights. This Agreement is made solely for the benefit of the Parties and their respective permitted successors and assigns, if any. Except for such a permitted successor and assign, no other person or entity shall have or acquire any right by virtue of this Agreement. 41. Assignment. Neither Party may assign any of its dghts or delegate any of its duties under this Agreement. Any assignment or delegation made in violation of this Agreement is void and of no force or effect. This Agreement is and will be binding upon and will inure to the benefit of the Parties and, upon dissolution, the legal successors and assigns of their assets and liabilities. In the event that Customer proposes to sell its real property to which water from this Agreement is delivered, notwithstanding any other provision herein, Customer shall notify the District of the proposed sale concurrent with the close of escrow. If District is timely notified, and if no violations of this Agreement exist at the time of said notification, Distdct shall agree to the assignment of the subject water supply to the proposed new owner on the condition that the proposed new owner executes this water supply agreement pdor to the close of the escrow on the subject property. The execution of this Agreement by the new Water Purchase Agreement Final - 9/17/04 owner shall be the consideration for the District's agreement to the assignment of this Agreement by Customer." 42. Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with the laws of the State of California. 43. Amendment. The terms of this Agreement may be modified only in wdting by mutual agreement on signature of Customer and District. Said amendment shall be attached to this Agreement. Any amendment made in violation of this section shall be null and void. 44. Extension of Term. The duration of the Term of this Agreement may be extended only by mutual agreement of the Customer and District in writing signed by authorized representatives of both Customer and District. Such a wdtten extension shall be attached to this Agreement. 45. Entire Agreement. This Agreement, together with all contract documents and ordinances of District expressly incorporated herein by reference, supersedes any and all other agreements, either oral or in writing, between the Parties hereto with respect to the delivery of Project Water to Customer by District and contains all the covenants and agreements between the Parties with respect thereto. Each Party to this Agreement acknowledges that no representations or promises have been made by any party hereto which are not embodied herein, and that no other agreement or promise not contained in this Agreement or in the other contract documents and ordinances of District shall be valid or binding. 46. Severability. If any provision in this Agreement is held by a court of competent jurisdiction or an arbitrator or arbitration panel to be invalid, void or unenforceable, the remaining provision shall nevertheless continue in full force and effect without being impaired or invalidated in any way notwithstanding such invalidity, illegality or unenforceability. 47. Time is of the Essence. It is expressly hereby agreed that time is of the essence of each and every provision of this Agreement, including all contract documents and ordinances incorporated herein. 48. Attomeys Fees. Should either Party to this Agreement reasonably retain counsel for the purpose of enforcing any provision of this Agreement, including without limitation the institution of any action or proceeding to enforce any provision of this Agreement, or to recover damages if otherwise available hereunder, or to obtain Water Purchase Agreement Final - 9/17/04 19 injunctive or other relief by reason of any alleged breach of any provision of this Agreement, or for a declaration based on a demonstrated necessity of such Party's rights or obligations under this Agreement, or for any other judicial or equitable remedy, then if the matter is resolved by judicial or quasi-judicial determination (including arbitration, if such arbitration is agreed to by the Parties), the prevailing Party shall be entitled, in addition to such other relief as may be granted; to be reimbursed by the losing Party for all attorneys fees, expert fees and costs, and all litigation or arbitration fees and costs reasonably incurred, including without limitation all attorneys fees and costs for services rendered to the prevailing Party and all attorneys fees and costs reasonably incurred in enforcing any judgment or order entered on appeal. The prevailing Party shall be determined by the court (or arbitrator, if arbitration is agreed to by the Parties) in the initial or any subsequent proceeding. 49. Notices. Any notice, approval, consent, waiver or other communication required or permitted to be given or to be served upon either Party in connection with this Agreement shall be in writing. Such notice shall be personally served, sent by facsimile, telegram, or cable, or sent prepaid by registered or certified mail with return receipt requested, or sent by reputable ovemight delivery service, such as Federal Express, and shall be deemed given: (a) If personally served, when delivered to the Party to whom such notice is addressed; (b) if given by facsimile, telegram, or cable, when sent; (c) if given by prepaid or certified mail with return receipt requested, on the date of execution of the return receipt; or (d) if sent by reputable overnight delivery service, such as Federal Express, when received with confirmation of delivery. Such notices shall be addressed to the Party to whom such notice is to be given at the Party's address set forth below or as such Party shall otherwise direct in writing to the other Party delivered or sent in accordance with this section. If to District: If to Customer:. Mendocino County Russian River Flood Control and Water Conservation Improvement District 151 Laws Avenue, Suite D Ukiah, California 95482 Phone: (707) 462-5278 Fax: (707) 462-5279 Water Purchase Agreement Final - 9/17/04 50. Execution and Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the last date below wdtten. Date: MENDOCINO COUNTY RUSSIAN RIVER FLOOD CONTROL AND WATER CONSERVATION IMPROVEMENT DISTRICT By: Title: Date: By:. Title: Water Purchase Agreement Final - 9/17/04 Mendocino County Russian River Flood Control & Water Conservation Improvement District 151 Laws Avenue, Suite D Ukiah, CA 95482 Phone (707) 462-5278 FAX (707) 462-5279 RESOLUTION NO. 04-03 RESOLUTION OF THE BOARD OF TRUSTEES OF THE MENDOCINO COUNTY RUSSIAN RIVER FLOOD CONTROL & WATER CONSERVATION IMPROVEMENT DISTRICT ADOPTING RATES FOR WATER SALES FOR FISCAL YEAR 2004-2005 WHEREAS, the Mendocino County Russian River Flood Control & Water Conservation Improvement District (hereinafter "District") is an improvement district organized and operating pursuant to the provisions of Chapter 54 of the Water Agency Acts entitled the Mendocino County Water Agency Act. Pursuant to Sections 101 and 102 of that Act the District has all the fights, duties, powers, liabilities, purposes, privileges, and immunities conferred and specified by the Act on the Mendocino County Water Agency. Chapter 54 section 3(s) of the Act provides that the District, as an improvement district within the Mendocino County Water Agency, has the power "to divert, produce, store, transmit, distribute, and sell or otherwise furnish surface waters and ground waters for beneficial uses within or without the Agency"; and WHF~~, the District has been granted the right to divert east fork Russian River Water, redivert water released from storage in Lake Mendocino, and withdraw water from storage in Lake Mendocino in a total amount not to exceed 8,000 acre feet per year pursuant to Decision D-1030 Permit 12947B issued by the California State Water Resources Control Board; and WHEREAS, the District has historically provided water supply to individual Customers without charge which such Customers have put to beneficial use for agricultural, residential, commercial and industrial purposes. The District has deemed it in the public interest to sell water to which it is entitled pursuant to Decision D-1030 Permit 12947B of the California State Water Resources Control Board (hereinafter "Project Water") to users both within and outside Mendocino County in order to acquire funds sufficient to finance acquisition of additional water supply to meet the increased demand for water necessitated by growth within the District's jurisdictional boundaries; and President Vice President Treasurer Trustee Trustee Judy Hatch Tom Ashurst Bill Townsend Torn Mon Pere Bob Wood WHEREAS, the District has adopted Ordinance Number 00-1 an Ordinance Establishing Regulations and Rules for Water Sales by the Mendocino County Russian River Flood Control and Water Conservation Improvement District which provides a method by which Customers who wish to purchase a specific amount of the District's Project Water may file an application with the District to purchase such water and, upon approval of the application by the District, enter into a Water Supply Agreement which provides that the Customer will install at its own expense a water meter or meters to measure the quantity of Project Water to be sold by the District to each such Customer; and WHF~REAS, the purposes of Ordinance Number 00-1 are to provide a method by which the District can properly promote conservation of its water resources, accurately measure the amount of its Project Water used by each of its Customers, and sell such water to its Customers in order to acquire funds sufficient to pay the District's operational and administrative costs and to finance acquisition of additional water supplies to meet current and increased demand for water necessitated by growth within the District's jurisdictional boundaries and designated places of use; and WHEREAS, Ordinance Number 00-1 Article 6 Pricing provides that the Board shall, by resolution, fix the price per unit at which water will be sold to Customers of the District on an annual basis. Such prices are to reflect all costs and out of pocket expenses directly incurred by the District in delivering water for sale to the service connection of each Customer. The District's cost shall include the actual cost per acre foot to (a) obtain water from its sources in California; (b) convey the water to the Customer's Service Connection; (c) pay any required fees and costs for water supply and conveyance to the Customer's Service Connection; (d) pay any conveyance costs of the water supply to the Customer including costs of electrical power; (e) pay the principal and interest on any bonded debt for capital improvements and any bond redemption costs; (f) pay ordinary administration and maintenance exp~ of the District; (g) pay the cost of construction of new capital improvements; (h) pay the cost of maintenance and operation of all capital improvements; and (i) set aside funds for the funding of a prudent reserve. Said Ordinance provides that for each acre foot of water actually delivered and accepted as reflected by the records of the measurements of deliveries made pursuant to a meter installed by the Customer, that the Customer will pay to the District for purchase of such water supply a rate equivalent to the District's actual cost per acre foot computed on the basis set forth above multiplied by the amount of water delivered by the District to each such Customer's Service Connection as measured by that Customer's meter for that service connection on a monthly basis; and WHEREAS, Ordinance Number 00-1 Article 7 Billing provides that the District will bill Customers on the first day of each month for water sold and delivered to the Customer pursuant to the meter readings on that Customer's Service Connection during the immediately preceding month, which bills for sale and delivery of water become delinquent on the twenty-fifth day following the billing date at which time the District shall send a notice to the Customer advising the Customer that water supply and delivery will be discontinued if full payment is not received within five (5) days; and WHEREAS, each Customer of the District entitled to receive water will be required to execute a Water Supply Agreement with the District which provides that the Customer will be required to make payments for delivery of water supply by the District based on the quantity of water delivered to that Customer's Service Connection as measured by water meter readings at that Page 2 of 4 Customers' Service Connection, multiplied by the price per acre foot of water as calculated pursuant to the provisions of this Resolution, Ordinance Number 00-1, and each such Water Supply Agreement; and WHEREAS, the District has approved the District's Budget for fiscal year 2004-05 consisting of all antidpated expenses as described herein and all anticipated revenues from water sales; and WHEREAS, the establishment, modification, structuring, restructuring, and approval of rates for sale of water is exempt from the requirements of the California Environmental Quality Act (CEQA) Public Resources Code Section 21080(b)(8); and WHEREAS, the cost per acre foot of water to be delivered by the District to each Customer in fiscal year 2004-05 specified in this Resolution does not exceed the reasonable anticipated costs incurred by the District in providing water supply to its Customers. Furthermore, said water rate is established for all Customers who voluntarily execute a Water Supply Agreement with the District based on each such Customer's consumptive use based upon readings from water meters installed by each Customer at its Service Connection, and therefore, such water charges do not constitute property related fees and charges and are not levied upon any person as an incident of property ownership, and are therefore not subject to the substantive and procedural requirements of Article 13D of the California Constitution; NOW, THEREFORE, be it resolved that the Board of Directors of the Mendocino County Russian River Flood Control and Water Conservation Improvement District hereby orders as follows: 1. Effective Date The effective date of the following rates, shall be July 1, 2004. The rate shall remain in effect until changed or altered by the Board of Directors. 2. Purchase Price All sales, deliveries and availability of water at the price established herein shall be subject to the ability of the District to sell, deliver and make available such water under operating conditions determined by the General Manager of the District and subject to prevention, delay, or impracti~ty of delivery of water due to drought, flood, fire, earthquake, federal or state regulatory limitations, lack of electrical power or fuel, civil doting, war or military conflict, and/or inability of the District to obtain required approvals for conveyance of Project Water from any government agency including without limitation the State Water Resources Control Board. The purchase price to be charged by District for delivery of Project Water to each Customer in fiscal year 2004-05 shall be as follows: A. Water Purchase Price A fixed charge of $23.00 per acre foot. B. Definitions Page 3 of 4 The following terms used in this Resolution shall have the following definitions: ao Acre-Foot- The volume of water contained in one acre area one foot deep. Approximately 435.6 CCF or 325,851 gallons. b. CCF- The volume of water contained in 100 cubic feet. Approximately 748 gallons. Co CFS - A flow rate of 1 cubic foot of water per second. Approximately 448.8 gallons per minute. d° Customer-Any individual, corporation, partnership, trust, business association, or public agency which executes a Water Supply Agreement with the District in the form approved by the District to provide a specific water supply on an annual basis for domestic, municipal, agricultural, commercial or industrial uses. PASSED, ADOPTED AND APPROVED at a meeting of the Board of Directors of Mendocino County Russian River Flood Control and Water Conservation Improvement District on the 17 day of September, 2004, by the following roll call vote: AYES: Hatch, Ashurst, Townsend, Wood NOES: None ABSTAIN: None ABSENT: Mon Pere ATTEST: Barl~raSl~azek,' - Se~re~//~ Board of Tmstees I J~ly lt,l(~h, President x--'Board ot' Trustees Page 4 of 4 Mendocino County Russian River Flood Control & Water Conservation Improvement D ,tr ¢t Attachment # 151 Laws Avenue, Suite D Uldah, CA 95482 Phone (707) 462-$278 FAX (707) 462-5279 August 17, 2004 Dear Water Users and Land Owners: The Board of Trustees of the Mendocino County Russian River Flood Control and Water Co~on Improvement District. has held the rights to 8,000 acre feet of water in Lake Mendocino for many years. During those years, our District has provided its water for the benefit of all types of water uso~' and land uses within our.District's boundaries. This water has created thousands ofjobs · and remains the catalyst for significant economic growth in our County. Unfortunately, the water supply that all of us have relied upon for so long is on the verge of being over-committed. Reduction in summer river flows to respond to "endangered species" issues have been called for in the future by federal regulatory agencies. Reductions in the Eel River water from the Potter Valley project (that Russian River diverters have long relied on) have been ordered by the Federal Energy Regulatory Commission. The need to guarantee secure and reliable long-term sources of water for our residents, businesses, and agricultural concerns is now paramount. As a result of these grave and significant circumstances, and in our continuing effort to protect our historic water rights and our water users, our Board of Trustees has decided to consider entering into fixed water supply contracts with the users of our District's water resources. As you may know, our District's Ordinance and Resolutions, and our ri~t to let contracts for our water, has been confirmed by the Mendocino County Superior Court, the Court of Appeals in San Francisco, and the California Supreme Court. We are sending this letter to you to fully insure that you are aware of this process at the earliest time and to invite you to review the attached uniform "draft contract." The"dratt contract" has been prepared as a Proposed standard and uniform contract that would be used by each and every water user in our District. Our Board does not intend to include "special provisions" or"special cir~ce" language to satisfy individuals, engineers, or attorneys requests because our Board intends for all users to be. treated impartially, uniformly, equally, and fairly., Further, we fully intend to avoid any and all assertions of favoritism or undue influence that might lead to litigation that would undermine our efforts to preserve our water and its availability to our citizens. We ask and expect that you review this draft contract with this concept of uniformity and standardization in mind. Our Board desires, above'all things, to protect our water supply and rights for the fifll benefit and use of you, our citizens. Over the next two mon.ths~ we will be holding public discussions about the contracts, as well as public hearings regarding specific aspects of these agreements. We encourage and respectfully request your cooperation and participation, and ask that you recognize that we will ~ ~tee Prm/de~ /Ireasurer llrustee Trustee Judy Hatch Tom Ashurst Bill Townsend ' Tom Mon Pere Bob Wood be taking these actions to guarantee and maximize the preserVation and protection of our District's water lights and mpplies for all of the historic water users within our boundaries and our designated places of use. Please direct any and all questions that you may have during this time to Barbara Spazek, our Executive Director, at (707) 462-5278. Sincerely, Judy Hatch President Attachment MODIFICATIONS TO WATER SUPPLY CONTRACT RECITALS: B. Adds reference to "consumptive use" to make clear that use of the 8000 acre foot reservation of "Project Water" is not based solely on the amount diverted but includes credit for return flows. C. Adds that Project Water has been either the sole source of water used by District customers or a supplement to other water rights held by customers. D. Modifies to make clear that the District "expects to use" its entire allocation of Project Water rather than state that it is already using that allocation. Until the District actually calculates the use, hopefully including a credit for return flows, it should not make a statement that it is already using all the water it has a right to. E - F. Modifies to provide that water meters will aid in measuring water use rather than be the sole measure of water use and to recognize consumptive use rather than just diversion. This modification reflects the possibility that return flows would be added to the calculation. G. Deletes language requiring the customer to waive any right to challenge the ordinance and resolution adopted by the District establishing fees for water provided under the contract. There is no reason why a customer should give up the right to challenge the amount charged as fees, if it has legal grounds to challenge them. J. Modifies to avoid references to the District "delivering" water to the customer and changes those references to a customer's "use" of District water. The District does not operate facilities for delivering water. The contract simply entitles a customer to divert water from the Russian River and to report that use under the District's permit. AGREEMENT SECTION 1. DELIVERY OF PROJECT WATER 1. As proposed, the District would "cause to be delivered" to the customer "up to" a maximum number of acre feet of Project Water. The customer agrees to install a meter to measure its "use" of Project Water. The customer also agrees "to pay for, divert, use and consume" the water delivered by the District. This section modified to provide that the customer is authorized to use an amount of Project Water specified in an Exhibit A, attached to the contract. The customer agrees to pay for, use and consume the amount of water it actually diverts, less an allowance for return flows that the parties agree to exist. The customer agrees to install a water meter to aid in the measurement of this water use. There are two proposed exhibit A's: one for customers with independent water rights and one for customers who do not have independent rights. The Exhibit A for customers with their own permits uses two monitoring wells to provide a "hydrologic trigger" to indicate when the customer is using Project Water rather than water under its own permit. When the hydrostatic level in the wells is at or below a specified level, the customer is deemed to be using Project Water. The Exhibit states the maximum amount of Project Water available to the customer each year and the cost per acre foot of water actually consumed. For customers who do not have their own permits, Exhibit A specifies the maximum amount of water available to the customer each year and the amount per acre foot charged for water diverted and consumptively used by the customer. 2. Changes "diverted" to "used." 3. Changes "delivered" to the customer's Service Connection to "diverted" by Customer at its Service Connection. 4. Changes "diverted" to "used" and requires "reasonable notice" of inspection of meters rather than inspections without notice. 5. Rewritten for clarity without changing substance. 6. Changed to allow for calculation of use of Project Water, taking return flows into account, and adding protections for customers with facilities used to divert water pursuant to their own water rights permits. SECTION 2. PER ACRE FOOT PURCHASED PRICE TO BE CHARGED 7. Modified to refer to Exhibit A. Without amendments to paragraph 1, this paragraph 7 is contradictory, because it requires the customer to pay for water actually diverted, while paragraph 1 as proposed by the District requires the customer to use and pay for the acre feet reserved to it. 8. As proposed this paragraph does not require the customer to use water reserved for it. However, after the first year and every year after that, any of the reserved water not used in the prior year is recaptured by the District and allocated to new customers. As revised, this recapture provision would not apply to customers with independent water rights who only use Project Water when there is not sufficient water available under their own permits. SECTION 3. TERM. 9. As written the contract has a five year term, which is automatically extended for one year beyond the term, unless either party gives five year's prior notice to terminate it. As revised, after five years, the agreement is automatically extended for additional one year terms, unless either party terminates with 90 days prior notice. SECTION 5. CONDITIONS PRECEDENT TO DISTRICT'S OBLIGATIONS 12. Deletes unnecessary verbiage to shorten and clarify paragraph. Does not make substantive changes. SECTION 6- PERMITS AND AUTHORIZATIONS 17. As proposed protects District's water right. Adds parallel provision protecting customer's water right. Deletes statement that reservation of water for customer under the contract is evidence that customer has actually used that water. SECTION 8. REPRESENTATIONS AND WARRANTIES OF CUSTOMER. 22. Deletes statement that customer acknowledges the right of District to acquire additional water rights, etc. Deleted to eliminate any implication that customer is waiving a right to object to future unknown actions by District. 23. Excess verbiage deleted for clarity without changing substance of paragraph. SECTION 9 - REDUCTIONS OF WATER SUPPLY IN EVENT OF SHORTAGE CONDITIONS. 28. As written allows District to reduce allocations in a water shortage condition "in the sole exercise of its discretion." Changed to require the District to exercise its discretion reasonably. Also changed to provide for prorated reductions of customer allocations in a water shortage condition, if necessary, to accommodate the use of water by customers with independent water rights. This change recognizes that more customers will use District water in normal and most dry year conditions, because customers with independent water rights can rely on their own permits during those periods. In exchange for having water available in normal and most dry water years, these same customers will have to reduce their water use in some dry and in critically dry years to accommodate the use of Project Water by customers who have their own permits but who need Project Water in these periods. SECTION 11- DEFAULT AND SECTION 12-REMEDIES 32 - 35. As proposed by District these provisions only describe defaults by the customer and remedies available to the District in the event of a customer default. These provisions have been re-written to make them reciprocal, describing defaults by both the District and the customer and remedies available to both the District and the customer in the event of a default (breach of the agreement) by the other party. SECTION 13 -INDEMNIFICATION 36-38. As proposed by District, the customer agrees to indemnify the District against any claim or cost resulting from the breach of the agreement by customer and the delivery of water by District to customer. Indemnification includes paying the District's attomeys fees and other costs fees plus any settlement or judgment. District agrees to indemnify customer for any breach of the agreement by District. These paragraphs changed to make the indemnification obligations reciprocal for customer and District and to limit the obligation to claims for personal injury or property damage which are caused by the negligent or willfully wrongful act of a party. The proposed indemnification provision confuses indemnity with breach of contract. By requiring indemnification for breaches of contract, the agreement greatly expands the liability of a party to the contract. The changes limit indemnification obligations to the typical situation where on party is sued by someone suffering personal injury or property damage because of the negligence or willful tort of the other party. DRAFT WATER SUPPLY AGREEMENT THIS WATER SUPPLY AGREEMENT (Agreement), entered into as of the latest of the dates shown opposite the signatures of the Parties to this Agreement, is made by and between (Insert Name) (hereinafter "Customer") and MENDOClNO COUNTY RUSSIAN RIVER FLOOD CONTROL AND WATER CONSERVATION IMPROVEMENT DISTRICT organized and operating pursuant to Water Agency Acts Chapter 54 (the "District"). Customer and District are sometimes referred to herein individually as a "Party" and collectively as the "Parties." The Parties hereby mutually agree to and confirm the following: RECITALS A. District is an improvement district organized and operating pursuant to the provisions of Chapter 54 of the Water Agency Acts entitled the Mendocino County Water Agency Act. Pursuant to Sections 101 and 102 of that Act, the District has all the rights, duties, powers, liabilities, purposes, privileges, and immunities conferred and specified by the Act on the Mendocino County Water Agency. Chapter 54 Section 3(s) of the Act provides that District, as an improvement district within the Mendocino County Water Agency, has the power "to divert, produce, store, transmit, distribute, and sell or otherwise furnish surface waters and groundwaters for beneficial uses within or without the Agency". B. The District has been granted the right to divert East Fork Russian River water, redivert water released from storage in Lake Mendocino, and withdraw water from storage in Lake Mendocino mfor a total amount of beneficial consumptive use of not to exceed 8,000 acre feet per year pursuant to Decision D-1030 and Permit No. 12947B issued by the California State Water Resources Control Board (hereinafter "Project Water"). C. Historically, the District, sSince securing its water rights pursuant to the provisions of SWRCB Decision 1030 and Permit No. 12947B, the District has made available to water users within its boundaries Proiect Water that has been put to beneficial use and served variously as either a sole or supplemental source of water for Water Purchase Agreement Draft 3 - 8/16/04 1 th0sehas nrr~,,irl,',rl tr~ ir~r,li,,ir-I,,~l r-~,c~t~rr~c~re ~r~,,nt nf ~A,ot,',r ann,,--~ll thor -',-~r,h nf ~, ............................... 3~ y .......... *h~,=,, ,~ customers ,h,~ ..... ~,* *~,~ ~,h="=f~',~,,~,~, ~ ..... users. For over fo~y years, these annual allocations of the District's water supply have been beneficially used by the District's customers and reposed to the appropriate governmental and regulato~ agencies. Those beneficial uses include permanent orchards, vines, vineyards, and existing and long-established agricultural, residential, commercial, and industrial uses that have greatly benefited and will continue to benefit and sustain the economy, the environment and environmental resources, the livelihoods, the health and safety, the jobs, and the communal and moral integrity of the residents of Mendocino County. D. Within the past several years and due, in pa~, to diminishing or threatened alternate water allocations and supplies from other sources of Russian River water, the District has received~ and is experiencing, and is expecting increased and new requests and demands for the use of its water that will exhaust its allotment of Project Water customers referenced above before it developsed or allocates~ existing or new water supplies for new or expanded areas or uses=~~, ......... ,~.~, ,,,~*",, t_The District ,~-,~ adopted Ordinance No. 00-1on ,2001. E. The District has adopted Ordinance No. 00-1 and Resolution No. which provide a method by which Customers who wish to purchase a specific amount of the District's Project Water may file an application with the District to purchase such water and, upon approval of the application by District, enter into a Water Supply Agreement which provides that the Customer will install at its own expense a water meter or meters to assist in the measurement,,,~ea~,~ ..... *h,,,~ ..... ~ntity of Project Water to be sold by the District to each such Customer. F. The purposes of said Ordinance and said Resolution are to provide a method by which the District can properly promote conse~ation and consewe its water resources, can accurately measure the amount of its Project Water ~diveded by each of its Customers, and can sell such-~to its Customers the amount of that diversion consumptively used in order to acquire funds sufficient to pay for the District's operational and administrative costs and to finance acquisition of additional water supply to meet current and increased demand for water necessitated by gro~h within the District's jurisdictional boundaries and designated places of use. In order to implement Water Purchase Agreement Draft 3 - 8/16/04 2 these purposes, the District finds that it is in the public's interest to accept written applications from its Customers, who wish to utilize.. ..... -.~.-.--,,,.-m ....... ..,,,....,,.* ..,~'~ Project Water, to enter into Water Supply Agreements in the form of this Agreement by which the District will agree to supply a specific amount of Project Water to each Customer submitting an application (for the Customer's consumptive use) for a period to be reflected in this Agreement and made a part in consideration for each such Customer agreeing to install at its own expense a water meter at each of Customer's Connectionspoint of diversion for the purpose of assistin.q in the measurement of that Customer's use of ....... ~,.,. the .... m ...... "'* "'~ Project Water, ,*~;--'-'~ by .-.o,-h .... h ~,~ ........ ~,,~* ~ ~fi~ ~ ,s,~,~,~. The amoun~ o~ wa~er agreed ~o be provided is not guaranteed and ~he availability ~ said ~a~er i$ based ~ ~he ~yp~ designated in ~e ~a~er ~esource$ ~on~rol Board Oecision ~-1~10 and explained in Section 9 below. The purpose o~ ~his ~a~er Supply Agreemen~ is (1) ~o enable ~he Oi$~dc~ bo~h ~ accurately ~easu~e ~he demand ~ and usage ~ i~s Projec~ ~a~e~ by customers during ~he ~erms o~ ~his agreemen~ and ~o charge i~s customers ~or said Project ~a~r and (~) ~o allo~ ~h~ Ois~rict's ~us~o~ers ~o u~ilize ~nd consu~e ~ specific qu~n~i~y ~ Projec~ ~ater ~or uses specified in ~h~ Oi$~rict's ~a~er dgh~$ per~i~s upon paymen~ ~o the District o~ ~he required wa~er charges. ~. Cus~o~e~ i$ a public ~a~e~ agency and/or individual ~hich seeks ~ ~cquire a ~a~er supply ~or all ~ i~$ historic and Iong-~er~ uses, including i~s domestic uses and consu~p~ion ~nd i~s ~gdcul~u~al uses, ffo~ ~he ~is~dc~'s Projec~ ~ater, ~ w~ i i~1~] ~gl~l igll i~~j ~11111 iiig ~1 i~ ~1 ~ ~g ggl I i~1] 111~1 i ~1 i~ ~1 igl~ ~foreme~tJo~e~ ~, ~,, ...... ,~, ,~ ~,~,~ H. DJstrJct expects to ~ave a quantJty of Pro~ect Water available for delJve~ to Oustomer durJng t~e term of t~Js Agreement. I. To accomplJs~ t~e foregoJng objectives of t~e pa~Jes, DJstrJct Js wJllJng to supply, and Oustomer is wJllJng to pay for, receJve an~ consume~ ~ ~pedfio ..... ~,,~,,~*~*" ~f~, Project Water un~er t~e terms an~ conditions set fo~ Jn t~Js Agreement. T~e purpose of t~is Agreement is to set fo~ t~e terms an~ con~JtJons un~er w~Jc~ Oustomer wJll t~ ~ .... y f~ ni~t~i~t ~f ~ speoJfJe~ ..... *~*" ofuse Project ~a~er ~or ~ oo~~%,e~ ............. ~, ~,,~ *~ ~,, beneficial uses allo~ed under ~he ~i$~ric~'$ per~i~ a~d Cali~ornia la~ as i~ e~c~ on ~he ~ec~ive date ~ this Agreement. The use o{ Projec~ ~a~er~,,,~,~~-[~ ..... ~ ~s" ~,~,,,~,~t~iet t~ Ous~o~er ......... ~, ~,,,t Water Purchase Agreement Draft 3 - 8/16/04 3 f.-',rmc, r~f i-hie Anr,--,'-m,-,nf c.h,-~,ll h,-, ~n, ,ir,',r'l hx~ I-llefrlr, f n,,re,~nf fn fhr~c.,'-. ~,~-'~f,",r rinhfc, h~ III i i'~1 i I~,~ i ~,.~ · i i v~[ I~,.~ %,.~ I i [ i g,. i ~,.~ '~,~1%'~-~, ~,~ '~,~ ~./ ~,,~ gl ~..~ I · ~t' %,~* I ~ I N,~i 11 ~ ~1.~,.~ i ~,./[ I ~,,.~ '~.~ ii i i.,.,. ~,~ i '~ ~,.~ pursuant '"',,., Permit ~"'", ,,.,. q oa4'7~, ,_,., ~, ~, ,.,,-~,-,4,,., thJ-sunder this Agreement shall have no effect on District's water rights clescrJbed Jn said Permit No. 12947B, except to assist District in putting that water to beneficial use. This Agreement does not and shall not be interpreted as conve¥in.q to or perfecting in Customer The D~,-~i,-,~ h,-,,-,-.t,-, m,.., ,.,,-,, h~t,-.~d c~nd , ,ndz~r +hlc. Anr,"~,",m,-,nf r,in nnf in any mannz~r nr tA~t~ fr,"~nsf.,'~r ~c'~,ign ~n~",~ ~mhz~r nr ~,~ i i '~,,~ ~ i i %.~,.~ 1 z..I I1~ · %~ I ~,~ ~,.,~ i I I ~,..~ i i ~. '~1 '~.,/ i i '~,/I~ ii i I i i iii 1%.~1 '~,~1 11 ~.~ ] i~1 ~.~1 i I~.~1 ~ ~,.~ ~,~ ~J' I I i] %.,~ i i '~,~ ~.~ ! ! i i*~/~.,~ i 1 ~,.~1 grant to Customer any ownership interest or control over any of District's water rights. · ,~ Pa~ Customer promises and agrees to use District's wmer only pursuant to and Jn compliance with each and all of the requirements and provisions of Permit No. J 2947B, California Law, and D-1030. K. The Pa~Jes acknowledge that this Agreement will not become effective unless and until District has obtained any and all necessa~ authorizations, consents, and permits from ce~aJn governmental and public agencies ~e,,~ ~, .... y~ ,,~f any, *~ ~'~,,,~, .... NOW, THEREFORE, in consideration of the mutual covenants oont~Jne~ in this Agreement, ~n~ for other goo~ ~n~ v~lu~ble consideration, the receipt ~n~ ~equ~cy of which ~re hereby ~c~nowle~ge~, the P~Jes hereto ~gree ~s follows: SECTION 1 - DELIVERY OF PROJECT WATER 1. Subject to the terms and conditions hereof and to satisfaction and occurrence of f-all of the conditions precedent to the effectiveness of this Agreement set forth herein,- District wi!! cause to be delivered to Customer may use durinq the term of this Agreement up to a maximum acre-foot amount of Proiect Water at the Customer's Service Connection as specified in Attachment A (incorporated herein by this reference). ,,,-,, ..... ;'~'um ,',f acre-feet ,',~ D,-,-,~,-,,-, ~^/~,,-,~ o, *h,-, r',,o, .... '° Servico r. .....*~"" during th'.` term ,~ thi° A .......t -Customer agrees to properly install and N..~'~..~[ 11 I'q~.~.~kV'qq.~l[ [ I 1'~.~ '~,..~1 , Ilq. J~ · %'~1 N,.~N..~I ! 1%.~1 maintain at its own expense appropriately sized water meter(s) at its Service Connections to accurately measure its usa~e-¢-diYersion of that ~uantit¥ of Project Water specified in Attachment A ...... ~*~o ...... ,~.-,.~ , ..... ,-,,~,.,. ,.4,.,]~ .... y ~,-,.,,~ n~o,,-~,-, ,.,f *h-. .... ..*~*,, ,-,f P.,-,~.-,-* ~^~* ...... m.-~ h.-,-.-~,~ and further, agrees to pay for, purchase, use, and consume the Project Water water-that customer diverts during the Water Purchase Agreement Draft 3 - 8/16/04 4 District's water year-year, less any return flow agreed by the Parties to exist.in which it 2. The Parties hereto agree that at-upon the termination of this Agreement neither the terms of this Agreement nor the conduct of the Parties and performance of this Agreement confers upon Customer any legal or equitable right or claim to the Project Water ~used by Customer pursuant to this Aqreement. 3. Project Water subject to this Agreement shall be delivered todiverted by Customer at its Service Connection located on the Russian River. 4. Customer acknowledges and agrees that this Agreement is a contract for the ~the use of Project Water from by Custome~ during the Term. The quantity of Project Water de~,,er~,-used by Customer pursuant to this Agreement shall be ~calculated by the use ofby meter(s) to be installed at the location(s) where Customer proposes to divert Project Water from the District's public water system in the Russian River, as the case may be (the "Service Connection"). Prior to the effective date of this Agreement, Customer agrees to furnish and install meters of appropriate size at the Service Connection at Customer's sole cost and expense. The meters shall remain the property of Customer. District, as part of this Agreement, is granted and reserves the right upon reasonable notice to Customer to read, inspect, test, and to require Customer to service said meters, if necessary, at any time. Customer shall have and accepts the obligation to maintain the meter in good working order for the benefit of the District at all times. Failure to install the aforementioned meters by the date specified shall cause this contract to be void and terminated. 5. The obliqations of the parties hereunder are suspended for the period of any Force Maieure, ,t!f deliveries of Project Water under the provisions of this Agreement are prevented, delayed, or made impracticable due to any event or occurrence beyond the reasonable control of District, includinq extended drought, flood, fire, earthquake, or other natural disaster, federal or state regulatory limitations, strike, unavailability of necessary materials, electrical power or fuel, civil rioting, war or military conflict, inability of District to obtain any approval for conveyance offor Customer's use of Project Water from any government agency, including without limitation the State Water Resources Control Board ("SWRCB"), or if the cost of complying with any environmental requirements renders this transaction economically or physically impractical (collectively Water Purchase Agreement Draft 3 - 8/16/04 a Force Majeure Event), nio,,-i,.t ~. ................... ,, ~ .............. a , ,,., Customer ,.,,°h'~n,~,,, "`,-,,, ,.... h.- ..... i..-,~ t ...... t th-.t ,-,~' *h.-j ~^/-.t.-. the d"'l '"f '"'hiGh hasbeen .... · ~ ...........,.. ...... po,'-tion ...... Pro act ......... ivery ......... r-','-.---, .'-- ......... ~.,...,.. ......., '-"-'"-'7 or ,,i'"',,~., .... '-"-'""'~"'"',t~"*hn~t". TO the extent allowed by law, any such interruption in the use of Project Water "`,-,t ,~..~i ..... ~ ........ ~, ,-,f o,,,-h p ..... .,ti,-,., delay "'" i ..... ,i,..~u~t,, may be · -...,,..-.,..,..a'"~ ..... ~ *'"..., r"'"to'~'"r.-.,-..,. ,,,,-., .-,,,~'., ....... ~u....,,~ agreed upon by the Parties, if ....h ,~,-, .... ~ ..... ~,-.,-,.~,, h.- made up ,.,~ th-. '".,d '''f th.-. Term '''f this 6. Customer shall have the physical control of the taking of water from the Russian River at the point of its Service Connection. Customer shall bear all expenses of such taking, including but not limited to the furnishing and maintenance of intake facilities on the Russian River and shall obey the rules and regulations of the Corp of Engineers and any other public authority with jurisdiction over the installation and maintenance of such facilities. For those months that Customer diverts Project Water under this Aqreement, Customer shall provide the followinq to District:__ meter readings reflecting the total amount of water pumpe~diverted by Customer from the Russian River; calculation of the portion of that amount composed of Project Water; and a determination of the amount of beneficial consumptive use (reached by the deduction of return flow, if any). Said metennformation rea~tif:~s-shall be provided on the first of each month and or at such other intervals as may be ....... t...~ by n~t.:,-t or its '-, ,th,-,~-..-.,4,--.,-' ............... , ...,~ ......................... . .......t.~t~,,..~ a.qreed upon by the parties. For Customers with independent water riqhts, District acknowledqes and aqrees that these facilities and points of diversion pre-exister-d this agreement and are the property of the Customer. District has no ownership interest or control over said facilities and this Aqreement and the parties performance under it shall not be interpreted as conveying or perfectinq in District any ownership or other interest in the facilities or point of diversion. SECTION 2 - PER ACRE FOOT PURCHASED PRICE TO BE CHARGED 7. Customer shall pay the "per acre foot purchase price to be charged" to the District in the dollar amount specified in Attachment A for each acre foot of Project Water ,-,~ ~: ,-, ......f,.,,.t f,-,. each .... f,',.',* ~,f Project contracts to deliver and that Customer diverts, less an}, agreed upon return flow a,s -,,~"' r-,,.,,~,,,..,,,~t ......, ,,~, ..,, ,.,,',t,,,,. Customer and District mutually hereby accept and agree that the Water Purchase Agreement Draft 3 - 8/16/04 6 annual "per acre foot purchase price to be charged" shall be calculated and adopted by resolution annually by the District, as follows: The "cost of administration" of the District in entering into, administering, and managing its water and Water Supply Agreements with Customers for each water year shall be divided by its 8,000 acre foot entitlement, or such other sum as is reserved to the District pursuant to State Water Resources Control Board Decision D-1030, or amendments thereto, to determine the District's costs of administration for each acre foot. The "cost of administration" of the District in administering and entering into the subject "Water Supply Agreements" shall include the following: (a) all of the District's costs of preparing and reviewing, the costs of processing, and all administration costs of evaluating Customer's Application to enter into the Water Supply Agreement; (b) all of the District's costs of administering and monitoring the installation of water meters by Customers as required by the terms of this Agreement; (c) all of the District's annual administrative costs, including but not limited to all monitoring and legal costs, and all of the District's annual environmental review and/or mitigation costs, including engineering and consultants costs and those costs involved in analyzing and responding to Customer Applications, and all costs encompassed in the managing, operating, monitoring, developing, expanding, preserving and defending, and administering of the District's water system(s) and facilities, water supplies, and the Delivery of Project Water to Customer pursuant to the terms of this Agreement; (d) all costs of water meter inspection, water meter reading, water meter testing, and all costs of all administrative, operational, and regulatory reporting, and compliance requirements, entitlements, obligations, or duties. The total "per acre foot purchase price to be charged" payable by Customer pursuant to the terms of this Agreement is the charge per acre foot times the number of acre feet of Project Water diverted by Customer as set forth in Section 1 hereof. 8. The "per acre foot purchase price to be charged" is due and payable monthly after delivery by Customer to District after this Water Supply Agreement is accepted by the District and both parties execute this Agreement. Customer's obligation to pay the "per acre foot purchase price to be charged", which will be due by the 15TM day of the month followinq the month of diversion and consumptive use by the C,,-,,-,~,,:,r ......... , ,,. ,~,I~ z~ ....... ,,~,,..~"'~ ..... ,~...,...,..,..,,~,.~, ..,'-~ .... ....,..,*"r ~,,, r,,,~,.. .... ,.., shall be an absolute unconditional obligation of Customer, not subject to deduction, setoff, prior notice, demand, or inability of Customer to use, store or resell Project Water after delivery and diversion by Customer. Customer shall have no obligation to accept delivery of any Water Purchase Agreement Draft 3 - 8/16/04 '7 Project Water in excess of the maximum amount diverted by Customer as specified in Section 1 hereof. Pursuant to the provisions of Paragraph 1, Section 1 herein, the maximum amount of water that may be delivered to Customer shall be --the annual acre-feet a,,,,,~..,,~y, amount set out in Attachment A. Because the demands for District water resources can generally exceed the District's supplies~ and after the first full calendar year of this Agreement, and every year thereafter, the District shall review the total annual use of the District's water by Customer. If the annual use of District's water by Customer, based upon monthly meter readings and monthly billings, is less thatn the amount of water reserved for Customer. ~o r"f"""e'~ *" ~"' D ....... h ~ Section -- '! Of th~s ....... ~ ........... as specified in Attachment A, the District shall may reduce Customer's reserved water allotment to reflect actual consumptive use of Proiect Water in the prior years; provided, however, that any~l Customer with independent water riqhts who has entered this Aqreement for the limited purpose of dry-year protection, as denoted on its Attachment A-thereto, shall not have its allotment under this Aqreement reduced due to non-use. Any unused water- resultinq from the foreqoing reductions .,.*:il! may then be made available to other water users at the sole discretion and determination of the District for the maximum beneficial use of the District's water resources. SECTION 3 - TERM 9. The Term of this Agreement '-'-'~ f,.,r ,h,., delivery this a ....... * shall commence on 2004, the Effective Date, and shall ~'~'"*~ .... ,h ..... h*~r~inate on December 31 2010, the Termination Date, unless extended as provided h¢ln,.,.~,,~i~¢t t~ the. ....... ~ ~"~";"; ........ Anr~m~nf e, ,hi.of f~ fh~ fnll~.~in~ terms: I ~i~iii~i i~ vu~jvv~ ~v ~i l~ l~llVllll i~ I:::ff,-.r. ti~,', ~-~t,', r~f thi~ Anr,',,',m.',nt if neith,--r n~rh; tn this At-.r,'--',rn,'-nt h~ ll.~.ll~.~%.fflkl ~ %.~ g~.~,.~ ~.ffl ILl I1~.~ · %~1%,,~,~1 I I~,~1 I~.~ II I I I~1 I~,~1 ~,~,..~! ~.] [~ I II · %~1 ~111~*1 I~. I I~,.~V A,-,r.-..-,-~.-.,-,, i,~ the prior J2 me~t,h.s, tThis Agreement and all of its terms shall be automatically be extended for an additional 12 months (I year) beyond the Termination Date, if neither party has .qiven a Notice of Termination Water Purchase Agreement Draft 3 - 8/16/04 not later than ninety (90) days prior to the Termination Date. ,h-- aforementioned 31~ ,',f n .... h..,. i~i 11~..~ ~.~i l..~.~lq.~..~l I iI~.~.~i o b. ,,,~,, ltlr~fir,,-, {.,.., T--.rrnin~f--, t'kie Ar~r,',,',rn,',nf ,',vr,,-,rd' fr, r F,r--,,'~r-k ,'-,f fie ~.~k..~ I I I I ql.l ~..l I I ~.~ I I lq.~ N..~ I~.~ lq.., I I~.~1 ~.~F I I ~,~ I I ~ ~.J ~.~ I I V ~.~ I 1~.~ X.I I,. I I ~l..~ lk.~ l~l 1% ~ Ill II'~I I ~.I IX~ ~ t~l lllll I~ thle Anr~m~nt tn th~ nfh~r n~ff~ nnf I~f~r fhen ~ P m /DqT% nn th~ ~f ~¢~mh~r fi~ 1~/ ~re nrlnr fn fh~ T~rmJn~flnn ~f~ in ~ff~¢f nn fhn ~v i~1 ~ ~J ]~1 ~ ~1 iVl ~ ~1 iv I Vlllllll~[l~ll ~[v ii I ~11~[ ~! i[i i~ aforemeat~ane~ 30~ ef December. Ibis Aqreement shall be exten~e~ for successive ~2 month periods, unless ~otice of lermination is fliven as provided in subparagraph a above. 10. As used in this Agreement, the term "Effective Date" shall mean the date on which all of the conditions precedent set forth in Section 5 below have been satisfied or have occurred. At such time as all of said conditions precedent have been satisfied or have occurred, the Parties shall execute a supplement to this Agreement specifying a revised Effective Date. SECTION 4 - FIRST OPTION TO PURCHASE PROJECT WATER 11. In consideration for entering into this Water Supply Agreement with the District, Customer shall have an option to purchase additional Project Water, if such water is available. This option shall not become effective,..r--m-"*i,,--, !.....,... date) until after the District has completed new rate studies, water demand studies, and has completed accepting and processing applications from other Customers to purchase Project Water from the District. At such time as the District completes the application and approval process for other Customers to purchase Project Water from the District, Customer shall have the right to have its additional Application for Purchase and Delivery of Project Water considered upon providing written notice of such desire to the District. District solely shall have the right to determine the effective date of the option and shall notify Customer as to the date of completion of the aforementioned process. Said option shall entitle the Customer to have its additional Application for Purchase and Delivery of Project Water considered by the District prior to the consideration by District of any other Applications for Water Purchase submitted by parties who have not entered into a Water Supply Agreement by the completion of the aforementioned process and the effective date. Water Purchase Agreement Draft 3 - 8/16/04 SECTION 5 - CONDITIONS PRECEDENT TO DISTRICT'S OBLIGATIONS 12. The obligations of District to deliver Project Water and the resulting obligations of Customer to accept and consume deliveries of Project Water are conditioned upon the satisfaction or occurrence of the following conditions precedent: (a) The installation of appropriately sized water meters by Customer at Customer's expense at Customer's Service Connection; (b) The approval and consent of the SWRCB, if applicable, for the water to be delivered and sold to Customer hereunder; (c) full and complete compliance, if necessary, with the requirements of the California Environmental Quality Act ("CEQA): althouqh the parties anticipate that this Aqreement and the use of water under it will be .... ~..t~,-,,., ,.,f ~,., ~,.,m.~ study exempt from the requirements of CEQA.''~ i,,,-:,,,-:~,,g the .....~' ............... ,~n,-~ if it lo N,',t,'-rmin,-,,-~ that the nr,',i,-,,-t ie ,',mt ..... t from r-=QA --ith-,r ¢o~ there shall ~ ~ ~l~ I.~ll [V~l Ibl l~.~ ~.ll I [~.~ Ill II~'J1 ~q'~[ Iqll ~q'~[ I[[1~'~1 [[~-~l III II~l~.~ I ~..~l,.~.~l l. ~..~, 1~.4[I I l~.~q~..~ ~ ~..~11 N.~ [ I I~l~..~l~..~l ~.~$ I~l~l t~..4~.~[ N..~l' ~ld] eh~ll h~x~a art%iraqi :~ithir~ ~hi~-h ~ i,]~i~i~l rNr~-aa~41m~ m~x~ ha irN~tlt,,ta~4 ~-h~llan~im~ thc. ~fi~ 4~l~r~fi~ ~r ~f ~ ~ifi~f~4 ~fi~ ~l~r~fi~ ~r ~r~l ~f ~ final I 1~119 ~Vl~l U~lVi i ~v~mnt from th ...... 13. The Parties may agree to extend the date by which any of these conditions precedent may be satisfied or waived. 14. If the conditions precedent specified herein are not timely satisfied or waived, then this Agreement will be void and all rights granted by this Agreement will be terminated and forfeited. SECTION 6 - PERMITS AND AUTHORIZATIONS 15. Customer agrees to support District in obtaining any Permits, Authorization, Environmental Approvals, or Approvals necessary to make this Agreement effective; and to fully cooperate with District in implementing all of the terms of this Agreement and achieving its objectives. 16. This Agreement may be terminated and abandoned at any time by written notice from either party if the SWRCB or any other governmental entity with jurisdiction over the subject matter of this Agreement rejects or fails to approve the transactions Water Purchase Agreement Draft 3 - 8/16/04 | 0 contemplated by this Agreement, or reduces or modifies District's water rights supply, or conditions its approval to such transaction on factors beyond the Parties' individual or collective practical and/or economic ability to accommodate; or the transactions contemplated by this Agreement are enjoined or otherwise prohibited by a court of competent jurisdiction; or the Parties mutually agree the completion of the transactions contemplated by this Agreement are not feasible. Upon such termination and abandonment, this Agreement shall become null and void and each party shall be responsible for its own expenditures and out-of-pocket costs incurred in connection with this Agreement -..~.~'-,-+ *~, *~, ...... ~-~ .... ~ *h~s ~ ....... * ,.,~.h ...... + to ~..~i u i~..~j ~ ~.~w ~. ~. ~w Ivl i~.~ ~IVVl~l~l i~ Vl Li II ; ~i ~iii~ii~ III~i i i ~L ii l~llll llll~kl~l I ~L I~I I I ~IVlI, SECTION 7 - REPRESENTATIONS AND WARRANTIES OF DISTRICT District makes the following representations, warranties and covenants to Customer, as of the date this Agreement is fully executed: 18. District is an improvement district formed within the Mendocino County Water Agency organized and operating pursuant to the provisions of Chapter 54 of the Water Agency Acts; Water Purchase Agreement Draft 3 - 8/16/04 | ! 19. District has the right, power and authority to enter into this Agreement and to perform its obligations herein, and the persons executing this Agreement on behalf of District have the right, power and authority to do so; 20. This Agreement constitutes a legal, valid and binding obligation of District enforceable against District in accordance with its terms; 21. The execution and performance of this Agreement by District does not breach or constitute a default by District under any law, regulation, ruling, court order, agreement, indenture, or undertaking or other instrument to which District is a party or by which District or any of its property may be bound or affected. SECTION 8 - REPRESENTATIONS AND WARRANTIES OF CUSTOMER Customer makes the following representation, warranties and covenants to District, as of the date this Agreement is fully executed: 22. Customer, by signing this Agreement, is not waiving, altering, or transferring any other water right or facilities held by Customer, or right to use water, vested or otherwise, that Customer may have or acquire, or which may be granted to Customer by the State Water Resources Control Board. r,,~, .... ,~ ..... ~ ~ IUi i~Vlll~lVg ui i~ ii i i i iu[ui ~ [i iu[ 11111 UVl i~11[ vu~[~ll i~1 ui !~ Gustomor will use ~roiect Water in compliance with all terms an~ conditions of District's Permit No. 19fl~7R ~b ..... I~ thor ~e a ~n~ifi .... ....h .... ~o.i .... ~ ~1~ 3cknow!edges 3nd agrees *h.* *h~ "per ~o.~ ................................. purchase price se~,~ces~,~s,~,u~., includinfl, conditions relatinq to points of diversion, purpose of use and allowed places of use. Water Purchase Agreement Draft 3 - 8/16/04 24. Customer is a public water agency duly organized, valid and existing, and in good standing under the laws of the State of California, and is qualified to do and is doing business in the State of California and/or Customer is actively involved in agriculture and/or is a private property owner of agricultural lands located within the District's boundaries and place of use for its water supplies and resources; 25. Customer has the right, power, intent, and authority under this Agreement to perform all of its obligations hereunder, and the persons executing this Agreement on behalf of Customer have the right, power, intent, and authority to do so; 26. This Agreement, and all of its provisions, terms, and obligations herein, constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; 27. The execution, delivery and performance of this Agreement by Customer will not breach or constitute a default under or grounds for the acceleration of maturity of any agreement, indenture, or undertaking or other instrument to which Customer is a party or by which Customer of any of its property may be bound or affected. SECTION 9 - REDUCTIONS IN SUPPLY OF WATER AS A RESULT OF SHORTAGE CONDITIONS 28. In the event that a drought, reduction of supply, or shortage condition is declared by the District with respect to its water rights or supply in Lake Mendocino and the east fork of the Russian River, and evidence of such drought, reduction of supply, or shortage condition is of sufficient magnitude, in-rheas determined by District in the reasonable exercise of its discretion,'-......,..-,',~-' ..~.,,,--,~,.~,,.., ...., .., ~""~""°,,, ,...,, ,~.., to require a reduction in diversions by District pursuant to its Permit, then District shall be entitled to reduce the amount of Project Water it is required to deliver to Customer pursuant to the terms of this Agreement in the manner set forth below '"'~*~'-"'* any ~ ..... manner ~'~ After compliance with the terms of any dry-year protection Agreements then existinq to which the District is a party, District and Customer will share prorate with its remaining Customers in the reduction in the balance of District's allowed diversions from the Russian River and/or Lake Mendocino, as the case may be. District's delivery to Customer will be reduced by Customer's prorate share of the reduction in allowed diversions and consumptive uses, calculated as: District's delivery obligation to Customer in a normal flow year divided by District's right to 8,000 acre feet per year. Water Purchase Agreement Draft 3 - 8/16/04 less the deliveries under dry-year protection A.qreements, multiplied by the amount of reduction in Project Water available to District under its Permit. 29. In the event of such shortage, District shall deliver a written "Notice of Impending Shortage" to Customer. Within thirty (30) days of delivery of such a Notice of Impending Shortage, the Parties shall conduct a meet and confer session for the purpose of negotiating a mutually acceptable "Supplemental Agreement" for the delivery by District of Project Water to Customer. This Supplemental Agreement shall contain the terms and provisions under which District will deliver Project Water to Customer for the period during which the shortage condition prevails. 30. Other events which will trigger a prorate reduction in any amount of Project Water that the District is required to deliver to Customer pursuant to this Agreement are a~~smay include: (a) An adverse regulatory, legal or environmental determination to District, if not pursued or supported by the Customer, restricting District from diverting and using the entire 8,000 acre feet per year pursuant to its Permit based on public trust issues, environmental or endangered species protection issues or on theories of equitable apportionment, forfeiture, abandonment or other theory related to District's use; (b) the consent of District to restriction on its right to divert and use the entire 8,000 acre feet per year pursuant to its Permit; (c) the consent of District to, or an adverse determination against District, if not pursued or supported by Customer, finding that District is no longer reasonably and beneficially using all of its water; or (d) the risk of an unexpected event disrupting District's ability to transfer the water to be delivered to Customer, or an unexpected event disrupting Customer's ability to receive the water delivered by District, such as a flood, earthquake, fire, act of war or like emergency. SECTION 10- CONSERVATION PLAN 31. Customer, and each and any third parties to whom Customer may sell, give, or shall allow to be transferred District's water acquired pursuant to the provisions of this Agreement, shall comply with the requirements of a comprehensive water conservation program and enforcement plan adopted by Customer and approved by District as partial consideration for this Agreement. Customer shall, within 90 days of the execution of this agreement, prepare, adopt, and present to the Executive Director of the District, a complete water conservation program and enforcement plan. Such programs and plans shall mandate and utilize California development, domestic, agricultural, and irrigation water conservation guidelines, including California Urban Water Association (CUWA) Water Purchase Agreement Draft 3 - 8/16/04 ! 4 water conservation standards and agricultural irrigation conservation techniques as recognized by the California Department of Food and Agriculture as appropriate. Within 120 days of the execution of this agreement, the Executive Director shall approve the submitted plan, propose changes to the plan to Customer, or, in the case of the failure of Customer to submit the required plan, notify Customer of the termination of this Agreement due to the failure of consideration and breach of the terms of this Agreement. Upon approval by the Executive Director, Customer shall fully implement and enforce, in favor of the District, the plan and its provisions during the balance of the term of this Agreement. Failure of Customer to fully implement and enforce the conservation plan and its provisions within its service area and against third parties (to whom it may sell, give, or allow the transference of District's water), for the benefit of District, shall constitute a breach of this agreement. SECTION 11 - DEFAULT 32. Each of the following constitutes an "Event of Default" by Customer or District under this Agreement: (a) Payment. If Customer fails to pay the "per acre foot purchase price to be charged" when due and payable pursuant to the provisions of Section 2, or any other amount due and payable pursuant to this Agreement by the due date, said failure to pay shall constitute a default in this Agreement and any such delinquent payment will bear interest at the rate of ten percent (10%) per annum until paid in full. (b) Promises. Customer or District fails to perform, comply with, or observe any term, covenant, obligation, or undertaking in this Agreement that it is to perform or observe, and such default continues for ten (10) days after written notice of default has been sent by District to Customedhe non-defaultin,q party to the party alleged to be in default. This provision shall include, but not be limited to, Customer's excessive use of water which exceeds that water and water allocation that the Parties have agreed to pursuant to the terms of this Agreement. Any use of District's water by Customer which exceeds the amount of water herein referred to and which is the subject of this Agreement, and which is not authorized in writing by the District, shall constitute a breach and a default of this Agreement. Water Purchase Agreement Draft 3 - 8/16/04 (c) Warranties and Representations. Any warranty, representation, or other statement made by or on behalf of Customer or District and contained in this Agreement or any other document furnished in compliance with or in reference to this Agreement is, on the date made or later proves to be false, misleading, or untrue in any material respect. SECTION 12 - REMEDIES 33. In the event of any such default by Customer or District, District the non- defaultinq party shall have the following rights and remedies, in addition to any rights and remedies now or hereafter provided by law. All such remedies are cumulative and may be exercised concurrently or separately: (a) Upon default by Customer or District, District,the non-defaultinq party at District's it's sole determination, may terminate this Agreement and discontinue furnishing or using water to Customer pursuant to the terms of this Agreement. (b) In the event of default by Customer, District shall have the option to suspend delivery of water to Customer's right to use Project Water,Sep,,me ~ until such time as the default is remedied by Customer. (c) In the event of default by Gustemera party, District the non-defaulting party may, by mandamus or other action or proceeding or suit at law or in equity, enforce its rights against ~he defaulting party, or by suit in equity enjoin any acts or things which are unlawful or violate the rights of Districtthe non- defaulting party. 34. A waiver of any default or breach of duty or contract by District a party shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract by Gustemeca_ defaultinq party. No delay or omission by District a non-defaultinq party to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein. 35. No remedy herein conferred upon or reserved to District a non-defaulting party is intended to be exclusive of any other remedy, and each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise and may be exercised without regard to any other remedy conferred by any other law. Water Purchase Agreement Draft 3 - 8/16/04 SECTION 13 - INDEMNIFICATION 36. _Customer shall indemnify, defend and hold harmless District officers, agents and employees from and aqainst any and all claims, demands, liability, costs and expenses, including court costs and counsel fees, arising out of the iniury to or death of any person or loss of or physical damaqe to any property resulting from any negligent or wronqful act or omission committed by Customer or it's officers, agents or employees while performinq services under this Agreement. Customer has no obliqation to indemnify District with respect to its own negligent or willfully wrongful acts or omissions or those of its officers, agents, contractors (excludinq Customer) or employees. i i~,~ ii] ~l i~1 ~al i i ~1 I i~1~ i i~1 iiil~g~ ~1 i~ ~lg[i i~[] I~ ~111~1 g~ ~11 ~Vl g~ ~1 i i~l~]~g ~1 I~ ~1 i~g] ~1 I~ ~1 I ~1 I~ ~ I ~1 ] gl I~ ~1 [1 i~1 i i~ ii ~1 i i ~1 i~ ~11 Ig~ ~! I] ~1 I~ ~11 ii[~iII[] I ~[i, ,~v~, ~, ~ ,~, jmes, I l~l figI ~[[i~i I I~I l[gI ivgg~g ~i i g ~ ~ ~ii l~l~ll I~ I ~I I[ ~ 1 ~ l~[1 I ~ ~g [I l~ ~l Ig~j ~I [[[VI I I~] ~ ~l IV~l 1 ........ + nietri~t~'' ~' ~iRolu~iR"~,,~11 v.yv,, . f every t ...... a ~ ....inti~n t. which ,it. ~,"r UI ~UVI I gl UI I] ~R~I ~gg I ~I ~g~l I[U[IVI II IIUI IUI I[]I VVI~I IUI I[1 ~I VelglVl II ~I Vllllg~ ~I ~I I l~l l[ ~I ~g[~ll l~l ~Vl l{~ll l~ II I[I llg I t~l ~lll~ll[ Vl II I ~I l] ~[II I~I l[I Il Igil ~lll~l l[ ~I "'J~'7: ~ ~ ~ , v, ~ v' ~"~ ' , "'J~'7, ~'~'~ ,,,,F~L, v, ~,,,~ tv I I~1~111~1 i{ Ul~l ~111~i ][i i~l~Vl [~ vug[vi I i~1 g U~l I1~ vui ii I~U[iVl iI IL Ugll i~ V~I Il l~kl~l I. I I Il Il l~l I Il llll~kl I I l~ ~ll~tll~ ~I l~ ~l l[ll ~I] Ill I [I l~l ~I I I~[ h ...... Aar TkiS in~mni¢iooti~n ohall n~f inol,,~. 3~}' claim ~.io;.. from the o~l. 3ctivo i i~1~1 i~1 . i i ii II i~1 iii iiilV~lVi i ~1 I[11 I Iv[ I! iVl~V ~1 I~11 I~ I I VVl~ Water Purchase Agreement Draft 3 - 8/16/04 17 37. District shall indemnify, defend and hold harmless Customer and its officers, agents and employees from and aqainst any and all claims, demands, liability, costs and expenses, including court costs and counsel fees, arising out of the injury to or death of any person or loss of or physical damage to any property resultinq from any neqli.qent or wrongful act or omission committed by District or it's officers, agents or employees while performinq services under this Agreement. District has no obliqation to indemnify Customer with respect to its own negligent or willfully wrongful acts or omissions or those of its officers, agents, contractors (excludinq District) or employees. District sha!! ~ ~ ~i ~ ~i ~i i~iiI) ~ :efnmmr inrl: idinn mvnmneme nf m~mr~ t~nm ~nd dmerrintinn tn ~:~hi~h or ~v~r~ ~.~ .... representation, '*,~rran covenant, prom:se or.~,~,,,~,,.t ~,~f ~,~., in fhi~ Anr~m~n+ nr in one/ dn~:m~n+ in~fr~:m~nf nr I ~1~111~1 I~ gl !! I ~1 I] ~g~l I I~1 I~ iI igll ~111~1 I[ ~1 h~ ~i~fri~t in ~nnn~flnn i ~ ~ ~I i~i~i~I i ~l ~U~l i ~i I~ ~ I ] ~I I~ ~I {I I~IIII I~ gl I~II {~ ~ I Iv ~V{l~l I ~I ~I I~ i~ii i~? i i~i ~ ~ ~i lj ~LI I~I II I~I V I~ ~ ~ I ) ~I ~ ) ~I ~I I[I ~ II I ~ I I~ ~{I ~ I I ~I II I ~I I~ ll~J {VIII I ll~l ~II I III II~I I ) ii I I~II ~ II I~I I ~) ~hillf~t tn naffnrm lie nhlln~flnne ~ndar thie ar on~t nfhar finraamanf fh~f fha ~ie/riot m~t ~I l{~l Il I{~ i~ ~l~llg~ ~l ~lll~l ll~[~l i~ I I l~lll l~l g lllil lll I l~g ~ I Customer ano District shall each maintain m ~avor o{ D~stdct, durin~ the entire torm of this A~roomont, a policy of ~onoral liability insurance {or equivalent coveraqe throuqh ~oint powers authoritg) in an amount of $2, 000, 000 ~ each polic~ namin~ ~stdct the other pa~ as an additional insurod for tho purposos onumoratod in ~ara~raphs 35, 30, and 37~. Evidence of~,~ each policy shall be provided to the ~, Distdctother pa~y. Failure to comply with this provision shall constitute an immediate dofault of this A~reement, notwithstandin~ tho provisions of Section Water Purchase Agreement Draft 3 - 8/16/04 ! 8 SECTION 14 - DEFENSE OF CLAIMS 39. No right to indemnification under the preceding paragraph shall be available unless the Party seeking indemnification (the "Indemnified Party") shall have given to the Party obligated to provide indemnification (the "lndemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after receipt of knowledge of the facts upon which such claim is based. Any delay or failure to so notify the Indemnitor shall relieve the Indemnitor of its obligations hereunder only to the extent, if at all, that it is prejudiced by reason of such delay or failure. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to a claim of a third party, such Indemnitor shall assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in the defense or prosecution thereof and shall furnish such records, information, and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnitor in connection therewith. If the Indemnitor assumes such defense as provided above~-(a), the Indemnitor shall have the right in its sole discretion, to settle any claim for which indemnification has been sought and is available hereunder, provided the Indemnified Party is fully released from all known and unknown claims of such third party and the Indemnified Party is not obligated to perform any actions or pay any money on account of such settlement. If the Indemnitor does not assume such defense as provided above: (a) The Indemnified Party shall have the right to employ its own counsel in any such case, and all of the fees and expenses of such counsel shall be the responsibility of Indemnitor which hereby agrees to promptly reimburse the Indemnified Party fully for such expenses; and (b) the Indemnified Party shall have the right, in its sole discretion, to settle any claim for which indemnification has been sought and is available hereunder, at the expense of Indemnitor, who hereby agrees to promptly reimburse the Indemnified Party all costs and expenses incurred by the Indemnified Party with respect to such settlement. SECTION 15 - GENERAL PROVISIONS 40. No Third Party Rights. This Agreement is made solely for the benefit of the Parties and their respective permitted successors and assigns, if any. Except for such a Water Purchase Agreement Draft 3 - 8/16/04 | 9 permitted successor and assign, no other person or entity shall have or acquire any right by virtue of this Agreement. 41. Assignment. Neither Party may assign any of its rights or delegate any of its duties under this Agreement. Any assignment or delegation made in violation of this Agreement is void and of no force or effect. This Agreement is and will be binding upon and will inure to the benefit of the Parties and, upon dissolution, the legal successors and assigns of their assets and liabilities. 42. Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with the laws of the State of California. 43. Amendment. The terms of this Agreement may be modified only in writing by mutual agreement on signature of Customer and District. Said amendment shall be attached to this Agreement. Any amendment made in violation of this section shall be null and void. 44. Extension of Term. Except as provided in para.qraph 9, :Fthe duration of the Term of this Agreement may be extended only by mutual agreement of the Customer and District in writing signed by authorized representatives of both Customer and District. Such a written extension shall be attached to this Agreement. 45. Entire Agreement. This Agreement, together with all contract documents and ordinances of District expressly incorporated herein by reference, supersedes any and all other agreements, either oral or in writing, between the Parties hereto with respect to the delivery of Project Water to Customer by District and contains all the covenants and agreements between the Parties with respect thereto. Each Party to this Agreement acknowledges that no representations or promises have been made by any party hereto which are not embodied herein, and that no other agreement or promise not contained in this Agreement or in the other contract documents and ordinances of District shall be valid or binding. 46. Severability. If any provision in this Agreement is held by a court of competent jurisdiction or an arbitrator or arbitration panel to be invalid, void or unenforceable, the remaining provision shall nevertheless continue in full force and effect without being impaired or invalidated in any way notwithstanding such invalidity, illegality or unenforceability. 47. Time is of the Essence. It is expressly hereby agreed that time is of the essence of each and every provision of this Agreement, including all contract documents and ordinances incorporated herein. Water Purchase Agreement Draft 3 - 8/16/04 20 48. Attorneys Fees. Should either Party to this Agreement reasonably retain counsel for the purpose of enforcing any provision of this Agreement, including without limitation the institution of any action or proceeding to enforce any provision of this Agreement, or to recover damages if otherwise available hereunder, or to obtain injunctive or other relief by reason of any alleged breach of any provision of this Agreement, or for a declaration based on a demonstrated necessity of such Party's rights or obligations under this Agreement, or for any other judicial or equitable remedy, then if the matter is resolved by judicial or quasi-judicial determination (including arbitration, if such arbitration is agreed to by the Parties), the prevailing Party shall be entitled, in addition to such other relief as may be granted, to be reimbursed by the losing Party for all attorneys fees, expert fees and costs, and all litigation or arbitration fees and costs reasonably incurred, including without limitation all attorneys fees and costs for services rendered to the prevailing Party and all attorneys fees and costs reasonably incurred in enforcing any judgment or order entered on appeal. The prevailing Party shall be determined by the court (or arbitrator, if arbitration is agreed to by the Parties) in the initial or any subsequent proceeding. 49. Notices. Any notice, approval, consent, waiver or other communication required or permitted to be given or to be served upon either Party in connection with this Agreement shall be in writing. Such notice shall be personally served, sent by facsimile, telegram, or cable, or sent prepaid by registered or certified mail with return receipt requested, or sent by reputable overnight delivery service, such as Federal Express, and shall be deemed given: (a) If personally served, when delivered to the Party to whom such notice is addressed; (b) if given by facsimile, telegram, or cable, when sent; (c) if given by prepaid or certified mail with return receipt requested, on the date of execution of the return receipt; or (d) if sent by reputable overnight delivery service, such as Federal Express, when received with confirmation of delivery. Such notices shall be addressed to the Party to whom such notice is to be given at the Party's address set forth below or as such Party shall otherwise direct in writing to the other Party delivered or sent in accordance with this section. If to District: Mendocino County Russian River Flood Control and Water Conservation Improvement District 151 Laws Avenue, Suite D Ukiah, California 95482 Phone: (707) 462-5278 Water Purchase Agreement Draft 3 - 8/16/04 21 Attachment # ~ I I II FETZER VINEYARDS September 16, 2004 Judy Hatch, Chair Person Mendocino County Russian River Flood Control & Water Conservation Improvement District Laws Ave Ukiah, CA 95482 RE: Proposed Draft Water Agreement Dear Judy: Thank you for the opportunity to speak at the public hearing on September 13. The Flood Control District has a daunting task - to protect the water resources of the Ukiah & Sanel Valleys. Fetzer Vineyards appreciates the effort you and the board put into this task and, along with other constituents, we offer our assistance. To this end, we have prepared the following comments on the water agreement, both general and specific. In general, the apparent adversarial relationship between the Flood Control District and its constituents is worrisome. At the public hearing, Marc Del Piero did the District's Board a great disservice. Rather that showing your constituents a modicum of respect, which would have helped gain buy-in on the agreement and the process, Mr. Del Piero's flip attitude and arrogance, only created distrust. This distrust will over-shadow the process and the end purpose - - to protect our water resources. Fetzer Vineyards and the District have a mutual goal of maximizing our water resources. This goal is shared by all of your constituents. I was greatly impressed by the City of Ukiah bringing in the firm of Wagner-Bonsignore Engineers, not to hinder the process, but to offer new information based on empirical data and standard hydro-geological principals. This was done at the City's expense and with the hope of benefiting the entire Valley. The District's Board, lawyer, and Executive Director discounted the study immediately, saying that the Board's engineers disagreed with Wagner-Bonsigonre's findings. This raised several questions that went unanswered: Have the District's engineers studied the Wagner-Bonsignore model?; If so, with what in particular did they disagree?, Where are the District's engineering studies?; and May I review theses studies? Mendocino County Russian River Flood Control & Water Conservation Improvement District September 14, 2004 Page 2 Allowing these questions to go unanswered allows the distrust to fester and again shadows the credibility of the process. Additionally, not bringing all engineers together to consider all available information creates a flawed process and makes it impossible to achieve our mutual goal of protecting and maximizing the Valley' s water resources. In addition to the general concerns expressed above about the District's process, I have the following concerns regarding the drat~ water agreement: Recitals Part J - the water rights of the District are specifically protected; the customer's rights are not. A similar protection should be included for the customer's water rights Recitals- a recital should be included that acknowledges that Customer has its own water rights from the State Water Resources Control Board pursuant to which it diverts water from the River. Section 1, part 1 - 1. Should provide that the specified quantity of water will be delivered annually. 2. The District's water year is not defined. Section 1, part 2 - Customer will agree that it does not gain any legal or equitable right by virtue of the agreement, but retains any rights its has under the law, and the agreement should specify this. Section 1, part 5- 1. This section should clarify that if water is not delivered Customer has no duty to pay for it. 2. There should be some duty on the district to try to mitigate the impacts of any of the causes of shortages described in this section. Section 2, part 7 - 1. Fetzer Vineyards has requested, when available, a copy of the District's financial audit and budget. 2. Clarification is needed: is the Customer billed for our full allotment whether or not the full allotment is diverted. 3. The agreement should specify the procedure by which the District will establish the annual "per acre foot charge". This procedure should include an annual noticed public hearing and publication of the proposed annual "per acre foot purchase price to be charged". 4. Shouldn't the net "cost of administration" include funds received from property assessments, LAFCO, grants, and other sources? 5. The annual "per acre foot charge'~ should have some restrictions on how much it can be increased in any given year. I have attached some suggested language. Mendocino County Russian River Flood Control & Water Conservation Improvement District September 14, 2004 Page 3 Section 2, part 8- 1. Clarification is needed: how is the monthly invoice (acre-feet diverted) to be developed? 2. Clarification is needed: isn't District water irrigation water and therefore only available from May to October? 3. The method of calculating total annual use of District water seems inadequate and likely to result in errors. 4. Reducing a customer's water allotment based on 1 year of data is unwarranted and inconsistent with the California law granting water users five years before water is deemed to be abandoned. Wouldn't using the state-accepted 5-year average be more accurate? 5. The contract seems to have a 'use it or loose it mentality." Won't this encourage customers to over-use water? 6. This section mentions the "resell of Project Water", does this mean that Customer's have the ability to resell their allocation of water if they cannot use it in any given year? Section 5, part 12- 1. The condition precedent of meter installation should be expressly waived if the Customer akeady has a meter installed at its diversion point. 2. Who will determine if the SWRCBs approval is needed? 3. Clarification needed: this section does not define the "Project" that would be 4. subject to CEQA. I am assuming that it is the act of the District entering into contracts, not any individual contract. This section should provide the method by which the District will notify the Customer that the conditions have been satisfied. Section 5, part 14 - What is the process for having conditions waived? Section 6, part 16 - The District should have a duty to defend against its water rights being reduced or modified by the SWRCB or a court. Section 8, part 24 - Fetzer Vineyards is not a public water agency. Section 9, part 28 - 1. Clarification needed: determining a shortage condition is in the District's sole opinion. Are there any checks? What data will be used to determine a shortage condition? This seems arbitrary; determination of a shortage should be made at a public hearing so that customers have input. 2. Section 9 should provide that during a shortage period Customer is required to pay only for water received. Mendocino County Russian River Flood Control & Water Conservation Improvement District September 14, 2004 Page 4 Section 9, part 30 - The District should have an obligation to defend against the types of adverse rulings set forth in this section. Specifically, District should not be allowed to "consent" to any determination that it is not using its water. Section 10, part 31 - Before we can agree to the requirement imposed in this Section to adopt a water conservation plan that "shall mandate and utilize California development, domestic, agricultural and irrigation water conservation guidelines, including.. .agricultural irrigation conservation techniques as recognized by the California Department of Food and Agriculture", we must be aware of what these techniques are. I am not aware of any water conservation guidelines developed by the California Department of Food and Agriculture, and more information on what the Distirct will require in these plans is needed. Thank you for providing the opportunity to review and comment on the draft water agreement. Please feel free to contact Susanne at 744-7589 or by email at susanne_zechie~b-f, com. Regards, Susanne Zechiel Manager Facilities Resources CC: Roland Sanford, Mendocino County Water Agency Candice Horsley, City of Ukiah ~rendocino County Russian River Flood Control & grater Conservation Improvement District Attachment # 151 Laws Avenue, Suite D Ukiah, CA 95482 Phone (707) 462-5278 FAX (707) 462-5279 September 21, 2004 Chairman Hal Wagenet Board of Supervisors County of Mendocino 501 Low Gap Road Ukiah, CA 95482 Dear Chairman Wagenet: This letter is prepared in response to the correspondence forwarded to your office by Susanne Zechiel dated September 20, 2004. It is sufficient to say that Ms. Zechiel's slanted perception of the Flood Control District's meetings, and the conduct of the Board members, is radically different from the majority of participants. Ms. Zechiel appears to not understand the difference between disagreement and disrespect. The Board of Trustees, for the second time in four years, began the process of offering written water agreements for the District's water in July of this year. Between mid July and mid August, over 110 copies of the draft agreements were distributed to the City of Ukiah, the Farm Bureau, and every other known historic user of the District's water. Further, each entity was invited to present testimony and comments or suggestions on the draft at the Board's noticed public hearing on September 13. It should be noted that, although such a heating on draft language is not even required by law, the Board of Trustees posted full public notice and fully complied with all Brown Act requirements to assure the maximum public participation possible. We point this out because Ms. Zechiel seems to think that just because she didn't "get her way" that the credibility of the District is in question. It should be noted that three years ago her employer openly opposed the initial effort to establish defined water contracts and allocations for water it has historically received for free from the District's supplies. The hearing on September 13 was open to all members of the public. Prior to that public hearing, a subcommittee of the Board met with the City of Ukiah at a separate meeting to discuss these important issues. Additionally, on the day of the hearing, the Board afforded the City's engineers the opportunity to put on a full presentation on the City's position. You are invited to listen to the tapes of all of these meetings to confirm the truthfulness of these representations. President F~ce President Treasurer lkustee Trustee Judy Hatch Tom Ashurst Bill Townsend Tom Mon Pere Bob Wood Board of Supervisors September 21, 2004 Page 2 On September 13, many people presented comments on the drat~ agreements. Of the over 110 entities who were personally noticed, only four objected to the agreements: Ms. Joan Prati, the City of Ukiah, the Redwood Valley County Water District, and Ms. Zechiel. Ms. Prati accused the Board of Trustees and its counsel of being "disingenuous and liars" immediately at, er the heating was opened and the drat~ agreement was presented for discussion. Beyond that, Ms. Prati offered no substantive comments. She also previously opposed water contracts because she did not want to pay for her allocation. Perhaps this is the "considerable lack of respect and arrogance" that Ms. Zechiel is referring to in her letter. The Redwood Valley County Water District representative objected because guaranteed water contracts to landowners and taxpayers within the boundaries of the Russian River Flood Control District will reduce the amount of surplus water that Redwood can sell for profit. It should be noted that Redwood has not paid our District for any of our water that it has pumped and used for over two years. The City of Ukiah requested that our Board adopt a policy that would give them "most favored nation" status in drought years. It asked that our Board take water away from farmers in dry years to allow the City "more flexibility" in pursuing new developments. The Board chose to reject this proposal because of its inherent unfairness to our valley's agricultural industry. Finally, after making her comments at the public heating, Ms. Zechiel indicated she would respond further in writing. She was given ample time to make her public presentation during the public hearing and again, a review of the tapes will prove the truthfulness of this statement. After all members of the public had presented their comments, I, as Chair of the Board, asked repeatedly if"there are any other comments." When there was no further response, the public hearing was closed. On September 17, our Board held its next meeting to consider the draft agreement language in light of the comments made at the prior public hearing and in subsequent written correspondence that we accepted and responded to, in writing, even up to 5:00 p.m. on September 16. Ms. Zechiel received, by both fax and hand-delivery, a detailed, point-by-point response to her written letter that was prepared by the District's counsel. This can hardly be construed, as Ms. Zechiel asserts, as arrogant, disrespectful, or actions that weaken the credibility of our Agency. A copy of that response is herewith attached. You will note that our written response addressed virtually every issue raised by Ms. Zechiel except for her request for delay in taking action. A copy of the water agreement language, including the mandatory section on water conservation from each of our District's water users, is also enclosed. Board of Supervisors September 21, 2004 Page 3 The major public policy issues included and addressed in our Board's actions can no longer be swept under the mg or delayed particularly in the face of threatened and limited water supplies in our watershed. Our District is vigorously acting to protect our historic water rights and the users of our water to the maximum extent possible. We hope this correspondence clarifies this issue. Sincerely, Judy Hatch President CC; Supervisors, County of Mendocino Ms. Candace Horsley- City of Ukiah Mr. Roland Sanford - Mendocino County Water Agency Mendocino County Farm Bureau Attachment 300 UKIAH, CA 95482-5400 · ADMIN. 707/463~6200 · PUBLIC SAFE~ · FAX # 707/463-6204 · EMAIL: ukiahc'ty~jps.net · October 1, 2004 Honorable Hal Wagenet, Chairperson Board of Supervisors Mendocino County 501 Low Gap Road, Room 1090 Ukiah, CA 95482 Dear Mr. Wagenet: On September 28, 2004, the City of Ukiah received a copy of the letter to you, dated September 21, 2004, from Judy Hatch, Chairperson, Russian River Flood Control and Water Conservation Improvement District ("Flood Control District"). That letter responds to a letter from Susanne Zechiel of Fetzer Vineyards about the recent actions of the Flood Control District in approving a standard form Water Supply Agreement. I have been requested by the City Manager to explain why the City has a different perception of the Flood Control District's recent actions than is portrayed in the District's letter. First, the City notes that although the Flood Control District responds to Ms. Zechiel's letter, she is not listed as a recipient of a copy of the letter, which in itself reflects a certain lack of courtesy on the part of the District, despite its protestations to the contrary. Second, the facts do not support the Flood Control District's effort to portray itself as having done all it could to solicit, consider and respond to public comment on the draft water supply agreement. The District says that it began the process of soliciting public comment on the agreement in July. It is true that the City was able to obtain a copy of the draft contract in July. However, the District did not distribute the draft agreement for public comment until August 17, 2004, when it wrote the enclosed letter to "Water Users and Land Owners." As you can see from that letter, the District promised to conduct multiple public hearings over a period of two months. Instead, in a period ofjust one month (August 17 to September 17), the District conducted a single, public hearing, lasting a little more than an hour, followed four days later by a special meeting conducted at 6 p.m. on a Friday. In addition, two District Board members and its attorney met with City representatives on August 31, 2004, and a City engineering consultant was allowed to make a ½ hour presentation to the full Board an hour before the public hearing held on September 13. 'We Are Here To Serve" Letter to Chairperson Wagenet Subject: MCRR&WCID letter, dated September 21, 2004 Date: October 1, 2004 Page 2 At the conclusion of the public hearing on September 13, the District's Board was asked: "What happens next?" The response gave the impression that there would be additional oppommities to comment. Certainly, no mention of a special meeting four days later was made. The timing of this surprise "special meeting" allowed little time for additional written comments from members of the public, even though one or two managed to submit some abbreviated comments. The public received less than two days notice of the special meeting and no one saw the proposed changes to the contract until that meeting was convened. Because of the short notice and the beginning of the weekend, few attended the-meeting. Those who did were not permitted to make .further comment on the draft agreement, even if they had not attended the public heating four days earlier. Few could intelligently comment on the contract changes which they had just seen for the first time and which they had not had an oppommity to review with their legal and other advisers. On September 9, 2004, in anticipation of the public hearing on September 13, the City submitted to the District a redlined revised Contract with changes on 16 of the 19 pages of the agreement. No comment was made by District representatives at the public hearing on any of these proposed changes. The City received no written response to any of them or any explanation from the District about why none of them was adopted by the District's Board of Directors. Contrary to the District's statement about Ms. Zechiel, the City does not confuse disagreement with disrespect. It did not expect the District to adopt all of its proposals. However, the Board apparently confuses providing an abbreviated single opportunity for members of the public to comment on the draft water supply agreement with a meaningful consideration of those comments. The deficiencies on the part of the District involve both attitude and process. The letter to you illustrates the District's attitude. Contrary to the statement in the letter many more than four persons submitted comments on the draft contract. However, the letter dismisses every comment it acknowledges receiving based on a characterization of the motives of the party making the comment. Either the party just wants to continue receiving water from the District for free or, as in the City's case, it just wants a "most favored nation" status to take water away from farmers in dry years so that the City can approve more development in the City. This characterization of the comments illustrates the difference between an opportunity to comment and actually listening to and considering the comments. It also reflects an adversarial approach which does not promote cooperation and positive working relationships. Letter to Chairperson Wagenet Subject: MCRR&WCID letter, dated September 21, 2004 Date: October 1, 2004 Page 3 The City did not propose taking water away from farmers to allow for more development in the City, and the District would know this, if it had listened to the City's presentation. On the contrary, the City objected to a use-it-or-lose-it feature of the draft contract that would force any District customer with independent water fights (not just the City) to use District water when it is not needed in normal and even dry years in order to keep that water available when it is needed in dry or critically dry years. This provision in the contract will actually deprive farmers of water who need it and could use it under most water conditions and will discourage, if not prevent conservation. Moreover, this same provision will force customers like the City with independent water rights to report more usage under the District's permit, which may reduce the amount of water they can report and perfect under their own permitsr. -This consequence could result in water users in Mendocino County losing the right to Russian River water to users downstream in Sonoma County. Far from protecting and enhancing Mendocino County water'rights, this feature of the draft contract undermines the perfection of those rights. Finally, the City encouraged the District to take full advantage of a unique and an important condition in its water rights permit. That condition measures use under the permit by depletion by consumptive use rather than by simple diversion. Using this measure, the District only uses its 8000 acre foot allotment, when the water is actually consumed, subtracting water that returns to the river after it has been diverted. This would require more sophisticated calculations than are proposed by the District to measure water use, but it could make substantial additional water available for use under the District's permit. The City has offered to have its engineering consultants, who specialize in hydrology and water management, provide information and assistance to the District on this issue. Nevertheless, without any investigation and based on unwritten casual comments by its engineer, the District has categorically rejected even exploring this option. These proposals are intended to make more water available to farmers and other water users; not to take water away. Nevertheless, the District's Board has rejected them without any extended discussion or exploration of alternatives to its draft water supply contract, which, in the end, is presented on a take-it-or-leave it basis, despite the pretence of considering public comments. Such treatment of the District's constituents does not reassure the public that the District has carefully considered these issues. In fact, it creates the opposite impression. When the District receives public comments or suggested contract revisions, an effort could and should have been made to fully explore that material and to engage in a give- and-take exchange. The District should have allowed ample time for an exchange of drafts and responses to drafts. Such exchanges might have convinced the District to make requested changes, provided a means for agreeing on compromise language that may satisfy the interests of the District and those submitting the comments or revisions, or satisfied the commenter that the District's original proposal was best. Letter to Chairperson Wagenet Subject: MCRR&WCID letter, dated September 21,-2004 Date: October 1, 2004 Page 4 At least, if that effort had been undertaken, the City and the farmers would feel like they were on the same side as the District and engaged in a collaborative effort. After all, the City and the water districts actually pump, treat and deliver water to consumers and the farmers actually use the District's water to create crops and jobs in the County. They would like to think that they share a common goal with the District to protect and enhance water fights in Mendocino County. Any disagreements over how to do that best should be discussed and worked out on a cooperative basis. Instead, the District seems to prefer treating its customers as adversaries and to question their motives, when they propose changes to the draft contract. The District's letter is the best evidence of the problem and certainly does clarify this issue. Very truly yours, David J. Rapport City Attomey cc: Board of Supervisors Ukiah City Council MCRRFC&WCID Susanne Zechiel, Fetzer Winery ITEM NO. DATE: October 6, 2004 AGENDA SUMMARY REPORT SUBJECT: DISCUSSION OF SELECTION OF REPLACEMENT TRASH AND RECYCLING RECEPTACLES AND BICYCLE RACKS FOR DOWNTOWN During previous discussions, Council indicated a desire to replace the existing trash and recycling receptacles with a more decorative style. Council also requested bike racks to be purchased for the municipal parking lots. There are currently 18 downtown street corner locations at which trash and recycling receptacles are placed. There are an additional six receptacles in Thomas Plaza. All of these receptacles are a sandstone color and masonry construction. Council has requested a design more consistent with the benches recently placed on School Street. Attachment #1 includes several samples of decorative receptacles, which are available in a number of colors and materials. The majority of these designs are metal, however, options for simulated wood made of recycled plastic are also included. Matching recycling receptacles are also available. The cost per receptacle should range between $250 and $500 depending on design and quantity ordered. (Continued On Pa,qe 2) RECOMMENDED ACTION: After discussion of receptacle and bicycle rack design options provide direction to staff. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: 1. 2. Ukiah Main Street Program City Council Larry W. DeKnoblough, Community Services Director Candace Horsley, City Manager Receptacle Samples Bicycle Rack Samples APPROVED: Candace Horsley, City Manager LD/Zip2 Downtownreceptacles.Asr Provided in Attachment #2 are examples of bicycle racks, which range from multiple bikes to single "hitching" post style. Staff's conversations with various vendors indicate the "wave" style rack provides a greater level of security as opposed to the standard slot rack. With the wave rack cyclists can secure the entire frame of the bike to the rack more easily. With the standard slot rack the wheel of the back can simply be unbolted and the bike then stolen. The hitching post style will allow for two bike frames to be locked to the post, one bike per side. The cost of bike racks is based upon the capacity of the rack. Though the funding for the purchase of this equipment is through the Redevelopment Agency, this item is being presented to Council for discussion and to provide direction to staff. Should Council determine its preference for a particular design, staff will proceed to secure bids and return to the Redevelopment Agency for consideration of purchase. VICI'OR S'I'ANLEY, iNC. ',~.~,:qtm ~,,1 ~. '~L..,.1,1,(.; ,.~u ~ ,rl,,,.~,.,;..~....,: i ,~4~1~ Litter Receptacles Concourse Series A renaissance of curves. INS~A~LAI :'_)NS Attachmer4 1 iii iii i I I 51TE ,5 _l DE Economy Series Lighter weight designs, slightly smaller scale. Goblet Series Classic shapes with a contemporary twist. H Series The elegance of simple solutions. Ironsites Series Premier architectural amenities. Litter King Series Perennially popular design from the past. Production Series The Perfect Fit. ProTone Series The designer collection. Steelsites Series The incredible beauty and versatility of steel. Steelsites RB Series Gives true meaning to the term "Street Furniture." T Series Litter Receptacles with a smile. Contact webmaster@victorstanley.com with questions or comments regarding this site. Copyright. 2004, Victor Stanley, Inc. All rights reserved. Victor Stanley, Inc. Toll Free: 1-800-368-2573 (USA & Canada) Tel: 301-855-8300 Barco's Outdoor Products Attachment Page 1 of 2 THE WAVE ... in Red, I! i I Yellow: Greenor Black! I lb~q I ! Il [/ll~~i I' Park one bike per loop & one on pmyester coaung - spe blue, yellow, green, wh or black · Flange mount bolts din MIGHTY MITF: BIKE R~ into concretc ~CK ...for small s~aces or even in, . E?onomy model, lightweight but solid · Use in tight spaces, indoors or otIt · DOUble sided, parks 6 bikes tI · I outer diameter, 16 gauge tYame s( +! nlod~ #GR6210 D~,mension,: 35" long x 225" high x 33" wide Sh,pping ,oiJR PICK...The Loop or 1'he Upri.qht for only TAKE 150 II~s. ~f Bicycle http://www.barcoproducts.com/catalogs/opspr03/p/016.html 9/29/04 Page 2 of 2 More Info 154-1009 $358.OO Breckenridge Bollard Bike Rack More Info 154-1010 $865.00 More Info Breckenridge Bike Rack 154-1011 $865.00 ~1~ More Info Sunrise Bike Rack- 10 More... THE PARK CATALOG HIGHLAND PRODUCTS GROUP 3601 N. DIXIE HVW. STE 3 BOCA RATON, FL 33431 888-447-2401 www.theparkcatalog.com 561.620-8668 fax http ://www.theparkcatalog.com/cgi-bin/dpsmarffthmb.html ?L +hmg+Ipwm 1172+_Dname_0... 9/30/04 AGENDA SUMMARY ITEM NO. DATE: October 6, 2004 REPORT SUBJECT: RECEIPT OF FIFTH FISCAL YEAR REPORT AND DETERMINATION OF FINDINGS WITH RESPECT TO THE AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE ACCOUNT Submitted for the City Council's review and action is the Fifth Fiscal Year Report (the Report) for the Airport Industrial Park Capital Improvement Fee Account (the Account). The Mitigation Fee Act (the Act) requires the City Council to make certain findings (the Findings) with respect to the unexpended portions of the capital improvement fees collected and deposited into the Account, whether committed or uncommitted, for the fifth fiscal year following the first deposit into the Account and every five years thereafter. The Act also requires the City Council to review the Report at a regularly scheduled public meeting no sooner than 15 days from the date the Report became available for review by the public. The Report was available for review on Friday, September 17, 2004, and a notice of the time and place of the public meeting for the review of the Report was prepared in accordance with the Act. Although, no interested parties had submitted written requests to receive the notice as required by the Act, a courtesy notice was mailed to the Redwood Business Park Developer, Gary Akerstrom. The first fee was remitted on June 12, 1997 and the report covers the period between and including the date on which the Airport Industrial Park Capital Improvement Fee (AlP CIF) was established, May 7, 1997 and the 2003-2004 fiscal year. The Findings to be made by the City Council in accordance with the Act are to address the following: 1. Identify the purpose to which the capital improvement fee is to be put. 2. Demonstrate a reasonable relationship between the fee and the purpose for which it is charged. Continued on Page 2 RECOMMENDED ACTION: Receive and Review the Fifth Fiscal Year Report as required by the Mitigation Fee Act and make the recommended findings presented in this Agenda Summary Report. ALTERNATIVE COUNCIL POLICY OPTIONS: Modify the recommended Findings or make alternate Findings Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: As Required by Mitigation Fee Act Diana Steele, Director of Public Works / City Engineer Rick Kennedy, Consultant Candace Horsley, City Manager Airport Industrial Park Capital Improvement Fee Account Fifth Fiscal Y~~eport APPROVED' ~._l~--~'~.~'l ~ ~-... '~-~Ca~dace Horsley)~ty Manager RECEIPT OF FIFTH FISCAL YEAR REPORT AND DETERMINATION OF FINDINGS WITH RESPECT TO THE AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE ACCOUNT October 6, 2004 Page 2 of 4 3. Identify all sources and amounts of the funding needed to complete the financing of the incomplete portions of the public improvements identified in the capital improvement fee program. 4. Designate the approximate dates when the identified sources are expected to be deposited into the fund. The supporting information necessary to make the findings is presented in the Report under headings corresponding with the findings to be made. The recommended specific Findings are: Finding No. 1: Purpose of the Capital Improvement Fee. "The purpose of the Airport Industrial Park Capital Improvement Fee is to finance the design and construction of public improvements (mitigation improvements) needed to mitigate traffic impacts to three (3) identified off-site intersections resulting from increased traffic generated by new development within the Industrial Park." The impacts to the three offsite intersections are summarized in Attachment "B" of the Report in terms of reductions in level of service by reason of the increased traffic. The impacted off-site locations, the needed mitigation improvements at the impacted locations, and the cost to construct the mitigation improvements are summarized in Attachments "C", "D", "E", and "F" to the Report, and pertinent information is presented in the Report beginning on page 2. Finding No. 2: Demonstrate the relationship between the capital improvement fee and the purpose for which it is charqed. "The capital improvement fee established for each of the seven (7) land uses authorized within the Airport Industrial Park by Ordinance No. 1024 was determined from the future value of the estimated cost of the mitigation improvements, the percent of traffic generated by each land use type, and the amount of acres reserved for each land use." Details of the relationship between the fee and its purpose are presented in the Report beginning on page 5 and summarized in Attachments "G", "H", and "1". Finding No. 3: Identify the fundinq sources and amounts needed to complete the incomplete portions of the mitiqation improvements. "There is a probability that there will be insufficient funds within the Account to finance the mitigation improvements exclusively with capital improvement fees as originally planned. The amount of funds needed from additional sources to complete the mitigation improvements are dependent primarily on the type of development that will occur within the undeveloped portion of the 32 acres currently zoned as Light Manufacturing/Mixed Use, when the development will occur, and when the mitigation RECEIPT OF FIFTH FISCAL YEAR REPORT AND DETERMINATION OF FINDINGS WITH RESPECT TO THE AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE ACCOUNT October 6, 2004 Page 3 of 4 improvements are to be constructed. Based on a revised cost estimate for the mitigated improvements, an estimated amount of $576,113 will be required if the mitigation improvements are constructed in 2006. A potential deficit of $35,693 is projected forecasting mitigations constructed in 2006. As a result of the Settlement Agreement between the City and the Redwood Business Park Developer, the City is committed to contribute $184,276 towards the mitigation improvements. The City's contribution and those funds needed to augment the funds within the Account may come from gas tax funds, discretionary funds, and State or Federal grants." The above calculations correspond to 2004 data reported in the second paragraph, page 7 of the attached Report, escalated by 4% for each of the two years. Further details in support of making finding No. 3 are provided in the Report beginning on page 6 and attachment "K" of the Report. Finding No. 4: Desiqnate the approximate dates when the identified sources are expected to be deposited into the account. "Based on an observed average development rate of 5.30 acres per year, it is projected that the Airport Industrial Park will reach build out within ten (10) years, or 2014. Based on findings presented in a Traffic Analysis Report prepared by W-Trans in September 2002, it is projected that the mitigation improvements will need to be constructed within the next two years, prior to reaching build out of the AlP. Given these projections, funds from additional sources will be needed to finance the construction of the mitigation improvements. As stated in Finding No. 3 above, the amount of funds needed from the additional funding sources is dependent on the type of development that will occur within the undeveloped portion of the 32 acres currently zoned as Light Manufacturing/Mixed Use and when that development occurs. It is the desire of the City Council that funds expended from other sources excluding the City's commitment of $184,276 be reimbursed or reallocated as permitted by law when capital improvement fees are collected from AlP development that occurs subsequent to the construction of the mitigation improvements." Further details in support of making Finding No. 4 are provided in the report beginning on page 7. In conjunction with the presentation of the Fifth Fiscal Year Report, the following annual financial information pertaining to the Account for the 2003-2004 fiscal year are as follows: 1. Funds within the Account: The Account contains only monies received as capital improvement fees imposed on development within the Airport Industrial Park. 2. The amount of the fees: The amount of the capital improvement fee is based on land use, and the fees per acre for each land use as established by Resolution No. RECEIPT OF FIFTH FISCAL YEAR REPORT AND DETERMINATION OF FINDINGS WITH RESPECT TO THE AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE ACCOUNT October 6, 2004 Page 4 of 4 2000-13 are as shown on page 6 of the report. 3a. Beginning Balance of the Account: $84,161.59 3b. Ending Balance of the Account: $97,436.28 4a. 4b. 4C. Amount of fees collected for fiscal year: $4,566.79 Amount of fees credited to the Account from previous (Applebee's contribution recorded against incorrect account): $6,376.37 Amount of interest earned for fiscal year: $2,331.53 years 5. Fees expended: No fees were expended in the fiscal year. 6. Approx. date when the incomplete mitigation improvements constructed: 2006 are to be 7. Loans or inter-fund transfers made from the Account: None 8. Refunds made as a result of having sufficient funds and the City not identifying within 180 days an approximate date by which construction if the incomplete mitigation improvements will commence: None Attachment # .... AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE ACCOUNT FIFTH FISCAL YEAR REPORT PURPOSE OF REPORT/STATUTORY REQUIREMENTS Pursuant to the provisions of the Mitigation Fee Act, codified in Government Code Section 66000, et seq., the City of Ukiah is required to make certain findings with respect to the unexpended portions of the capital improvement fees collected and deposited into the Airport Industrial Park Capital Improvement Fee (AlP CIF) Account, whether committed or uncommitted, for the fifth fiscal year following the first deposit into the fund and every five years thereafter. The findings to be made every five years are to be made in connection with the financial information that is to be made available to the public on an annual basis and within 180 days after the last day of the fiscal year. The findings to be made are: 1. Identify the purpose to which the fee is to be put. 2. Demonstrate a reasonable relationship between the fee and the purpose for which it is charged. 3. Identify all sources and amounts of funding needed to complete the financing of the incomplete portions of the public improvements identified for the particular Capital Improvement Fee Program. 4. Designate the approximate dates when the identified sources of the funding needed to complete the financing of the incomplete improvements are expected to be deposited into the Capital Improvement Fee Account. The financial information pertaining to the Capital Improvement Fee Account to be made available to the public on an annual basis is as follows: 1. A brief description of the type of fee in the fund or account. 2. The amount of the fee or fees. 3. The beginning and ending balance of the fund or account. 4. The amount of the fees collected and interest earned. 5. An identification of each public improvement on which the fees were expended and the amount of the expenditures on each improvement, including the total percentage of the cost of the public improvement that was funded with the fees. 6. If a public improvement identified in the Capital Improvement Fee Program remains incomplete, an identification of an approximate date by which the construction of the incomplete project will commence if the City determines that sufficient funds have been collected to complete the financing of the incomplete improvements. 7. A description of each inter-fund transfer or loan made from the account or fund, including the public improvements on which the transferred or loaned fees will be expended, and, in the case of an inter-fund loan, the date on which the loan will be repaid and the rate of interest that the account or fund will receive on the loan 8. The amount of refunds made as a result of the City not identifying within 180 days from the date of the determination that sufficient funds have been collected an approximate date by which the construction of the incomplete improvements will commence and/or the amount of any unexpended revenue that has been allocated for some other purpose which serves the project on which the fee was originally imposed as is allowed when the administrative costs of refunding unexpended fees exceed the amount to be refunded. The City is required to review the Fifth Fiscal Year Report and the annual financial information made available to the public at the next regularly scheduled public meeting no sooner than 15 days from the date the information became available to the public. At least 15 days prior to the date of the public meeting, a notice of the time and place of the public meeting shall be mailed to any interested party who files a written request with the City for a mailed notice of the meeting. Any written request for a mailed notice shall be valid for one year from the date it was filed with the City unless a renewal request is filed. Renewal requests for mailed notices shall be filed on or before April 1 of each year. This Fifth Fiscal Year for the Airport Industrial Park Capital Improvement Fee Account has been prepared in accordance with the statutory requirements set forth in the Mitigation Fee Act REPORTING PERIOD This Fifth Fiscal Year Report covers the period between and including the date on which the Airport Industrial Park Capital Improvement Fee was established, May 7, 1997, and the 2003- 2004 Fiscal Year. ESTABLISHMENT OF THE AlP CIF The Airport Industrial Park Capital Improvement Fees were established on May 7, 1997 with the adoption of Resolution No. 97-70. The capital improvement fees were immediately imposed on parcels being developed within the Airport Industrial Park with the adoption of Resolution No. 97-71 and collection was authorized the day following the adoption of Resolution No. 97-70. The first fee was remitted on June 12, 1997. The capital improvement fees were revised on September 1, 1999 with the adoption of Resolution No. 2000-13. Prior to the adoption of Resolution No. 2000-13, fees totaling $102,278.93 had been collected from five projects: Jack in the Box, Shell Service Station and Mini Mart, LA-Z-Boy Furniture Galleries, Staples, and the Mendocino Brewery and Bottling Plant. Because of changed circumstances and engineering assumptions, the fees for each of the seven (7) land uses within the Airport Industrial Park were reduced. Portions of the collected fees totaling $46,647.34 were returned to the five property owners in accordance with the provisions of the Mitigation Fee Act. PURPOSE OF THE CAPITAL IMPROVEMENT FEE Capital improvement fees were imposed on development within the Airport Industrial Park for the purpose of financing the design and construction of improvements needed to mitigate traffic impacts to three off-site intersections resulting from increased traffic generated by new development within the Industrial Park. The Airport Industrial Park is the area of the City of Ukiah bounded on the west by the Northwestern Pacific Railroad right of way, on the north by Talmage Road, and on the east and south by US 101 Highway. The three off-site intersections significantly impacted by new traffic generated by the ^IP development are the US 101 Southbound off-ramp at Talmage Road, Talmage Road at Airport Park Boulevard, and Hastings Avenue at South State Street. New development was defined as development occurring subsequent to the Wal-Mart development further referred to in this report as "post Wal-Mart." Impacts to two of the three off-site intersections were quantified as reductions in the level of service (LOS) below the acceptable LOS D. A safety concern was identified for the US 101 Southbound off-ramp at Talmage Road and it was determined that additional traffic would worsen the condition. The reductions in the level of service were presented in three separate Traffic Analysis Reports prepared by W-Trans and dated March 1996, April 17, 1997, and June 1999. The report prepared in 1996 was an independent traffic analysis of the impacted study intersections identified in the Airport/Redwood Business Park Environmental Impact Report prepared by Leonard Charles and Associates. Land uses identified for the AlP were restaurant, office retail, industrial park, and retail. The 1996 Traffic Analysis Report estimated that the proposed mixed-use development would generate an average of 2,209 pm peak-hour vehicle trips consisting of 1,310 new/diverted trips external to the project area, 398 new trips internal to the project, and 501 pass-by trips from traffic already existing on South State Street and Talmage Road. It was estimated that the newly generated traffic would reduce the levels of service for the northbound through/right and the westbound approaches at South Street and Hastings Avenue from LOS C and B, respectively, to LOS F. At Airport Park Boulevard and Talmage Road, the level of service for the left turn movements at the northbound and westbound approaches would be reduced from a LOS C to LOS E for the northbound and LOS F for the westbound approaches. At the US 101 Southbound off-ramp at Talmage, the level of service would be reduced from C to F for the right turn movement. The 1997 Traffic Analysis Report re-analyzed the impacts resulting from traffic generated by a proposed mixed-use development within the AlP consisting of office retail, industrial park, auto dealership, auto parts/auto care, retail, fast food restaurant, and gas station/mini-mart. In addition, an analysis of pass-thru traffic was performed. The 1997 report estimated that the proposed mixed-use development within the AlP would generate an average of 2,395 pm peak- hour vehicle trips consisting of 1,568 new/diverted trips external to the AlP, 298 new internal trips and 529 pass by trips from traffic already existing on South State Street and Talmage Road. The estimated generated project traffic would reduce the level of service for the eastbound and westbound approaches at the South State Street and Hastings Avenue intersection from levels B and C, respectively, to levels of F. At Airport Park Boulevard and Talmage Road, levels of service for the northbound and westbound left turn movements would be reduced from LOS C to LOS F. At the US 101 Southbound off-ramp at Talmage Road, the LOS for the right turn movement would be reduced from LOS B to level D. The information presented in the 1997 Report and in the subsequent cost estimates for the construction of the proposed mitigations was utilized to establish the AlP Capital Improvement Fees that were adopted in 1997. The 1999 Traffic Analysis report investigated potential traffic impacts that would result from proposed zoning changes within the west portion of the AlP, south of Commerce Road. At the time of the 1999 report, several developments within the AlP were completed consisting of the Friedman Brothers Improvement Center, Shell Service Station and Mini Mart, Jack in the Box, Food for Less, Staples, La-Z-Boy Furniture Gallery and the Mendocino Brewery and Bottling Plant. The 1999 report estimated that the proposed mixed-use development including the proposed rezone would generate an average of 2,696 pm peak-hour vehicle trips consisting of 1,980 new/diverted trips external to the project area, 466 new trips internal to the AlP and 716 pass-by trips from traffic already existing on South State Street and Talmage Road. The estimated generated project traffic would reduce the LOS for the northbound through/right and the eastbound and westbound approaches at the South State Street and Hastings Avenue intersection from levels B, C, and F, respectively, to levels E, F, and F respectively. When the 1999 traffic data was taken, the LOS for the westbound approach had already reached a service level of F. At Airport Park Boulevard and Talmage Road, levels of service for the northbound right and the westbound left would be reduced from LOS C and B, respectively, to level F. Prior to the completion of the 1999 report, the double left-turn lane for the northbound approach had been installed and the northbound through movement had been eliminated. The level of service for the southbound right turn movement at the US 101 Southbound off-ramp at Talmage Road would be reduced from LOS B to LOS D. As previously stated, a safety concern at the off-ramp would be exacerbated by the increase in traffic. The re-zone of the southerly west portion of the AlP was approved with the adoption of Ordinance No. 1024 on November 3, 1999. Those recommended improvements for the three impacted intersections that are common to the three W-Trans Traffic Analysis Reports are the widening of Hastings Avenue at South State Street to provide two lanes for the westbound approach which would include an exclusive left- turn lane and a through/right lane, extending the two through lanes on South State Street north of Hastings/Washington Street, re-striping the eastbound approach to provide a left-turn lane on Washington Street, the installation of a second left-turn lane for both the westbound and northbound traffic at Airport Park Boulevard and Talmage Road, and the construction of a second westbound through lane on Talmage Road from Airport Park Boulevard to the Southbound US 101 off-ramp. It was recommended in the 1997 report that the westbound approach at Hastings Avenue and South State Street be widened sufficiently to provide separate lanes for the left, through, and right turn movements. The recommended improvements described in the 1999 Traffic Analysis Report are the adopted mitigation improvements to be financed by the AlP Capital Improvement Fees. As outlined and qualified in the 1999 Engineering Report prepared in support of the proposed reduction in the AlP Capital Improvement Fees, it was estimated that the revised capital improvement fees established by Ordinance No. 2000-13 would generate sufficient funds to finance the mitigation improvements when imposed upon the undeveloped parcels in accordance with the 1999 land use designations. The funds generated would also include reimbursement to the City for the already completed traffic modifications consisting of the second northbound left-turn lane and the corresponding engineering and re-signaling done at Airport Park Boulevard and Talmage Road intersection. When implemented, the improvements will restore the impacted traffic movements as previously described to pre-project levels of service or to the minimum acceptable LOS D in all but one traffic movement. At Hastings Avenue and South State Street, the northbound through/right, the eastbound left/through/right and the westbound left/through/right would be restored from LOS E, F, and F, respectively, to LOS B. However, the southbound left turn movement would be reduced from a pre-mitigated, post-project LOS C to a level D with a small increase of 3 seconds to the signal cycle length. It was qualified in the 1999 traffic analysis report that should the saturation flow rate be reduced to 1000 vehicles per hour from the assumed rate of 1700 for the westbound Hastings's approach, the LOS for the westbound left and the through/right movements would be restored to a LOS D with the implementation of the recommended improvements as compared to a LOS B with a 1700 saturation flow rate. At the Airport Park Boulevard and Talmage Road intersection, the levels of service for the westbound left-turn lane would be restored to a LOS C from a pre-mitigated, post-project LOS F. The northbound right turn movement would be improved to LOS E from a pre-mitigated, post-project LOS F. The option for improving the LOS for this right-turn movement is limited because the addition of a second northbound right-turn lane is not feasible as a result of the short weave distance between the southbound US 101 on-ramp and Airport Park Boulevard. The other vehicle movements would experience at a minimum a LOS D with the implementation of the mitigation improvements. At the US 101 southbound Off-ramp and Talmage Road, the visibility safety concern would be mitigated with the addition of the second through lane on Talmage Road between the off-ramp and Airport Park Boulevard DEMONSTRATION OF THE RELATIONSHIP BETWEEN THE ClF AND THE PURPOSE FOR WHICH IT IS IMPOSED Land development creates vehicular traffic and the amount of that increased traffic is dependent on land use. The increased traffic impacts the street system by affecting or interrupting the flow of traffic causing delays to the motorists. The interruption to flow may be caused by either the increase in conflicting vehicular movements or an increase in the number of vehicles attempting to occupy the same space or lane at the same time. Impacts to the street system caused by the increased traffic can be mitigated by improving the system to allow the assignment of right of way with the use of stop signs or traffic signals and/or by providing additional lanes for heavy traffic movements at intersections. The greatest degree of impact to the street system occurs at the system's peak use. The Highway Capacity Manual, Special Report 209, published by the Transportation Research Board of the National Research Council, quantifies the quality of traffic flow into six (6) levels of service with A as the highest level of flow and F as the worst operating condition. The HCM provides analytical approaches for determining the level of service for road facilities that may result under various traffic conditions and demands. The Trip Generation Manual, 6th Edition, published by the Institute of Transportation Engineers presents trip generation data for the purpose of estimating the number of trips that may be generated by a specific land use. The average trip generation rates presented in the manual represent weighted averages of studies collected throughout the United States and Canada since the 1960's. Through the use of the analytical methods presented in the Highway Capacity Manual and the trip generation data by land use presented in the Trip Generation Manual, the amount of traffic generated by new development and the impacts caused by the additional traffic can be estimated and quantified. The analytical methods presented in the Highway Capacity Manual and the trip generation rates by land use presented in the Trip Generation Manual were utilized to produce the information presented in the Traffic Analysis Reports prepared by W-Trans. The capital improvement fees established for each of the seven (7) land uses authorized within the AlP by Ordinance No 1024 were determined from the future value of the estimated cost of the mitigation improvements, the percent of traffic generated by each land use type, and the amount of acres reserved for each land use. A portion of the total cost to construct the mitigation improvements was assigned to each land use type based on the percent of total traffic generated by the respective land use. The per acre capital improvement fee was calculated by dividing the assigned improvement cost by the amount of acreage reserved for the respective land use. The future value of the mitigation improvements was taken to 2004, the estimated year of construction of the mitigation improvements. The current per-acre capital improvement fee by land use in accordance with Resolution No. 2000-13 are: Gas Station/Mini-mart ........................ $36 122.91 Fast Food Restaurant ........................ $23 069.86 Retail .......................................... $7 077.77 Office/Retail .................................... $6,087.65 Auto Parts/Auto Care ..........................$7 643,36 Auto Dealership ................................ $4 998,90 Industrial ........................................ $2 341.91 IDENTIFICATION OF FUNDING SOURCES AND AMOUNTS NEEDED TO COMPLETE THE INCOMPLETE PORTIONS OF THE MITIGATION IMPROVEMENTS Given the remaining undeveloped parcels within the AlP, there is no opportunity to collect a sufficient amount of capital improvement fees to finance the mitigation improvements exclusively with capital improvement fees as originally planned. However, when considering the City's financial commitment for 14 parcels within the AlP as a result of the Settlement Agreement between the Redwood Business Park and the City of Ukiah, the difference between the most probable cost of the mitigation improvements and the amount of funds available for construction may only be in the order of $33,000 if the Industrial Park is fully developed at the time the mitigation improvements are to be constructed As of the date of this report, a total of $79,742.94 has been collected from .nine (9) developments, and as of June 30, 2004 the unaudited balance within the AlP CIF Account is $97,436.28. The 1999 cost estimate for the construction of the mitigation improvements in 2004 is $432,841. The AlP is 53.05% built out on 63.69 acres leaving 56.36 acres remaining to be developed. As a result of the Settlement Agreement between the Redwood Business Park and the City, the City is financially responsible for the capital improvement fees for 14 parcels upon their development. These parcels are identified on Attachments "A" and "1" as 10, 13, 15, 26, 18, 20, 33, 34, 35, 36, 37, 38, 39, and 40. Of the 14 parcels, 5 parcels have been developed, the Hampton Inn (10), Michael's Arts and Crafts (13), Food-for-Less (26), and Ken Fowler Motors (36 and 40). The capital improvement fees for these 5 parcels total $87,452.72. For the remaining 9 parcels consisting of 17.04 acres, the City will be responsible for covering $96,822.99 in fees for a total financial commitment of $184,275.71. Of the remaining 39.32 acres to be developed, 22.27 acres within the former Industrial/Mixed- Use zone, now zoned as Light Manufacturing/Mixed-Use pursuant to the recently adopted Ordinance No. 1051, can be developed for retail use and 15.69 acres are reserved for industrial use pursuant to the provisions of Ordinance No. 1024. Ordinance No. 1051 allows an additional 3.2 acres previously designated for industrial use to be developed as Light Manufacturing/Mixed-Use. The affects of the approved rezoning under Ordinance No. 1051 will be addressed in a separate and subsequent report to the City Council with a recommendation for revised capital improvement fees. Potentially, $217,800 of capital improvement fees can be assessed if all of the 25.47 acres (22.27 + 3.2) zoned as Light Manufacturing/Mixed-Use (formerly Industrial/Mixed-Use) is developed as retail and the remaining 12.49 acres (15.69 - 3.2) is developed as industrial. This development scenario would create a total balance of $315,236 in the AlP CIF Account, excluding any interest accrued, creating a shortfall within the Account of $117,605 based on the 1999 cost estimate. However, with the addition of the City's financial commitment of $184,275.71, a total of $499,512 could potentially be available creating a positive difference between the funds available and the 1999 construction cost estimate. Under the current development standards established by Ordinance No. 1051, allowed uses within the 32 acres designated as Light Manufacturing/Mixed-Use are light manufacturing, commercial, professional office, and limited Iow density residential uses. The potential positive difference could decrease should any potion of the Light Manufacturing/Mixed-Use zone develop under a land use less intensive than retail (commercial). The 1999 estimate for the construction of the mitigation improvements has been updated and revised and it is estimated that $532,649 in 2004 dollars will be required for the construction of the improvements. The revised estimate creates a potential deficit of $33,000 between the funds available and the revised estimated construction cost. The revised estimate for the mitigation improvements at Talmage Road and Airport Park Boulevard is considerably greater than the 1999 estimate because a greater amount of street widening is needed to accommodate CalTrans stipulated minimum lane widths and to accommodate a needed lane transition west of Airport Park Boulevard for the outside westbound lane as a result of the different street widths on the north side of Talmage Road. Funds that the City must contribute and those funds needed to augment the Account to pay for the mitigation improvements may come from gas tax funds, discretionary funds, and Federal or State grants.. The amount of funds needed from other funding sources that exceed the City's financial commitment for the 14 parcels is dependent primarily on the type development that will be utilized within the undeveloped portion of the 32 acres designated as Light Manufacturing/Mixed-Use and when the mitigation improvements are to be constructed. Constructing the mitigated improvements prior to the Industrial Park being fully developed will require a greater amount of funds from other sources and forgoing the construction of the mitigation improvements will increase the construction cost as a result of inflation. DESIGNATION WHEN THE MITIGATION IMPROVEMENTS WILL BE NEEDED Post Wal-Mart development began in 1996 and it has taken eight (8) years to reach 53.05 percent of build out on 63.69 acres. Of the current built out acreage, 21.6 acres were already developed prior to the establishment of the AlP capital improvement fees. Averaging the post Wal-Mart development of 42.36 acres over eight (8) years creates an average development rate of 5.30 aces per year. Applying this average to the remaining undeveloped acreage of 56.36 acres, the AlP would reach full build out within ten (10) years or 2014. Based on findings from a Traffic Analysis Report prepared by W-Trans in September of 2002, it is estimated that the mitigation improvements will need to be constructed prior to reaching full build out of the AlP. At 53.05 percent of build out, several traffic movements at the intersections of South State Street and Hastings Avenue and Talmage Road and Airport Park Boulevard are at or near the lowest acceptable LOS D. Based on existing PM peak traffic volumes and the observed average delay per vehicle, the westbound left turn traffic movement at Talmage and Airport Park Boulevard has reached the lower range of LOS C (upper range of LOS D). The eastbound left turn movement has a LOS D at the delay of 49.1 seconds per vehicle. At the South State Street and Hastings Avenue intersection, the average LOS for the intersection is at D. The southbound left is experiencing a delay of 114.8 seconds per vehicle for a LOS of F. The eastbound left/through/right movements are at an LOS of E at 58.1 seconds of delay. The northbound left/through/right movements are at an LOS of D at 43.4 seconds of delay and the westbound left/through/right movements are at the LOS of C at 31.4 seconds of delay. It is probable that the mitigation improvements for these two intersections will need to be constructed within the next two years. The estimated cost of construction at these two off-site locations is $439,454 in 2004 dollars or $475,314 in 2006 dollars assuming an inflation rate of 4 percent. Based on the current balance within the AlP CIF Account, approximately $377,878 from other fund sources including the City's financial commitment of $184,275 will be needed to construct the mitigation improvements at Talmage/Airport Park Boulevard and South State Street/Hastings Avenue assuming no additional capital improvement fees are collected before the construction commences. The mitigation improvement at Talmage Road and Airport Park Boulevard involves the widening of Talmage on the north side to accommodate the additional westbound left-turn lane and to facilitate the minimum lane widths as dictated by CalTrans. Since the mitigation improvement at the southbound US 101 off-ramp at Talmage involves the widening of Talmage on the north side to provide an exclusive lane for the right turning traffic, it is logical that the two mitigation improvements requiring the widening of the north side of Talmage Road be constructed concurrently. If the mitigation improvements at all three impacted off-site locations are to be constructed in 2006, approximately $478,677 from other fund sources including the City's financial commitment will be needed to augment the current funds within the AlP CIF Account. THE AlP CAPITAL IMPROVEMENT FEE ACCOUNT ANNUAL FINANCIAL DISCLOSURE For the 2003/2004 Fiscal Year, the beginning and ending fund balance for the AlP Capital Improvement Fee Account are $84,161.59 and $97,436.28, respectively. Interest in the amount of $2,331.53 was credited to the Account and $4,566.79 in capital improvement fees were collected from the development on parcel no. 9 (the Fairfield Inn). During the last fiscal year, no capital improvement fees were expended on the mitigation improvements nor on reimbursable fund update activities and no interfund transfers or loans were made from the Account. Prior to the 03/04 Fiscal Year, $19,991.31 of reimbursable expenses for engineering, construction, and appraisal services were charged against the Account between October 1997 and June 1999. As a result of the adoption of revised capital improvement fees in 1999, the amount of $46,647.34 was reimbursed to five property owners who had paid the higher capital improvement fees that were in effect in 1997. LIST OF ATTACHMENTS FOR FIFTH YEAR FISCAL REPORT AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEES A B C D E F G H I J K M O P Q AlP CAPITAL IMPROVEMENT FEE MAP SUMMARY OF INTERSECTION OPERATIONS 1999 ESTIMATE SUMMARY FOR THE CONSTRUCTION OF THE MITIGATION IMPROVEMENTS 1999 DETAIL ESTIMATE FOR THE MITIGATION IMPROVEMENTS AT SOUTH STATE STREET AND HASTINGS AVE 1999 DETAIL ESTIMATE FOR THE MITIGATION IMPROVEMENTS AT TALMAGE RD. AND AIRPORT PARK BLVD. 1999 DETAIL ESTIMATE FOR THE MITIGATION IMPROVEMENTS AT US 101 SOUTHBOUND OFF RAMP AT TALMAGE RD. LAND USE PROJECT TRIP GENERATION SUMMARY DISTRIBUTION OF PROJECT TRAFFIC BY LAND USE SUMMARY OF CAPITAL IMPROVEMENT FEES BY PARCEL AlP CAPITAL IMPROVEMENT FEES PAID TO DATE REVISED ESTIMATE SUMMARY FOR THE CONSTRUCTION OF THE MITIGATION IMPROVEMENTS REVISED DETAIL ESTIMATE FOR THE MITIGATION IMPROVEMENTS AT SOUTH STATE STREET AND HASTINGS AVE.' REVISED DETAIL ESTIMATE OF THE MITIGATION IMPROVEMENTS AT TALMAGE RD. AND AIRPORT PARK BLVD REVISED DETAIL ESTIMATE OF THE MITIGATION IMPROVEMENTS AT US 101 SOUTHBOUND OFF RAMP AT TALMAGE RD. AlP CIF FUND BALANCE SUMMARY LIST OF EXPENSES CHARGED AGAINST THE AlP ClF FUND AlP ZONING MAP PURSUANT TO ORDINANCE NO. 1051 L.LJ ATTACHMENT "B" SUMMARY OF INTERSECTION OPERATIONS Intersection Existing I Existing plus I Project Dday LOS Delay LOS 1. South State Street/Hastings Avenue 17.2 _.C ** * _F Northbound Left 18.1 C 18. l C Northbound Through/Right 9. l B 5 7.8 E Southbound Left 18.0 C 24.2 C Southbound Through/Right 6.6 B 10.2 B Eastbound Approach 2 I. 3 C *** F Westbound Approach I 17 F *** F 2. Airport Park Boulevard/Talmage 13.2 B *** F Northbound LeflfIlxrough 22.4 C 19.6 C Northbound Right 15.5 C *** F Southbound Left 24.4 C 24.4 C Southbound Through/Right 21.1 C 22.2 C Eastbound Left 21.1 C 21.1 C Eastbound Through/Right 14.0 B 15.7 C Westbound Left 22.9 C *** F Westbound Through/Right 8.6 B 8.2 B 4. U.S.101 SB Off-ramp/Talmage Road 1.9 A 5.8 B Southbound Right 7.2 B 21.6 D 5. U.S.101 NB Off-ramp/Talmage Road 0.9 A .1..9 A Northbound Left 11.5 C 19.8 C Notes: Delay = average delay per vehicle in seconds LOS = level of service xxx = overall intersection level of service *** =delav exceeds reasonable parameters for methodology Airport Industrial Park Rezoning Traffic Analysis Whitlock & Wemberger Transportation, Inc. Page 12 City of Ukiah June 25, 1999 ATTACHMENT "C" 1999 ESTIMATE SUMMARY FOR THE CONSTRUCTION OF THE MITIGATION IMPROVEMENTS AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE Talmage Road/US 101 Southbound Exit Ramp Talmage Road/Airport Park Blvd South State Street/Washington Ave/Hastings Ave SUBTOTAL Engineering, Administration, Construction & Project Inspection @ 15% Contingencies @ 10% SUBTOTAL Hastings Ave land and structure acquisition of NE parcel and market loss Tenant relocation Hastings Ave land acquisition of Airport Property @ 692 SF Allowances for Attorney fees and closure costs TOTAL IN PRESENT VALUE CALCULATION OF FUTURE VALUE Estimated year of construction is 2004 creating a period of 5 years Assumed interest rate is 4% FV=PV(I+i)° where I = .04 $ n = 5 FUTURE VALUE OF TOTAL CONSTRUCTION COST REIMBURSABLE EXPENSES INCURRED BY CITY Traffic Studies from Oct 1996 to April 1997 Professional engineering services for signal modification at Airport Park Blvd and Talmage Rd by Whitlock & Weinberger Transportation Oct 1998 Signal modification at Airport Park Blvd & Talmage Rd. by Republic Electric Oct 16, 1998 Traffic volume counts & intersection LOS analysis at $2,000 per year Annual administration fee for 5 years @ $30.00 per hour x 25 hours Professional engineering services by Whitlock & Weinberger July 7, 1999 Additional appraisal services by Harding Appraisal Co. SUBTOTAL REIMBURSABLE TOTAL FEES REQUIRED $68,963 $15,450 $107,975 $192,388 $28,860 $19,240 $240,488 $87,200 $6,OOO $2,O76 $20,OOO $355,764 $432,841 $10,600 $2,026 $3,590 $10,000 $3,75O $689 $2,200 $32,855 $465,696 ATTACHMENT "D" 1999 DETAIL ESTIMATE SOUTH STATE STREET AND HASTINGS AVE. CITY OF UKIAH i Cost Estimate for South State Street and Washington Ave./Hastings Ave. Based on Cost Estimates Prepared by Boyle Engineering on April 12, 1996 Reference Boyle Engineering Drawing No. P-1 I ' Prepar,ed by: Rick Seanor Item Estimated Unit of No. Item Quantity Measure Unit Price Total Price 1 Clearing & Grubbing , 1 LS , $2,500.00 , $2,500.00 2 Sawcut AC 300 LF I $2.00 $600.00 3 Reset Water Valve to Grade 3 EA [ $400.00 $1,200.00 4 Roadway Excavation 100 CYI $25.00 $2,500.00 5 Construct Wheelchair Ramp 2 i EA t $2,400.00j $4,800.00 6 Construct Curb & Gutter 450I LFI $20.00 ! $9,000.00 7 iConstruct Sidewalk ' 450 LF $25.00 i $11,250.00 8 Aggregate Base 75 TON $20.00j $1,500.00 9 Asphalt Concrete 50 TON ~ $52.00 $2,600.00 10 Place Traffic Stripe 1,625 LF $1.00 $1,625.00 11 ~Place Pavement Marking~ 100 I SF $4.00 $400.00 12 iModify Traffic Signal & Detector Loops t 1 LS $60,000.00 ~ $60,000.00 13' Land Acquisitionf 1 LS $6,000.00 $6,000.00 i ~ ~ Subtotal $103,975.00 Date and Time Printed: 9/17/2004 at 11:28 AN{ Filenarne: AIP CIF 04 REPORT ATT D 1999 DETAIL ATTACHMENT "E" ESTIMATE TALMAGE RD. AND AIRPORT PARK BLVD. CITY OF UKIAH i t Cost Estimate for Talmage Road and Airport Park Boulevardl Based on Cost Estimates Prepared by Boyle Engineering on April 12, 1996 Reference Boyle Engineering Drawing No. P-3 Prepared By: Rick Seanor item tj Estimated Unit of No. Item ! Quantity Measure; Unit Price i Total Price 1 ,Place Traffic Stripet 210 LF $1.00I $210.00 2 Place Pavement Marking 60 SF $4.00 ' $240.00 , 3 Modify Traffic Signal & Detector Loops ~ 1 LS $15,000.00 $15,000.00 I Subtotal! $15,450.00 Date and Time Printed: 9/17/2004 at 11:29 AM Filename: AIP CIF 04 REPORT A~IT E US 101 ATTACHMENT "F" 1999 DETAIL ESTIMATE SOUTHBOUND OFF RAMP AT TALMAGE RD. CITY OF UKIAH i ! Cost Estimate for Talmage Road and Southbo'und US 101 and I for the widening of the North side of T~mage Road between US 101 and Airport Park Boulevard Based on Cost Estimates Prepared by Boyle Engineering on April 12, 1996 Reference Boyle Engineering Drawing No. P-4 Prepared By: Rick Seanor ~ t i ! Item , Estimated Unit of No. Item Quantity Measure Unit Price Total Price 1. !Clearing & Grubbing 1 LS $5,000.00 $5,000.00 2 iSawcut AC i 552 LF i $2.00 i $1,104.00 3 i Roadway Excavation 195 CY $25.00 I $4,875.00 4 Roadway Fill ~ 105 CY I $15.00 $1,575.00 5 Remove Concrete Sidewalk, C&G I 4,100 SF I $2.00 $8,200.00 6 Construct Wheelchair Ramp I 2 EA $2,400.00 $4,800.00 7 Construct Curb & Gutter 552 LF ' $20.00 $11,040.00 8 Construct Sidewalk 481 LF $25.00 $12,025.00 9 iAggregate Base 260 i TON $20.00 $5,200.00 10[Asphalt Concrete 55 I TON/~ $52.00 I $2,860.00 11 Place Traffic Stripe 760 LF I $1.00 ~t $760.00 12 Place Pavement Marking I 56 SFI1 $4.00 $224.00 13 Relocate Street Light 1 LS I $1,500.00 $1,500.00 14 Relocate Storm Drain Catch Basin 1 ~ LSI $3,000.00 i $3,000.00 15 Relocate Utility Vault 2 I EA $300.00 i $600.00 16 Relocate Sign . 1 ! EA i $200.00 $200.00 17 Right of Way and Permits ', 1 LS ! $6,000.00 ' $6,000.00 I ; Subtotal ~ $68,963.00 Date and Time Printed: 9/17/2004 at 11'30 AM Filename: AIP CIF 04 REPORT ATT F ATTACHMENT "G" LAND USE PROJECT TRIP GENERATION SUMMARY Linc Note Land Use Number ; Weekday P2VI. Peak Hour No. of Units Trip Rate In Out To~ Per Unit Undeveloped Parcels Proposed for Zoning Chan~e I A Retail Commercial 553.74 ksf 3.51 932 1~010 2 Commercial Trips (Paxs-by: 30%) 280 303 583 3 Comm. Trips (Internal Capture) 116 116 232 4 Commercial Trips (new primary) 536* 591 * 1,127* Other Undeveloped Parcels 5 OIlice 189.40 1.49 48 234 282 6 B Retail 65.32 2.59 73 96 169 7 Industrial Park 341.860 0.95 68 257 325 8 Total Non-commercial Trips 189* 587* 776* 9 Auto Dealership (11.44 Acres) 101.5 ksf 2.80 114 171 28:5 10 C Auto Parts/Auto Care (4.07 Acres) 33.8 ksf 4.68 79 79 158 11 Commercial Trips Total 193 250 443 Commercial Trips (Pass-by: 30%) 58 76 134 Comm. Trips (Internal Capture) 116 116 232 Commercial Trips (new primary) 19' 58' 77 Total New Trips to the Area 744* 1,236' 1,980' Total Pass-by Trips 338 3 79 717 Notes: Source of Rates: Trip Generation, 6th Edition, Institute of Transportation Engineers, 1997 k.s.f. = 1000 square feet, RBP = Redwood Business Park. ABP = Airport Business Park A. Rate is based on rYE Land Use #820 and is calculated based on a 553.74 ksfshopping center. B. Rate is based on 1TE Land Use #814 (Specialty Retail Center) which has been updated since the 5a Edition. C. Rate is based on the average oflTE Land Use//840, Automobile Care Center and ITE Land Use #848, Tire Store. Pass-Through Traffic Pass-through traffic in the Airport Industrial Park was previously surveyed and presented in the Airport/RedwoodBusiness Park Traffic Analysis dated April 17, 1997. The data revealed that during the p.m. peak hour there are approximately 9 vehicles traveling in the northbound direction on Airport Park Boulevard approaching Talmage Road and 24 vehicles traveling in the southbound direction on Airport Park Boulevard leaving Talmage Road which are traveling through and not related to land uses within the new commercial area. This pass-through traffic volume represents approximately 3 to 4 percent of the total traffic on Airport Park Boulevard south of Talmage Road. This volume of traffic is considered insi~tmificant. Airport Industrial Park Rezoning Traffic Analysis Whitlock & Weinberger Transportation, Inc. Page 10 City of Ukiah June 25. 1999 FEE ATTACHMENT "H" APPORTIONMENT SUMMARY BY LAND USE Required Capital BounclaryI Improvement Acres Per Fee Per Acre By Percent of Total Land Use Traffic Volume PM Peak Fees for Land Use Land Use Hour Construction in 2004 Fast Food Restaurant 3.22 $14,995.41 0.65 $ 23,069.86 Gas Station/Mini-Mart 5.74 $26,730.95; 0.74 $ 36,122.91 Offic/Retail 6.34 $29,525.13i 4.85 $ 6,087.65 Retail 38.71 $180,270.92 25.47 $ 7,077.77 Industrial 27.03 $125,877.63 53.75 $ 2,341.91 Auto Dealership 12.28 $57,187.47 11.44 $ 4,998.90 Auto Parts/Auto Care 6.68 $31,108.49 4.07 $ 7,643.36 TOTALS 100 $465,696.00 100.97 ATTACHMENT "1" SUMMARY OF CAPITAL IMPROVEMENT FEES BY PARCEL AIRPORT INDUSTRIAL PARK Lot Assessor's Fee Fee ID Parcel No. Land Use Acreage If Assessed Paid No. 42 180-070-40 Jack In The Box Restaurant 0.65 $ 9,676.15 $ 9,676.15 SUBTOTAL IFAST FOOD RESTAURANT) 0.65 $ 9,676.15 $ 9,676.15 I 41 I 180-070-39 Shell Station/Mini-Mart 0.74 $ 16,959.26 $ 16,95926 SUBTOTAL (GAS STATION/MINI-MART) 0.74 $ 16,959.26 $ 16,959.26 2 180-070-01 Talmage Professional Center 0.53 NA NA 3 180-070-02 Talmage Office Park 1.29 NA NA 4 180-070-03 North Cai Wood 2.53 NA NA 6 180-070-29 North Counties Engineering 1.22 NA NA 7 180-070-28 Savings Bank of Mendocino 1.53 $ 8,613.01 $ 8,613.01 8 180-070-27 Redwood Coast Regional Center 1.74 NA NA 9 180-070-26 Fairfield Inn 0.75 $ 4,56679 $ 4,566.79 10 180-070-25 Hampton Inn 1.21 $ 7,366.06 EXEMPT* 11 180-070-24 Office/Retail 1.36 $ 8,279.20 $ SUBTOTAL (OFFICE/RETAIL) 12.16 $ 28,825.06 $ 13,179.80 5 180-070-38 Walmart 13.44 NA NA 12 180-080-41 Applebees 1.00 $ 6,376.37 $ 6,376.37 13 180-080-53 Retail 1.88 $ 13,30621 EXEMPT* 14 180-080-54 La-Z-Boy Furniture Galleries 1.28 $ 5,845.11 $ 5,845.11 15 180-080-55 Retail 1.06 $ 7,502.44 EXEM PT 16 180-080-52 Staples Office Superstore 2.18 $ 9,793.50 $ 9,793.50 26 180-080-51 Food-4-Less 5.04 $ 35,671.96 EXEMPT* 27 180-080-44,45 Friedman Brothers 10.51 $ 74,387.36 DID NOT PAY SUBTOTAL (RETAIL.) 36.39 $ 152,882.95 $ 22,014.98 17 180-080-16 Light Manufacturing/mixed use 2.96 $ 20,950.20 $ 18 180-080-25 Light Manufacturing/mixed use 3.54 $ 25,055.31 EXEMPT* 19 180-080-26 Mendocino Animal Hospital 0.85 NA NA 20 180-080-19 Light Manufacturing/mixed use 1.00 $ 7,077.77 EXEMPT* 21 180-080-22 Light Manufacturing/mixed use 2.23 $ 15,783.43 $ 22A 180-080-27 Light Manufacturing/mixed use 2.24 $ 15,854.20 $ 22B 180-080-27 Les Schwab 2.25 $ 17,197.56 $ 4,555.18 23 180-080-28 Light Manufacturing/mixed use 4.59 $ 32,486.96 $ 24 180-080-29 Light Manufacturing/mixed use 4.60 $ 32,557.74 $ 25 180-080-30 Light Manufacturing/mixed use 5.65 $ 39,989.40 $ 29 180-110-07 Mendocino Brewing 9.00 $ 13,357.57 $ 13,357.57 30A Portion Light Manufacturing/mixed use 2.20 $ 15,571.09 $ 30B Portion Light Manufacturing/mixed use 1.00 $ 7,077.77 $ 30C 180-110-02,06 Industrial 5.49 $ 12,857.09 $ 31 180-120-04 Industrial 5.80 $ 13,583.08 $ 32 184-080-01 Industrial 1.20 $ 2,810.29 $ SUBTOTAL (LIGHT MANUFACTURE/MIX USE &INDUSTRIALI 54.60 $ 272,209.46 $ 17,912.75 33 180-080-66,67 Auto Dealership 1.67 $ 8,348.17 EXEMPT* 34 180-080-64,65 Auto Dealership 1.62 $ 8,098.23 EXEMPT* 35 180-080-62,63 Auto Dealership-Ken Fowler Motors 1.80 $ 8,998.03 EXEMPT* 36 180-080-60,61 Auto Parts/Auto Care-Ken Fowler Motors 1.84 $ 14,063.79 EXEMPT* 37 180-080-59 Auto Dealership 2.09 $ 10,447.71 EXEMPT* 38 180-080-58 Auto Dealership 2.18 $ 10,897.61 EXEMPT* 39 180-080-57 Auto Dealership-Ken Fowler Motors 2.08 $ 10,397.72 EXEMPT* 40 180-080-56 Auto Parts/Auto Care-Ken Fowler Motors 2.23 $ 17,044.70 EXEMPT* SUBTOTAL (AUTO DEALERSHIP/AUTO PARTS/AUTO CAREI 15.51 $ 88,295.96 $ TOTAL ALL CATAGORIES 120.05 $ 568,848.84 $ 79,742.94 TOTAL FEES FOR EXEMPT PARCELS (Cib/, responsible for fee amount) 29.24 $ 184,275.70 TOTAL FEES NOT PAID BUT ASSESSED 10.51 $ 74,387.36 POTENTIAL FEES TO BE COLLECTED 80.30 $ 217,800.46 ,*. ~,,~..~..-_ z.- .... _._~1 ., , o City is financially responsible for fee amount as a result of the Redwood Business Park/City of Ukiah Settlement Agreement AlP CIF 04 REPORT ATT-I ATTACHMENT "J" AIP-CIF Paid to Date CITY OF UKIAH I i i AIRPORT INDUSTRIAL'PARK, CAPITAL IMPROVEMENT FEES PreparedB¥: RickSeanor ' ¢ i [ j Date Initial ¢ Net Parcel Business Fee Fee t Fee !Notes Fee ID Nbr. APN Name ' Land Use Acreage , Paid , Paid Reimbursement Paid 42 180-070-40 Jack in the Box Fast Food 0.65 7/11/1997 $17,689.58 $8,013.43 (1) $9,676.15 411180-070-39 ShellStation ¢!!!aa?at,on ,industrial 0.74 i 6/20/1997, $31,201 38 : $14.242.12 i (1i $16,959.26 14 t180~080-54 La Z Bo)' Furniture 128 7/16/1997 $10,693.73 I $4,848.62 (1 $5,8451t 16 180-080-52 ,Staples I 2.18 6/12/1997 $17,975.621 $8.18212 . (1 $9,79350 29 180-110-07 Mendocino Brewing Co 900 r 6/30/1997 $24,718.62 i $11'361'05 (1) t513,35757 172 ' 80-080-41 Apptebee's Retail 1.00 7/29/2002 80-070-28 SaYings Bank of Mendo Co. ~Office/Retail 1.53 2/20/2003 i i $8.61301 22 180-080-27 tLes Schwab Tires (*'""/ ndustr al 2.25 1/15/2001 [ $7,797.51 $3,242.33 (2) (3) $4,555.18 i i'$11 j $79,742.94 ~ [Totals: 0,076.44 $49,889 67 [(1) Reimbursement authorized by City Council Sept. t, 1999 , ,/2) One half of original lot t I (3) Les Schwab initial fee determined to be overpaid; refund of $3,24233 has been paid to Les Schwab I Date andTtmeprmted: 9/'17/2004 at 11:58AM Fllename: AIP-CIF-Patd To Date A'FFJ ATTACHMENT "K" REVISED ESTIMATE SUMMARY FOR THE CONSTRUCTION OF THE MITIGATION IMPROVEMENTS AIRPORT INDUSTRIAL PARK CAPITAL IMPROVEMENT FEE Talmage Road/US 101 Southbound Exit Ramp Talmage Road/Airport Park Blvd South State Street/VVashington Ave/Hastings Ave SUBTOTAL Engineering, Administration, Construction & Project Inspection @ 15% Contingencies ~ 10% SUBTOTAL Hastings Ave land and structure acquisition of NE parcel and market loss Tenant relocation Hastings Ave land acquisition of Airport Property @ 692 SF Allowances for Attorney fees and closure costs TOTAL IN PRESENT VALUE CALCULATION OF FUTURE VALUE Estimated year of construction is 2006 creating a period of 2 years Assumed interest rate is 4% FV=PV(I+i)r' where I = .04 $ n = 2 FUTURE VALUE OF TOTAL CONSTRUCTION COST REIMBURSABLE EXPENSES INCURRED BY CITY Traffic volume counts & intersection LOS analysis at $3,000 Annual administration fee for 2 years @ $40.00 per hour x 10 hours SUBTOTAL REIMBURSABLE TOTAL FEES REQUIRED $77,215 $102,817 $118,750 $298,782 $44,817 $29,878 $373,477 $113,360 $6,9OO $2,700 $23,OOO $519,437 $561,823 $3,000 $400 $3,400 $565,223 SOUTH ATTACHMENT "L" REVISED DETAIL ESTIMATE STATE STREET AND HASTINGS AVE. CITY OF UKIAH J t i Cost Estimate for South State Street and Washington Ave./Hastings Ave. Revision of Cost Estimate Prepared by Boyle Engineering on April 12, 1996 Reference Boyle Engineering Drawing No. P-1 I I Revised by: Rick Kennedy t Estimated Unit of Item Item Quantity Measure Unit Price Total Price No. I - 1 Mobilization i 1 LS $5,000.00 $5,000.00 2 Traffic Control I 1 LS $5,000.00 $5,000.00 3 Staking ' 1 LS $2,500.00 $2,500.00 4 Clearing & Grubbing , 1 LS ! $3,000.00 $3,000.00 5 Sawcut AC 300 LF t $2.50 $750.00 6 Reset Water Valve to Grade ! 3 EA $500.00 $1,500.00 7 Roadway Excavation 100 CY $15.00 $1,500.00 8 Construct Wheelchair Ramp 700 SF i $10.00 $7,000.00 9 lConstruct Curb & Gutter 450 LF ! $27.00 $12,150.00 _ 10IC°nstruct Sidewalk 450 LF t $8.00 $3,600.00 11 Aggregate Base 75 i TON t $30.00 $2,250.00 12 Aspha t Concrete 50 TON $95.00 I $4,750.00 13 Place Traffic Stripe 1,625 I LF i $2.001 $3,250.00 14 Place Pavement Marking 100IISF $5.00 I $500.00 15 Modify Traffic Signal & Detector Loops: 1 I LS $60,000.00 ] $60,000.00 16 Structure Removal ~ 1 i LS $6,000.00t $6,000.00 i J , Subtotal $118,750.00 Date and Time Printed: 9/17/2004 at 11:36 AM Filename: AIP CIF 04 REPORT ATT L ATTACHMENT "M" REVISED DETAIL ESTIMATE TALMAGE RD. AND AIRPORT PARK BLVD CITY OF UKIAH ! Cost Estimate for Providing an Additional Left Turn Lane on Talmage Road at Airport Park Blvd Intersection by Widening the North Side of Talmage Road to Provide Two Left Turn and One !Through Lanes at 11 ft. Wide and One Through Right Lane at 16 ft. Wide (allows 3 ft. paved width for bicycle traffic and 11 ft travel way). Work Includes Widening the North Side of the West Leg of the Intersection to Provide for an Outside Lane Transition. Revised by: Rick Kennedy ' ' Item I Estimated Unit of No. i ltem Quantity Measure U~it Price Total Price 1 Mobilization I 1 LS $5,000.00I $5,000.00 2 !Traffic Control 1 LS $5,000.00 $5,000.00 3 'Clear and Grubbing . 120 SY $10.00 , $1,200.00 4 Sawcut AC Pavement 360 LF $2.50 $900.00 5 iObliterate Traffic Stripping 1 ! LS $3,000.00 $3,000.00 6 I Remove PCC Sidewalk 144 I SY I $20.00 $2,880.00 7 Remove PCC Wheelchair Ramp ~ 78 ! SY ! $20.00 $1,560.00 8 'Remove PCC Curb & Gutter 368 LF $10.00 $3,680.00 9 Staking [ 1 LS i $2,500.00 i $2,500.00 10 Roadway Excavation 112 CY i $15.00 $1,680.00 11 Roadway Fill 115 CY $20.00 $2,300.00 12 Construct PCC Curb & Gutter 368 ' LF $27.00 $9,936.00 13 Construct PCC Sidewalk 1292 , SF ! $8.00 ! $10,336.00 14 Construct PCC Wheelchair Ramp I 700 SF ! $10.00 $7,000.00 15 Aggregate Base 190 , TON $30.00 $5,700.00 16 iAsphalt Concrete 55 ' TON $95.00 $5,225.00 1 17 Construct Parkway Drain 1 EA $1,000.00 $1,000.00 18 Place Traffic Stripe 650 LF $2.00 . $1,300.00 19 ~Place Pavement Marking 224 SF $5.00 $1,120.00 20 i New Pull Box ~ 4 EA $500.00 $2,000.00 21 4 EA $1,900.00 Relocate Traffic Signal Poles $7,600.00 22 !Modify Traffic Signal & Detector Loops 1 LS '~ $15,000.00 $15,000.00 23 Relocate Utility Vault 1 EA $750.00 $750.00 Right of Way 115 , SF $10.00 i $1,150.00 25 Permits/Caltrans Inspection 24 Additional 1 j LS $5,000.00 [ $5,000.00 Subtotal $102,817.00 Date and Time Printed: 9/17/2004 at 1:07 PM Filename: ATT M AIP CIF 04 REPORT US 101 ATTACHMENT "N" REVISED DETAIL ESTIMATE SOUTHBOUND OFF RAMP AT TALMAGE RD. CITY OF UKIAH Cost Estimate for Widening the North Side of Talmage Road to Provide an Exclusive Right Turn Lane for Exiting Southbound US 101 Traffic i I , t . Prepared By: Rick Kennedy Item Estimated Unit of No. Item Quantity Measure Unit Price Total Price 1 Mobilization [ 1 I LS J $5,000.00! $5,000.00 2 !Traffic Control 1 I LS j $5,000.00 I $5,000.00 3 Clearing & Grubbing 120 SY t $10.00i $1,200.00 4 Sawcut AC 331 , LF [ $2.50 $827.50 5 Obliterate Traffic Striping 1 LS ! $1,000.00 $1 .... 6 Remove PCC Sidewalk 150 , SY !~ $20.00 i $3,000.00 7 Remove PCC Wheelchair Ramp 39 SY ' $20.00 i $780.00 8 Remove PCC Curb & Gutter 331 [ LF $10.00 I $3,310.00 9 Staking 1 LS 152,500.00 $2,500.00 10 Roadway Excavation 108 I CY I $15.00 $1,620.00 11 ,Roadway Fill : 2171 CY . $20.00 , $4,340.00 12 'Import Fill Material 109 CY ! $10.00 . $1,090.00 13 Construct Curb & Gutter 331I LF $27.00 , $8,937.00 14 Construct Sidewalk 1490 I SF $8.00 $11,920.00 15 Construct PCC Wheelchair Ramp 350 SF $10.00 $3,500.00 16 Aggregate Base 225 TON ,. $30.00 i $6,750.00 17 Asphalt Concrete 72 TON $95.00 $6,840.00 18 Place Traffic Stripe 300 LF $2.00 $600.00 19 Place Pavement Marking ,. 170 SF ' $5.00 $850.00 20 i New Pull Boxes t 1 i EA $500.00 ! $500.00 21 ,~ Relocate Street Light Pole ~l 1I EA $1,900.00 $1,900.00 22 Relocate Utility Vault 1 EA $750.00 $750.00 23 Permits/Caltrans Inspection 1 t LS I $5,000.00 I $5,000.00 j I SubtotalJ $77,214.50 Date and Time Printed: 9/17/2004 at 11:38 AM Filename: AIP CIF 04 REPORT ATT N ATTACHMENT "O" AlP CIP FUND BALANCE 6Lll0t 20 GEN CITY OF UKIAP4 FINANCE DEPT. General Ledger Inqulr ** Account Summary ** 270.240.012 2 ) RESERVE PERIOD 11/3o/o3 12/31/o3 1/31/04 2/29/04 3/31/04 4/30/04 5/31/04 6/30/04 FYE 2004 7/31/04 8/31/04 9/30/04 10/31/04 1) SIGNALIZATION FUND 3)A.I.P. CAPITAL IMPROV. FUNDS MONTH YTD CURRENT 175 60CR 183 93CR 239 83CR 266 08CR 186 69CR 251 40CR 4,783 22CR 178 90CR 6,454 70CR 0 00 184 63CR 0 00 0 00 0 00 84,891 53CR 85,075 46CR 85,315 29CR 85,581 37CR 85,768 06CR 86,019 46CR 90,802 68CR 90,981 58CR 97,436 28CR 97,436 28CR 97,620 91CR 97,620 91CR 97,620 91CR 97,620 91CR 97,436.28CR Balance Forward 0.00 Current Period 184.63CR Current Year 97,620.91CR Ending Balance Oetazl to D~spiay .... A (A/B/D/E/P/!/O) Show Det-azl Startzng At 07 / O1 / 2004 B/F/S/R/. ACTION? LIST OF ATTACHMENT "P" EXPENSES CHARGED AGAINST THE AlP CIF ACCOUNT Transaction Date Explanation of expense Amount of Expense 6/30/1997 Traffic studies & engineering expenses $ 6,290.00 6/30/1997 Traffic studies & engineering expenses $ 5,000.00 10/10/1997 Rau and Associates - en~lineedng services $ 867.80 10/24/1997 Harding Appraisal Co.- appraisal services $ 2,000.00 10/24/1997 Harding Appraisal Co.- appraisal services $ 3,200.00 1/16/1998 Harding Appraisal Co.- appraisal services $ 345.00 6/30/1999 Whitlock & Weinberger - traffic engineering services $ 2,288.51 TOTAL EXPENSES CHARGED TO AlP CIF $ 19,991.31 AIP ATTACHMENT "Q' ZONING MAP PURSUANT TO ORDINANCE NO. 1051 H. IGHWAY' COMMERCIAL RETAIL COI~tV~_RCIA L UGHT MANUFACTURING -,,(~ ~ MIXED-USE .~ INDUSTRIAL -- AU'fONlOl'l~q~ C01VIt~IERCIAL (3 I/ti)US TRIAL _. AGENDA SUMMARY REPORT ITEM NO: lO. b DATE: October 6, 2004 SUBJECT: APPROVAL OF MEMBER SERVICES AGREEMENT AUTHORIZING USE OF $200,000 FROM THE CITY'S NORTHERN CALIFORNIA POWER AGENCY (NCPA) OPERATING RESERVE TO INVESTIGATE DETAILS TO RESTART THE LAKE MENDOCINO HYDRO FACILITY The Lake Mendocino Hydro Facility has been out of operation since December 1998 the result of a number of operational and mechanical issues. Recently, City Staff has requested assistance from Northern California Power Agency (NCPA) Staff to assist in determining the issues surrounding restart capability. On site meetings and reviews with the Army Corp of Engineers, Federal Energy Regulatory Commission (FERC) and other agencies indicate the facility can be started pending changes to plant operational procedures and mechanical upgrades. This Service Agreement and funding support will allow City Staff to work with NCPA staff to investigate repair options and provide a report outlining time and cost estimates for repairs and modifications. The NCPA Commission considered this matter at its September 15, 2004 meeting and unanimously adopted the resolution (portion of attachment #2) approving the member services agreement. City Staff recommends approval of $200,000 through the Member Services Agreement with NCPA, and requests the City Manager be authorized to execute it on behalf of the City of Ukiah. RECOMMENDED ACTION: Approve Member Services Agreement Authorizing Use Of $200,000 From The City's Northern California Power Agency (NCPA) Operating Reserve To Investigate Details To Restart The Lake Mendocino Hydro Facility and Authorize City Manager to Execute Agreement. ALTERNATIVE COUNCIL POLICY OPTIONS: Determine Agreement Is Not Appropriate, Do Not Approve, And Provide Direction To Staff. Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Bernie Ziemianek, Director of Public Utilities Bernie Ziemianek, Director of Public Utilities Candace Horsley, City Manager 1. Agreement for services between the City and NCPA; 2. NCPA Commission Agenda report of September 15, 2004. Approved: Candace Horsley, City Manger Attachment LETTER OF AGREEMENT FOR SERVICES BETWEEN CITY OF UKIAH and THE NORTHERN CALIFIORNIA POWER AGENCY In accordance with Article 10.5 of the Facilities Agreement and Article 13.4 of the Pooling Agreement, from time to time, the Northem California Power Agency (NCPA) may provide services relating to the supply of electric power and energy to some or ali of the Members upon their request. This Letter of Agreement between the City of Ukiah, (the Member)'and NCPA is such a request' for service to the Member relating to the Lake Mendocino Hydroelectric Project. NCPA agrees to provide assistance to the Member as detailed in Appendix A attached hereto. NCPA warrants that all work will be completed in a timely manner and on a best-effort basis. NCPA and the Member may terminate this Agreement prior to completion of the tasks described in Appendix A at any time upon five (5) days written notice to NCPA, provided however, that the indemnity and defense obligation of the Member shall survive termination until all claims or liabilities are discharged. The Member agrees to allow access to records that NCPA deems necessary for successful completion of all tasks. When the task specified in Appendix A is completed, the Member will review the findings and conclusions, and suggest follow up steps as necessary. In recognition of the fact that this Letter Agreement benefits the Member alone, and that NCPA has no other sources of funds to support its activities or potential liabilities arising hereunder, NCPA and the Member agree that the Member shall assume any and all responsibility for any claims, liabilities, costs or penalties that may arise from this Letter Agreement and from the Member's use of the work, or any part of the work done by NCPA or its subcontractors or consultants for the Member pursuant to the terms of this Letter Agreement. The Member shall indemnify, defend, and hold NCPA, its officers, employees, agents and assigns and the other NCPA members harmless from any such claims, liabilities, costs or penalties. APPENDIX A Agreement for Project Management Services For the Assessment of Repairs and Modifications Of the Lake Mendocino Project This Agreement is by and between the Northern California Power Agency, a joint-powers Agency of the State of California, hereinafter called "NCPA", and the City of Ukiah, a municipal corporation and a member of NCPA, hereinafter called "The Member". As requested by the Member, NCPA has agreed to provide the services outlined below for a total compensation not to., exceed $200,000 without written approval by the Member. :. Services to be provided: The Member has requested NCPA staff assistance to assess repairs and the cost and time necessary for performing repairs to its Lake Mendocino Hydroelectric Project. NCPA staff proposes to provide the necessary assistance with expertise available within the pool ofNCPA's staff and by retaining appropriate consulting services. NCPA will issue a report to the Member upon completion of the service that will outline the specifics of the repairs necessary and the estimate of cost and the time for the completion. SECTION IV- COMPENSATION The Member shall pay to NCPA an amount not to exceed $ 200,000 for the services herein described. NCPA shall invoice the Member for the services performed for each month. These invoices are hereby authorized for payment from the Member's General 'Operating Reserve currently on account with NCPA. The basis of compensation shall be the fully-loaded costs incurred by NCPA, direct and indirect, for the services of NCPA personnel, accounted for and described to the Member on the invoice with a detailed statement identifying the time expended by the particular NCPA personnel on the work in hours on the' date the work was performed. Subcontractor and consultant costs shall be billed at their actual cost, without mark-up. NCPA will submit invoices on a monthly basis, and the Member will pay within thirty (30) days upon receipt of NCPA invoices. Compensation for services and costs to the Member shall not exceed $200,000 without further written agreement of the parties. IN WITNESS HEREOF, the parties hereto have entered into this Letter of Agreement dated September ,2004. NORTHERN CALIFORNIA POWER AGENCY By: Title: General Manager CITY OF UKIAH By: Title: City Manager o.. · NCPA /NORTHERN CALIFORNIA POWER AGENCY Commission Staff Report Attachment # .... ,Z. ITEM NO. I J September 15, 2004 TO' NCPA Commission SUBJECT: Member Services Agreement with City of Ukiah The City of Ukiah (Ukiah) owns the Lake Mendocino Power Project (Project). The Project is comprised of two turbine-generator units with a total capacity of 3.5 MW. It was commissioned in 1986. The plant has been out of operation since December 1998, resulting from a number of operational and mechanical issues. Ukiah now wishes to analyze what physical modifications and operational changes would be necessary to resume normal operation. In this regard, Ukiah has requested the Agency staff (Hari Modi) assistance. Staff has agreed to investigate repair options for Ukiah and provide a report outlining time and cost estimate for repair. Staff has estimated that the cost for this investigative phase to be no more than $200,000, which will include retaining outside consultants as necessary. Recommendation Staff recommends the Commission approve the attached resolution. Respectfully~ed, /. Ma HM/MG/dg Attachment Prepared by: MURRAY GRANDE Acting Assistant General Manager RESOLUTION No. 04-22 RESOLUTION OF THE COMMISSION OF THE NORTHERN CALIFORNIA POWER AGENCY APPROVING MEMBER SERVICES AGREEMENT WITH THE CITY OF UKIAH AND AUTHORIZING THE GENERAL MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THIS AGENCY WHEREAS, the Northern California Power Agency (NCPA) is a California Joint Powers Agency organized under California Law and engaged in the generation, sale, purchase and exchange of electric power and energy; and WHEREAS, the City of Ukiah (Ukiah) is a member of NCPA; and WHEREAS, Ukiah owns a federally licensed hydroelectric power project known as the Lake Mendocino Project; and WHEREAS, Ukiah has requested NCPA staff assistance to investigate details and cost of repairs to reoperate the power plant; and WHEREAS, Ukiah desires NCPA to utilize Ukiah's general operating reserve to fund this initial phase of investigation at a cost not to exceed $200,000; and WHEREAS, Ukiah will seek approval of this Letter of Agreement by the City Council at its regular meeting as a condition of its acceptance; and WHEREAS, a staff report recommends that NCPA General Manager, or his designee be authorized to execute the Letter of Agreement between NCPA and Ukiah at this meeting; now THEREFORE, BE IT HEREBY RESOLVED by the Commission of NCPA, that such Letter of Agreement is hereby approved and that the General Manager, or his designee, is hereby authorized to execute it on behalf of this Agency. PASSED AND ADOPTED this 22nd day of September 2004, by the following vote on roll call: VOTE ABSTAIN ABSENT Alameda Biggs Gridley Healdsburg Lodi Lompoc Palo Alto Port of Oakland Redding Roseville Santa Clara Truckee-Donner Turlock Ukiah Plumas-Sierra BERN BEECHAM CHAIRMAN ATTEST' DENISE DOW ASSISTANT SECRETARY AGENDA ITEM NO: MEE'I-JNG DATE: October 6, 2004 SUMMARY REPORT SUB3ECT: DISCUSSION AND POSSIBLE ACTION REGARDING FILLING A VACANCY ON THE CITY COUNCIL Councilmember Paul Andersen has announced that he will be vacating his position as of October 31, 2004. The Council must now determine the process for filling the vacant Council seat created by this change in position. The person selected would hold the seat until November 2006. There are two options available for filling a vacant Council seat. Within 30 days from the commencement of the vacancy: 1) The Council may call a special election to fill the vacancy. The election shall be held on the next regularly established election date not less than :1.14 days from the call of the special election, which would be March or June 2005, depending on when the election was called. Participating in such an election would cost the City an estimated $8,000-$25,000, depending on whether there were other agencies participating in the election. 2) The Council may appoint a Councilmember to fill the vacancy. The Council may select a Ukiah resident either by soliciting applications from the public and conducting interviews or by selecting from Council nominations, which may or may not include candidates who are running in the November Council election. The nomination process is at the Council's discretion. :In the past, the Mayor has begun the nomination process and if that nominee is not selected, the choice for nomination would then pass to the next senior Councilmember. This process continues until a candidate receives the majority of the votes. (Continued on page 2) RECOMMENDED ACTION: Determine method of filling vacant Council position. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Prepared by: Coordinated with: Attachments: Candace Horsley, City Manager Dave Rapport, City Attorney None Approved: ~ r~~ Candace Horsley, City Mal~ager 4:CAN/ASR.Council. 100604 ~ The only statutory requirements relative to an appointed Councilmember are that he/she is a resident of the City of Ukiah and a current registered voter. The City Council must either fill the vacancy by appointment or take action to participate in an election by November 30, 2004. If the Council prefers to participate in an election, staff will return with deadlines and process details. ]:f the Council chooses to go forward with the appointment process, a decision on whether to distribute applications or not should be made at this meeting.