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HomeMy WebLinkAbout2005-02-16 Packet*AMENDED CITY OF UKIAH CITY COUNCIL AGENDA Regular Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 February 16, 2005 6:30 p.m. 1. ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. INTRODUCTION a. Introduction of New Employee Jose Ruiz 4. APPROVAL OF MINUTES a. Regular Meeting of January 5, 2005 b. Special Water Workshop Meeting of January 19, 2005 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. Sm 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. Approval of Disbursements for Month of January 2005 b. Approval of Budget Transfer of $19,938 from General Fund Reserves to Account 699-1201-800-032 for Environmental Services at the Former Leslie Street Gas Plant by EBA Engineering c. Adoption Of Resolution Extending The Length Of A No-Parking Zone / Bus Loading Zone Near 444 North State Street d. Adoption Of Resolution Establishing A No-Parking Zone/Bus Loading Zone And Removing Two Bus Loading Zones Along South State Street e. Notification of Procurement of Emergency Cleaning Services of the #2 Anaerobic Digester at the Wastewater Treatment Plant in the Amount of $21,750.000 from Northwest Industrial Scrub Authorize City Manager to Sign Agreement with Ford Aviation Consultants for Grant Writing/Administration Services For an Amount not to Exceed $12,000 g. Award of Bid for Wireless Services to Edge Wireless, Bend, Oregon, Authorize Staff to Negotiate a Two-Year Contract and the City Manager to Execute the Contract h. Report to City Council Regarding the Purchase of T-Shirts for the Youth Basketball Program From B.J.'s Embroidery in the Amount of $5,000 7. 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, UNFINISHED BUSINESS a. Review and Discussion of the Financial Reasons Behind the Recommendation For Not Proceeding with the Cogentech Biomass Project b. Discussion Regarding Sales Tax Ballot Measure 1 NEW BUSINESS a Approval of Consultant Services Contract for the Preparation of an Environmental Impact Report for the Ukiah and Millview County Water District Water Rights Permits/Licenses Amendment Project b. Approve Resolution for Membership in the California Statewide Communities Development Authority (CSCDA), and Approving the Form of and Authorizing the Execution and Delivery of an Amended and Restated Joint Exercise of Powers Agreement and Related Documents with Respect to Membership Therein, and Authorizing Certain Other Actions in Connection Therewith c. Approve Resolution for the Form of and Authorizing the Execution and Delivery of a Purchase and Sale Agreement and Related Documents with Respect to the Sale of City of Ukiah's Vehicle License Fee Receivable From the State; and Directing and Authorizing Certain Other Actions in Connection Therewith d. Discussion and Direction to Staff Regarding Possible Participation in Pension Obligation Bond Programs Offered to Selected CalPers Participating Agencies By the California Statewide Communities Development Authority (CSCDS) e. Authorization of the City Manager to'Negotiate and Enter Into a Professional Consulting Services Agreement with Harris & Associates to Provide Construction Management Services for City of Ukiah's Wastewater Treatment Plant Improvement Project For an Amount Not to Exceed $4,622,730' f. Discussion and Possible Support of Legislation Regarding Amendment of ADA 10. COUNCIL REPORTS 11. CITY MANAGER/CITY CLERK REPORTS 12. CLOSED SESSION a. G.C. §54957.6-Conference with Labor Negotiator Employee Organization: Electric Unit (International Brotherhood of Electrical Workers) Agency Designated Representative: Candace Horsley, City Manager b. G. C. ~i54957.6-Conference with Labor Negotiator Employee Organization: Management Unit Agency Designated Representative: Candace Horsley, City Manager c. G. C. 54956.9(a)-Conference with Legal Counsel---existing litigation River Watch V. City of Ukiah, United States District Court, Northern District of California 13. ADJOURN M ENT The City of Ukiah complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. CITY OF UKIAH CITY COUNCIL AGENDA Regular Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 February 16, 2005 6:30 p.m. 1. ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. INTRODUCTION a. Introduction of New Employee Jose Ruiz 4. APPROVAL OF MINUTES a. Regular Meeting of January 5, 2005 b. Special Water Workshop Meeting of January 19, 2005 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. 1 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. Approval of Disbursements for Month of January 2005 b. Approval of Budget Transfer of $19,938 from General Fund Reserves to Account 699-1201-800-032 for Environmental Services at the Former Leslie Street Gas Plant by EBA Engineering c. Adoption Of Resolution Extending The Length Of A No-Parking Zone / Bus Loading Zone Near 444 North State Street Adoption Of Resolution Establishing A No-Parking Zone/Bus Loading Zone And Removing Two Bus Loading Zones Along South State Street Notification of Procurement of Emergency Cleaning Services of the #2 Anaerobic Digester at the Wastewater Treatment Plant in the Amount of $21,750.000 from Northwest Industrial Scrub Authorize City Manager to Sign Agreement with Ford Aviation Consultants for Grant Writing/Administration Services For an Amount not to Exceed $12,000 Award of Bid for Wireless Services to Edge Wireless, Bend, Oregon, Authorize Staff to Negotiate a Two-Year Contract and the City Manager to Execute the Contract Report to City Council Regarding the Purchase of T-Shirts for the Youth Basketball Program From B.J.'s Embroidery in the Amount of $5,000 d, e. g, h. 7. 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. am UNFINISHED BUSINESS a. Review and Discussion of the Financial Reasons Behind the Recommendation For Not Proceeding with the Cogentech Biomass Project b. Discussion Regarding Sales Tax Ballot Measure 9. NEW BUSINESS a Approval of Consultant Services Contract for the Preparation of an Environmental Impact Report for the Ukiah and Millview County Water District Water Rights Permits/Licenses Amendment Project b. Approve Resolution for Membership in the California Statewide Communities Development Authority (CSCDA), and Approving the Form of and Authorizing the Execution and Delivery of an Amended and Restated Joint Exercise of Powers Agreement and Related Documents with Respect to Membership Therein, and Authorizing Certain Other Actions in Connection Therewith c. Approve Resolution for the Form of and Authorizing the Execution and Delivery of a Purchase and Sale Agreement and Related Documents with Respect to the Sale of City of Ukiah's Vehicle License Fee Receivable From the State; and Directing and Authorizing Certain Other Actions in Connection Therewith d. Discussion and Direction to Staff Regarding Possible Participation in Pension Obligation Bond Programs Offered to Selected CalPers Participating Agencies By the California Statewide Communities Development Authority (CSCDS) e. Authorization of the City Manager to Negotiate and Enter Into a Professional Consulting Services Agreement with Harris & Associates to Provide Construction Management Services for City of Ukiah's Wastewater Treatment Plant Improvement Project For an Amount Not to Exceed $4,622,730 f. Discussion and Possible Support of Legislation Regarding Amendment of ADA 10. COUNCIL REPORTS 11. CITY MANAGER/CITY CLERK REPORTS 12. CLOSED SESSION a. G.C. §54957.6-Conference with Labor Negotiator Employee Organization: Electric Unit (International Brotherhood of Electrical Workers) Agency Designated Representative: Candace Horsley, City Manager b. G. C. ~54957.6-Conference with Labor Negotiator Employee Organization: Management Unit Agency Designated Representative: Candace Horsley, City Manager 13.ADJOURNMENT The City of Ukiah complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. CITY OF UKIAH CITY COUNCIL AGENDA SPECIAL MEETING FOR THE PURPOSE OF A TRAFFIC CIRCULATION STUDY WORKSHOP UKIAH VALLEY CONFERENCE CENTER 200 South School Street Ukiah, CA 95482 FEBRUARY 16, 2005 4:00 P.M. 1. ROLL CALL ! 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. 3. TRAFFIC CIRCULATION STUDY WORKSHOP 4. ADJOURNMENT AGENDA SUMMARY ITEM NO. DATE: REPORT February 16, 2005 SUBJECT: RECEIPT OF REPORT ON TRAFFIC AND CIRCULATION STUDY CURRENTLY UNDERWAY AND PROVIDING DIRECTION TO STAFF The City of Ukiah entered into a contraCt with Omni Means Ltd., of Roseville, CA, dated September 22, 2003, to conduct a comprehensive Traffic and Circulation Study. Various interactions have taken place between the City of Ukiah and Omni Means, and a public workshop was held on May 19, 2004 at the Ukiah Valley Conference Center. On that same date, a report was presented to the City Council at its regularly scheduled meeting. Since that time, work necessary for the study has continued, and subsequent to the November 2004 election, several new members have joined the Council. This workshop has been proposed with a number of specific goals in mind. They are: · To provide background for new members of the Council, and to refresh the information for other interested parties. · Share the couplet concepts that were previously shown. · Talk about where the study has been focused and what has been accomplished since the last time Omni Means addressed them. · Get feedback on what they have seen to date, and other concerns. For today's workshop, we have with us, Mr. Ross Ainsworth, President, and Mr. Paul Miller, Project Manager, both from Omni Means. They will make a presentation and be available for questions. RECOMMENDED ACTION: Receive report on the Traffic and Circulation Study and provide feedback and direction to staff. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: This workshop has been publicly noticed. Tim Eriksen, Senior Civil City Engineer Diana Steele, Director of Public Works/City Engineer Candace Horsley, City Manager 1. Presentation Handout Candace Horsle'~ City Manager qpON qpON qpON AVENUE 0 0 0 0 0 0 ~ ~ a a HOLDEN SMITH ST. CHURCH ST: .,.,, PERKINL.: ST.',. ~r.:. ,, ~ CLAY. S-I ITEM NO. 3a DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: INTRODUCTION OF NEW EMPLOYEE, JOSE RUIZ The Community Services Department is pleased to introduce to Council our newest employee, Building and Grounds Attendant, Jose Ruiz. Jose has been employed as a part time Parks Service worker for approximately the last year. He is replacing Josh Cabral who was recently appointed to an officer position in the Police Department. Jose brings to the position a wide variety of skills and an exceptional work ethic. His skills, work ethic and special talents will provide many opportunities to be an integral part of all the City's community events. Jose is married with three children and has lived in the Ukiah area for twenty-four years. On his own time, Jose is an active husband and father and enjoys working on small construction projects for neighbors and friends. The Community Services Department is very fortunate to have Jose among our ranks, and we are pleased to ask you to now welcome Jose to the City of Ukiah. RECOMMENDED ACTION: Welcome Jose Ruiz to the City of Ukiah ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A N/A Sage Sangiacomo, Community Services Supervisor Candace Horsley, City Manager and Larry Deknoblough, Community Services Director None APPROVED' _ Candace Horsley Cit~M _ anager LD/c Jose. Asr MEMO Agenda Item: 4a TO: FROM: Honorable Mayor and City Councilmembers City Clerk Marie Ulvila SUBJECT: City Council Meeting Minutes: January 5, 2005 DATE: February 10, 2005 Every attempt will be made to forward the Draft Minutes of the Regular Meeting of the City Council meeting held on January 5, 2005 to the City Council for review by Tuesday, February 15, 2005. Memos: CC-delay of minutes MEMO Agenda Item: 4._~b TO: Honorable Mayor and City Councilmembers FROM: City Clerk Marie Ulvila SUBJECT: City Council Meeting Minutes: January 19, 2005 Special Workshop DATE- February 10, 2005 Every attempt will be made to forward the Draft Minutes of the January 19, 2005 Special Workshop of the City Council to Council for review no later than Tuesday, February 15, 2005. Memos: Council- minutes MINUTES OF THE UKIAH CITY COUNCIL SPECIAL MEETING WEDNESDAY, JANUARY 19, 2005 The Ukiah City Council met at a Special Meeting on January 19, 2005, the notice for which being legally noticed, at 4:35 p.m. Roll was taken and the following Councilmembers were present: McCowen, Rodin, Baldwin, and Mayor Ashiku. Councilmember absent: Crane. Staff present: City Manager Horsley, Public Utilities Director Ziemianek, and Recording Secretary Elawadly. Councilmember Baldwin came to the workshop at 4:4( 1 WATER WORKSHOP: The Water Treatr upgraded to meet State requirements and firm of Bartle Wells Associates and ultimately bond sales services project. They will host a worksho of the City's current water recommendations to make rates national standards, while the additional revenue ~nt is currently being contracted with the ~g, rate reviews Iong-ter for the resent to the Cour eir analysis future n~ including in com iance with and generating financing. Douglas Dove and Titiana Oh regarding the encouraged input corresponding structure and the explained that issues, p~ rates r Point presentation rate structure. They the proposed rates and updating the existing water rate rade the Water Treatment Plant. He ~rseeing the sale of municipal bond 'orks projects, and designing of utility State regulations. ~comml and Ul: -in rate to guideli Elimin, of rate system: rate structure. by establishing customer categories according price relative to the standard monthly service charge ~al dwelling unit charge. Promote co ~n by eliminating 'ffree units" of water that are currently included in the monthly service charge. Phase-in rate increases to fund capital projects. BWA recommendations for financing capital projects: · Use reserve funds. · Use annual/operating budget. · Use of long-term debt secured by water service charges and sales of revenue bonds. The issuance of long-term debt service (revenue bonds) requires a pledge of water service/sales revenue/contractual obligations. Page 1 of 3 The adoption of a revised water rate system requires compliance with Proposition 218. A general discussion followed regarding meter size and demand capacity. Mike McCann commented water utility rates should be set according to the capacity the system has to deliver to a particular customer on his/her demand. Councilmember Rodin requested clarification of the study findings on page 14 of the presentation that the City does not currently charge demand capacity. Mr. Dove stated the City currently charges consum~ meter. multiple units on one A general discussion followed regarding unit relative to how to correctly charge for of the primary reasons for updating the billing system based upon meter size an of meter and system. The intent ditional housing This is one establish a Councilmember Baldwin consumers to conserve and u: it meter beneficial to encourage Mr. Dove stated the revenue consultants antici purposes. Additi( elimination of is not significant. The meters for conservation by the potential smaller Councilmember measure ap of the CPI. concept of using the CPI as a water rates have only increased a~ inqu' hether th6 essenti~ )p paying water unit.~ he/she might ;ssed the "additional dwelling" fee issue, and would be a "wash" as consumers would this fee, but would be charged for the formerly "free a landlord could experience a "wash" on the utility bill, rent to explain the additional utility cost. Ms. Olea replied is could conceivably occur. However the overall intent of restructuring the water rates is not to cause rents to increase, but to focus on establishing a system that is fair/practical for the City, as well as for the consumer. The rates must be competitive while meeting State standards. There was a general discussion regarding large meters for use for fire protection use and the method of distributing the cost. Also, discussion followed regarding larger meter sizes and how small business owners would be affected. Page 2 of 3 ADJOURNMENT There being no further business, the meeting wes adiourned at 6:10 p.m. to the Regular City Council meeting of January 19, 2005. Cathy Elawadly, Recording Secretary Page 3 of 3 ITEM NO.: 6a DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: REPORT OF DISBURSEMENTS FOR THE MONTH OF JANUARY 2005 Payments made during the month of January 2005, are summarized on the attached Report of Disbursements. Further detail is supplied on the attached Schedule of Bills, representing the four (4) individual payment cycles within the month. Accounts Payable check numbers: 59689-59922, 59994-60146 Accounts Payable Manual check numbers: 54495-54496 Payroll check numbers: 59625-59688, 59923-59993 Payroll Manual check numbers: none Void check numbers: none This report is submitted in accordance with Ukiah City Code Division 1, Chapter 7, Article 1. RECOMMENDED ACTION: Approve the Report of Disbursements for the month of January 2005. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: N/A Requested by: Candace Horsley, City Manager Prepared by: Kim Sechrest, Accounts Payable Specialist Coordinated with:Mike McCann, Director of Finance and Candace Horsley, City Manager Attachments: Report of Disbursements APPROVED: ~ ~f/'~__ Candace Horsley, City Ma~er KRS:WORD/AGENDAJAN05 Demand Payments approved: CITY OF UKIAH REPORT OF DISBURSEMENTS REGISTER OF PAYROLL AND DEMAND PAYMENTS FOR THE MONTH OF JANUARY 2005 54495-54496,59689-59814,59815-59222,59994-60050,60051-60146 FUNDS: 1 O0 General Fund 131 Equipment Reserve Fund 140 Park Development 141 Museum Grants 143 N.E.H.I. Museum Grant 150 Civic Center Fund 200 Asset Seizure Fund 201 Asset Seizure (Drug/Alcohol) 203 H&S Education 11489 (B)(2)(A1) 204 Federal Asset Seizure Grants 205 Sup Law Enforce. Srv. Fund (SLESF) 206 Community Oriented Policing 207 Local Law Enforce. BIk Grant 220 Parking Dist. #10per & Maint 230 Parking Dist. #1 Revenue Fund 250 Special Revenue Fund 260 Downtown Business Improvement 290 Bridge Fund 301 2107 Gas Tax Fund 310 Special Aviation Fund 315 Airport Capital Improvement 330 Revenue Sharing Fund 332 Federal Emerg. Shelter Grant 333 Comm. Development Block Grant 334 EDBG 94-333 Revolving Loan 335 Community Dev. Comm. Fund 340 SB325 Reimbursement Fund 341 S.T.P. 342 Trans-Traffic Congest Relief 345 Off-System Roads Fund 410 Conference Center Fund 550 Lake Mendocino Bond 575 Garage PAYROLL CHECK NUMBERS 59625-59688 DIRECT DEPOSIT NUMBERS 22852-22994 PAYROLL PERIOD 12/19/04-1/1/05 PAYROLL CHECK NUMBERS: 59923-59993 DIRECT DEPOSIT NUMBERS 22995-59993 PAYROLL PERIOD 1/2/05-1/15/05 VOID CHECK NUMBERS: NONE $173,103.75 600 Airport $4,193.96 611 Sewer Construction Fund 612 City/District Sewer $2,886.63 615 City/District Sewer Replace 620 Special Sewer Fund (Cap Imp) 640 San Dist Revolving Fund 650 Spec San Dist Fund (Cap Imp) 652 REDIP Sewer Enterprise Fund 660 Sanitary Disposal Site Fund 661 Landfill Corrective Fund 664 Disposal Closure Reserve 670 U.S.VV. Bill & Collect $1,666.66 678 Public Safety Dispatch $1,611.31 679 MESA (Mendocino Emergency Srv Auth) $83.50 695 Golf 696 Warehouse/Stores $40.00 697 Billing Enterprise Fund $2,265.50 698 Fixed Asset Fund 699 Special Projects Reserve 800 Electric 805 Street Lighting Fund 806 Public Benefits Charges 820 Water 840 Special Water Fund (Cap Imp) 900 Special Deposit Trust 910 Worker's Comp. Fund 920 Liability Fund 940 Payroll Posting Fund 950 General Service (Accts Recv) 960 Community Redev. Agency $6,890.66 962 Redevelopment Housing Fund $1,673.75 965 Redevelopment Cap Imprv. Fund $1,936.70 966 Redevelopment Debt Svc. 975 Russian River Watershed Assoc 976 Mixing Zone Policy JPA TOTAL DEMAND PAYMENTS TOTAL PAYROLL VENDOR CHECKS TOTAL PAYROLL CHECKS TOTAL DIRECT DEPOSIT TOTAL PAYMENTS $8,765.27 $154.00 $41,248.79 $4OO.OO $4,043.09 $24,630.27 $2,295.21 $35,910.08 $6,509.13 $1,534.87 $5,640.8O $12,485.66 $1,036,670.14 $9,086.50 $4,977.O8 $42,825.41 $847,136.20 $2,317.34 $136,697.87 $372,422.27 $831.93 $810.67 $1,273.75 $15,614.50 $2,810,633.25 $60,847.04 $107,311.72 $360,120.73 $3,338,912.74 CERTIFICATION OF CITY CLERK This register of Payroll and Demand Payments was duly approved by the City Council on City Clerk APPROVAL OF CITY MANAGER I have examined this Register and approve same. CERTIFICATION OF DIRECTOR OF FINANCE I have audited this Register and approve for accuracy and available funds. 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Jo L'.10 U o~ o o o · , °~ oh · , ~000000000000000 ~H H I..-4 r..) o~ o o o o o H H H 0 00 00 O000 un L.n ¢q ("q ~ Ln 00 ~:~ O0 ~o O0 O0 000000 000000 0 O0 000000 000000 oo o~~ o oooooo oo oooo oooo ~°° 0 0 oo r.j . , t~ u3 c~ o-8 oo ooo ~o~ ~o~ o~o ~0~ ~o~o 0000 ~00 ~00 ¢q o ,~ o o o · 0 o o o,1 o,1 · 0 ,r--I cq o ¢q cD 0 0 o o ~ co o Ln ,.--I kD 0 rjr.,.) ~oo~ O0 ~ DD DDD~ HH~HHHO ~oo oo oooo o°8 O0 rjr..) Or~ OD, r.j 0 ~ ~ i,-~ H I-t..] 0 ~ ~00 D ,'<0 :),-iH ~0000 O~ ~o EJ . o > c~ o c~ c~ o o o o o o c~ c~ o o 0 0 O~ ~:o O~ ~0 On~ H H > g LD 0 0 AGENDA ITEM NO: 6t~ MEETING DATE: February 16, 2005 SUMMARY REPORT SUBJECT: APPROVAL OF BUDGET TRANSFER OF $19,938 FROM GENERAL FUND RESERVES TO ACCOUNT 699-1201-800-032 FOR ENVIRONMENTAL SERVICES AT THE FORMER LESLIE STREET GAS PLANT BY EBA ENGINEERING At the January 19th meeting, the City Council approved a contract addendum with EBA Engineering for environmental services at the former Leslie Street Gas Plant in the amount of $19,938. As this additional expense was not budgeted for in the 2004-'05 fiscal year, staff is requesting a transfer from the General Fund Reserves to account 699-1201-800-032. RECOMMENDED ACTION: Approve budget transfer of $19,938 from General Fund Reserves to account 699-1201-800-032. 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 N/A 1. January 19, 2005 Agenda Summary Report Regarding Approval of Contract Addendum with EBA Engineering Approved: ;~--~_~?~,,.~~ Ca~ndace Horsley, City~nager 4:CAN/ASR.EBABudgetTransfer.021605 ITEM NO: 6d MEETING DATE: January 19, 2005 AGENDA SUMMARY REPORT SUBJECT: APPROVAL OF CONTRACT ADDENDUM WITH EBA ENGINEERING FOR ENVIRONMENTAL SERVICES AT THE FORMER LESLIE STREET GAS PLANT The City Council approved a contract with EBA in April 2003 for $56,535, due to the fact that the City had received a letter from the Regional Water Quality Control Board (SWQCB) regarding potential contamination issues on a Leslie Street parcel. This property was previously owned by the City of Ukiah, and a gas production plant was operated there between the 1920's and early 1940's. Soil samples collected and analyzed from the site showed that there was some contamination on the soil surface. The original work plan outlining further testing was submitted to the SWQCB and was approved. A year's worth of testing and monitoring has been performed, but due to the results, another year of groundwater monitoring and offsite soil testing is required. Any discussion of potential cleanup is over a year away. Staff is requesting Council approval of an amendment to the contract with EBA for $19,938. RECOMMENDED ACTION: Approval of contract amendment with EBA for $19,938. ALTERNATIVE COUNCIL POLICY OPTIONS: Discuss and provide alternate direction to staff. Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Candace Horsley, City Manager Candace Horsley, City Manager N/A 1. Cost estimate Approved: ger 4:CAN/ASR.EBAAdendum.011905 ~ AGENDA SUMMARY ITEM NO. 6c DATE'February 16, 2005 REPORT SUBJECT: ADOPTION OF RESOLUTION EXTENDING THE LENGTH OF A NO- PARKING ZONE / BUS LOADING ZONE NEAR 444 NORTH STATE STREET SUMMARY: The Mendocino Transit Authority (MTA) has requested to extend a no parking zone/bus loading zone along North State Street. An existing MTA bus loading zone was in place prior to construction of the new building adjacent to the Coffee Critic. Upon completion of the project, which included a new driveway entrance, there was insufficient length for a bus stop. MTA has therefore asked that the bus stop be extended by 33 feet. Please refer to Attachment 2 for a location map. The net result of the proposed action will be the loss of one on-street parking space. The Traffic Engineering Committee reviewed this request at its regular meeting of February 8, 2005 and recommended approval to the City Council. Dan Baxter, MTA, has informed staff that Coldwell Banker Mendo Realty has no objection to the proposed bus stop. RECOMMENDED ACTION: Adopt resolution extending the length of a no-parking zone/bus loading zone near 444 North State Street. ALTERNATIVE COUNCIL POLICY OPTIONS: Do not adopt resolution and provide direction to staff. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Dan Baxter, MTA and Coldwell Banker Mendo Realty Rick Seanor, Deputy Director of Public Works Rick Seanor, Deputy Director of Public Works Candace Horsley, City Manager Diana Steele, Director of Public Works/City Engineer 1. Resolution for Adoption 2. Location Map APPROVED.~~'.~~_ ~.~ Candace Horsley, City ~ager RJS: AGnpMTAbusZone7 RESOLUTION NO. 2005- Attochment # RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH REMOVING ON-STREET PARKING AND EXTENDING THE LENGTH OF A NO PARKING ZONE / BUS LOADING ZONE NEAR 444 NORTH STATE STREET WHEREAS, the City Council may by resolution designate portions of streets upon which the standing, parking, or stopping of vehicles is prohibited or restricted pursuant to Article 11, Chapter 1, Division 8 of the Ukiah City Code; and WHEREAS, the provisions of Sections 21458 and 22500 of the California Vehicle Code permit the stopping of buses in a red zone marked or posted as a bus loading zone; and WHEREAS, on February 8, 2005 the Traffic Engineering Committee (Traffic Engineer) considered the request from the Mendocino Transit Authority to extend the length of a "No Parking Zone / Bus Loading Zone" within the City of Ukiah; and WHEREAS, the Traffic Engineer recommends the request regarding this "No Parking Zone / Bus Loading Zone". NOW, THEREFORE, IT IS HEREBY RESOLVED, that the Ukiah City Council does extend the existing "No Parking Zone / Bus Loading Zone" on North State Street, west side, a length of 33 feet to the south. PASSED AND ADOPTED this 16th day of February, 2005 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk Resolution No. 2005- Page 1 of 1 N MTA Bus Stop near 444 North State Street Alta~hment ~ ~ Photo Date: March 2001 AGENDA SUMMARY ITEM NO. 6a DATE: February 16, 2005 REPORT SUBJECT: ADOPTION OF RESOLUTION ESTABLISHING A NO-PARKING ZONE/BUS LOADING ZONE AND REMOVING TWO BUS LOADING ZONES ALONG SOUTH STATE STREET SUMMARY: The Mendocino Transit Authority (MTA) has requested to establish a no parking zone/bus loading zone and to remove two bus loading zones along South State Street. The net result of the proposed action will be a gain of one on-street parking space. Staff has observed that adequate off-street parking currently exists at the Express Mart where the new bus loading zone is proposed. The proposed bus stop in front of the Express Mart at 998 South State Street will involve the loss of three on-street parking spaces. Dan Baxter, MTA, has spoken to the owner of the Express Mart regarding the loss of parking spaces resulting from the proposed bus stop. The Express Mart owner did not voice any objections to the loss of parking. The Traffic Engineering Committee reviewed this request at its regular meeting of February 8, 2005 and recommended approval to the City Council. As part of their request, MTA proposes to remove two existing bus loading zones. The first location is adjacent to C and C Plumbing at 884 South State Street. The second location is in front of an empty lot (1006 South State Street) just south of Observatory Avenue. The existing no parking zones with painted red curb will be removed to gain four new on-street parking spaces. RECOMMENDED ACTION: Adopt resolution establishing a no-parking zone/bus loading zone and removing two bus loading zones along South State Street. ALTERNATIVE COUNCIL POLICY OPTIONS: Do not adopt resolution and provide direction to staff. Citizen Advised: Dan Baxter, MTA and Express Mart Owner. Requested by: Rick Seanor, Deputy Director of Public Works O.t Jcl- Prepared by: Rick Seanor, Deputy Director of Public Works Coordinated with: Candace Horsley, City Manager Diana Steele, Director of Public Works/City Enginee~1~ v--~"-~' ? Attachments: 1. Resolution for Adoption 2. Location Map ,,~,---.~ Can-"~ce HorSley, City MaSSager RJS: AGnpMTAbusZone~ Affaohment · RESOLUTION NO. 20015- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH ESTABLISHING A NO PARKING/BUS LOADING ZONE AT 998 SOUTH STATE STREET AND REMOVING TWO BUS LOADING ZONES ALONG SOUTH STATE STREET WHEREAS, the City Council may by resolution designate portions of streets upon which the standing, parking, or stopping of vehicles is prohibited or restricted pursuant to Article 11, Chapter 1, Division 8 of the Ukiah City Code; and WHEREAS, the provisions of Sections 21458 and 22500 of the California Vehicle Code permit the stopping of buses in a red zone marked or posted as a bus loading zone; and WHEREAS, the Traffic Engineering Committee (Traffic Engineer) considered the request on February 8, 2005 from the Mendocino Transit Authority to establish the bus loading zone and to remove two bus loading zones within the City of Ukiah; and WHEREAS, the Traffic Engineer recommends this request regarding bus loading zones. NOW, THEREFORE, IT IS HEREBY RESOLVED, that the Ukiah City Council does establish the bus loading zone at 998 South State Street at a location determined by the City Engineer. BE IT FURTHER RESOLVED, by the Ukiah City Council that the following bus loading zones are removed as indicated herein: 1. 884 South State Street and 2. 1006 South State Street PASSED AND ADOPTED this 16th day of February, 2005 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk Resolution No. 2005- Page 1 of 1 N Proposed MTA Bus Stop 998 South State Street Attachment · ~ remove MTA bus stop proposed MTA bus stop ~SERVATORY AVENUE remove MTA bus stop Photo Date: March 2001 ITEM NO. 6e DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: NOTIFICATION OF PROCUREMENT OF EMERGENCY CLEANING SERVICES OF THE #2 ANAEROBIC DIGESTER AT THE WASTEWATER TREATMENT PLANT IN THE AMOUNT OF $21,750.00 FROM NORTHWEST INDUSTRIAL SCRUB SUMMARY: The #2 anaerobic digester recently became inundated with grease and trash during the high rainfall events of January and December. This caused severe restrictions in the transfer lines between the #1 and #2 anaerobic Digesters. Subsequently the #2 digester experienced minor damage to the corbels. (Rollers guides on the digester roof) Northwest Industrial Scrub was able to respond to the emergency in the shortest time frame thereby preventing further structural damage to the digester. The high level of grease accumulation was a leading cause for this non-scheduled emergency service work. Money for this emergency service work is available in budget account 612-3580-690-000. RECOMMENDED ACTION: Receive and file notification. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: N/A Bernie Ziemienek, Director of Public Utilities Jerry Gall, Wastewater Treatment Supervisor Candace Horsley, City Manager Candace Horsley, City Manaler ITEM NO. 6f DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: AUTHORIZE CITY MANAGER TO SIGN AGREEMENT WITH FORD AVIATION CONSULTANTS FOR GRANT WRITING/ADMINISTRATION SERVICES FOR AN AMOUNT NOT TO EXCEED $12,000 On April 5, 2000, the Aviation Investment and Reform Act for the 21st Century (AIR 21) was signed into law. This legislation allows the Ukiah Regional Airport to receive an annual entitlement of $150,000 from the Federal Aviation Administration (FAA) that must be used for aviation related purposes. These funds must be requested from the FAA by the Airport Improvement Program (ALP) grant process. In the past, FAA grant requests have been written by City Airport and Engineering Departments every 3 to 5 years. Now that there is a need to write grants on an annual basis and since the City experiences limited staff time and expertise in this area, staff is requesting the Council approve the use of a grant writer. In selecting a firm to provide these services, staff has contacted the Association of California Airports (ACA) in addition to contacting several north coast government agencies including Mendocino County Public Works Department. All parties have highly recommended Ford Aviation Consultants. Staff also contacted other consultants who might be interested in performing this type of work, and they indicated that Ford Aviation Consultants would be better suited to our needs, and spoke highly of their capabilities. In addition to grant writing, this firm has expertise in grant management services, Capital Improvement Program (CIP) updating, and needs assessments. In addition to receiving the grant amount of $150,000, these services costing $12,000 are reimbursable from the FAA at 90%, thus encumbering the Airport budget for the balance of $1,200 annually. Staff is therefore recommending that Council authorize the City Manager to sign the agreement attached. RECOMMENDED ACTION: Authorize City Manager to sign agreement with Ford Aviation Consultants for grant writing/administration services on a time and materials basis not to exceed $12,000. ALTERNATIVE COUNCIL POLICY ACTION: Reject contract and provide staff with direction to seek another consultant. CITIZEN ADVISED: REQUESTED BY: PREPARED BY: COORDINATED WITH: ATTACHMENTS: N/A Airport Commission & Airport Manager Paul Ritchey, Airport Manager City Engineer, Diana Steele 1) Exhibit A, Scope of Services 2) Exhibit B, Schedule of Charges 3) Pr,._.,ofessional Consulting Services Agreement APPROVED: ~,..._.(~)~ Candace Horsley, City r · , . SCOPE OF SERVICES Attachment ~_ ( I Exhibit "A" Consultant is a firm that employees one or more Civil Engineers or Land Surveyors duly licensed as such under the laws of the State of California. Consultant agrees to provide to the City services as a Licensed Land Surveyor for the following: A. Attend City Council meetings as requested by the City Council, City Manager or City Engineer. B. To provide land surveying consulting services as follows: 1. To review Parcel Maps, Tentative and Final Subdivision Maps, improvement plans and reports which involve surveying and make recommendations thereon. Examples of related documents to be reviewed shall also include a variety of deeds, certificates of compliance, survey closures, etc. 2. To approve improvement plans and final subdivisions maps as the City Surveyor for the City of Ukiah, in accordance with the City's Subdivision Ordinance and State Subdivision Map Act. C. To provide land surveying advice and services at the request of the City in connection with the maintenance, construction and rehabilitation of sidewalks, curbs, gutters and streets, storm drains, parking lots, landfill, and any or all other engineering and land surveying services required by the City. D. On any project requiring the services as outlined in Paragraph C above, and requiring Consultant's services in a project amount in excess of five thousand dollars ($5,000), Consultant and City shall negotiate and reach mutual agreement regarding any appropriate amendment to this Agreement providing additional compensation for services related to such project. Exhibit "B" Attachment # T.M. Herman & Associates, Inc. a Division of SHN Consulting Engineers & Geologists, Inc. Surveying, Engineering and Planning Services 493 South Main Street, Willits, CA 95490 2003 SCHEDULE OF CHARGES Statements are mailed at monthly intervals and upon completion of work segments when appropriate. Payments are due upon presentation of statement and are overdue 15 days from the date of the statement. Requested overtime will be billed at 150% of regular hourly rate. HOURLY CHARGE RATES FOR STAFF POSITION HOURLY RATES ....S..e...n.!..o..r....P.?..f.e..s..s.?..a.~.~.,n.~.i..n...e..e.~ .................................................................................................................................................................. .*.......9..0..:.0...0. ........................... . ?.?.e.,~...~j.o...n..a.!.~....~.!?..,e..e.~ ................................................................................................................................................................................. .$......~.5..:.0...0. ........................... .. ~?,?.~....W...!.t.n...e..s..s../..~?.~.t.!.,m..,.o..n...y. ....................................................................................................................................................................... .$...~.~5.0...0. ........................... ....~..."...e.~.~.a...~....s..?.?..y....c..~?...w..../..9....?..:..s.:..~9..u.!.?...m.~..n..t' ..................................................................................................................................... .$.. ..1.. .3. ?.. .o. ........................... Two-Man Survey Crew (combination of individual/hourly rates) $130.00-140.00 .. ~..n..g..!.n...e..e. ?..g../...S...u. ~.5.y.~.n...g. ~..e..c..h...n.!?..n. .................................................................................................................................................. _....,.......6..5..0...0' ........................... Technician with Nuclear Density Gauge ......................................................... , ............................................... ..................................................................................................................................................................... !$ 70.00 Clerical $ 25.00 ............................................................................................................................................................................................................................... · ............................................... REIMBURSABLES The following direct charges are charged in addition to the hourly charge rates set forth above. Direct Charges: Blueprints and copies of reports, prints or other graphic material $ 1.50/ea. ..!.n....e...x.~..e..s..s...o...r...s.!.x....c...o.p..!.e..s.. ~..e. ~..!.t..e...m..: ....................................................................................................................................................................................................... ..S.i.!.e...a.~..e.:..~..o....m...!..t..o...p...o.~..a.! ............................................................................................................................................................................ .$. ....... :.3..?../...m..!!.~ ............... ....~...u..t..s.i..d..~..c...~..n...s..u..l..t.a...n..t..s.~...s...u..b..?..n..t?..~.t.e...d....s..e.~j.~.s..~...a..n...d....r£.n..t..a.!...e..~."..!p...m....e..n..t.: ..................................................................................... ..a..s..j..n...v..o..!.c..e...d. ................ Additional travel expenses such as lod~in~ and meals, as warranted NOTES: This fee schedule is subject to review and adjustment, on an annual basis. Rates depend on the specific personnel assigned and if prevailing wage rates are required in the area of work. Attachment # AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES This Agreement, made and entered into this 17th day of February, 2005, ("Effective Date") by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and FORD AVIATION CONSULTANTS, a Grant Management/Aviation Consulting Services Corporation, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. City requires professional services in connection with applying for and administering grants in support of the Ukiah Municipal Airport, including grants from the Federal Aviation Administration ("FAA"). b. Consultant represents that it has the qualifications, skills, and experience to provide these services, and is willing to provide them according to the terms of this Agreement. TERMS OF AGREEMENT 1.0 DESCRIPTION AND SCOPE OF SERVICES 1.1 Consultant shall provide the services as set forth in Exhibit "A", attached hereto. 1.2. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and Consultant. The written Agreement shall be in the form of an Amendment to this Agreement. 2.0 CONDUCT OF WORK 2.1 3.0 3.1 Time of Completion. Consultant shall commence performance of services as required by the Scope of Work on or after the Effective Date on an as-needed basis upon request of the City City Manager or other officer or employee of the City, if authorized by the City Manager to request such services. Consultant understands and agrees that the City reserves the right to use other employees or independent contractors to perform the same or similar services during the term of this Agreement. Consultant shall complete all requested work to the City's reasonable satisfaction, even if contract disputes arise or Consultant contends it is entitled to further compensation. COMPENSATION FOR SERVICES Basis for Compensation. For the performance of the professional services of this Agreement, City shall Consultant pay consultant as total compensation for such services as follows: 3.1.1 For the grant writing services described in page 5 of Exhibit A, $4200 per grant; and 3.1.2 For the grant administration services described on page 6 of Exhibit A, $650.00 per month. 3.2 4.0 Terms of Payment. City shall pay Consultant based on the invoices from Consultant which shall not be submitted more often than monthly, commencing with the Effective Date. Payment of an invoice shall be due and payable within 30 days after receipt by City. ASSURANCES OF CONSULTANT 4.1 4.2 Independent Contractor. Consultant is an independent contractor and is solely responsible for its acts or omissions. Consultant (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. Conflict of Interest. Consultant understands that its professional responsibility is solely to City. Consultant has no interest and will not acquire any direct or indirect interest that would conflict with its performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. 5.0 INDEMNIFICATION 5.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 5.2 Consultant shall not begin work under this Agreement until it procures and maintains for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 00 01 11 85. Bo , , , ISO Form No. CA 0001 (Ed. 1/78) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. Professional Liability Insurance covering damages which may result from errors, omissions, or acts of professional negligence by Consultant. Minimum Limits of Insurance C, Consultant shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. Professional Liability Coverage: $500,000 combined single limit per occurrence. If the coverage is an aggregate limit, the aggregate limit must apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the per occurrence limit. , Deductibles and Self-Insured Retentions D. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Consultant, products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. 5.2 b, The Consultant's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. C, Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees, or volunteers. Eo Fo Go d. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees, and volunteers for losses arising from Consultant's performance of the work, pursuant to this Agreement. 3. Professional Liability Coverage If written on a claims-made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend from 2/1/05 to 2/01/06. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. Acceptability of Insurers Except for professional liability insurance, insurance is to be placed with insurers with a Best's rating of no less than A:VII and who are admitted insurers in the State of California. Professional liability insurance may be underwritten by Lloyds of London. Verification of Coveraqe Consultant shall furnish the City with certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. Where by statute, the City's Workers' Compensation - related forms cannot be used, equivalent forms approved by the Insurance Commissioner are to be substituted. All Certificates and Endorsements are to be received and approved by the City before Consultant begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If Consultant fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, the cost of insurance becomes part of the compensation due the contractor after notice to Consultant that City has paid the premium. Subcontractors If Consultant uses subcontractors or sub-consultants, it shall cover them under its policies or require them to separately comply with the insurance requirements set forth in this Paragraph 5.1. Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Consultant shall indemnify, defend and hold harmless City officers, agents and employees from and against 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 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 7.0 any property resulting from any negligent or wrongful act or omission committed by Consultant or it's officers, agents or employees while performing services under this Agreement. Consultant's liability for professional negligence shall be limited to $1,000,000. As to events which occur during Consultant's performance of this Agreement, City shall hold Consultant harmless from and defend Consultant against all claims, liability, damage, or loss arising out of any injury or death of any person or damage to or destruction of property attributable to the negligent or willfully wrongful act or omission of City or its officers and employees, where the injury, death or damage is caused by the sole and active negligence or willful misconduct of City or City's employees. CONTRACT PROVISIONS Ownership of Work. All documents furnished to Consultant by City and all reports and supportive data prepared by Consultant under this Agreement are City's property and shall be given to City at any time upon its request or at the completion of Consultant's services at no additional cost to City. Governinq Law. Consultant 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 Exhibit A and executed Amendments 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. Consultant's services are considered unique and personal. Consultant 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. 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. 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 Consultant for services provided under this Agreement; or 3) City has abandoned and does not wish to complete the project for which Consultant 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 Consultant. City shall pay the Consultant compensation due and owing under the terms of this Agreement as of the date notice of termination is given as provided herein, unless the City specifically instructs Consultant to perform additional services after the notice of termination. In such event, as a condition to payment, Consultant shall provide to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Consultant under this Agreement. Consultant shall be entitled to compensation for any work satisfactorily completed hereunder, subject to off-set for any direct or consequential damages City may incur as a result of Consultant's breach of contract. Duplicate Oriqinals. 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. NOTICES Any notice given under this Agreement shall be in writing and deemed given upon receipt when personally delivered or delivered by fax or overnight courier or forty-eight (48) hours after deposit in the U.S. mail with proper first class postage affixed thereto and addressed to the parties as follows: City of Ukiah C/o: City Manager Ukiah Civic Center 300 Seminary Ave. Ukiah, CA. 95482 FAX: 707-463-6204 8.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement on the Effective Date. CONSULTANT Ford Aviation Consultants C/o: Carol Ford 270 Redwood Shores Pkwy., Suite 158 Redwood Shores, CA. 94065 FAX: BY: PRINT NAME: Date: CITY OF UKIAH BY: Date: CANDACE HORSLEY, CITY MANAGER ATTEST BY: Date: MARIE ULVILA, CITY CLERK APPROVED AS TO FORM: DAVID J. RAPPORT, CITY ATTORNEY, CITY OF UKIAH AGENDA ITEM NO: 6 g MEETING DATE: February 16, 2005 SUMMARY REPORT SUBJECT: Award of Bid for Wireless Services to Edge Wireless, Bend Oregon, authorize staff to negotiate a two year contract and the City Manager to execute the contract. Currently, the City of Ukiah has 58 cellular telephones under contract with U.S. Cellular. The contract was signed in February, 2002 for a period of three years. U.S. Cellular will not be renewing the City's contract as it exists currently due to the vast number of changes that have occurred in their cellular offerings during the term of the City's contract. It is also in the City's best interest to obtain a new contract for cellular services as needs have changed and the existing contract no longer meets those needs. A Request for Proposals for Wireless Services was issued to the following cellular service providers: U.S. Cellular, Verizon Wireless, Cingular, and Edge Wireless. Proposals were received from all vendors except Cingular, who failed to submit their bid by the noticed bid closing date and time. Attached is a spreadsheet detailing each of the proposals received. A team of staff members, consisting of MIS Coordinator Paulette Klingbeil, Police Captain Chris Dewey, Fire Chief Kurt Latipow, Director of Community Services Larry DeKnoblough, and Electrical Distribution Engineer Cindy Sauers, was asked to evaluate the proposals received and make recommendations for choosing the vendor who best (Continued on page 2) RECOMMENDED ACTION: Award bid for City Wireless Services to Edge Wireless, Bend Oregon, authorize City staff to negotiate a two year contract and the City Manager to execute those contracts. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Paulette Klingbeil, MIS Coordinator Paulette Klingbeil, MIS Coordinator City Manager and Finance Director 1. Spreadsheet of Proposals Received Candace Horsley, Cit~anager met the City's requirements as stated in the RFP. The evaluation team narrowed the proposals to U.S. Cellular and Edge Wireless and proceeded to evaluate the specific services and equipment offered by both vendors. The conclusion of all the evaluation committee members was unanimous and recommend the Edge Wireless proposal which offers the City the flexibility to tailor the overall contract to the specific needs of all cell phone users, offers the widest variety of features, provides a better coverage area with fewer "no service" zones, and proposes a comprehensive Emergency Support solution should the need arise. Additionally evaluated was the cost of each plan offered. In direct comparison the Edge Wireless Western Business Plan is slightly higher, less than 4%, over the U.S. Cellular Corp Custom V3 plan. This difference in cost between the two plans is estimated to be about $6 to $20 monthly, while Edge Wireless will provide increased benefits. However, a complete analysis of individual department needs will determine the final cost. If approved by the City Council, staff will then meet with Edge Wireless to negotiate the contract to the exact requirements of each cellular phone in service and have the City Manager review the contracts and sign them before the expiration of the City's existing contract with U.S. Cellular. Attachment # ITEM NO. 6 h DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: REPORT TO CITY COUNCIL REGARDING THE PURCHASE OF T- SHIRTS FOR THE YOUTH BASKETBALL PROGRAM FROM B.J.'S EMBROIDERY IN THE AMOUNT OF $5000. SUMMARY: Pursuant to the requirements of Section 1522 of the Municipal Code, Staff is filing with the City Council this report regarding the purchase of t-shirts for the youth basketball program from B.J.'s Embroidery, in the amount of $5000. Requests For Quotation (RFQ) sheets were sent out to all qualified bidders who specialize in made to order league t-shirts. Bids were returned by Alpine Awards, B.J.'s Embroidery, and Ocean Breezes Design. B.J.'s Embroidery was the overall Iow bidder Attached for Council's review is the bid summary and purchase order. This item is budgeted in the 100.6111.690.000 account. RECOMMENDED ACTION: Receive report regarding purchase of t-shirts for the youth basketball program from B.J.'s Embroidery in the amount of $5,000. ALTERNATIVE COUNCIL POLICY OPTIONS: 1. N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A City Council Sage Sangiacomo, Community Services Supervisor and Gina Greco, Activities/Sports Assistant Candace Horsley, City Manager, Larry W. DeKnoblough, Community Services Director and Mary Horger, Purchasing Supervisor 1. Bid Summary 2. Purchase Order APPROVEDL~'"~/I Ca'fi-~ac~ Florsley, Cit~Manager o o o o o o o o o o o Atfochment ~, ___ ! D o o o o oo O~ 03._N ~<~-~ # lUeU~q0oliV PURCHASE ORDER Purchase order numbers must appear on all invoices and packages CITY OF UKIAH SUBMIT DUPLICATE INVOICES TO: ACCOUNTS PAYABLE 300 SEMINARY AVENUE UKIAH, CA 95482 ACCTS. PAYABLE: (707)463-6230 PURCH. DEPT.: (707)463-6233 PURCH. FAX: (707) 463-6234 PURCHASE ORDER NUMBER PAGE DATE 1OF 1 01 / 05/2005 035873 VENDOR: 011662 B.J.'S EMBROIDERY 272 E SMITH ST UKIAH CA 95482-4411 SHIP TO: CITY OF UKIAH 300 SEMINARY AVENUE UKIAH CA 95482 000000 DELIVER BY FOB FOB UKIAH TERMS TAX CONFIRM TO PHONE NET 30 7.25 LINE NO. QUANTITY U/M DESCRIPTION UNIT PRICE ~' EXTENSION 01 1.00 BASKETBALL T-SHIRTS .00 N 5,000.00 100.6111.690.000 INVOICING TO BE BASED ON THE FOLLOWING: ADULT SIZES: $4.47 EACH YOUTH SIZES: $4.08 EACH PER BID OPENING: 11/1/2004 *NOT TO EXCEED $5000* REQUISITION DATE REQUESTED BY SUBTOTAL 5,000.00 E25578 GRECO,G DELIVER TO TAX 0.00 , CO M M U N ITY SVCS TOTAL 5,000.00 RECEIVED AS SPECIFIED: APPROVED FOR PAYMENT DATE RECORD (Blue) RECEIVING (Pink) DEPARTMENT (Gold) PURCHASING (Green) FINANCE (Yellow) AGENDA ITEM NO' ~'~'U. MEETING DATE: February 16,2005 SUMMARY REPORT SUBJECT: REVIEW AND DISCUSSION OF THE FINANCIAL REASONS BEHIND THE RECOMMENDATION FOR NOT PROCEEDING WITH THE COGENTECH BIOMASS PROJECT Summary: On April 21, 2004 Cogentech Inc. made a presentation to the City Council on prospective cogeneration projects that could be constructed and operated by them for the purpose of providing electrical energy to the City of Ukiah. It was proposed the plant would be located on approximately four acres of land owned by the Ukiah Redevelopment Agency and located south of the Mendocino Brewery. As a result of the City Council meeting, action was taken to enter into a "letter of Intent" and an appropriate "non-disclosure agreement" with Cogentech (formerly Agricultural Sustainable Energy Technologies (ASET) to begin discussions and negotiations. It was further intended that should a proposed Power Purchase Agreement result from the negotiation process, the said agreement would be presented to the City Council for approval. City Staff began the "due diligence review" of the proposed project and the associated power purchase agreement points. A number of discussions and drafts were presented and reviewed. City Staff requested the assistance of personnel from the Power Purchase Department of the Northern California Power Agency (NCPA) to help in the assessment process. This was done to insure the latest power costs, future power scenarios, and issues pertaining to the power purchase agreement were on an even RECOMMENDED ACTION: OPEN DISCUSSION ON THE FINANCIAL ASPECTS OF THE PROPOSED BIOMASS PROJECT ALTERNATIVE COUNCIL POLICY OPTIONS: ALTERNATIVES DIRECT STAFF AS TO Citizens Advised: N/A Requested by: Candace Horsley, City Manager Prepared by: Bernie Ziemianek, Public Utilities Director Coordinated with: Candace Horsley, City Manager Attachments: None Approved: Candace Horsley, Manager basis for the City's electrical needs and costs. After a number of reviews and discussions spanning over 4 months it became apparent the proposed revenue projections on this specific project did not recommend going forward. Mr. Don Dame, Assistant General Manager, Power Management from NCPA along with the City's Public Utilities Director, Bernie Ziemianek, will present the financial reasons and findings for not recommending moving forward with this plant offer. February 14, 2005 RE: Biomass Memo Mayor and Council Members, Attached are a selected number of slides from a Powerpoint presentation on theBiomass project originally scheduled for this Wednesday, February 16th. It was agreed the Agenda Summary Review (ASR), this memo, and associated slides would be sufficient for your review and acceptance to the reasons for turning down this project. Typically, generation projects are reviewed on financial and technical merits. This project was reviewed only on its financial merits. The attached slides show a number of baseline scenarios this project was measured against. Regardless of those scenarios, the proposed biomass project failed all financial reasons for the City. In all cases the project costs were extremely higher than the common lists of supply option resources. Those include: Typical Bilateral Power Contracts Green Power renewables New Combined Cycle Gas Plants (LM 6000s) · Firm Wind Energy · Market futures Bottom Line: The proposed Congentech Biomass plant has a 20-year economic cost range greater than any of the above option resources from 48% to 93% for the cost of power. (On a wind generation basis) Overall, this would not be a prudent investment for the City. Bernie Ziemianek Public Utilities Director · · · · · · ell II II ~ --- I/ PU!AA JelOS SgAe~ ueaoo se9 II!jpue-I oJp/~H lewJaqloa9 se9 J~ls~6!O sseLuo!8 , r , 61,0~ Z.I,O~ gl, O~ 600~ , ZO0:~ gO0~ ~00~ I, OOg 6661, /..661, g661, · · · · · · 0 r~ 0 iN] §aoa ~aoa ~aoa 6~oa z~oa §~o~ ~oa 6ooa zooa 0 0 0 0 0 0 qMIN/$ · · · · · · · · · · 0 ;> ITEM NO. 8b DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: DISCUSSION REGARDING SALES TAX BALLOT MEASURE At the recent budget workshop the Council requested that a draft Ordinance be prepared regarding a sales tax measure based on Council's previous discussion. This item is reagendized for a discussion of a possible advisory measure, to determine the wording and whether a sunset clause should be included and if so, how many years. The Council tentatively agreed to place a general allocation tax measure on the ballot for the election to be held in June 2005 for ½ cent which requires only 51% of the popular vote. RECOMMENDED ACTION: Discuss Sales Tax Measure and provide direction to staff. ALTERNATIVE COUNCIL POLICY OPTIONS: Decide to defer this discussion and provide alternate direction to staff. Citizen Advised: Requested by: Prepared by: Attachments: Council Candace Horsley, City Manager 1. Draft Ordinance adopting Chapter 8C of Division 1 of the Ukiah City Code imposing a transactions and use tax to be administered by the State Board of Equalization. A p p ROVE D: ~.----'"["~~'"'~('~--~_ Candace Horsley, ~,y Manager ATTACHMENT 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF COUNCIL OF THE CITY OF UKIAH ADOPTING CHAPTER 8C OF DIVISION 1 OF THE UKIAH CITY CODE IMPOSING A TRANSACTIONS AND USE TAX TO BE ADMINISTERED BY THE STATE BOARD OF EQUALIZATION The City Council of the City of Ukiah hereby ordains as follows: A new Chapter 8C of Division 1 is hereby added to the Ukiah City Code to read as follows: Article 1. General. {}1735: TITLE: This ordinance shall be known as the City of Ukiah Transactions and Use Tax Ordinance. The City of Ukiah hereinafter shall be called "City." This ordinance shall be applicable in the incorporated territory of the City. §1736: OPERATIVE DATE: "Operative Date" means the first day of the first calendar quarter commencing more than 110 days after the adoption of this ordinance, the date of such adoption being as set forth below. §1737: PURPOSE: This ordinance is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes: A. To impose a retail transactions and use tax as authorized by Revenue and Taxation Code Section 7285.91 in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2 which authorizes the City to adopt this tax ordinance which shall be effective and operative if a 2/3 majority of the City Council adopts this ordinance and a simple majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose. B. To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code. C. To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefor that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the California State Sales and Use Taxes. D. To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions ATTACHMENT 1 and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this ordinance. E. To raise revenue for the general fund purposes of the City of Ukiah as further provided herein. § 1738: CONTRACT WITH STATE: Prior to the operative date, the City shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the State Board of Equalization prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract. Article 2. Transactions and Use Tax {}1739: TRANSACTIONS TAX RATE: For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated and unincorporated territory of the City at the rate of one-half of one percent (.5%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this ordinance. §1740: PLACE OF SALE: For the purposes of this ordinance, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization. §1741: USE TAX RATE: An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and aider the operative date of this ordinance for storage, use or other consumption in said territory at the rate of one-half of one percent (.5%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made. §1742: ADOPTION OF PROVISIONS OF STATE LAW: Except as otherwise provided in this ordinance and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this ordinance as though fully set forth herein. §1743: LIMITATIONS ON ADOPTION OF STATE LAW AND COLLECTION OF USE TAXES: In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code: ATTACHMENT 1 A. .Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. However, the substitution shall not be made when: 1. The word "State" is used as a part of the title of the State Controller, State Treasurer, State Board of Control, State Board of Equalization, State Treasury, or the Constitution of the State of California; 2. The result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this Ordinance. 3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to: a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or; b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code. 4. In Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code. B. The word "City" shall be substituted for the word "State" in the phrase "retailer engaged in business in this State" in Section 6203 and in the definition of that phrase in Section 6203. §1744: PERMIT NOT REQUIRED: If a seller's permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor's permit shall not be required by this ordinance. §1745: EXEMPTIONS AND EXCLUSIONS: A. There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Bums Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax. B. There are exempted from the computation of the amount of transactions tax the gross receipts from: 1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the County in which the sale is 3 ATTACHMENT 1 made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government. 2. Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carder for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the City shall be satisfied: a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Chapter 2 of Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and b. With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address. 3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance. 4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this ordinance. 5. For the purposes of subsections (3) and (4) of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. C. There are exempted from the use tax imposed by this ordinance, the storage, use or other consumption in this City of tangible personal property: 1. The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance. 2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California. 3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance. 4 ATTACHMENT I 4. If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this ordinance. 5. For the purposes of subsections (3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. 6. Except as provided in subparagraph (7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer. 7. "A retailer engaged in business in the City" shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Chapter 2 of Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City. D. Any person subject to use tax under this ordinance may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax. Article 3. Permissible Uses of Transactions and Use Tax §1746. USES OF TAX: The revenues generated by this tax shall be deposited in the General Fund of the City of Ukiah and may be used for the general governmental purposes of the City of Ukiah. Article 4. Miscellaneous §1747: AMENDMENTS: All amendments subsequent to the effective date of this ordinance to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this ordinance, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this ordinance. ATTACHMENT 1 {}1748: ENJOINING COLLECTION FORBIDDEN: No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection under this ordinance, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected. SECTION THREE 1. SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. The City Council hereby declares that it would have adopted this Ordinance and any section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared unconstitutional or otherwise invalid. 2. EFFECTIVE DATE. This ordinance relates to the levying and collecting of the City transactions and use taxes and shall take effect immediately upon its approval by the voters as provided in Section 1737.A. Approved on Council: 2005 by the following roll call vote of the Ukiah City AYES: NOES: ABSENT: ABSTAIN: Mark Ashiku, Mayor ATTEST: Made Ulvila, City Clerk ITEM NO: 9a DATE: February 16, 2005 AGENDA SUMMARY REPORT SUB3ECT: APPROVAL OF CONSULTANT SERVICES CONTRACT FOR THE PREPARATION OF AN ENVZRONMENTAL IMPACT REPORT FOR THE UKZAH AND MZLLVIEW COUNTY WATER DZSTRZCT WATER RIGHTS PERMITS/LICENSES AMENDMENT PRO3ECT SUMMARY: The City and Millview County Water District are seeking professional consultant assistance to prepare an Environmental :Impact Report (ETR) to evaluate the potential environmental impacts associated with the petitions by the City and Millview to amend their water rights permits and licenses. The proposed amendments will address incidental changes to the service area boundaries, purpose of water use, and changes to and addition of points of diversion (points of extraction) that have occurred since the time the Permits and Licenses were issued. Additionally, the water right Permits held by the City and Millview have expired and petitions have been filed to request additional time in which to perfect the full beneficial use of water under the Permits. After seeking proposals from qualified consultants to prepare the El:R, Staff selected the firm of Leonard Charles and Associates. A consultant services contract has been prepared and is ready for City Council review and approval (Attachment No. 1). (Continued on page 2) RECOMMENDED AC'ri:ON: Approve the contract with Leonard Charles and Associates for the preparation of an EZR for the Water Rights Permit Amendment Project. ALTERNATZVE COUNCIL POLICY OP'I'ZON: Do not approve the contract and provide direction to Staff. Citizens Advised: N/A Requested by: Charley Stump, Director of Planning and Community Development and Bernie Ziemianek, Director of Public Utilities Prepared by: Charley Stump, Director of Planning and Community Development Coordinated with: Candace Horsley, City Manager, Bernie Ziemianek, Director of Public Utilities, and David Rapport, City Attorney Attachments: 1. Draft Contract APPROVED: Candace Horsley, city M~oager BACKGROUND: Staff sent Request for Proposals to three (3) qualified consulting firms, and all three submitted detailed proposals to prepare the E[R. After careful review of the proposals by City Staff and the City Attorney, which involved an evaluation of the expertise of the firms, their approach to the project, the timeline for completion, and their proposed costs, the firms were ranked in order of preference. Leonard Charles and Associates ranked number one, and has agreed in principal to perform the work according to its proposal. BZD PROPOSALS: Three qualified consulting firms submitted detailed bids to prepare the E]:R. Below is a Table listing those firms, their timelines for completing the work, and their proposed costs. Name of Firm Leonard Charles & Assoc EDAW Analytical Environmental Services Time to Complete EZR 6.5 months 8 months 8.5 months Cost to Prepare EZR $51,530 $111,278 $95,000 Leonard Charles and Associates has proposed to complete the project quicker and at less of a cost than the other two firms. In addition, they have a tremendous amount of experience in, and knowledge of the Ukiah Valley having prepared many important environmental documents for the City and Mendocino County. The firm is currently preparing the Environmental Impact Report for IVlendocino County's Ukiah Valley Area Plan. COST SHARZNG: The Millview County Water District has agreed to pay one-half of the cost of the Environmental Tmpact Report. RECOMMENDA'll:ON: Approve the contract with Leonard Charles and Associates for the preparation of an EIR for the Water Rights Permit Amendment Project. AGENDA ITEM NO: 9 b MEETING DATE: February 16, 2005 SUMMARY REPORT SUBJECT: APPROVE RESOLUTION FOR MEMBERSHIP IN THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY (CSCDA), AND APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF AN AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT AND RELATED DOCUMENTS WITH RESPECT TO MEMBERSHIP THEREIN, AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH. The City of Ukiah has prepared this Resolution to become a member of the California Statewide Communities Development Authority (CSCDA). CSCDA is a joint powers authority sponsored by the League of California Cities and the California State Association of Counties. The member agencies of CSCDA include approximately 230 cities and 54 counties throughout California. The City of Ukiah will become a member by adopting this resolution provided by CSCDA and executing the applicable Joint Powers Agreement at no cost to the City. Later in the Agenda, a Resolution will be presented to participate in a special bond issue sponsored by CSCDA for its members, which will result in a one-time cash receipt of at least $240,000 from the sale of an obligation of the State of California to repay "backfill" payments for Vehicle License Fee payments accrued in the fall of 2003. RECOMMENDED ACTION: Direct City Manager and Staff to sign Resolution and Joint Exercise Of Powers Agreement and related documents with respect to membership in CSCDA. ALTERNATIVE COUNCIL POLICY OPTIONS: Provide alternative direction to staff. Citizens Advised: Prepared by: Coordinated with: Attachments: Mike McCann, Finance Director Candace Horsley, City Manager 1. Resolution Approving, Authorizing and Directing Execution of an Amended and Restated Joint Exercise of Powers Agreement relating to the CSCDA Ap p rove d :,..~ _ ~'~'~,'~¢~'~'~~.. Candace Horsley, City r~nager Background Vehicle License Fees and VLF Gap Repayment: Vehicle license fees ("VLF") were historically assessed in the amount of 2% of a vehicle's depreciated market value for the privilege of operating a vehicle on California's public highways. Beginning in 1999, the VLF paid by vehicle owners was offset (or reduced) to the effective rate of 0.65%. In connection with the offset of the VLF, the Legislature authorized appropriations from the State General Fund to "backfill" the offset so that local governments, which receive all of the vehicle license fee revenues, would not experience any loss of revenues. The legislation that established the VLF offset program also provided that if there were insufficient State General Fund moneys to fully "backfill" the VLF offset, the percentage offset would be reduced proportionately (i.e., the license fee payable by drivers would be increased) to assure that local governments would not be disadvantaged. In June 2003, the Director of Finance under the Davis Administration ordered the suspension of VLF offsets due to a determination that insufficient State General Fund moneys would be available for this purpose, and, beginning in October 2003, the VLF paid by vehicle owners were restored to the 2% level. However, the offset suspension was rescinded by Governor Schwarzenegger on November 17, 2003, and State offset payments to local governments resumed. Local governments received "backfill" payments totaling $3.80 billion in FY 2002-03. "Backfill" payments totaling $2.65 billion were paid to local governments in FY 2003-04. However, approximately $1.2 billion was not received by local governments during the time period between the suspension of the VLF offsets and the implementation of higher fees and is still owed them by the State (the "VLF Gap Repayments"). The City's share of the VLF Gap Repayment is $268,433.89 (the "VLF Receivable"). As part of the 2004 Budget Act negotiations, an agreement was made between the State and local government officials (the "State-local agreement") under which the VLF rate will be permanently reduced from 2% to 0.65%. The State-local agreement also provides for the repayment by August 15, 2006 of the approximately $1.2 billion VLF Gap Repayment. In order to protect local governments, the reduction in VLF revenue to cities and counties from this rate change will be replaced by an increase in the amount of property tax they receive. Under the State-local agreement, for FY 2004-05 and 2005-06 only, the replacement property taxes that cities and counties receive has been reduced by $700 million. Commencing in FY 2006-07, local governments will receive their full share of replacement property taxes and those replacement property taxes will now enjoy constitutional protection against transfers by the State due to the approval of Proposition lA at the November 2004 election. Staff is recommending approval of attached Resolution for City of Ukiah's membership in the California Statewide Communities Development Authority (CSCDA) and authorize the City Manager and related Staff to execute Joint Exercise of Powers Agreement. RESOLUTION NO. ^TTACHMENT__.~ RESOLUTION APPROVING, AUTHORIZING AND DIRECTING EXECUTION OF AN AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY WHEREAS, the City of Ukiah, California (the "City"), has expressed an interest in participating in the economic development financing programs (the "Programs") in conjunction with the parties to that certain Amended and Restated Joint Exercise of Powers Agreement Relating to the California Statewide Communities Development Authority, dated as of June 1, 1988 (the "Agreement"); and WHEREAS, there is now before this City Council the form of the Agreement; and WHEREAS, the City proposes to participate in the Programs and desires that certain projects to be located within the City be financed pursuant to the Programs and it is in the public interest and for the public benefit that the City do so; and WHEREAS, the Agreement has been filed with the City, and the members of the City Council of the City, with the assistance of its staff, have reviewed said document; NOW, THEREFORE, BE IT 'RESOLVED BY THE CITY COUNCIL OF THE CITY OF UKIAH AS FOLLOWS: Section 1. The Agreement is hereby approved and the Mayor or the City Manager or designee thereof is hereby authorized and directed to execute said document, with such changes, insertions and omissions as may be approved by said Mayor or City Manager, and the City Clerk or such Clerk's designee is hereby authorized and directed to affix the City's seal to said document and to attest thereto. Section 2. The Mayor, the City Manager, the City Clerk and all other proper officers and officials of the City are hereby authorized and directed to execute such other agreements, documents and certificates, and to perform such other acts and deeds, as may be necessary or convenient to effect the purposes of this .Resolution and the transactions herein authorized. Section 3. The City Clerk of the City shall forward a certified copy of this Resolution and an originally executed Agreement to: Angie Sessions Orrick, Herrington & Sutcliffe LLP 400 Capital Mall, Suite 3000 Sacramento, California 95814 DOCSSC1:349443.1 Section 4. This resolution shall take eff'ect immediately upon its passage. ADOPTED by the City Cotmcil of the City of Ukiah at a regular meeting of said Council held on the ~ day of ,2005, by the following vote: AYES: NOES: ABSENT: ATTEST: City Manager City Clerk DOCSSC 1:349443.1 2 AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY : THIS AGREEMENT, dated as of June 1, 1988, by and among'the parties executing this Agreement (all such .parties, except those which have withdrawn in accordance with Section 13 hereof, being herein referred to as the "Program Participants'"): WITNESSETH o. WHEREAS, pursuant to Title 1, Division 7, Chapter.5 of the Government Code of the State of California (the 'Joint Exercise of Powers Act"), two or more public agencies may by agreement jointly exercise'any power common to the contracting parties; and WHEREAS, each of the Program Participants is a 'public.agency' as that term is defined in Section 6500 of the Government Code of the State of California, and WHEREASi each of the Program Participants is empowered to promote economic development, including, without limitation, the promotion of opportunities for the creation or retention of employment, *the stimulation of economic activity, and the increase of the tax base, within its boundaries; and WHEREAS, a public entity established pursuant to the Joint Exercise of Powers Act is empowered to issue industrial development' bonds pursuant to the California Industrial Development Financing Act (Title 10 (commencing with Section 91500 of the Government Code of the State of California)) (the 'Act") and to otherwise undertake ~inancing programs under the Joint Exercise of Powers Act or other applicable provisions of law to promote economic development. · through the issuance of bondS, notes, or other evidences of indebtedness, or certificates of participation in leases or other agreements (all such instruments being herein collectively referred to as 'Bonds'); and · WHEREAS, in order to promote economic development within the State of California, the COunty Supervisors Association of California (~CSAC'), together with the California Manufacturers Association, has established the Bonds for Industry program (the 'Program'). WHEREAS, in furtherance of the Program, certain California counties (collectively, the 'Initial Participants") have entered into that certain Joint Exercise of Powers Agreement dated as of November 18, 1987 (the '~nitial ' Agreement'), pursuant to which the California Counties Industrial Development Authority has been established as a separate entity under the Joint Exercise of Powers Act for the purposes and with the powers specified in the Initial Agreement; and WHEREAS, the League of California Cities ("LCC") has determined to join as a sponsor of the Program and to actively participate in the administration of the Authority; and WHEREAS, the Initial Participants have determined to specifically authorize the Authority to issue Bonds pursuant .to Article 2 of the Joint Exercise of Powers Act ("Article 2") and Article 4 of the Joint Exercise of Powers Act ("Article 4"), as well as may be.authorized by the Act or. other applicable law; and : WHEREAS, the Initial Participants desire to rename the California Counties Industrial Development. Authority to better reflect the additional Sponsorship of the Program;.and WHEREAS, each of the Initial Participants has determined that it is in the public interest'of the citizens within its boundaries, and to the benefit of such Initial Participant and the area and persons served by such Initial Participant, to amend and restate in its entirety the Initial Agreement in.order to implement the provisions set forth 'above; and WHEREAS, 'it is the desire of the Program Participants to use a public entity established pursuant to the Joint Exercise of Powers Act to undertake projects within their respective jurisdictions that may be financed with Bonds issued pursuant to the Act, Article 2, Article 4, or other applicable provisions of law; and · WHEREAS, the projects undertaken will result in significant pUblic benefits, including those public benefits set fort'h in Section 91502.1 of the Act, an increased level of economic activity, or an increased tax base, and will. therefore serve and be of benef[t to the inhabitants of the jurisdictions of the Program Participants; NOW, THEREFORE, the Program Participants, for and in consideration of the mutual promises and agreements, herein contained, do agree to restate and amend the Initial Agreement in its entirety to provide as follows: Sect ion 1. Purpose. This Agreement is made pursuant to the provisions of the Joint Exercise of Powers Act, relating to the joint exercise of powers common to public agencies, in this case being the Program Participants. The Program Participants each possess the powers referred to in the recitals hereof. The purpose of this Agreement is to establish an agency for, and with the purpose of, issuing Bonds to finance projects within the territorial limits of the Program Participants pursuant to the Act, Article 2, Article 4, or other appliable provisions of law; provided, however that nothing in this Agreement shall be construed as a limitation on the rights of the Program Participants to pursue economic development outside of this Agreement, including' the rights to ~issue Bonds through industrial development authorities under the Act, or a~ otherwise permitted by law. Within the various jurisdictions of the Program Participants such purpose will be accomplished and said powers. exercised in the manner hereinafter set forth. Section 2. Term. This Agreement shall become effective as of the date hereof and shall continue in full force and effect for a period of forty'(40) years from the date hereof, or until such time as it is terminated in writing by all. the Program Participants; provided, however, that this Agreement shall not terminate or be terminated until the date on which all Bonds or other indebtedness issued or caused to be issued by the Authority shall have been retired, or full provision shall have been made for their retirement, including interest until their retirement date.. Sect ion 3. Authority. A. CREATION AND POWERS OF AUTHORITY. (1) Pursuant to the Joint Exercise of Powers Act, there is hereby created a public entity to be known as the "California Statewide Communities Development Authority" (the "Authority"), and said Authority shall be a public entity separate and apart from the Program Participants, Its debts, liabilities and obligations do not constitute debts, liabilities or obligations of any party to this Agreement. B. COMMISSION. The Authority shall be administered by a Commission (the "Commission") which shall consist of seven members', each serving in his or her individual capacity as a member of the Co.?~ssion. The Con%mission shall be the administering agency of this Agreement, and, as such, shall be vested with the powers s.et forth herein,, and shall execute'and administer-this Agreement in accordance with the purposes and functions provided herein. Four members of the Commission shall'be appointed by ~h~.._g_over~ning_~.y ~~SAC-and-~-h~ee-members_of__the_Commiss_i~n ........ shall be appointed by the governing body of LCC. Initial members of the Commission shall serve a term ending June l, 1991. Successors to such members shall be selected in the manner in which the respective initial member was selected and shall serve a term of three years. Any appointment to fill an unexpired term, however, shall be for such unexpired term. The term of office, specified above shall be applicable'%nless the term of office of the respective member is terminated as hereinafter provided, and provided-that the term of any member shall not expire until a successor thereto has bee~ appointed as provided herein. Each of CSAC and LCC may appoint an alternate member of the Commission for each member 'of the Commission which it appoints. Such alternate member may act as a member of the Commission in place of and during the absence or disability of such regularly appointed member. All references in this Agreement to any-member of the Commission shall be deemed to refer to and include the applicable .alternate member when so acting in place, of a regularly appointed member. Each member or alternate member of the Commission may be removed and replaced at any time by the governing body by which such member was appointed. Any individual, including any member of the governing body or staff of CSAC or LCC, shall be eligible to serve as a member or alternate member of the Commission. Members. and alternate members of the Commission shall not receive any compensation for serving as such but shall be entitled to reimbursement for any expenses actually incurred in connection with serving as a member or alternate member, if the Commission s. hall determihe that such expenses shall be reimbursed and there are unencumbered funds available for such purpose. C. OFFICERS; DUTIES; OFFICIAL BONDS. The Commission shall elect a Chair, a Vice-Chair, and a Secretary of the Authority from amon~ its members to serve for such term as shall be determined by the Commission. The Commission shall appoint one or more of its officers or employees to serve as treasurer, auditor, and controller of the Authority (the "Treasurer") pursuant to Section 6505.6 of the Joint Exercise of Powers Act to serve for such term.as shall be determined by the Commission. . Subject to the applicable provisions of any resolution, indenture or other instrument or proceeding authorizing or securing Bonds (each such resolution, indenture, instrument and proceeding being herein referred to as an "Indenture") providing for a trustee or other fiscal agent, the Treasurer is designated as ~he depositary'of the Authority to have custody of all money of the Authority, from whatever source derived. The Treasurer of the Authority shall have the powers, duties and responsibilities specified in oo Section 6505.5 of the Joint Exercise of Powers Act. The Treasurer of the Authority is designated as the public officer or person who has charge of, handles, or has access to any property of the Authority, and such officer shall file an official bond with the Secretary of the Authority in the amount specified by resolution of the Commission but in no event less than $1,000. If and to the extent permitted by law, any such officer may satisfy this requirement by filing an official bond in at least said amount obtained in connection with another public office. ' The Commission shall have the power to appoint such other officers and employees as it may deem necessary and tO retain independent counsel, consultants and accountants. -. The. Commission shall have the power, by resolution,. to the extent permitted by the Joint Exercise of Powers Act or any other applicable.law, to delegate any of its functions to one or more of the members 'of the Commission or officers or agents of the Authority and to cause any of said members, officers or agents to take any actions and .execut· .any . documents or instruments for and in the name and on behalf of the Commission or the.Authority. D. MEETINGS OF THE COMMISSION. (1) Regular Meetings. The Commission shall provide for its regular meetings; provided, however, it shall hold at least one regular meeting each year. The date, hour and place of the holding of the. regular meetings shall be fixed by resolution of the Commission and a copy of such resolution shall be filed with each party hereto. (2) Special Meetingp. Special meetings of the Commission may be called in accordance with the provisions of Section 54956 of the Government Code of the State of California. . ' (3) Ralph M. Brown Act. All meetings of the Commission, including, without limitation, regular, adjourned regular, special, and adjourned special meetings shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the Government Code of the State of California). . (4) Minutes. .. The Secretary of the Authority shall cause to be kept minutes of the regular, adjourned regular, special~ and adjourned special meetings of the Commission and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Commission. ( 5 ) Quo rum. A majority of the members Df the Commission which includes at-least one member appointed by the governing body of each of CSAC and LCC shall constitute a. guorum for the transaction of business. No action may be taken by the Commission except upon the affirmative vote of a majority of the members of the Commission which incudes at least one member appointed by the governing body of each of CSAC and LCC, except that less than a quorum may adjourn a meeting to another time and place. E. RULES AND REGULATIONS. The Authority may adopt, from time to time, by resolution of the Commission such rules and regulations for the conduct of its meetings and .affairs as may be' required' · Section 4. Powers. The. Authority shall have any-and all'powers relating to economic development authorized by law to each-of the parties hereto and separately to the public entity herein created, including, without limitation, the promotion of opportunities for the creation and retention of employment, the stimulation of 'economic activity, and the increase.of the tax base, within the jurisdictions, of'such parties.~ Such powers shall include the con%mon powers specified in this 6 Agreement and may be exercised in the manner and according to the method provided in this Agreement. All such powers common to the parties are specified as powers of the Authority; The Authority is hereby authorized to do all acts necessary for the exercise of such powers, including, but not limited any or all of the following: to make and enter into contracts; to employ agents and employees; to acquire, construct, provide for maintenance and operation of, or maintain and operate, any buildings, works or improvements; to acquire, hold or dispose of property wherever located; to incur debts, liabilities or obligations; to receive.gifts, contributions and donations of property, funds, serv.ices and other forms of assistance from persons, firms, corporations and any governmental entity; to sue and be sued in its own name; and generally to do any and all things necessary or convenient to the promotion of economic development, including without limitation the promotion of opportunities for'the creation or retention of employment, the stimulation of · economic activity, and the increase of the tax base, all as .herein contemplated. Without limiting the generality of the foregoing, the Authority may issue or cause to be issued. bonded and other indebtedness, and pledge any property or revenues as security to the extent permitted under the Joint Exercise of Powers Act, including Article 2 and Article 4, the Act or any other applicable provision of law. The manner in which the Authority shall exercise its powers and perform its duties is and shall be subject to the restrictions' upon the manner in which a California county could exercise such powers and perform such duties until a California general law city shall become a Program Participant, .at which time it'shall be subject to the restrictions upon. the manner in which a California general law city could exercise such powers and perform such duties. The manner in which the Authority shall exercise its powers and perform its duties shall not be subject to any restrictions applicable to the manner in which any other public .agency could exercise such powers or perform such duties, whether such agency is a party to this Agreement or not. Sect ion 5. Fiscal Year. For the purposes of this Agreement, the. term 'Fiscal Year' shall mean the fiscal year as established from time to time by. the Authority, being, at the date of this Agreement, the period from July 1 to and including the following June 30, except four the first Fiscal Year which shall be the period from the date of this Agreement to June 30, 1988. Section 6. Disposition of Assets. At the end of the term'hereof or upon the earlier termination of this Agreement as set forth in .Section 2 hereof, after payment of all expenses and liabilities of the Authority, all property of the Authority both real and personal shall automatically vest in the-Program Participants and shall thereafter remain the sole property of the Program Participants; provided, however, that any surplus money on hand shall be returned in proportion to the contributions made by the Program Participants. section 7. Bonds. The Authority shall issue Bonds for the purpose of exercising.its powers and raising the funds necessary to carry out its purposes under-this Agreement. Said Bonds may, at the discretion of Authority, be issued in series. The services of bond counsel, financing consultants and other consultant's and advisors working on the projects and/or their financing shall be used by the Authority. The fees and expenses of such .counsel, consultants, advisors, and the expenses of CSAC, LCC, and the Commission shall be paid from the proceeds of the Bonds or any other unencumbered funds of the Authority available for such purpose. Section 9. Local Approval. A copy of the application for financing of a project shall be filed by the Authority with the Program Participant in whose jurisdiction the project is to be located. The. Authority shall not issue Bonds with respect to any project unless the governing body of the Program Participant in Whose jurisdiction the project is to be located, or its duly authorized designee, shall approve, conditionally or unconditionally, the project, including the issuance of 'Bonds therefor. Action to approve or disapprove a project $hall be taken within 45 days of the filing with the Program Participant. Certification of approval'or disapproval shall be made by the clerk of the governing body of the Program Participant', or Dy such other officer as may be designated by the applicable Program Participant, to the Authority.. Section 8. Bonds Only Limited and Special Obligations of Authority. The Bonds, together with the interest and premium, if any, thereon, shall not be deemed to constitute a .debt of any Program Participant, CSAC, or LCC or pledge of .the faith and credit of the Program Participants, CSAC, LCC, or the Authority. The Bonds shall be only special obligations of the Authority, and the Authority shall under no circumstances be obligated to pay the Bonds or the respective project costs except from revenues and other funds pledged'therefor. Neither the Program Participants, CSAC, LCC, nor the Authmrity shall be obligated to pay the principal of, premium, if any, or interest on the Bonds, or other costs incidental thereto, except from the revenues and' funds pledged therefor, and neither the faith and credit nor'the taxing power of the Program Participants nor the faith and credit of CSAC, LCC, or the Authority shall be pledged to the payment of the principal of, premium, if any, or interest on the Bonds nor shall the Program Participants, CSAC, LCC, or the Authority in any manner be obligated to make any appropriation for such payment.. No covenant or agreement contained in any Bond or Indenture shall be deemed to be a covenant or agreeme~k of any member of 'the Commission, or any officer, agent or employee of the Authority in .his individual capacity and neither the Commission of the Authority nor any officer thereof executing. the Bonds shall be liable personally on any Bond or be subject to any personal liability or accountability by reason of the issuance of any Bonds. Section 10. Accounts and Reports. Ail funds of the'Authority shall be strictly accounted for. The Authority shall establish and maintain such funds and accounts as may be required by good accounting practice and by'any provision of any indenture (to the extent such duties are not assigned to a trustee of Bonds). The books and records, of the Authority Shall be open to inspection at all reasonable times by each Program Participant. The Treasurer of the Authority shall cause an independent audit to be made of the boors of accounts and financial records of the Agency by a certified public accountant or public accountant in compliance with the provisions of Section 6505 of the Joint Exercise of Powers Act. In each case the minimum requirements of the audit shall be those prescribed by the State Controller for special districts u'nder Section 26909 of the Government Code of the State of California and shall conform to generally accepted auditing standards. When such an audit of accounts and records is made by a.certified public accountant or public accountant, a report thereof shall be filed as public records with each Program Participant and also with the county auditor of each county in which a Program Participant is located. Such report shall be filed within 12 months of the end of the Fiscal Year or Years under examination. Any costs of the audit, including contracts with, or employment of, certified public accountants or public accountants in making an audit pursuant to this Section, 'shall be borne by the Authority and shall be a charge against any unencumbered funds of the Authority available for that purposel In any Fiscal Year the Commission may, by resolution adopted by unanimous vote, replace the annual ~pecial audit . with an audit covering a two-year period. The Treasurer of the Authority, within 120 days after the close of each Fiscal Year, shall give a complete written report of all financial activities for such Fiscal Year to each of the Program Participants to the extent such activities are not covered by the reports of the trustees for the Bonds. The trustee appointed under each Indenture'~hall establish suitable funds, furnish financial reports and provide suitable accounting procedures to carry out the provisions of said Indenture. Said trustee may be given such duties in said Indenture as may be desirable to carry out this Agreement. Section 11. Funds. Subject to the applicable provisions of each Indenture, which may provide for a trustee to receive, have custody of and disburse Authority.-funds, the Treasurer of the Authority shall receive, have.the custody of and disburse Authority funds pursuant to the accounting procedures developed under Section 10 hereof, and shall make the disbursements required by this Agreement or otherwise necessary to carry out any of the provisions or purposes of this Agreement. Sect ion 12. Not ices. Notices and other communications hereunder to the Program Participants shall-be sufficient if.delivered to the clerk of the governing body of each Program Participant. Section 13. Withdrawal and Addition of Parties. A Program Participant may withdraw from this Agreement upon written notice to the Commission; provided, however, that no such wi%hdrawal shall result in the dissolution of the Authority so long as any Bonds remain outstanding under an Indenture. Any such withdrawal shall be effective only upon receipt of the notice of withdrawal by the Commission which shall acknowledge .receipt of such notice of withdrawal in writing and shall file such notice as an amendment to this Agreement effective upon Such filing. 10 Qualifying public agencies may be added as parties to this Agreement and become Prog[am Participants upon: (i) the filing by such public aqency of an executed counterpart'of this Agreement, together with a certified copy of the . resolution of the governing body of such public agency approving this Agreement and the execution and delivery hereof; and (ii) adoption of a resolution of the Commission approving the addition of such public agency as a Program Participant. Upon satisfaction of such conditions, the Commission shall file such executed counterpart of this' Agreement as an amendment hereto, effective upon such filing. Section 14. Indemnification. To the full extent permitted by.law, the Commission may authorize indemnification by the Authority of any--person who is or was a member or alternate member of the Commission, or an officer, employee or other agent of the Authority, and who was or is. a party or is threatened to be made a party to a proceeding by reason of the fact that such person is or was such a member or alternate member of the Commission, or an officer, employee or other agent of the Authority, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, if such person acted in good faith and in a manner such person reasonably believed to.be in the best interests of the Authority and, in the case of a criminal proceeding, had 'no reasonable cause to believe the conduct of such person was unlawful and, in the c~se of an action by or in the right Of the Authority, acted with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. Section 15. Contributions. and Advances. Contributions or advances of public funds and of the use of personnel, equipment or property may be made to the Authority by the parties hereto for any of .the .pur[~o-ses of. this Agreement. Payment of public funds may be made to defray the cost of any such contribution. Any such advance-may be made subject to repayment, and in such case shall be repaid, in the manner agreed upon by the AUthority and the party making such advance at the'time of.such advance. Section 16. Immunities. Ail of the privileges and immunities from liabilities, exemptions from laws, ordinances and rules., all pension, relief, disability, workers' compensation, and other- benefits which apply to the activity of officers, agents or employees of Program Participants when performing their 11 respective functions within the territorial limits of their respective public agencies, shall apply to them to the same 'degree and extent while engaged ms members of the Commission or otherwise as an officer, agent or other representative of the Authority or while engaged in the performance of any of their functions or duties extraterritorially under the provisions of this Agreement. Section 17. Amendments. Except as provided in Section 13 above, this Agreement shall not be amended, modified, or altered except by a written instrument duly executed by each of the Program Participants. · Section 18. Effectiveness. This Agreement .shall become effective and be in full force and effect and a legal, valid and binding obligation of. each of the Program Participants at 9:00 a.m., California time, on 'the date that' the Commission shall have 'received from each of the~Initial Participants an executed counterpart of this Agreement, together with a certified copy of a resolution of the governing body of each such Initial Participant approving this Agreement and the execution and delivery hereof. Section 19. Partial Invalidity. If any one or more of the terms, provisions, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions,. promises, covenants and conditions of this Agreement shall not be affected thereby, and shall be valid and enforceable to the fullest extent'permitted by law. Sect ion 20. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the parties hereto. Except to the extent expressly provided herein,-no party may assign any right or obligation hereunder without the. consent of the other parties. Section 21. Miscellaneous. This Agreement may be executed in several counterparts,'each of Which shall be an origihal and all of which shall constitute but one and the same instrument. 12 The section headings herein are for comvenience only and are not to be construed as modifying or governing the language in the section referred to. Wherever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld. This Agreement is made in the State of California, under the Constitution and laws of such state and is to be so construed. This Agreement is the complete and exclusive statement of the agreement among the parties hereto, .which. supercedes and merges all prior proposals, understandings, and other agreements, including, wit'hout limitation, the Initial Agreement, whether oral, written, or implied in conduct, between and among the parties relating to the subject matter of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested b~ their proper officers thereunto duly authorized, and their official seals' to be hereto affixed, as of the day and year first above written. Program Pa'rticipant: [SEAL] ATTEST: Hame: Title: Name: Title: 13 AGENDA ITEM NO: 9c MEETING DATE: February 16, 2005 SUMMARY REPORT SUBJECT: APPROVE RESOLUTION FOR THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF A PURCHASE AND SALE AGREEMENT AND RELATED DOCUMENTS WITH RESPECT TO THE SALE OF CITY OF UKIAH'S VEHICLE LICENSE FEE RECEIVABLE FROM THE STATE; AND DIRECTING AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH. The City of Ukiah has prepared this Resolution to authorize participation in a special bond issue which will result in a one-time cash receipt of at least $240,000 from the sale of an obligation of the State of California to repay "backfill" payments for Vehicle License Fee payments accrued in the fall of 2003 Passed last November, Proposition lA obligated the State to pay this gap to us, creating a "receivable" with local governments, due by 2006, with an escape clause that gives them until 2008 if there is a financial emergency. This bond issue finances that receivable, in exchange for an immediate payment of at least 89.4% of the face amount, and making it the bondholders' problem to collect from the State. Bondholders will have no recourse to the City. This Agenda Item requests final and irrevocable action on the Resolution. (continued on page 2) RECOMMENDED ACTION: Direct Mayor, City Manager and Staff to sign Resolution, Purchase and Sale Agreement, and any other associated documents. ALTERNATIVE COUNCIL POLICY OPTIONS: Provide alternative direction to staff. Citizens Advised: Prepared by: Coordinated with: Attachments: Mike McCann, Finance Director Candace Horsley, City Manager 1. Mendocino County Board of Supervisors Agenda Item 6C 2. Resolution Approving the Form of and Authorizing the Execution and Delivery of a Purchase and Sale Agreement with Respect to the Sale of Seller's Vehicle License Fee Receivable from l, he~tate. Approve~;;~ % ~'~~'~ ~dace Horsley, Cit%nager Mendocino County Action (Attachment 1) On January 4, 2004 Dennis Huey, County Auditor-Controller, presented this item to the Board of Supervisors and received direction to. On February 8th Mr. Huey returned with the Resolution for action. Attachment 1 from their Agenda is attached for reference. Staff attended both Board meetings and noted the vigorous discussion between Mr. Huey and the Supervisors. No one was happy about the proposed sale of the receivable, but all seemed to share the same reservations about the State's ability to complete the scheduled repayment. In the end it was a four to one vote to approve the Resolution. The County has included a minimum sales price in their Resolution, requiring proceeds of at least 90% of the face value of the debt in order to go forward. City's Resolution includes a flat dollar amount $240,000, or 89.40% Pending Bond Sale The California Vehicle License Fee("VLF") Gap Repayment Program was instituted by the California Statewide Communities Development Authority ("CSCDA") in 2004, as authorized under SB 1096, to enable the California cities and counties to sell their respective VLF Receivables to CSCDA for an upfront fixed purchase price estimated to be 9+% of the VLF Gap Repayments. Ukiah's VLF Receivable is $268,433.89. Note: This is a one-time event. CSCDA is planning to issue notes ("VLF Notes") and to use the note proceeds to purchase the VLF Receivables and pay financing costs. The actual purchase price of the VLF Receivables will depend on the total amount of VLF Receivables that cities and counties sell to CSCDA and on bond market conditions at the time the VLF Notes are priced. If the City sells its VLF Receivable under the VLF Program, CSCDA will pledge the City's VLF Receivable to secure the repayment of a corresponding portion of the VLF Notes. The City's sale of its VLF Receivable will be irrevocable. Bondholders will have no recourse to the City if the State does not make the VLF Gap Repayment. Staff is recommending approval of attached Resolution authorizing Mayor, City Manager and Staff to execute and deliver a purchase and sale agreement with respect to the sale of the seller's vehicle license fee receivable from the State. Attachment # OMENDOClNO COUNTY BOARD OF SUPERVISORS AGENDA SUMMARY BOARD AGENDA Agenda Summaries must be submitted no later than noon Wednesday, 13 days prior to the meeting date TO: FROM: Board of Supervisors Administration DEPARTMENT RESOURCE: CAO RESOURCE: lay Hull lay Hun DATE: AGENDA DATE: PHONE: x-~a-~l Present PHONE: x-~l Present Tanuary 27, 2005 February 8, 2005 OnCan [--] On £all [--] Consent r-] Regular Agenda [~ Est. Time ~or Item: 20 min. Urgent ~ Routine Il 'AGENDA'TXTL£: P,-ESOLUTION ~PR0~G ~~0~ 0~ ALiTHQ~IN~ ~ EXECUTION AND: : :: ': :': ::. RECEiVABLEFROM::~t:STATE~:~D~C~ING;~:AUTI-IO~GCERTAIN OTHER [] PREVIOUS BOARD OR BOARD COMMITTEE ACTIONS: The Board of Supervisors heard this item on lanuary 4, 2005 and directed staff to file a preliminary indication of interest in the CSCDA VLF Gap Loan Financing Program and to come back before the Board with a cost-benefit analysis of the program. · SUMMARY: The Interim County Administrative Officer and County Auditor presented this item to the Board at their January 4, 2005 meeting. Staff has filed the preliminary indication of interest in the CSCDA VLF Gap Loan Financing Program as well as the cost-benefit analysis. Please see the attached staff report for additional information. [] ALTERNATIVES: Refer to a Board Committee for review. [] WILL PROPOSAL REQUIRE ADDITIONAL PERSONNEL? Yes* L_] Number *If yes, has this been through the Personnel Process? Yes [--] No No [-] Source of Funding N/A HSCAL IMPACT: i Current F/Y Cost I Annual Recurring Cost [ Budgeted in Current F/Y $140,000-$170,000 N/A lYes [__] No I[]. REcoMMENDED ACrIoN/MOTION:~e B6~d ofSup~isbr~ heiebYi:appr°V~S:the iReS:olUtiOn 'appr°vingthe form.°f:andauth°riz~g:thO:exeeuti6n~'~didelivle~ °f a purchase iand Sale' ~': agreement:.and: related'd0cment~. ~:'r~SPeCt :~0 m~:~§~:. Me~d~b C0~¢i slve~cle ::: :;: [] CAO RECOMMENDATION: Agree ¢~/~ Disagree [--[ No Opinion [_J Staff Report Attached BOARD ACKION Date of Action 1) Q Approved 3) Cl Denied 2) ~ Referred to 4) 121 Other Send 12 Complete Sets - Items must be cleared through Appropriate Departments and/or County Counsel Rev.02/00 Memo Date: Re: Board of Supervisors Jay Hull, Interim CAO 2/1/2005 Vehicle License Fees and VLF Gap Repayment Back.qround Vehicle License Fees and VLF Gap Repayment: Vehicle license fees ("VLF") were historically assessed in the amount of 2% of a vehicle's depreciated market value for the privilege of operating a vehicle on Califomia's public highways. Beginning in 1999, the VLF paid by vehicle owners was offset (or reduced) to the effective rate of 0.65%. In connection with the offset of the VLF, the Legislature authorized appropriations from the State General Fund to "backfill" the offset so that local governments, which receive all of the vehicle license fee revenues, would not experience any loss of revenues. The legislation that established the VLF offset program also provided that if there were insufficient State General Fund moneys to fully "backfill" the VLF offset, the percentage offset would be reduced proportionately (i.e., the license fee payable by drivers would be increased) to assure that local governments would not be disadvantaged. In June 2003, the Director of Finance under the Davis Administration ordered the suspension of VLF offsets due to a determination that insufficient State General Fund moneys would be available for this purpose, and, beginning in October 2003, the VLF paid by vehicle owners were restored to the 2% level. However, the offset suspension was rescinded by Governor Schwarzenegger on November 17, 2003, and State offset payments to local govemments resumed. Local govemments received "backfill" payments totaling $3.80 billion in FY 2002-03. "Backfill" payments totaling $2.65 billion were paid to local governments in FY 2003-04. However, approximately $1.2 billion was not received by local governments dudng the time pedod between the suspension of the VLF offsets and the implementation of higher fees and is still owed them by the State (the '¥LF Gap Repayments"). The County's share of the VLF Gap Repayment is $1,809,685 (the "VLF Receivable"). As part of the 2004 Budget Act negotiations, an agreement was made between the State and local government officials (the "State-local agreement") under which the VLF rate will be permanently reduced from 2% to 0.65%. The State-local agreement also provides for the repayment by August 15, 2006 of the approximately $1.2 billion VLF Gap Repayment. In order to protect local govemments, the reduction in VLF revenue to cities and counties from this rate change will be replaced by an increase in the amount of property tax they receive. Under the State-local agreement, for FY 2004-05 and 2005- 06 only, the replacement property taxes that cities and counties receive has been reduced by $700 million. Commencing in FY 2006-07, local governments will receive their full share of replacement property taxes and those replacement property taxes will now enjoy constitutional protection against transfers by the State due to the approval of Proposition lA at the November 2004 election. VLF Program: Authorized under SB 1096, the VLF Program was instituted by the Califomia Statewide Communities Development Authority ("CSCDA") in 2004 to enable the County and other cities and counties to sell their respective VLF Receivables to CSCDA for an upfront fixed purchase pdce estimated to be 90-92% of the VLF Gap Repayments. CSCDA is planning to issue notes ('¥LF Notes") and to use the note proceeds to purchase the VLF Receivables and pay financing costs. The actual purchase price of the VLF Receivables will depend on the total amount of VLF Receivables that cities and counties sell to CSCDA and on bond market conditions at the time the VLF Notes are priced. If the County sells its VLF Receivable under the VLF Program, CSCDA will pledge the County's VLF Receivable to secure the repayment of a corresponding portion of the VLF Notes. The County's sale of its VLF Receivable will be irrevocable. Bondholders will have no recourse to the County if the State does not make the VLF Gap Repayment. VLF Program Sponsor: CSCDA is a joint powers authority sponsored by the League of Califomia Cities and the California State Association of Counties. The member agencies of CSCDA include approximately 230 cities and 54 counties throughout California. Benefits of Participation in the VLF Program: The benefits to the County of participation in the VLF Program include: Immediate cash relief- the sale of the County's VLF Receivable is estimated to provide the County with approximately 90-92% of its VLF Receivable in eady 2005 which can be used to pay for immediate funding needs. Level cash fiow from the State over next two years - as explained above, in each of FY 2004-05 and 2005-06, cities and counties across the State will lose a total of $700 million annually in property tax payments to the Educational Revenue Augmentation Fund ("ERAP'), which benefits the State. Accordingly, the County is projected to lose approximately $998,000 in each such fiscal year. This loss in property tax revenue in FY 2004-05 and 2005-06 will be followed by an increase in revenues in FY 2006-07 due to the payment by the State of the VLF Gap Repayment and due to the cessation of ERAF payments in that year. If the County sells its VLF Receivable through the VLF Program, it can use the sale proceeds to offset the loss of revenues due to its property tax contributions over the next two years and eliminate the spike in revenues in the third year, thereby creating a more level cash flow in each of the next three fiscal years. Miti,qates. impact of property tax in-lieu of VLF swap over next two years - beginning in FY 2004- 05, the State will permanently eliminate the VLF backfill paid to the County and will replace it with an equal amount of property tax. While these actions are intended to cancel each other out, the County is now receiving these payments semi-annually as property taxes, rather than monthly as VLF backfill payments. This situation creates potential cash flow problems for the County which could be temporarily alleviated by selling the County's VLF Receivable. Budgetary flexibility in FY 2004-05 and 2005-06 - the sale of the County's VLF Receivable would provide additional revenues in FY 2004-05 which can be applied to resolve budgetary challenges in FY 2004-05 and 2005-06. Estimated Proceeds of the Sale of the County's VLF Receivable: Upon delivery of the VLF Notes, CSCDA will make available to the County its fixed purchase pdce. This payment will equal the County's VLF Receivable amount less capitalized interest costs (to pay interest on the VLF Notes until maturity), credit enhancement fees and bond issuance costs. As discussed above, the County's VLF Receivable is $1,809,685. The purchase price to be paid by CSCDA is estimated to be in the range of $140,000 - $170,000 but cannot be determined with specificity until the total number of participants in the VLF Program is known and bond market conditions are taken into account at the time the VLF Notes are pdced. · Page 2 Attachment # RESOLUTION NO. CITY COUNCIL OF THE CITY OF UKIAH A RESOLUTION APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELiVERY OF A PURCHASE AND SALE AGREEMENT AND RELATED DOCUMENTS WITH RESPECT TO THE SALE OF THE SELLER'S VEHICLE LICENSE FEE RECEIVABLE FROM THE STATE; AND DIRECTING AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH WHEREAS, certain public agencies within the State of California (the "State") are entitled to receive certain payments payable by the State to each such local agency on or before August 15, 2006, in connection with vehicle license fees pursuant to Section 10754.11 of the California Revenue and Taxation Code ("VLF Gap Repayments"); WHEREAS, the City of Ukiah (the "Seller") is entitled to and has determined to sell all right, title and interest of the Seller in and to the "VLF Receivable", as defined in Section 65850) of the California Government Code (the "VLF Receivable"), namely, the fight to payment of moneys due or to become due to the Seller out of funds payable in connection with vehicle license fees to a local agency pursuant to Section 10754.11 of the California Revenue and Taxation Code; WHEREAS, the California Statewide Communities Development Authority, a joint -exercise of powers authority organized and existing under the laws of the State (the "Authority"), has been authorized pursuant to Section 6588(w) of the California Government Code to purchase the VLF Receivable; WHEREAS, the Authority desires to purchase the VLF Receivable and the Seller desires to sell the VLF Receivable pursuant to a purchase and sale agreement by and between the Seller and the Authority in the form presented to this City Council (the "Sale Agreement") for the purposes set forth herein; WHEREAS, in order to finance the purchase price of the VLF Receivable from the Seller 'and the purchase price of other VLF Receivables from other local agencies, the Authority will issue its taxable and tax-exempt notes (the "Notes") pursuant to Section 6590 of the California Government Code and an Indenture (the "Indenture"), by and between the Authority and Wells Fargo Bank, National Association, as trustee (the "Trustee"), which Notes will be payable solely from the proceeds of the VLF Receivable and such other VLF Receivables; WHEREAS, the Seller acknowledges that the Authority will grant a security interest in the VLF Receivable to the Trustee and any credit enhancer to secure payment of the Notes; and WHEREAS, a portion of the proceeds of the Notes will be used by the Authority to, among other things, pay the purchase price of the VLF Receivable; Taxable DOCSSF1:795390.1 WHEREAS, the Seller will use the proceeds received from the sale of the VLF Receivable for any lawful purpose as permitted under the applicable laws of the State; NOW THEREFORE, the City Council of the City of Ukiah hereby resolves as follows: Section 1. All of the recitals set forth above are true and correct, and this City Council hereby so.finds and determines. Section 2. The Seller hereby authorizes the sale of the VLF Receivable to the Authority for a price no less than the Minimum Purchase Price set forth in Appendix A. The form of Sale Agreement presented to the City Council is hereby approved. An Authorized Officer (as set forth in Appendix A) is hereby authorized and directed to execute and deliver the Sale Agreement on behalf of the Seller, which shall be in substantially the form presented to this meeting, with such changes therein, deletions therefrom and additions thereto, as such Authorized Officer shall approve, which approval shall be conclusively evidenced by the execution and delivery of the Sale Agreement. Section 3. Any Authorized Officer is hereby authorized and directed to send, or to cause to be sent, an irrevocable written instruction to the State Controller notifying the State of the sale of the VLF Receivable and instructing the disbursement pursuant to Section 6588.5(c) of California Government Code of the VLF Receivable to the Trustee, on behalf of the Authority. Section 4. The Authorized Officers and such other Seller officers, as appropriate, are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents, including but not limited to one or more tax certificates, if required, appropriate escrow instructions relating to the delivery into escrow of executed documents prior to the closing of the Notes, and such other documents mentioned in the Sale Agreement or the Indenture, which any of them may deem necessary or desirable in order to implement the Sale Agreement and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution; and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved. Section 5. All consents, approvals, notices, orders, requests and other actions permitted or required by any of the documents authorized by this Resolution, whether before or after the sale of the VLF Receivable or the issuance of the Notes, including without limitation any of the foregoing that may be necessary or desirable in connection with any default under or amendment of such documents, may be given or taken by an Authorized Officer without further authohzation by this City Council, and each Authorized Officer is hereby authorized and directed to give any such consent, approval, notice, order or request, to execute any necessary or appropriate documents or amendments, and to take any such action that such Authorized Officer may deem necessary or :desirable to further the purposes of this Resolution. Section 6. The City Council acknowledges that, upon execution and delivery of the Sale Agreement, the Seller is contractually obligated to sell the VLF Receivable to the Authority pursuant to the Sale Agreement and the Seller shall not have any option to revoke its approval of the Sale Agreement or to determine not to perform its obligations thereunder. Taxable DOCSSFl:795390.1 2 approval. Section 7. This Resolution shall take effect from and after its adoption and PASSED AND ADOPTED by the City Council of the City of Ukiah, State of California, this day of ., 2005, by the following vote: AYES: NOES: ABSENT: Mawr Attest: City Clerk Approved as to form · SELLER'S COUNSEL By Dated: Taxable DOCSSF1:795390.1 3 APPENDIX A CITY OF UKIAH Minimum Purchase Price: Authorized Officers: An amount equal to or greater than $240,000.00 (the "Minimum Purchase Price"). City Manager Finance Director any designee of any of them, as appointed in a written certificate of such Authorized Officer delivered to the Trustee. Taxable DOCSSFl:795390.1 CITY OF UKIAH, CALIFORNIA, as Seller and CALIFORNIA STATEWIDE COMMLrNITIES DEVELOPMENT AUTHORITY, as Purchaser PURCHASE AND SALE AGREEMENT Dated March 2, 2005 Taxable DOCSSF1:795397.1 TABLE OF CONTENTS Page . 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. DEFINITIONS AND INTERPRETATION ...................................................................... 1 AGREEMENTTO SELL AND PURCHASE; CONDITIONS PRECEDENT..: ............. 2 CONVEYANCE OF VLF RECEIVABLE AND PAYMENT OF FINAL PURCHASE PRICE .......................................................................................................... 3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER .......................... 3 REPRESENTATIONS AND WARRANTIES OF THE SELLER ................................... 3 COVENANTS OF THE SELLER ..................................................................................... 5 NOTICES OF BREACH ................................................................................................... 7 LIABILITY OF SELLER; INDEMNIFICATION ............................................................ 7 LIMITATION ON LIABILITY ........................................................................................ 7 THE SELLER'S ACKNOWLEDGMENT ........................................................................ 7 NOTICES ........................................................................................................................... 8 AMENDMENTS ............................................................................................................... 8 SUCCESSORS AND ASSIGNS ....................................................................................... 8 THIRD PARTY RIGHTS .................................................................................................. 8 PARTIAL INVALIDITY .................................................................................................. 8 COUNTERPARTS ............................................................................................................ 8 ENTIRE AGREEMENT .................................................................................................... 9 GOVERNING LAW ........................................................................................................ 10 EXHIBIT A- DEFINITIONS ................................................................................................... A-1 EXHIBIT B1 -OPINION OF SELLER'S COUNSEL ......................................... ~ ................. BI-1 EXHIBIT B2 - BRINGDOWN OPINION OF SELLER'S COUNSEL ................................. B2-1 EXHIBIT C1 - CLERK'S CERTIFICATE ............................................................................. CI-1 EXHIBIT C2 - SELLER CERTIFICATE ............................................................................... C2-1 EXHIBIT C3 - BILL OF SALE AND BRINGDOWN CERTI~CATE..' .............................. C3-1 EXHIBIT D- IRREVOCABLE INSTRUCTIONS TO CONTROLLER ................................ D-1 EXHIBIT E - RESERVED ................................ ~ ....................................................................... E-1 EXHIBIT F -ESCROW INSTRUCTION LETTER ................................................................. F-1 Taxable DOCSSF1:7953 97.1 i PURCHASE AND SALE AGREE1VrENT THIS PURCHASE AND. SALE AGREEMENT, dated March 2, 2005 (this "A~eement"), is entered into by and between: (1) "Seller"); and CITY OF UKIAH, a municipal corporation of the State of California (the. (2) CALIFORNIA STATEWlDE COMMUNITiES DEVELOPMENT AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California (the "Purchaser"). RECITALS A. The Seller is the owner of the VLF Receivable (as defined below). B. The Seller is willing to sell, and the Purchaser is willing to purchase, the VLF Receivable upon the terms specified in this Agreement. C. The Purchaser will issue its taxable and tax-exempt notes (the '*Notes") pursuant to an Indentm-e (the "Indenture"), between the Purchaser and Wells Fargo Bank, National Association, as trustee (the "Trustee"), and will use a portion of the proceeds thereof to purchase the VLF Receivable from the Seller. " D. The Purchaser will grant a security interest in such VLF Receivable to the Trustee and each Credit Enhancer to secure the Notes. AGREEMENT NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, the parties hereto hereby agree as follows: 1. Definitions and Interpretation. (a) For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Exhibit A attached hereto and which is incorporated by reference herein. (b) The words "hereof," "herein," "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; section and exhibits references contained in this Agreement are references to sections and exhibits in or to this Agreement unless otherwise specified; and the term "including" shall mean "including without limitation." (c) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time may be amended, modified or supplemented and includes (in the Taxable DOCSSF1:795397. l case of agreements or instruments) references to all attachments and exhibits thereto and instruments incorporated therein; and any references to a Person are also to its permitted successors and assigns. 2. Agreement to Sell and Purchase; Condition_s Precedent. (a) The Seller agrees to sell, and the Purchaser agrees to purchase, on the Closing Date, for cash paid by the Purchaser in an amount equal to the amount determined pursuant to Section 3(a) (the "Final Purchase Price"), which shall be not less than $$240,000.00 (the "Minimum Purchase Price"), all future right, title and interest of the Seller in and to the "VLF Receivable" as defined in Section 65850) of the California Government Code (the "VLF Receivable"), namely, the right to payment of moneys due or to become due to the Seller out of funds payable in connection with vehicle license fees to a local agency pursuant to Section 10754.11 of the California Revenue and Taxation Code. The Purchaser shall pay the Final Purchase Price by transferring such Final Purchase Price directly to the Seller. (b) The performance by the Purchaser of its obligations hereunder shall be conditioned upon: (i) Transaction Counsel receiving on or before the date the Notes are sold (the "Pricing Date"), to be held in escrow until the Closing Date and then delivered to the Purchaser on the Closing Date, the following documents duly executed by the Seller or its counsel, as applicable: (1) an opinion of counsel to the Seller dated the Pricing Date in substantially the form attached hereto as Exhibit B1, (2) certificates dated the Pricing Date in substantially the forms attached hereto as Exhibit C1 and Exhibit C2, (3) irrevocable instructions to the Controller dated as of the Closing Date in substantially the form attached hereto as Exhibit D, (4) this Agreement, (5) a certified copy of the resolution of the Seller's City Council approving this Agreement, the transactions contemplated hereby and the documents attached hereto as exhibits, and (6)an escrow instruction letter in substantially the form attached hereto as Exhibit F; (ii) (iii) Transaction Counsel receiving on or before the Closing Date, (1)a bringdown opinion of counsel to the Seller dated as of the Closing Date in substantially the form attached hereto as Exhibit B2, and (2) a bill of sale and bringdown certificate of the Seller (the "Bill of Sale") in substantially the form attached hereto as Exhibit C3; provided that the Purchaser may waive in its sole discretion the requirements of Section 2(b)(ii)(1); and the Purchaser issuing notes in an amount which will be sufficient to pay the Final Purchase Price. (c) The performance by the Seller of its obligations hereunder shall be conditioned solely upon the Purchaser's payment of the Final Purchase Price as set forth in this Agreement and no other act or omission on the part of the Purchaser or any other party shall excuse the Seller from performing its obligations hereunder. Taxable DOCSSF 1:795397.1 2 (d) The Final Purchase Price shall be an amount that satisfies the conditions of Section 2 of the Resolution referred to in Section 2(b)(i)(5) above. 3. Conveyance of VLg Receivable and Payment of Fi_n_a! Purchase Price. (a) Upon pricing of the Notes by the Purchaser, the Purchaser will inform the 'Seller of the Final Purchase Price, which shall be an mount at least equal to the Minimum Purchase Price, and which shall be determined by the Purchaser based on the final interest rates, costs of credit enhancement and issuance and terms of the Notes. Upon pricing of the Notes, the Purchaser shall deliver a certificate to the Seller indicating the Final Purchase Price to be paid to the Seller on the Closing Date. (b) In consideration of the payment and delivery by the Purchaser to the Seller of the Final Purchase Price, the Seller agrees to (a) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral security, without recourse except as expressly provided herein, and the Purchas~er agrees to purchase, accept and receive, the VLF Receivable, and (b) assign to the Purchaser, to the extent permitted by law (as to which no representation is made), all present or future rights, if any, of the Seller to enforce or cause the enforcement of payment of the VLF Receivable pursuant to the Act and other applicable law. 4. Rerp_ resentations and Warranties of the Purch~er. The Purchaser represents and warrants to the Seller that, as of the date hereof, (a) it is duly organized, validly existing and in good standing under the laws of the State of California, (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder, (c) neither the execution and delivery by the Purchaser of this Agreement, nor the performance by the Purchaser of its obligations hereunder, shall conflict with or result in a breach or default under any of its organizational documents, any law, nde, regulation, judgment, order or decree to which it is subject or any agreement or insmmaent to which it is a party, and (d)this Agreement, and its execution, delivery and performance hereof have been duly authorized by it, and this Agreement has been duly executed and delivered by it and constitutes its valid and binding obligation enforceable against it in accordance with the terms hereof, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity. 5. R~resentations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof, as follows: (a) The Seller is a municipal corporation validly existing under the laws and Constitution of the State of California, with full power and authority to execute and deliver this Agreement and to carry out its terms. (b) The Seller has full power, authority and legal right to sell and assign the VLF Receivable to the Purchaser and has duly authorized such sale and assignment to the Purchaser by all necessary action; and the execution, delivery and performance by the Seller of this Agreement has been duly authorized by the Seller by all necessary action. Taxable DOCSSF 1:795397.1 (c) This Agreement has been, and as of the Closing Date the Bill of Sale will have been, duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery of this Agreement by the Purchaser, constitutes a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equi~. (d) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or'the absence of which would adversely affect, the sale by the Seller of the VLF Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction Documents and any other applicable agreements, have been obtained and are in full force and effect. (e) Insofar as it would materially adversely affect the Seller's ability to enter into, carry' out and perform its obligations under any or all of the Transaction Documents to which it is a party, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of California or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party or to' which it or any of its property or assets is otherwise subject, and, to the best of the knowledge of the Seller, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents to which it is a party, and compliance by the Seller with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Seller a breach of or default under any agreement or other instrument to which the Seller is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Seller is subject. (f) To the best of the knowledge of the Seller, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Seller affecting the existence of the Seller or the titles of its City Council members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the VLF Receivable or to direct the application of the proceeds of the sale thereof, or in any way contesting or affecting the validity or enforceability of any of the Transaction Documents or any other applicable agreements or any action of the Seller contemplated by any of said documents, or in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Transaction Documents to which the Seller is a party or any other applicable agreement, or any action on the part of the Seller contemplated by the Transaction Documents, or in any way seeking to enjoin or restrain the Seller fi.om selling the VLF Receivable or which if determined adversely to the Seller would have an adverse effect upon the Seller's ability to sell the VLF Receivable, nor to the knowledge of the Seller is there any basis therefor. Taxable DOC. SSF1:795397.1 4 (g) Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act. From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing Date, the Seller shall have no interest in the VLF Receivable. Except as provided in this Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any · right, title or interest of any kind whatsoever in all or any portion of the VLF Receivable, nor has the Seller created, or to the knowledge of the Seller permitted the creation of, any lien, pledge, security interest or any other encumbrance (a "Lien") thereon. Prior to the sale of the VLF Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any Liens. As of the Closing Date, this Agreement, together with the Bill of Sale, constitutes a valid sale to the Buyer of the Seller's right, title and interest in and to the VLF Receivable. (h) The Seller acts solely through its authorized officers or agents. (i) The Seller maintains records and books of account separate from those of the Purchaser. (j) The Seller maintains its respective assets separately from the assets of the Purchaser (including through the maintenance of separate bank accounts); the Seller's funds and assets, and records relating thereto, have not been and are not commingled with those of the Purchaser. (k) The Seller's principal place of business and chief executive office is located at 300 Seminary Avenue, Ukiah, CA 95482. (1) The Seller has received reasonably equivalent value for the VLF Receivable. (m)The Seller does not act as an agent of the Purchaser in any capacity, but instead presents itself to the public as an entity separate from the Purchaser. (n) The Seller has not guaranteed and shall not guarantee the obligations of the Purchaser, nor shall it hold itself out or permit itself to be held out as having agreed to pay or as being liable for the debts of the purchaser; and the Seller has not received nor shall the Seller accept any credit or financing from any Person who is relying upon the availability of the assets of the Purchaser to satisfy the claims of such creditor. (o) All transactions between or among the Seller, on the one hand, and the Purchaser on the other hand (including, without limitation, transactions governed by contracts for services and facilities, such as payroll, purchasing, accounting, legal and personnel services and office space), whether existing on the date hereof or entered into after the date hereof, shall be on terms and conditions (including, without limitation, terms relating to amounts to be paid thereunder) which are believed by each such party thereto to be both fair and reasonable and comparable to those available on an arms-length basis from Persons who are not affiliates. Taxable DOCSSF1:795397.1 5 6. Covenants of the Seller. (a) The Seller shall not take any action or omit to take any action which adversely affect the interests of the Purchaser in the VLF Receivable and in the proceeds thereof. The Seller shall not take any action or omit to take any action that shall adversely affect the ability of the Purchaser, and any assignee of the Purchaser, to receive payments made under the Act. (b) The Seller shall not take any action or omit to take any action that would impair the validity or effectiveness of the Act, nor, without the prior written consent of the Purchaser or its assignee, amend, modify, terminate, waive or surrender, or agree to any amendment, modification, termination, waiver or surrender of, the terms of the Act, or waive timely performance or observance under the Act, in each case if the effect thereof would be materially adverse to the Purchaser or to the Noteholders or any Credit Enhancer as assignees of the Purchaser. Nothing in this agreement shall impose a duty on the Seller to seek to enforce the Act or to seek enforcement thereof by others, or to prevent others fi.om modifying, terminating, discharging or impairing the validity or effectiveness of the Act. (c) Upon request of the Purchaser or its assignee, (i) the Seller shall execute and deliver such further instruments and do such further acts (including being named as a plaintiff in an appropriate proceeding) as may be reasonably necessary or proper to carry out more effectively the purposes and intent of this Agreement, and (ii) the Seller shall take all actions necessary to preserve, maintain and protect the title of the Purchaser to the VLF Receivable, provided that such acts shall not impose any additional cost on the Seller that is not reimbursed. (d) On or before the Closing Date, the Seller shall send (or cause to be sent) an irrevocable instructiOn to the Controller pursuant to Section 6588.5(c) of California Government Code to cause the Controller to disburse all payments of the VLF Receivable to the Trustee, together with notice of the sale of the VLF Receivable to the Purchaser and the assignment of all or a portion of such assets by the Purchaser to the Trustee. Such notice and instructions shall be in the form of Exhibit D hereto. The Seller shall not take any action to revoke or which would have the effect of revoking, in whole or in part, such instructions to the Controller. The Seller hereby relinquishes and waives any control over the VLF Receivable, any authority to collect the VLF Receivable, and any power to revoke or amend the instructions to the Controller contemplated by this paragraph. The Seller shall not rescind, amend or modify the instruction described in the first sentence of this paragraph. The Seller shall cooperate with the Purchaser or its assignee in giving instructions to the Controller if the Purchaser or its assignee transfers the VLF Receivable. In the event that the Seller receives any proceeds of the VLF Receivable, the Seller shall hold the same in trust for the benefit of the Purchaser and the Trustee and each Credit Enhancer, as assignees of the Purchaser, and shall promptly remit the same to the Trustee. (e) The Seller hereby covenants and agrees that it will not at any time institute against the Purchaser, or join in instituting against the Purchaser, any bankruptcy, reorganization, arrangement, insolvency, liquidation, or similar proceeding under any United States or state bankruptcy or similar law. (f) The financial statements and books and records of the Seller prepared after the Closing Date shall reflect the separate existence of the Purchaser. Taxable DOCSSF1:795397.1 6 (g) The Seller shall treat the sale of the VLF Receivable as a sale for regUlatOry and accounting purposes. (h) From and after the date of this Agreement, the Seller shall not sell, transfer, assign, set over or otherwise convey any right, title or interest of any kind whatsoever in' all or any portion of the VLF Receivable, nor shall the Seller create, or to the knowledge of the Seller permit the creation of, any Lien thereon. 7. Notices of Breach. (a) Upon discovery by the Seller or the Purchaser that the Seller has breached any of its covenants or that any of the representations or warranties of the Seller or the Purchaser are materially false or misleading, in a manner that materially and adversely affects the value of the VLF Receivable, the discovering party shall give prompt written notice thereof to the other party and to the Trustee, as assignee of the Purchaser, who shall, pursuant to the Indenture, promptly thereafter notify each Credit Enhancer and the Rating Agencies. (b) The Seller shall not'be liable to the Purchaser, the Trustee, the Noteholders, or any Credit Enhancer for any loss, cost or expense resulting solely from the failure of the Trustee, any Credit Enhancer or the Purchaser to promptly notify the Seller upon the discovery by an authorized officer of the Trustee, any Credit Enhancer or the Purchaser of a breach of any covenant or any materially false or misleading representation or warranty contained herein. 8. Liability of Seller; Indemnification. The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller Under this Agreement.. The Seller shall indemnify, defend and hold harmless the Purchaser, the Trustee and each Credit Enhancer, as assignees of the Purchaser, and their respective officers, directors, employees and agents from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon any such Person by the Seller's breach of any of its covenants contained herein or any materially false or misleading representation or warranty of the Seller contained herein. Notwithstanding anything to the contrary herein, the Seller shall have no liability for the payment of the principal of or interest on the Notes issued by the Purchaser. 9. Limitation on Liability. (a) The Seller and any officer or employee or agent of the Seller may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Seller shall not be under any obligation to appear in, prosecute or defend any legal action regarding the Act that is unrelated to its specific obligations under this Agreement. (b) No officer or employee of the Seller shall have any liability for the representations, warranties, covenants, agreements or other obligations of the Seller hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Seller. Taxable DOCSSF1:795397.1 7 10. The Seller's Acknowledgrnent. The Seller hereby agrees and acknowledges that the Purchaser intends to assign and grant a security interest in all or a portion of (a) its rights hereunder and Co) the VLF Receivable, to the Trustee and each Credit Enhancer pursuant to the Indenture. The Seller further agrees and acknowledges that the Trustee, the Noteholders, and each Credit Enhancer have relied and shall continue to rely upon each of the foregoing representations, warranties and covenants, and further agrees that such perSons are entitled so to rely thereon. Each of the above representations, warranties and covenants shall survive any assignmer~t and grant of a security interest in all or a portion of this Agreement or the VLF Receivable to the Trustee and each Credit Enhancer and shall continue in full i'orce and effect, notwithstanding any subsequent termination of this Agreement and the other transaction documents. The above representations, warranties and covenants shall inure to the benefit of the Trustee and each Credit Enhancer. 11. Notices. All demands upon or, notices, and communications to, the Seller, the Purchaser, the Trustee or the Rating Agencies under this Agreement shall be in writing, personally delivered or mailed by certified mail, return receipt requested, to such party at the appropriate notice address, and shall be deemed to have been duly given upon receipt. 12. Amendments. This Agreement may be amended by the Seller and the Purchaser, with (a) the consent of the Trustee, Co) the consent of each Credit Enhancer, and (c) a Rating Agency Confirmation, but without the consent of any of the Noteholders, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement. Promptly after the execution of any such amendment, the Purchaser shall furnish written notification of the substance of such amendment to the Trustee and to the Rating Agencies. 13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Seller, the Purchaser and their respective successors and permitted assigns. The Seller may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Purchaser. Except as specified herein, the Purchaser may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Seller. 14. Third Party_ Rights. The Tmstee and each Credit Enhancer are express and intended third party beneficiaries under this Agreement. Nothing expressed in or to be implied from this Agreement is intended to give, or shall be construed to give, any Person, other than the parties hereto, the Trustee and each Credit Enhancer, and their permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision herein. 15. Partial Invalidity. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. Taxable DOCSSF1:795397.1 8 16. Counterparts. This Agreement may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed original for all purposes. 17. Entire 'A~eement. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter hereof. Taxable DOCSSF1:795397.1 9 18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Purchase and Sale Agreement to be duly executed as of the date first written above. CITY OF UKIAH, as Seller By: Authorized Officer CALIFORNIA STATEWlDE COMMITN~IES DEVELOPMENT AUTHORITY, as Purchaser By: Member Taxable DOCSSF1:795397.1 10 EXHIBIT A DEFINITIONS For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings set forth below. "Act" means Section 10754.11 of the California Revenue and Taxation Code. "Bill of Sale" has the meaning give to that term in Section 2(b)(ii) hereof. "Credit Enhancer" means any municipal bond insurance company, bank or other financial institution or organization which is performing in all material respects its obligations under any Credit Support Instrument for some or all of the Notes. "Credit Support Instrument" means a policy of insurance, a letter of credit, a stand-by purchase agreement, revolving credit agreement or other credit arrangement pursuant to which a Credit Enhancer provides credit or liquidity support with respect to the payment of interest, principal or the purchase price of the Notes. "Closing Date" means the date the Notes are issued. "Controller" means the Controller of the State. "Final Purchase Price" has the meaning ascribed thereto in Section 2. "Minimum Purchase Price" has the meaning ascribed thereto in Section 2. '~oteholder" means, with respect to any Note, the person in whose name such Note is registered. "Oustanding" has the meaning given to that term in the Indenture. "Pricing Date" means the date the Notes are sold. "Rating Agency" means any nationally recognized rating agency then providing or maintaining a rating on the Notes at the request of the PurchaSer. "Rating Agency Confirmation" means written confirmation from each Rating Agency that any proposed action will not, in and of itself, cause the Rating Agency to lower, suspend or withdraw the rating then assigned by such Rating Agency to any Outstanding Notes. "ResOlution'' means the resolution adopted by the City Council approving'the sale of the VLF Receivable. "State" means the State of California. '~rransaction Counsel" means Orfick, Herrington & Sutcliffe LLP. Taxable DOCSSF1:795397.1 A- 1 and the Notes. "Transaction Documents" mean this Agreement, the Bill of Sale, the Indenture, Taxable DOCSSF1:795397.1 A-2 OPINION OF COUNSEL to CITY OF UKIAH EXHIBIT BI March 2, 2005 California Statewide Communities Development Authority Sacramento, California Wells ~Fargo Bank, National Association Los Angeles, California Re: Sale of VLF Receivable Ladies & Gentlemen: This Office acted as counsel for the City of Ukiah (the "Seller") in connection with the adoption of that certain resolution (the "Resolution") of the City Council of the Seller (the "Governing Body") pursuant to which the Seller authorized the sale to the California Statcwide Communities Development Authority (the "Purchaser") of the Seller's "VLF Receivable", as defined in and pursuant to the Purchase and Sale Agreement dated March 2, 2005 (the "Sale Agreement") between the Seller and the Purchaser. In connection with these transactions, the Setler has issued certain Irrevocable Instructions For Disbursement of the Seller's VLF Receivable to the Controller of the State of California (the "Disbursement Instructions" and collectively with the Sale Agreement, the "Transaction Documents"). Unless the context otherwise requires, capitalized terms used but not otherwise defined herein shah have the meanings given to such terms in the Sale Agreement. I have examined and am familiar with those documents relating to the existence, organization, and operation of the Seller, the Resolution, the Transaction Documents and such certified proceedings, certifications of officers of the Seller and others, and such other agreements, instruments and documents, and have satisfied myself as to such other matters, as I deem necessary in order to render the following opinions. Based upon the foregoing, I am of the opinion that: 1. Thc Seller is a municipal corporation of thc State of California, duly organized and validly existing pursuant to the laws and the Constitution of the State of California. Taxable IX3CSSF1:795397.1 BI-1 2. The Seller has full power and authority to adopt the Resolution and to execute and deliver the Transaction Documents. 3. The Seller has duly authorized and executed the Transaction Documents and, assuming delivery, each Transaction Document will be legal, valid, and binding against the Seller, and enforceable against the Seller in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or laws relating to or iffecting creditors' rights, and the application of equitable principles and the exercise of judicial discretion in appropriate areas. 4. The Resolution was duly adopted at a meeting of the Governing Body which was called and held pursuant to law with all public notice required by law and at which a quomm was present and acting when the Resolution was adopted. 5. The Resolution is in full force and effect and has not been amended, modified, supplemented or rescinded. 6. To the best of my knowledge, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Seller affecting the existence of the Seller or the titles of its Governing Body members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the VLF Receivable or to direct the application of the proceeds of the sale thereof, or in any way contesting or affecting the validity or enforceability of the Resolution, the Transaction Documents or any other applicable agreements or any action of the Seller contemplated by any of said documents, or in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Transaction Documents or any other applicable agreement, or any action on the part of the Seller contemplated by any of said documents, or in any way seeking to enjoin or restrain the Seller from selling the VLF Receivable or which if determined adversely to the Seller would have a material and adverse effect upon the Seller's ability to sell the VLF Receivable, nor to my knowledge is there any basis therefor. 7. Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and perform its obligations under any or all of the foregoing agreements, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of my knowledge, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents, and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Seller a breach of or default under any agreement or other instrument to which the Seller is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Seller is subject. Taxable IX)CSSF1:795397.1 B 1-2 8. Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act. From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing Date, the Seller shall haVe no interest in the VLF Receivable. Except as provided in the Sale Agreement, the Seller has not sold, transferred, assigned, set over or otherWise conveyed any fight, title or interest of any kind whatsoever in all or any portion of the Seller's VLF Receivable, nor has the Seller created, or to my knowledge permitted, the creation of, any Lien thereon. Prior to the sale of the VL1~ Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any Liens. 9. To the best of my knowledge, all approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the sale by the Seller of the VLF Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction Documents and any other applicable agreements, have been obtained and are in full force and effect. 10. The Disbursement Instructions are irrevocable by the Seller, and comply with the requirements of Section 6588.5(c) of the California Government Code. Each Credit Enhancer, the underwriters of the Notes and Transaction Counsel may rely upon this legal opinion as if it were addressed to them. Very truly yours, By: Seller's Counsel Taxable DOCSSF1:795397.1 B 1-3 OPINION OF COUNSEL to CITY OF UKIAH EXHIBIT B2 · [Closing Date] California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National Association Los Angeles, California Re: Sale of VLF Receivable (Bringdown Opinion) Ladies & Gentlemen: Pursuant to that certain Purchase and Sale Agreement dated March 2, 2005 (the "Sale Agreement") between the City of Ukiah (the "Seller") and the California Statewide Communities Development Authority (the "Purchaser"), this Office delivered an opinion (the "Opinion") dated the Pricing Date (as defined in the Sale Agreement) as counsel for the Seller in connection with the sale of the Seller's VLF Receivable (as defined in the Sale Agreement), the execution of documents related thereto and certain other related matters. I confirm that you may continue to ·rely upon the Opinion as if it were dated as of the date hereof. Each Credit Enhancer, the underwriters of the Notes and Transaction Counsel may rely upon this legal opinion as if it were addressed to them. This letter is delivered to you pursuant to Section 2(b)(ii)(1) of the Sale Agreement. Very truly yours, By: Seller's Counsel Taxable DOCSSF1:795397.1 B2-1 EXHIBIT C1 CLERK'S CERTIFICATE CERTIFICATE OF THE CITY CLERK OF CITY OF UKIAH, CALIFORNIA Dated: March 2, 2005 The undersigned City Clerk of the City of Ukiah, California, do hereby certify that the foregoing is a full, tree and correct copy of Resolution No. duly adopted at a regular meeting of the City Council of said Seller duty and regularly and legally held at the regular meeting place thereof on the day of , 2005, of which meeting all of the members of said City Council had due notice and at which all members thereof were present, and that at said meeting said resolution was adopted by the following vote: AYES: NOES: ABSENT: ABSTAIN: I do hereby further certify that I have carefully compared the same with the original minutes of said meeting on file and of record in my office and that said resolution is a full, tree and correct copy of the original resolution adopted at said meeting and entered in said minutes and that said resolution has not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect. I do hereby further certify that an agenda of said meeting was posted at least 72 hours before said meeting at a location in the City of Ukiah, California freely accessible to members of the public, and a brief general description of said resolution appeared on said agenda. WITNESS my hand as of the day and year first above written. By: City Clerk of the City of Ukiah, California Taxable DOCSSF1:795397.1 CI-1 EXHIBIT C2 SELLER CERTIFICATE SELLER CERTIFICATE Dated: March 2, 2005 We, the undersigned officers of the City of Ukiah (the "Seller"), State of California, holding the respective offices herein below set opposite our signatures, do hereby certify that on the date hereof the following documents (the "Transaction Documents") were officially executed and delivered by the Authorized Officer or Officers whose names appear on the executed copies thereof, to wit: Document Purchase and Sale Agreement, dated March 2, 2005 (the "Sale Agreement"), between the Seller and the California Statewide Communities Development Authority (the "Purchaser") o Irrevocable Instructions For Disbursement of Seller's VLF Receivable to the Controller of the State of California dated the Closing Date Capitalized terms used herein and not defined herein shall have the meaning given such terms in the Sale Agreement. We further certify as follows: 1. At the time of signing the Transaction Documents and the other documents and opinions related thereto, we held said offices, respectively, and we now hold the same. 2. The representations and warranties contained in the Transaction Documents are true and correct as of the date hereof in all material respects. 0 The City Council duly adopted its resolution (the "Resolution") approving the sale of the Seller's VLF Receivable at a meeting of the City Council which was duly called and held pursuant to law with all public notice required by law and at which a quorum was present and acting when the Resolution was adopted, and such Resolution is in full force and effect and has not been amended, modified, supplemented or rescinded. 0 To the best knowledge of the undersigned, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened, in any way against the Seller affecting the existence of the Seller or the titles of its City Council members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the Seller's VLF Receivable or to direct the application thereof of the Taxable DOCSSF1:795397.1 C2-1 . . . proceeds of the sale thereof, or in any way contesting or affecting the validity or enforceability of the Resolution, the Transaction Documents, the Indenture, the Notes, or any other applicable agreements or any action of the Seller contemplated by any of said documents, or in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Transaction Documents or any other applicable agreement, or any action on the part of the Seller contemplated by any of said documents, or which if determined adversely to the Seller would have a material and adverse effect upon the'Seller's ability to sell the Seller's VLF Receivable, nor to our knowledge is there any basis therefor. Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and perform its obligations under any or all of the Transaction Documents, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of Califomia or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of our knowledge, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, Would constitute a default or an event of default under any such instnnuent, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents, and compliance by the Seller with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Seller a breach of or default under any agreement or other instnm~ent to which the Seller is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Seller is subject. Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act. From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing Date, the Seller shall have no interest in the VLF Receivable. Except as provided in the Sale Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any right, title or interest of any kind whatsoever in all or any portion of the Seller's VLF Receivable, nor has the Seller created, or to our knowledge penuitted the creation of, any Lien thereon. Prior to the sale of the VLF Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any Liens. All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to or the absence of which would materially adversely affect, the sale by the Seller of the Seller's VLF Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction Documents and any other applicable agreements, have been obtained and are in full force and effect. Taxable DOCSSF1:795397.1 C2-2 Dated as of the date first above written. Name, Official Title Mike McCann, Finance Director Candace Horsley, City Manager Signature genuine. I HEREBY CERTIFY that the signatures of the officers named above are Dated as of the date first above written. By: City Clerk of the City of Ukiah, California Taxable DOCSSF1:795397.1 C2-3 EXHIBIT C3 BILL OF SALE AND BRINGDOWN CERTIFICATE BILL OF SALE AND BRINGDOWN CERTIFICATE In consideration of the payment and delivery by the California Statewide Communities Development Authority (the "Purchaser") to the undersigned '(the "Seller") of $[Final Purchase Price] (the "Fihal Purchase Price"), and pursuant' to terms and conditions of the Purchase and Sale Agreement (the "Sale Agreement''), dated March 2, 2005, between the Seller and the Purchaser, the Seller does hereby (a) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral security, without recourse except as expressly provided in the Sale Agreement, the VLF Receivable as defined in the Sale Agreement (the "VLF Receivable"), and (b) assign to the Purchaser, to the extent permitted by law (as to which no representation is made), all present or future rights, if any, of the Seller to enforce or cause the enforcement of payment of the VLF Receivable pursuant to the Act (as defined in the Sale Agreement) and other applicable law. The Seller hereby acknowledges receipt of the Final Purchase Price. The Seller hereby certifies that the representations and warranties of the Seller set forth in the Certificate of the City Clerk dated March 2, 2005, the Seller Certificate dated March '2, 2005, and in the Transaction Documents (as such terms are defined in the Sale Agreement) are true and correct in all material respects as of the date hereof (except for such representations and warranties made as of a specified date, which are tree and correct as of such date). Dated: .... [Closing Date] CITY OF UKIAH By: Authorized Officer Taxable DOCSSF1:795397.1 C3-1 EXHIBIT D IRREVOCABLE INSTRUCTIONS TO CONTROLLER IRREVOCABLE INSTRUCTIONS FOR DISBURSEMENT OF VLF RECEIVABLE OF CITY OF UKIAH ,2005 Office of the Controller State of California P.O. Box 942850 Sacramento, California 94250-5872 Re: Notice of Sale of VLF Receivable by the City of Ukiah and Wiring Instructions Information Form Dear Sir or Madam: Pursuant to Section 6588.5(c) of the California Govemment Code, City of Ukiah (the "Seller") hereby notifies you. of the sale by the Seller, effective as of the date of these instructions written above, of all right, title and interest of the Seller in and to the "VLF Receivable" as defined in Section 65850) of the California Government Code (the "VLF Receivable"), namely, the right to payment of moneys due or to become due to the Seller out of funds payable in connection with vehicle license fees to a local agency pursuant to Section 10754.11 of the California Revenue and Taxation Code. By resolution, the Seller's City Council authorized the sale of the VLF Receivable to the California Statewide Communities Development Authority (the "Purchaser") pursuant to a Purchase and Sale Agreement, dated March 2, 2005 and a Bill of Sale, dated [Closing Date]. The VLF Receivable has been pledged and assigned by the Purchaser pursuant to an Indenture, dated March 2, 2005 (the "Indenture") between the Purchaser and Wells Fargo Bank, National Association, as Trustee (the "Trustee"). The Seller hereby irrevocably requests and directs that, commencing as of the date of these instructions written above, all payments of the VLF Receivable (and documentation related thereto) be made directly to Wells Fargo Bank, National Association, as Trustee, in accordance with the wire instructions and bank routing information set forth below. Please note that the sale of the FLF Receivable by the Seller is irrevocable and that (i) the Seller has no power to revoke or amend these instructions at any time, (ii) the Purchaser shall have the power to revoke or amend these instructions only if there are no notes of the Purchaser outstanding under the Indenture and the Indenture has been discharged, and (iii) so long as the Indenture has not been discharged, these instructions cannot be revoked or amended by the Purchaser without the consent of the Trustee. Taxable DOCSSF 1:795397.1 D- 1 Bank Name: Bank ABA Routing #: Bank Account #: Bank Account Name: Further Credit To: Bank Address: Bank Telephone #: Bank Contact Person: Wells Fargo N.A. 121000248 0001038377 Corporate Trust Cleating CSCDA VLF #16914200 Wells Fargo Bank 707 Wilshire Blvd., 17 Floor Los Angeles, CA 90017 (213) 614-3353 Robert Schneider Please do not hesitate to call the undersigned if you have any questions regarding this transaction. Thank you for your assistance in this matter. Very truly yours, CITY OF UKIAH By: Authorized Officer Taxable DOCSSF 1:795397; I D-2 EXHIBIT E RESERVED Taxable DOCSSF1:795397.1 E-1 EXIHBIT F ESCROW INSTRUCTION LETTER PARTICIPATION AGREEMENT AND ESCROW INSTRUCTION LETTER March 2, 2005 California Statewide Communities Development Authority 1100 K Street Sacramento, CA 95814 Re: VLF Receivable Financing Dear Sir or Madam: The City of Ukiah (the "Seller") hereby notifies you of its agreement to participate in the California Statewide Communities Development Authority VLF Receivable Financing. By adoption of a resolution (the "Resolution") authorizing the sale of its VLF Receivable, the Seller's City Council has agreed to sell to the California Statewide Communities Development Authority, for a purchase price that meets the conditions set forth in the Resolution, all of its right, title and interest in the VLF Receivable. and executed Sutcliffe LLP, Enclosed herewith are the following documents which have been duly approved by the Seller and which are to be held in escrow by Orrick, Herrington & as transaction counsel ('°Transaction Counsel"), as instructed below: 1. certified copy of the Resolution, together with a certificate of the City Clerk, dated March 2, 2005; 2. the Seller Certificate, dated March 2, 2005; 3. the Opinion of Seller's Counsel, dated March 2, 2005; 4. the Purchase and Sale Agreement, dated March 2, 2005; and 5. the Irrevocable Instructions to the Controller, undated. The foregoing documents are to be held in escrow by Transaction Counsel and shall be delivered only upon payment to the Seller on or before April 29, 2005, of the Final Purchase Price (as defined in the Purchase and Sale Agreement) that meets the conditions of the Resolution. Upon such payment, Transaction Counsel is hereby authorized to fill in the closing date on the Irrevocable Instructions to the Controller. Taxable F- 1 DOCSSF1:795397.1 If the Final Purchase Price meeting the conditions of the Resolution is not paid to the Seller on or before April 29, 2005, this agreement shall terminate and Transaction Counsel shall return all of the enclosed documents to the Seller. Very truly yours, CITY OF UKLMt By:. Authorized Officer Enclosures cc: Orrick, Herrington & Sutcliffe LLP Taxable F-2 DOCSSF1:795397.1 AGENDA ITEM NO: 9 d MEETING DATE: February 16, 2005 SUMMARY REPORT SUBJECT: DISCUSSION AND DIRECTION TO STAFF REGARDING POSSIBLE PARTICIPATION IN PENSION OBLIGATION BOND PROGRAMS OFFERED TO SELECTED CALPERS PARTICIPATING AGENCIES BY THE CALIFORNIA STATEWlDE COMMUNITIES DEVELOPMENT AUTHORITY (CSCDA), Staff was invited to attend a free workshop presented by the California Statewide Communities Development Authority (CSCDA) on the subject of Pension Obligation Bonds (POB's). CalPERS provided CSCDA with a list of participating organizations which have a current Unfunded Actuarially Accrued Liability (UAAL) in their CalPERS programs, including the City of Ukiah. This Agenda Item asks for Council direction to (1) pursue participation in the current bond offer being developed, requiring Council action on March 2, 2005; (2) continue research for possible later participation, or (3) decline to expend resources and staff time in further related activity. A UAAL is the present value shortfall between the future benefit stream owed to employees (past and present) and the resources expected to be available to the System to pay such benefits when due, discounted at the System's actuarially assumed investment rate of return (IRR). (continued on page 2) RECOMMENDED ACTION: Authorize City Manager to submit application for participation in the Pension Obligation Bond Program, develop an enabling Resolution and returned to Council for approval on or before March 2, 2005. ALTERNATIVE COUNCIL POLICY OPTIONS: (1) Direct staff to conduct further research and return with options for participation in any potential later issuance, (2) Direct staff to discontinue efforts in the POB area, or (3) Provide alternative direction to staff. Citizens Advised: Prepared by: Coordinated with: Attachments: o , N/A Mike McCann, Finance Director Candace Horsley, City Manager CSCDA Slide Presentation Taxable Pension Obligation Bonds For California Governments Memo summarizing the underwriters' initial evaluation Approved~ ...... Candace Horsley, Manager Local POB's were discussed as a way to manage the City's UAAL in a way that takes advantage of current bond market conditions. At this time CalPERS is using an IRR of 7.75% for their investments and applying this rate to debts of participating agencies, including the City's UAAL. Bonds are currently paying approximately 5.6% so the market opportunity exists in the difference between that market rate and CalPERS 7.75% IRR Three documents are attached to this Agenda Summary Report. , Powerpoint slides used in the CSCDA presentation offer a good introduction to the concepts and vocabulary with an overview of the opportunities and the issues involved. 2. A memo prepared by the staff at Morgan Stanley, the POB program underwriters provides more background and rational for the use of POB's 3. A memo addressed to Mike McCann, Finance Director summarizes the underwriters' initial evaluation of the City of Ukiah's situation, based on the latest CalPERs information. The potential benefit to participation is simply the difference in the cost of borrowing money on the bond market vs. the cost of borrowing money from CalPERS, as a UAAL does. At this point staff is looking for interest, concerns, cautions, and direction in this matter. The amounts involved are significant and participation will require correspondingly significant staff time and possible legal review. Attachment 1:3..o t,.,) c: ~ o Attachment Taxable Pension Obligation Bonds For California Local Governments By Margie Backstrom, Morgan Stanley With long-term interest rates near 40 year lows, and state and local governments nationwide facing enormous budget challenges, the municipal bond market is currently experiencing a significant issuance of Pension Obligation Bond ("POB") Financings. In California, an additional factor has converged with low interest rates and strained budgets to cause municipalities to once again consider POBs: a dramatic rise in unfunded pension liabilities stemming from increased employee benefits (driven by the Ventura decision as well as the "three percent at fifty" package for public safety) and depressed pension fund asset values, reflecting the sell-off in the equity markets. The purpose of this memo is to explain the potential benefits, mechanics, and possible risks of POBs to California local governments who have unfunded pension liabilities. Background In 1993, Sonoma County issued the first issue of taxable POBs, selling $97.4 million fixed rate taxable bonds to extinguish the County's then-existing Unfunded Actuarially Accrued Liability ("UAAL"). Since that time, there have been more than 88 POB issues in California, totaling $13.3 billion. These POBs have been issued by a variety of local governments including 1937 Act counties, PERS members, and cities with their own retirement systems. The primary motivation has been for the Plan Sponsor (the city or county who is responsible for funding employee benefits) to lower the interest expense associated with carrying the UAAL. (Employer contribution rates are calculated based upon the actuariaily assumed earnings rate). In addition, POBs can be a powerful budget management tool, enabling states and local agencies not only to lower the interest expense associated with carrying the UAAL, but also to reshape/restructure the liability and/or negotiate more manageable benefits packages with their retirement systems ("System" or "Systems"). Lastly, municipalities can take advantage of historically low rates to address chronic underfunding of their pension liabilities, potentially alleviating a bond rating agency vulnerability. Because of the legal requirements to honor retirement benefits, the rating agencies have come to view unfunded liabilities as another form of debt and certainly factor in funding levels in their analysis. Properly structured POBs can help address this exposure. Why do UAALs Exist? Unfunded liabilities are created by a number of factors, including the scope of the benefits packages enjoyed by employees, so-called "workforce experience factors" such as the length of covered employees' careers (how many years they pay into the system and how high they rise on the pay scale), morbidity (life expectancy), employee classification (public safety versus general), inflation (which impacts Cost of Living Adjustments), retirement systems' investment performance, and employer contributions. Technically, a UAAL is the present value shortfall between the future benefit stream owed to employees (past and present) and the resources expected to be available to the System to pay such benefits when due, discounted at the System's actuarially assumed investment rate. In other words, the UAAL is the amount which the Plan Sponsor would need to deposit with the System - assuming all System assets earn their actuarially assumed interest rate - in order to fund promised future benefits when due. A UAAL is created when employer contributions and System investment performance fail to keep pace with a growing benefit stream. In most states, the Sponsor's obligation to pay vested benefits is either constitutionally or statutorily mandated, and the Sponsor incurs an interest expense equal to the actuarially assumed investment rate on the unpaid balance. Hence, for all practical purposes - and frequently in a legal sense - the UAAL constitutes debt of the Sponsor. Why Issue POBs? Generally states and localities have issued POBs to take advantage of the opportunity to refinance their UAALs - whose actuarial investment rates reflect the long-term earnings potential of a diversified portfolio - at lower taxable bond market rates. CalPERS has an actuarially assumed interest rate of 7.75%, which when compared to a current taxable borrowing rate for a municipality of between 5.50% and 6.00% provides a municipality with an opportunity for cash flow and present value savings. Refunding a UAAL that carries an 7.75% actuarially assumed interest rate with 5.75% debt could generate significant budget savings for the employer. Tax Status Virtually all of the POBs issued since the Tax Reform Act of 1986 ("the Act") have been issued on a federally taxable basis since the Act prohibits using tax-exempt bonds to pay off UAALs. The CSCDA POBs will be issued on a taxable basis. POB Mechanics The mechanics of POBs are fairly basic, with the conventional structure reflecting the premise that the UAAL represents a constitutional/statutory obligation of the Sponsor to pay retirement benefits. ~:::~:~*~¢!:~5~'~.~{~¢~ ' .- .~:. e~ee~ . '[~i~- ~ ~:~ '~&~::~;.~:5:~5:.~:..~:~$~:~::~.'~::~¢:~:~:~:~¢ ~:*:::*:~:~:~::~,:~¢~s5:;5~, :::::::::::::::::::::::::::::::::::: ::::e::¢:~¢ ~:::::~:~* ~:~~ ' :" ~'" ~ ~ .*. .::~ :~¢:...:~::...:...:~ ~ ~:.~. ~ ~ ~.~.:.. ~.,~:::...:::::: ,:~: ~::~:::::::::: .:: ~ ~ ~ ~ ~ ~ ~ ~ In the model illustrated above, the plan Sponsor issues a debenture to its System or PERS equal to the UAAL, bearing interest at the System's/PERS' actuarially assumed interest rate. The debenture is actually issued and simultaneously extinguished at the bond closing. The debenture evidences the debt owed by the Sponsor, and is refunded by the POBs. This construct is important as it obviates any voter requirements under the Constitutional debt limit on the theory that the UAAL is a pre-existing debt, itself exempt from any constitutional/statutory debt limits. Traditionally, bond counsel has required a judicial validation of the transaction to affirm the Sponsor's obligation to pay benefits, the transfer of that obligation for the benefits of bondholders, and the exemption of the POBs from applicable debt limits. The validation process has been used to test the proposition that the UAAL represents an "obligation imposed by law" reflecting certain key findings in court cases that created limited exceptions to the Constitutional debt limit. Dozens of California local agency POB validations have been concluded without challenge. The proceeds of the POB sale are deposited with the Bond Trustee, who transfers an amount equal to the debenture to the System or PERS to retire the UAAL. In this sense, the internal UAAL is replaced with the external public debt, presumably at a lower interest cost to the Sponsor. The chart below compares the Sponsor's funding obligations before and after issuing POBs. Importantly, the Sponsor remains liable for its "normal contributions" which are payments made to the system to fund benefits being accrued currently (versus payments towards the UAAL which are made to fund benefits previously earned but underfunded). The Rating Agency Perspective The obligation to fund promised retirement benefits is one of a municipality's highest priority obligations. The requirement is often constitutional, and there is ample case law requiring governments to honor benefits even in times of extreme fiscal stress. For this reason, rating agencies consider UAALs as the practical equivalent of debt. Since most POBs generate budget savings and increase the issuer's financial flexibility, the rating agencies are generally neutral to positive about POBs, which they see as opportunistic current refundings. Replacing 7.75% debt with 5.75% debt generally makes sense and is viewed as proactive financial management. Further, chronic underfunding of pension liabilities can become a credit negative as the UAAL compounds at the actuarially assumed earnings rate and requires increasing employer contribution rates. Left unaddressed, UAALs can metastasize into significant credit and legal challenges, such as the case in West Virginia, where the State Supreme Court has ordered the State to address its massive UAAL. Properly structure POBs, issued as part of a well- conceived plan of finance and reinvestment program, have largely been a credit positive, though the rating agencies do focus on the anticipated reinvestment program, financing structure and leverage attendant to POBs. Potential Risks The fundamental risk to POBs issuers is that their retirement systems might earn less in the future than their POBs' cost of funds. For example, if any agency sells POBs at 5.75% to pay off its UAAL that had been carrying an 7.75% rate, the transaction is beneficial so long as the System earns at least 5.75%. If the System earns less than 7.75%, the Sponsor will probably incur a new UAAL in the future, but the issuer is only worse off if the System earns less than the Sponsor's cost of funds (5.75%). Also, it is important to bear in mind that many other factors could create a new UAAL, including the adoption of a more generous benefits package, so it is important that plan Sponsors' legislative bodies be fully educated about the entire context of UAALs and POBs before embarking upon a POB transaction. POBs are only one piece of the puzzle and are not a panacea for under funding. Conclusion POBs are a proven financing tool which provide California local governments the opportunity to refinance their existing Unfunded Pension Liabilities in the public bond market, potentially generating significant budget benefits and long-term fiscal relief. Attachment # ~-~ -- January 24,2005 Dear Mike: As requested, we have completed a preliminary updated analysis of the potential savings resulting from your participation in the 2005 California Statewide Communities Development Authority ("CSCDA") Pension Obligation Bond ("POB") pooled financing based on the recently available 6/30/03 CalPERS Actuarial Valuation numbers. The estimated savings are detailed on the attached pages. Please note that our analysis is based on the amortizations of your Safety Plan and Miscellaneous Plan, and we have incorporated the following assumptions: Unfunded Accrued Actuarial Liability ("UAAL") (as of 6/30/05): $7,532,624 Amortization Structure: Assumes "fresh start" beginning '05-'06 FY Assumed Amortization Period for UAAL and Bonds: 20 yr Assumed Earnings Rate on Proceeds Invested in the Pension System: 7.75% True Interest Cost of Pension Obligation Bonds (as of 1/20/05): 5.27% (CIBs); 5.47% (CABs) Savings Structure: Upfront savings and Level savings This analysis assumes that a "fresh start" is initiated with CalPERS beginning fiscal year 2005-2006, which will require the permission of CalPERs to execute. A fresh start will combine any potential existing disparate amortization amounts and periods into one amortization, calculated as a level percentage of payroll. The fresh start itself generates cashflow savings in the first few years when compared with your current fiscal year 2004-2005 payment as provided by CalPERS. The amortization period of a fresh start can vary; we have shown a 20-year amortization in this case for indicative purposes. As with all refunding analyses, the results will change as a result of change to market interest rates, or any of the above assumptions. Please also note that, unlike a traditional bond refinancing, the existing UAAL amortization is an estimate provided by the retirement system, and could change based on actual returns to the Fund and other factors. Based on the above assumptions, the savings resulting from a POB sale in today's market are as follows: Present Value Savings ($) $1,720,645 $1,523,610 Present Value Savings (%) 22.2% 19.7% Total Gross Savings $2,655,888 $1,446,191 Gross Savings FY05-06 through FY07-08 (compared to Fresh Start) $294,428 $1,421,160 Average Annual Savings FY05-06 through FY07-08 $98,143 $473,720 Please don't hesitate to call us with any questions about the financing assumptions or results. We look forward to discussing this with you in more detail and working with you. Very truly yours, Very truly yours, Catherine Bando, Managing Director RBC Dain Rauscher 213-362-4137 Margaret Backstrom, Vice President Morgan Stanley 415-576-2073 SUBJECT: ITEM NO. 9e DATE: February 16, 2005 AGENDA SUMMARY REPORT AUTHORIZATION OF THE CITY MANAGER TO NEGOTIATE AND ENTER INTO A PROFESSIONAL CONSULTING SERVICES AGREEMENT WITH HARRIS AND ASSOCIATES TO PROVIDE CONSTRUCTION MANAGEMENT SERVICES FOR CITY OF UKIAH'S WASTEWATER TREATMENT PLANT IMPROVEMENT PROJECT FOR AN AMOUNT NOT TO EXCEED $4,622,730 SUMMARY: The Public Utilities Department issued a Request for Proposals (RFP) for Construction Management Services for the Wastewater Treatment Plant Improvement Project on December 16, 2004. The RFP was sent to 17 consulting engineering firms (Attachment #1) that specialize in municipal wastewater systems to solicit proposals to provide construction management services for the City of Ukiah's $45 million (estimated construction cost) Wastewater Treatment Plant (VVVVTP) Improvement Project. Three proposals were received from five of the consulting firms. Four firms declined to propose and no responses were received from the remainder. The Construction Manager (CM) serves as an important and primary point of contact for the administration of the construction contract, providing oversight and monitoring of the day-to- day construction activities, coordinating communications and facilitating problem solving with the Project Manager, contractor, design engineer, materials testing personnel, regulatory agencies, and the public. The CM assures the work is properly inspected, (Continued on page 2) RECOMMENDED ACTION: Authorize the City Manager to negotiate and enter into a Professional Consulting Services Agreement with Harris & Associates to provide construction management services for the City of Ukiah's Wastewater Treatment Plant Improvement Project. ALTERNATIVE COUNCIL POLICY OPTIONS: 1) Determine a different firm is more qualified and select another consultant to perform the work, 2) Reject all proposals and provide direction to staff. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Bernie Ziemianek, Public Utilities Director Ann Burck, Project EngineedManager Candace Horsley, City Manager 1. RFP Mailing List 2. Proposal Evaluation Form 3. Table 1 - CM Proposal Evaluation 4. Table 2 - CM Evaluation Summary APPROVED: ,~~'~_.,, Candace Horsley~C~~ Manager reviewed and documented, tracks project construction costs, anticipates changes and related costs, and then assures implementation of changes is completed in the most cost effective and timely manner. The CM monitors progress through analysis of the Critical Path Method schedule provided by the Contractor, analyzing whether delays are within or outside of the Contractor's control, and whether resulting costs are compensable or non- compensable. The CM provides necessary information to the Project Manager in critical decision-making matters. The Evaluation Process A team of three evaluators from Ukiah Public Utilities and Public Works departments evaluated the proposals. The team reviewed and ranked each proposal based on evaluation criteria specified in the RFP document. The criteria used to evaluate each proposal included: 1. Consulting firm's qualifications and experience 2. Qualifications and experience of key personnel 3. References 4. Scope of services 5. Project planning Copies of the proposal evaluation forms used by the evaluation committee are attached to this report (Attachment #2). The evaluation committee and the Director of Public Utilities also conducted interviews with each of the consulting firms to ascertain the following: 1. Thoroughness of consultant's proposed approach towards construction management of Ukiah's WWTP Improvement Project 2. Direct experience of the construction manager and inspection staff on WWTP projects 3. Understanding of potential problems and methods and procedures for resolving these problems throughout pro-construction, construction and startup of the project 4. Past performance on similar projects including demonstrated project management skills, successful partnering and prequalification of contractors. Evaluation Results The evaluation results for the three proposals from: 1 ) Harris & Associates (Harris), 2) Owen Engineering and Management Consultants and URS Corporation (OEMC/URS), and 3) HDR Corporation (HDR) with Coastland Civil Engineering listed as a subconsultant, are shown in Table 1 (Attachment #3) and Table 2 (Attachment CFA). Harris received the highest proposal evaluation score, 161.7 out of a possible 220 points. Their proposal had the highest number of inspection hours, the highest percentage ratio of inspection hours to total project hours and the second lowest average cost per hour. Harris had the second lowest proposal cost estimate of $4,622,730. The past projects listed as references in Harris' proposal were very similar in size and scope to Ukiah's WWTP Improvement Project and included construction of new clarifiers, headworks, aeration basins, pump stations, electrical and instrumentation upgrades and masonry buildings. The construction management strengths identified from Harris' proposal and interviews with key, onsite construction management staff are: 1. Experienced and knowledgeable WWTP construction manager . . Experienced and knowledgeable Inspection staff, which includes a lead inspector and specialty inspectors as needed for civil/site, mechanical, and electrical inspections. Harris' inspection team has over 118 years of combined experience on water/wastewater treatment plant projects throughout California Logical and efficient team organization to ensure clear lines of communication and authority and delineate responsibility for each construction management task of the WWTP Improvement Project 4. High percentage ratio of inspection hours to total project hours 5. Comprehensive and detailed CM Quality Assurance/Quality Control program 6. Successful track record on previous WWTP projects, which includes projects for the cities of Calistoga, Ventura and Stockton, the Ojai Valley Sanitary District, and the Central Marin Sanitation Agency Staff Recommendation Based on the proposal evaluations and consultant interviews, Staff believes Harris & Associates has the requisite experience and qualifications and offers the City the best value for construction management services for the WWTP Improvement Project. Therefore, Staff is recommending the City Council authorize the City Manager to negotiate the final terms and enter into a contract with Harris & Associates for the services outlined in the Request for Proposals for Construction Management Services for the Wastewater Treatment Plant Improvement Project. Copies of the recommended proposal from Harris & Associates are available for City Council review. The total cost of the Construction Management Services covers the preconstruction and construction period and is invoiced over the entire 3-plus year schedule. The entire contract cost will be covered by revenue bonds. Contract expenses for the remaining fiscal year until June 2005 are expected to be approximately $400,000. The Water and Sewer Reserve Account will cover these expenses. Attachment City ofUkiah Wastewater Treatment Plant Improvement Project Request for Proposal Construction Management Consultants Mailing List 1. WILLDAN 2399 Gateway Oaks Drive, Suite 210 Sacramento, CA 95833 2. Brown and Caldwell 201 North Civic Drive Walnut Creek, CA 94596 3. Carrollo Engineers 2500 Venture Oaks Way, Suite 230 Sacramento, CA 95883 , MWH Americus, Inc. 1340 Treat Boulevard, Suite 300 Walnut Creek, CA 94596 5. Owen Engineering 3377 Coach Lane, Suite K Cameron Park, CA 95682 6. Boyle Engineering Corporation 1211 North Dutton Avenue, Suite C Santa Rosa, CA 95401 7. ArcSine Engineering 970 Executive Way Redding, CA 96002 8. Metcalf& Eddy 701 Edgewater Dr. Wakefield, MA 01880 o Camp Dresser & McKee One Walnut Creek Center 100 Pringle Avenue, Suite 300 Walnut Creek, CA 94596 10. Coastland Civil Engineering, Inc. 1400 Neotomas Avenue Santa Rosa, CA 95405 11. Harris & Associates 120 Mason Circle Concord, CA 94520-1214 12. Brelji-Race Consulting Engineers 5570 Skylane Boulevard Santa Rosa, CA 95403 13. Metcalf & Eddy 999 Town and Country Road Orange, CA 92868 14. HDR Engineering 350 Frank H. Ogawa Plaza, Suite 200 Oakland, CA 94612 15. URS Corporation 100 California Street, Suite 500 San Francisco, CA 94111 16. Winzler & Kelly 495 Tesconi Circle Santa Rosa, CA 95401 17. Black & Veatch 8950 Cal Center Drive, Suite 238 Sacramento, CA 95826 0 MEMO Agenda Item: 9f TO: FROM: Honorable Mayor and City Councilmembers City Clerk Marie Ulvila SUBJECT: Agenda Item #9f: Discussion and Possible Support of Legislation Regarding Amendment of ADA DATE: February 10, 2005 Every attempt will be made to forward the above referenced Agenda item #9f to the City Council for review no later than Monday, February 14, 2005. Memos: ASR- Atty ITEM NO. 9f DATE: February 16, 2005 AGENDA SUMMARY REPORT SUBJECT: POSSIBLE SUPPORT OF LEGISLATION TO AMEND AMERICANS WITH DISABILITIES ACT TO REQUIRE PRIOR NOTICE OF SUIT SUMMARY: Attached as Attachment 1 are a January 5, 2005, letter from the City of Morro Bay and a proposed resolution requesting support from the City Council for legislation that would amend the Americans with Disabilities Act ("ADA") and California State Access laws to require notice prior to filing a lawsuit over violations of those laws. These laws require public accommodations and facilities to be accessible to persons in wheel chairs or with other disabilities. As the letter explains Morro Bay and a number of other cities have been sued for alleged violations of the ADA. If a plaintiff prevails in such a suit, he or she can recover attorneys' fees from the defendant in addition to other relief. Often the attorneys' fees are much higher than the cost to remedy the ADA violations. Morro Bay gives the example of the ADA suit it settled for $75,000 worth of improvements to public facilities. The plaintiff demanded $200,000 in attorneys' fees. In another example, sixteen lawsuits were filed against local restaurants in Morro Bay. Each lawsuit alleged the exact same ADA violations (which were purportedly minor) and were filed by the same attorney. Because of the expense to fight the lawsuits, two restaurants simply closed their doors. Morro Bay argues that the ADA and the California Access laws are good laws with the important goal of making public facilities and accommodations accessible to persons with disabilities, but they are being abused by some attorneys who are exploiting the law to recover attorneys fees at the expense of small business and public entities. Congressman Mark Foley (R-FL) has introduced in the 108th session of Congress legislation that attempts to curb these abuses by requiring notification to a business or public entity of alleged violations with a reasonable opportunity to correct the violation Continued on Page 2 RECOMMENDED ACTION: Adopt attached resolution ALTERNATIVE COUNCIL POLICY OPTIONS: Decline to adopt resolution or revise resolution. Citizen Advised: None Requested by: City of Morro Bay Prepared by: David J. Rapport Coordinated with: Candace Horsley, City Manager Attachments: Attachment 1, Letter from Moro Bay, Resolution; Attachment 2, H.R. 728; Attachment 3, (~594 APPROVED: ' .-~----__.,~~ Candace Horsley, City M~nager February 11,2005 Page 2 of 2 before a lawsuit can be filed. The bill is H.R. 728 and is called the ADA Notification Act. (Attached as Attachment 2.) At the state level, Assemblyman Tim Leslie (Tahoe City) has introduced in the 2004 session of the Assembly AB 2594, the Public accommodations: persons with disabilities law. (Attached as Attachment 3.) Under this law, an owner or operator of public accommodations or public facilities could hire an ADA specialist to review the design and construction of such facilities. The specialist could issue a Certificate of ADA Compliance. Holders of the Certificate would be entitled to notice and an opportunity to cure violations before a lawsuit could be filed. These laws are intended to curtail the bounty hunter element of ADA litigation and give small business and public entities a reasonable opportunity to correct ADA violations before being subjected to expensive litigation and exposed to attorneys fee claims. Staff recommends that the City Council adopt the attached resolution supporting these bills. City of Morro Bay .~lorro Bay. CA 9' ~ ~44z · S05--~2~6200 JanuaO' 5. 2005 Candace Horsley Ukiah City Manager 300 Sentinary Avenue Ukiah. CA 95482 Affachment # ] JAN ~, 4 9005 Re; Request for support.for legislation that wouM amend the Americaf~s with Disabilities Act to require notice prior to filing a lawsuit. Dear City Manager: This correspondence is being sent to y..'ou at the direction of the City Council lbr the City of Morro Bay to solicit your support for le~slation that would amend the Americans with Disabilities Act and California State Access laws to require notice prior to filing a lawsuit. As you may lmow, the City of Morro Bay is located on the Pacific Coast of California about half way between San Francisco and Los Angeles near Hearst Castle and the Big Sur Coast. The City of Morro Bay is a working fishing village and the local fishing industD' ~s one of the most important along the Caliibmia Coast. The City is a pleasant tourist destination with shops, restaurants and hotels along the coastline and within several blocks of the primary streets. The Embarcadero. which runs along the watert¥ont, includes art galleries, tourist ~tt shops, surf and sport shops and dozens of restaurants. The City of Morro Bay has ~own very little in the past 20 years, and as of 2000, there are 10,350 people residing in the City. There are absolutely no national chains in the City of Morro Bay except grocery stores and fast food chains. All of the shops and restaurants are locally owned and operated and are considered "Mom & Pop" shops. In 2002, litigation was filed against the City for alleged violations of the Americans with Disabilities Act (ADA) and State Access laws. The City quickly settled a portion of the lawsuit by.' agreeing to spend $75,000 on ADA improvements over the next five years. The City was unable to settle the portion of the lawsuit dealing with attorneys' tees as plaintiWs attorneys demanded approximately S200,000. The Court recently reduced the amount of the attorneys' tees to S54,000; however, plaintiff's attorney is appealing the decision. In 2004, litigation was filed against 16 locally owned and operated restaurants in Morro Bay for alleged violations of ADA. All of the lawsuits are identical and have been filed by the same plaintiff and attorney. These lawsuits have had a tremendous impact on the Community. Two of ADMINISTRATION 595 Harbor Street HARBOR DEPARTMENT 1275 Embarcadero Road Cl'Iq' A-i-I'ORNEY 955 Shasta Avenue POLICE DEPARTMENT 870 Morro Bay Boulevard FINANCE DEPARTMENT 595 Harbor Street PUBLIC SERVICES 955 Shasta Avenue Fl R E DEPARTM ENrl- 715 Harbor Street RECREATION f-q=PARKS' 1001 Kennedy \Var Request for Support - .ADA January 5. 2005 the restaurants have had to close their doors as they did not have the financial ability to fight the allegations. The 14-year-old Americans with Disabilities Act is a good law. Unfortunately, the intent and spirit of the Americans with Disabilities Act of 1990 is being abused by a ~owing number of attorneys. Without giving small business owners an opportunity to remedy the alleged violations. . these attorneys are filing lawsuits tbr lninor technical access violations. Fearing the time, hassle and expense of lawsuits, small businesses are being forced into cash settlements- most of which goes to the attorneys. By creating a multitude of cases, these attorneys are generating substantial amounts of income tbr themselves at the expense of small businesses. To help rectii3; this problem, Con~essman Mark Foley (R-FL) introduced the ADA Notification Act (H. R. 728), which amends the Americans with Disabilities Act of 1990 to deny juri'Sdiction to a court in a civil action /'or remedies unless the complainant has implemented specified notification procedures that include opportunity for correction of the alleged violation. At the State level, Assemblyman Tim Leslie (Tahoe City) has introduced si~nilar legislation. AB 2594 Public accommodations: persons with disabilities would allow a person who hires an ADA specialist to review the desi~ and construction of the person's premises to have a Certificate of ADA Colnpliance. Holders of such a certificate would be entitled to notice and the opportunity to correct future ADA violations before a civil lawsuit could be filed. Con~essman Foley's and Assemblyman Leslie's legislation would curtail the abusive practice of certain attorneys filing lawsuits for easily correctable ADA infractions and would enable small businesses to work with the disabled community to correct minor violations and improve accessibility lbr the disabled. In effect, passage of this legislation would tip the balance back to accessibility and back to the disabled and away from the lawyers. Recently our City Council passed the enclosed resolution and directed Staff to notify other jurisdictions and solicit support in our endeavor to seek an amendment to the Americans with Disabilities Act to require notice prior to filing a lawsuit. Thank you for )'our assistance. Sincerely, Robert Schultz City Attorney RESOLUTION 2005- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH SUPPORTING LEGISLATION AMENDING THE AMERICANS WITH DISABILITIES ACT TO REQUIRE NOTICE PRIOR TO FILING LEGAL ACTION. WHEREAS: 1. The Americans with Disabilities Act ("ADA") gives civil rights protection to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion; and 2. The ADA guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications; and 3. The City of Ukiah supports the goals of this landmark civil rights law and the original intent of the ADA, because it provides equal access opportunities for all Americans; and 4. Since the enactment of the ADA, it has been reported that some attorneys have abused the ADA as a device for generating attorneys fees rather than a means of insuring equal access to persons with disabilities, and the excessive cost of these abuses may actually undermine the goals of the ADA by unnecessarily increasing the cost of compliance; and 5. Legislation introduced in the 2004 Session of the California Legislature by California State Assemblyman Tim Leslie (AB 2594) and in the 108th Congress by Congressman Mark Foley (H.R. 728) would amend the ADA to require, as a precondition to commencing a civil lawsuit under the ADA, that an opportunity be provided to correct alleged violations; and 6. This legislation will promote ADA compliance without the added and unproductive costs of litigation; NOW, THEREFORE, BE IT RESOLVED that: 1. The City Council of the City of Ukiah supports the adoption of AB 2594 and H.R. 728 or similar legislation that would require notice prior to filing legal action for violations of the ADA; and 2. The City Clerk shall deliver copies of this Resolution to the City of Morrow Bay, League of California Cities, the Governor's Office, to the California and Federal Legislative Delegation and to Assemblyman Leslie and Congressman Foley. PASSED AND ADOPTED on February 16, 2005 by the following Roll Call Vote: Ayes: Noes: Abstain: Absent: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk Attachment # 108TH CONGRESS 1ST SESSION H.R. 728 To amend title III of the Americans with Disabilities Act of 1990 to require, as a precondition to commencing a civil action with respect to a place of public accommodation or a commercial facility, that an opportunity be provided to correct alleged violations. IN THE HOUSE OF REPRESENTATIVES FE~RUAgY 12, 2003 Mr. FOI,EY (for himself, Mr. SH~V, Mr. Cox, Mr. HUNT~R, Mr. Mr. PAUL, Mr. ADERHOLT, Mr. ROHRABACHER, Mr. CUNNINGHAM, Mr. RADANOVICH, Mr. HEFLEY, Mr. DUNCAN, Ms. GRANGER, Mr. BALLENGER, Mr. KOLBE, Mr. WELDON of Florida, and Mr. ISSA) intro- duced the following bill; which was referred to thc Committee on thc Ju- diciat~~ A BILL To amend title III of the Americans with Disabilities Act of 1990 to require, as a precondition to commencing a civil action with respect to a place of public accommo- dation or a commercial facility, that an opportunity be provided to correct alleged violations. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the "ADA Notification 5 Act". 2 1 SEC. 2. AMERICANS WITH DISABILITIES ACT OF 1990; 2 AMENDMENT TO PROVIDE OPPORTUNITY TO 3 CORRECT ALLEGED VIOLATIONS AS PRE- 4 CONDITION TO CIVIL ACTIONS REGARDING 5 PUBLIC ACCOMMODATIONS AND COMMER- 6 CIAL FACILITIES. 7 Section 308(a)(1) of the Americans with Disabilities 8 Act of 1990 (42 U.S.C. 12188(a)(1)) is amended 9 (1) by striking "(1) AVAILABILITY" and all that l0 follows through "The remedies and procedures set 11 forth" and inserting the following: 12 "(1) AVAILABILITY OF REMEDIES AND PROCE- 13 DURES.. 14 "(A) IN GENERAL. Subject to subpara- 15 graphs (B) and (C), thc remedies and procc- 16 durcs set forth"; 17 (2) in subparagraph (A) (as designated by 18 paragraph (1) of this section), by striking the second 19 sentence; and 20 (3) by adding at thc end the following subpara- 21 gTaphs: 22 "(B) OPPORTUNITY FOR CORRECTION OF 23 ALLEGED VIOLATION.--A court does not have 24 jurisdiction in a civil action filed under sub- 25 paragraph (A) with thc court unless. · HR 728 IH 1 2 3 4 l0 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 3 "(i) before filing the complaint, the plaintiff provided to the defendant notice of the alleged violation, and the notice was provided by regSstered mail or in person; "(ii) the notice identified the specific facts that constitute the alleged violation, including identification of the location at which the violation occurred and the date on which the violation occurred; "(iii) 90 or more days has elapsed after the date on which the notice was so provided; "(iv) the notice informed the defend- ant that the civil action could not be eom- meneed until the expiration of such 90-day period; and "(v) the complaint states that, as of the date on which the complaint is filed, the defendant has not corrected the alleged violation. "(C) CERTAIN CONSEQUENCES OF FAIL- URE TO PROVIDE OPPORTUNITY FOR CORREC- TION. With respect to a civil action that does not meet the criteria under subparagraph (B) · HR 728 IH l0 ll 12 13 4 to provide jurisdiction to the court involved, the following applies: "(i) The court shall impose an appro- priate sanction upon the attorneys involved (and notwithstanding the lack of jurisdic- tion to proceed with the action, the court has jurisdiction to impose and enforce the sanction). "(ii) If the criteria are subsequently met and the civil action proceeds, the court may not under section 505 allow the plain- tiff any attorneys' fees (including litigation expenses) or costs." sHR 728 IH AMENDED IN ASSEMBLY APRIL 27, 2004 CALIFORNIA LEGISLATURE---2003-04 REGULAR SESSION ASSEMBLY BILL No. 2594 Attachment Introduced by Assembly Member Leslie February 20, 2004 An act to add Section 55.3 to the Civil Code, relating to public accommodations. LEGISLATIVE COUNSEL'S DIGEST AB 2594, as amended, Leslie. Public accommodations: persons with disabilities. (1) The federal Americans with Disabilities Act of 1990 and the California Building Standards Code require that specified buildings, structures, and facilities be accessible to, and usable by, persons with disabilities. Existing law establishes in the Department of General Services the State Architect with responsibilities relating to architectural services and state buildings. Existing law requires the State Architect to establish and publicize a program for voluntary certification by the state of any person who meets specified criteria as a certified access specialist. It also requires the State Architect to annually publish and make available to the public a list of certified access specialists and provide that this certification is effective for 3 years and renewable. This bill would emitle a person who hires a certified access specialist to review the design and construction of the person's premises to a Certificate of ADA Compliance if the certified access specialist deems the premises in compliance with the standards governing access to buildings for persons with disabilities. 98 AB 2594 -- 2 -- (2) Existing law authorizes any person who is aggrieved or potentially aggrieved by a violation of prescribed requirements relating to access to buildings by handicapped persons to bring a civil action to enjoin the violation. This bill would instead authorize a person who is aggrieved or potentially aggrieved by a violation of these prescribed requirements, except as specified, on premises subject to the certificate where the certificate is clearly visible to bring a civil action to enjoin the violation only after the person who is aggrieved or potentially aggrieved notifies the owner of the premises by certified mail of the violation and the owner of the premises has had an opportunity to respond to the notice and, if the owner of the premises responds to the notice in a timely and appropriate manner, has had an opportunity to address the allegations in the notice, as specified. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. The people of the State of California do enact as follows: 1 SECTION 1. This act shall be known and may be cited as the 2 "Full Access, Fair Compliance Act of 2004." 3 SEC. 2. Section 55.3 is added to the Civil Code, to read: 4 55.3. (a) A person who hires a certified access specialist 5 listed pursuant to Section 4459.7 of the Government Code to 6 review the design and construction of the person's premises shall 7 receive a Certificate of ADA Compliance if the certified access 8 specialist deems the premises in compliance with the standards 9 governing access to buildings for persons with disabilities. , 10 (b) A person who receives a Certificate of ADA Compliance 11 shall post the certificate in a clearly visible location on the 12 premises subject to the certificate. 13 (c) A person who is aggrieved or potentially aggrieved by a 14 violation of Section 54 or 54.1, Chapter 7 (commencing with 15 Section 4450) of Division 5 of Title 1 of the Government Code, or 16 Part 5.5 (commencing with Section 19955) of Division 13 of the 17 Health and Safety Code on premises subject to the certificate 18 where the certificate is clearly visible may bring a civil action to 19 enjoin the violation only after the aggrieved or potentially 20 aggrieved person notifies the owner of the premises by certified 21 mail of the specific violation and the owner has had an opportunity 98 -- 3 -- AB 2594 1 to respond to the notice and, if the owner responds to the notice in 2 a timely and appropriate manner, has had an opportunity to address 3 the allegations in the notice. 4 (d) For purposes of subdivision (c), the owner has had an 5 opportunity to respond to the notice if the owner is provided with 6 14 days after receipt of the notice to send, by certified mail, to the 7 person aggrieved or potentially aggrieved a letter of intent to 8 investigate the situation along with a copy of the Certificate of 9 ADA Compliance. If the owner does not respond in this manner 10 within this time period, the person who is aggrieved or potentially 11 aggrieved may proceed with the civil action based upon conditions 12 existing at the end of the 65-day period or thereafter: 13 (e) For purposes of subdivision (c), the owner has had an 14 opportunity to address the allegations in the notice after the owner 15 of the premises is provided with 65 days after receipt of the notice 16 described in subdivision (c) to send, by certified mail, a letter 17 signed by the owner or a representative and the certified access 18 specialist that the violation has been adequately addressed. After 19 this letter is sent or the 65-day period has elapsed, whichever 20 occurs first, the aggrieved or potentially aggrieved person may 21 proceed with the civil action. 22 (f) The requirements of this section do not apply to any area 23 within premises subject to a Certificate of ADA Compliance if the 24 area is modified subsequent to the issuance of the certificate and 25 the owner does not obtain a new Certificate of ADA Compliance 26 for the modified area. 27 (g) The requirements of this section do not apply if any one of 28 the following occur: 29 (1) There is an architectural barrier preventing access to the 30 premises. 31 (2) Actual bodily injury occurs. 32 (3) Compliance in relation to the alleged violation **,as 33 previously not readily achievable and has subsequently become 34 readily achievable. 35 (h) Notwithstanding subdivision (d) of Section 54.1, the 36 requirements of this section do not preempt an aggrieved or 37 potentially aggrieved person from seeking remedies provided 38 under the federal Americans with Disabilities Act of 1990 (42 39 U.S.C. Sec. 12102). AB 2594 -- 4 -- 1 (i) A certification of compliance shall not be deemed prima 2 facie evidence of compliance with either Title 24 of the California 3 Code of Regulations or thefederalAmericans with Disabilities Act 4 of 1990 (42 U.S.C. Sec. 12102), nor shall the absence of this 5 certificate be used as evidence on noncompliance. 0 98