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HomeMy WebLinkAbout2005-05-04 Packet - Special CITY OF UKIAH CITY COUNCIL AGENDA SPECIAL MEETING CITY COUNCIL CHAMBERS 300 SEMINARY AVENUE Ukiah, CA 95482 May 4, 2005 4:30 p.m. 1. ROLL CALL 2. WORKSHOP DISCUSSION OF MUNICIPAL GOLF COURSE OPERATIONS AND CONSIDERATION OF REQUEST FOR PROPOSALS FOR GOLP PROFESSIONAL AND CONCESSION SERVICES AT UKIAH MUNICIPAL GOLI- COURSE 3. ADJOURNMENT. ITEM NO. ~ DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: WORKSHOP DISCUSSION OF MUNICIPAL GOLF COURSE OPERATIONS AND CONSIDERATION OF REQUEST FOR PROPOSALS FOR GOLF PROFESSIONAL AND CONCESSION SERVICES AT UKIAH MUNICIPAL GOLF COURSE SUMMARY: At the March 19 meeting, Council requested an opportunity to review and discuss the Ukiah Municipal Golf Course. In addition to providing an overview of facility, this report also identifies several pending issues regarding golf course operations, including the reconsideration of a proposed lease of cart storage facilities, the green fee schedule and recruitment of golf pro/concession services. Staff is presenting these issues to Council in order to get the direction needed to make improvements to course operations and for the development of corrective measures to address a declining fund balance. Golf Course Background The Ukiah Municipal Golf Course is a 5,850 yard, eighteen hole, USGA rated, par 70 facility. Amenities include a proshop, practice green, cart storage buildings, and community/dining room. The course was built in two stages on approximately 80 acres. The first stage (front nine holes) was constructed in the mid 1930's and the second nine holes were constructed in the late 1970's. The front nine holes were purchased by the City and constructed as a partnership between the City and a group of citizens that ultimately evolved into the Ukiah Men's Golf Club. The back nine holes were constructed on County land that the City leased for one dollar per year. In the early 1990's the County of Mendocino was in need of funds for the construction of a new administration center. The County decided to terminate the lease with the City and sell the golf course property. Ultimately, the City purchased the property for $1,000,000 and paid for the transaction with bond proceeds. The debt payment of approximately $95,000 each year is included in the annual golf course budget and is scheduled for payoff in 2018. (Continued on Page 2) RECOMMENDED ACTION: 1. Receive report and provide direction on revising the fee schedule and cart shed lease. 2. Approve the issuance of the Request for Proposal for Golf Professional Services. ALTERNATIVE COUNCIL POLICY OPTIONS: 1. Determine the issuance of the Request for Proposal for Golf Professional Services is inappropriate at this time and remand to staff with further direction. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Golf Course Representatives City Council Larry W. DeKnoblough, Community Services Director and Sage Sangiacomo, Community Services Supervisor Candace Horsley, City Manager 1. FY2004/2005 Budget Sheets 2. Current Fee Structure and Comparison 3. Draft RFP for Golf Professional Services APPROVED: ~~ '~_~..., Candace Horsley, City ager Operation and Maintenance The City of Ukiah is responsible for the operation and maintenance of the course. Full time staffing levels have remained the same since the Fiscal Year 2000/01 budget. Currently, the golf maintenance staff consists of one full time supervisor, three full time golf service workers, one 32- hour golf service worker and one summer seasonal employee. In addition, the Director of Community Services and the Community Services Supervisor are responsible for managerial oversight and support services with the golf course providing only partial funding for each of these positions. The Parks, Recreation and Golf Commission provides public oversight of the course and makes policy, project and program recommendations for the Council's consideration. Golf Pro and Concessions Services The City currently contracts with a qualified member of the Professional Golf Association to operate and provide golf professional (Pro) and concession services at the golf course. The scope of services and responsibilities of the operator include the tasks described below: · Manage all pro shop operations including collection and accounting of daily greens fees, categorical recording of rounds played, and selecting and acquiring all golf related merchandise and supplies for retail merchandising. · Operate a food and beverage concession service. · Operate and maintain a fleet of carts for public rental. · Provide golf instruction. · Render professional advise, assistance, and services as required by the golfers and the City of Ukiah. · Provide marketing assistance including the development of campaigns to increase play dudng Iow play periods. · Act as liaison between the City and various golf organizations affiliated with the golf course. · Actively coordinate golf activities with golf course maintenance to minimize interference with play and smooth administration of tournaments and special events. In retum for these services, the Pro retains fees collected from cart rentals and lessons and a percentage of green fees and concession sales. Men's and Women's Golf Clubs The City of Ukiah maintains an active relationship with the Men's and Women's Golf Clubs. Both clubs are actively involved in course operations and hold permanent seats on the Parks, Recreation and Golf Commission. The clubs have been instrumental partners throughout the history of the golf course in completing many improvement projects including participating in the original construction of both the front and back nine holes. In an effort to keep operational expanses at a minimum and fees affordable, the clubs regularly provide volunteers and funding for course improvements. In fact, the only major capital improvements accomplished over the past three years at the facility are those undertaken by the clubs. Most recently the Ukiah Men's Golf Club purchased a triplex mower at a cost of $5,000 and donated it to the City for improved maintenance operations. The Women's Golf Club recently purchased a new pedestrian bridge for Hole 4 in order to speed up play and ensure the safety of golfers traversing over an open drainage area. In addition, both clubs promote play through the sponsorship and organization of league play and tournaments. Funding for improvements is raised through donations, tournaments and the Men's Club operation of a private cart storage shed. Private Cart Storage Sheds There are approximately 134 private carts registered for use at the course. In 1998, the City Council approved a ground lease with the Ukiah Men's Golf Club (UMGC) by which the Club was permitted to construct and operate a golf cart storage facility for privately owned carts. ,At the same time, the City of Ukiah has continued to operate a separate private cart storage facility. When the agreement was approved, there was a significant need for additional cart storage and the City could not accommodate the demand. However, because of the age of the building and budget constraints resulting in deferred maintenance, the City's storage facility has suffered from declining space rentals. The gradual degradation in the quality of the City's aging facility has resulted in a migration by customers who opt to store their carts off-site or wait for a space to open at UMGC facility rather than deal with the undesirable conditions of the City's facility. Currently, there is a lease pending that would combined the operations of both cart sheds under the management of the UMGC. In addition to renovating the older shed, UMGC has also agreed to constructing a new 25ft. x 50 ft. maintenance shed that will be turned over to the City for use by the Golf Division to house maintenance equipment that is currently parked outside along the 18th fairway. Staff has reviewed the potential of renovating the cart shed currently operated by the City and the construction of additional maintenance space. The cost of renovating the cart shed would be in excess of $10,000. The net revenue generated by the City's shed is estimated at approximately $3,000 to $4,000 per year. Furthermore, the cost to build additional maintenance space as proposed in the lease could easily exceed $70,000. The Golf Enterprise Fund does not currently possess adequate reserves to finance such expenses nor are revenues adequate to support construction as a budgeted expenditure. The.UMGC will be able to offset much of the expenditures associated with the management of the storage facility with volunteer labor and donated materials. In addition, the City will benefit from an increased number of projects undertaken by the UMGC as the net revenues received from the operation of the storage facility are required by the lease to be utilized for either the improvement or promotion of the golf course. The City of Ukiah Parks, Recreation and Golf Commission reviewed and endorsed the proposal at their January 18, 2005 meeting. Rounds Played The course currently supports between 38,000 to 45,000 rounds of play per year. The following chart illustrates the number and type of rounds played during the 2004 season. 18 Holes 9 Holes Seniors Juniors Twilight Type Weekdays Weekends Weekdays Weekdays Weekends Weekdays Weekends 2004 Rounds Total 3,386 3,582 540 1,754 814 494 6,335 2,228 Played Report T)~pe Total Punch Cards Weekdays 180 Weekends 438 Monthlys 1,152 2 for 1 294 Comps Marshals 634 General 1065 Yearlys 17,152 Total Rounds Played: 40,046 The fluctuation in the total rounds played from year to year is primarily influenced by seasonal weather conditions. Wet weather has the greatest impact on course conditions and can severely restdct play. The majority, approximately 84%, of all play is from the three categories of daily (19%), annual membership (43%), and twilight (22%). Comp rounds include the 2 for 1 specials used to attract out of town play during Iow play periods of the year, course marshal program incentives, and a general category which primarily includes Ukiah High School's use of the facility. Revenue Sources Revenue is generated from a number of different services and products offered at the course. The following chart illustrates these revenue sources for Fiscal Year 2004/05. Revenue Sources Type Description FY 2004/05 Percentage Budget of total revenue Memberships A single yearly fee buys unlimited and unrestricted play. $ 150,000 24.4% Green Fees iA fee that buys one or more rounds of play i(includes daily, monthly, and punch cards). $ 397,000 64.6% Concessions ICity receives a percentage of Pro Shop Concessions $ 15,000 2.4% Cart Storage !Rent charged to store a privately owned cart in the City's storage shed. $ 10,000 1.6% Cart Path ~Private carts fee charged to permit access onto the course. $ 30,000 4.9% Golf Cart Rental A yearly contractual flat fee paid by the Pro for License the cart rental business $ 2,500 0.4% nterest Yearly interest accrued on fund balance. $ 10,000 1.6% Total $ 614,500 Golf Course Budget History The Golf Course is currently set up as an enterprise fund and revenues must cover expenditures. During the golf boom of the mid 1990's golf activity was at a peak nationwide and the golf course was able to establish a significant fund balance. Since that time, golf play has tapered off, which is reflective of an industry wide trend, and operating costs have out paced revenues resulting in an annual drain on the fund balance. As of December 31, 2004 the Golf Course fund balance has been reduced to $75,000. In an effort to maintain a balance between revenues and expenditures staff had forwarded to the Council five fee increase proposals since 1994. The last of these proposals was adopted in July 2002, which set a five-year fee schedule that included an annual escalation of fees tied to the Consumer's Price Index, each year until 2006. While revenues have increased through fee adjustments, expenditures have continued to increase at a faster rate. The C.P.I is simply not increasing at an adequate rate to offset rising operational costs. The Fiscal Year 2004/05 budget is included as Attachment #1. Below is a budget summary that provides a historical overview of revenues and expenditures for the past five years with this year's projections included. While operational expenditures were covered by revenue, capital expenditures and facility maintenance improvements over extended funding in most years up until Fiscal Year 2003/04 and required the use of reserves to balance the budget. 1999-00 2000-01 2001-02 Revenues $442,198 $556,558 $542,567 Operations expense -483,993 -552,155 -523,452 Capital -40,935 -43,150 -51,700 Net Income $(82,730) $(38,747) $(32,585) Revenues Operations expense Capital Net Income 2002 -03 2003-04 2004-05 $620,989 $560,558 $605,~ ~ -603,451 -620,684 -606,036~ -10,744 -704 -7,500 $ 6,794 $ (60,780) $ (8,536) Every effort has been made over the years to maintain as lean an expenditure budget as possible in order to keep fees affordable. Staffing levels are at an absolute minimum in order to maintain the quality of play required at the course and maintenance has been reduced to only essential operations. Other than increased costs for vehicle and equipment maintenance, and salades and benefits, the operations and maintenance budget has either been reduced or remained static. Fee Schedule Analysis Revenue generation is limited by a fee structure that worked in the past but is heavily slanted to discounts. Approximately 80% of all rounds are played at a discount rate. The existing fee structure includes five main categories and several sub-categories. For instance, the category of annual memberships includes the five sub-categories of adult, adult couple, senior, senior couple, and junior, all of varying discounts. The current fee structure is provided as Attachment #2. The greatest majority of golf course revenue is generated from daily greens fees (almost $183,000) or approximately 30%. Yet daily fees account for only 19% of the total rounds played, while annual memberships account for nearly 43% of the total rounds played and contribute less than 25% ($150,000) of the financial support. The daily rate payer is generally a golfer who plays only occasionally or at most two to three times per month, as opposed to the average annual member who will play at least two times per week. This is significant because it emphasizes recognition of the value of the casual or out of town golfer and that any future fee structure should not unduly place the burden of balancing the Golf Course budget on the backs of nonmember golfers. This is also a parity issue in that a fee structure on a municipally owned golf course that continually increases the daily rate as an offset to maintaining a favorable membership fee structure limits equal accessibility of the golf course to all members of our community. Past attempts to restructure the membership fee schedule through increased fees, limitations on play, or elimination of the senior discount have been unsuccessful as any limitations on annual memberships have generated a significant level of contention. Staff believes the annual membership fee categories have been unfairly Iow and too liberal in the amount of play allowed. Currently annual memberships allow unlimited play seven days per week with deep discounts for seniors and senior couples. The actual number of annuals fluctuates each year but as a rule there are between 150 and 190 annual members, which represent about 1% of the City's citizens. Over the last three years the average annual rounds played by memberships has climbed to more than 17,000 which equates to 43% of the total rounds played. Revenue from annual memberships has averaged approximately $144,000. This equates to an average cost of $8.23 per round compared to the current rate of $23- $27 per round for the daily rate payer or the resident who is an occasional player. In addition, the operational cost of the golf course is currently greater than $14.25 per round, based upon a maximum of 45,000 rounds per year. If the number of rounds played drops to 40,000, which frequently occurs, the cost of operations per round increases to $16.00. Based upon these figures the Golf Course is losing between $6.00 and $7.77 per round on annual memberships. This type of loss is the reason many municipally owned golf courses have significantly increased membership fees, switched to limited play memberships, or grandfathered them out. The current fee structure has remained in place as members have strongly and successfully opposed any significant increase or reduction in the amount of play allowed by the annual fee. The major concern expressed by members regarding the current and previous fee increases has been convenience, retaining affordability and better access to local players. Attachment #2 also provides Council with a fee comparison spreadsheet of other golf courses in the area, which are Ukiah's primary competition and the courses most visited by local players on a regular basis. Council should note that daily fees provided in the spreadsheet range between 40% and 45% higher than Ukiah, annual memberships are between 65% and 170% higher, and only Ukiah offers senior discount categories for the annual memberships. Also note that some of the courses charge nonresidents a significantly higher fee. In addition, only one other course allows pdvate carts and charges permit fee substantially higher than Ukiah's. Over the last year, staff has been discussing these issues with representatives of the Ukiah Men's Golf Club and the Parks, Golf, and Recreation Commission. It has been the consensus from these discussions that while there may be a benefit to continuing to provide an annual fee in order to promote activity during the rainy off-season, a better balance is needed in the fees charged for this service, if they are to be continued. Based upon Council input during the workshop, staff will develop a revised fee schedule for consideration in June. Expiration of Golf Professional and Concession Services Agreement In addition to addressing the golf course budget issue, the contract for golf professional services has expired. Previous Council direction has been to research the type of agreements and services which are in place at other public courses and identify services within the contract which would be viable for the golf course fund to capture additional revenue. Council also indicated a desire to develop and issue a Request for Proposals (RFP) from appropriate outside concessionaires once that research was completed. This does not preclude the current Pro from submitting a proposal, Council simply wished to be able to seek comparative proposals. Staff will be returning to Council at the next meeting to extend the contract to allow time to complete the RFP Process. Staff has conducted the research and developed a draft RFP (Attachment #3) for Council's review. The RFP defines a comprehensive scope of services which far exceeds the services defined in the current contract. Pages two and three describe twelve bullet points of services which the contractor will be required to provide. In addition, the RFP includes a detailed description of the overall philosophy of service for the City's golf course and asks the contractor to describe the methodology and practices which will be put in place to meet those service objectives. Two additional items included in the RFP are to research the possibility of developing of a practice range facility and expanding on-site food and beverage services. The RFP states that the contractor will be required to work with the City to "investigate the potential" to develop a practice range on or off-site. As the development of a practice range may not be feasible, the RFP language requires the Pro to work with the City to attempt to do so but, if not feasible, will not require it. A bar and grill type facility is a standard service at most golf courses and can significantly contribute to the facilities revenue. Currently, a very limited food and beverage service is provided at the same counter which golfers, including families and minors, must pay and register to play. The RFP includes language that requests the contractor to develop a plan for the operation of an expanded type of grill and banquet facility, if feasible given facility constraints. The current configuration of the Pro Shop is not conducive to this type of operation and modifications to the facility and/or use of the Todd Grove Room may have to be considered to accomplish this improvement. Staff is presenting this information to Council as an update in order to prepare for budget discussions and address pending issues. At this time, staff is requesting approval to issue the Request for Proposal for Golf Professional Services. Based on Council input and direction during the workshop, staff anticipates developing and proceeding with the following items: · Developing a revised fee schedule for Council consideration in June. · Returning to Council for six month extension of the Contract for Golf Professional Services · Issuing the Request for Proposals for Golf Professional Services. · Returning to Council for consideration of agreement with the Ukiah Men's Club for cart shed lease. Attachment # 0600 O0 0 0 0') 0 0 0 0 0 0 0 0 --'~ 0 0 0 0 0 0 0 O r4D O~ OO002 O0 ,...~ -~ Oo 0'~ --~ o 0 0 0 0 0 0 O0 0 0 0 0 0 0 O0 O(003 C~ o o I',,o .-..~. O b0 ..-.~. O O (.~ O o o o o o 4:~ o o"~ (D O O O o o 4:::~. O O O r,o O O o o O O 4:~ O O qD O O O O O .,~ O O O I~ O O O O O .~40~ O O O00 O O"~ O C~ C~ f,,,) 00q -..~ 0 0 '~,i 0 0 J 0 r" m © .-< · .<~ © o o 0 o o o h00 rj"l o hO 0 0 0 .-,4 --,I -.-~ O0 0 0 0 0 00q IN5 00q 0 0 i:::, o o -.-, U ~ U U % 0000"'".40')1"00(..0 0 0 0 0 f',..) "'-40 04::~ 0 0 0 0 "'-4 C~ I"00 GO 0 0 0 01"0 -..40 04:~ 0 o o 0 --.4 c~ I'o o oD o o o c) h,.}...-.-4 o o 4%. 'l:J 0 0 ,-< ;;:o 0 ITl<r-C) m'-rl or- "F o 0 o 0o (.~ 0 .-.~. r..~ o Z ITl Z --I '-I 0 .r- o Attachment # 0 C~ Attachment #3 CITY OF UKIAH REQUEST FOR PROPOSALS (Draft) GOLF PROFESSIONAL SERVICES PROPOSAL DUE APRIL 22, 2005 Attachment #3 1. INTRODUCTION The City of Ukiah is seeking proposals for a qualified member of the Professional Golf Association to operate and provide golf professional (Pro) and concession services at Ukiah Municipal Golf Course. The City anticipates a multi-year agreement for the work requested in this RFP and is seeking an individual experienced in working with public agencies and municipal golf course management. All submittals shall include all pertinent professional data, historical background, and detailed responses to the information requested in this RFP and shall be written in an appropriate narrative text, tabular materials and illustrative graphics in such a manner as to be easily discernible to the public and City staff. All proposals must be submitted to the office of the City Clerk at 300 Seminary Ave, Ukiah, CA by 5:00 p.m. on Friday April 22, 2005. II. BACKGROUND The City of Ukiah is beautiful community in the heart of California wine country and approximately one hour from the Mendocino Coast. The town is located approximately 60 miles north of Santa Rosa, CA on the Highway 101 corridor with a full time population of slightly more than 15,070. Ukiah is also the retail and service hub to an area reaching a 50mile perimeter and a daytime service population of approximately 45,000 people. Ukiah Municipal Golf course is a 5,850 yard, eighteen hole, par 70, facility. Amenities include proshop, cart storage buildings, and community/dining room. The golf course averages between 40,000 and 45,000 rounds per year. The community room is currently available for rent to the public for private and public events, however, it is the City's intent to convert the community room into full time food and beverage service with banquet room. The City is also interested in the development of a full service practice/range facility either on or off-site. Golf course maintenance is the responsibility of City maintenance crews, however, the Pro is expected to actively participate in the scheduling and advising of maintenance activities. Groups involved with the golf course include a very active Men's club and Women's Clubs and the City's Parks, Recreation, and Golf Commission. The Pro is expected to actively support these groups through meeting attendance as needed and coordinating events. III. OPERATOR RESPONSIBILITIES The minimum scope of services and responsibilities of the operator shall include tasks described below: · Manage all pro shop operations including collection and accounting of daily greens fees, categorical recording of rounds played, and selecting and acquiring all golf related merchandise and supplies for retail merchandising. · Develop and implement critical business systems including but not limited to scheduling all tournaments/events, collecting all fees, preparing and submitting audits, completing asset inventories, developing personnel management procedures 2of6 Attachment #3 consistent with City policy, paying all taxes and license fees, and providing quarterly reports and accounting of business activity to the City. · Operate and maintain a fleet of carts for public rental. · Develop a complete golf instruction program and employ at least one other fulltime Class "A" Professional Golfers Association (PGA or LPGA) professional. · Develop and implement a comprehensive junior golf development program. · In cooperation with the City develop a comprehensive marketing strategy for promotion of the golf facility including but not limited to promotion of special group and tournament play programs and recruitment of out of area play. Particularly during low play periods. · Act as liaison between the City and various golf organizations affiliated with the golf course. · Actively coordinate golf activities with golf course maintenance to minimize interference with play and smooth administration of tournaments and special events. · Prepare and submit an annual operation budget for the operation of concession activities. · Possibly provide food and beverage concessions and develop a plan for the operation of a full service food and beverage facility on site. · In cooperation with the City, develop of a full service practice range facility on or off-site. · Maintain appropriate insurance in accordance with Exhibit "B" of the attached sample agreement. Based on the above general information, the City has prepared this Request for Proposals for distribution to applicants. All related information necessary to submit a proposal is provided in the following pages for your consideration. IV. INSURANCE REQUIREMENTS The insurance requirements are set forth in "Exhibit B". V. PROPOSAL PROCEDURES A. Form and Style of Proposals. 1. Describe in a detailed narrative, with supporting data or tabular materials as appropriate, the proposed approach and procedures to be used in completing the tasks described in the Scope of Services capable of meeting the City's expectations as described. Include a proposed schedule showing implementation of the various tasks as needed. The final agreement with the Pro will include a schedule for completion of the major milestones based upon selected consultant's schedule. 2. Proposals shall include a detailed description and history of the applicants experience related to and necessary for the successful completion of the tasks defined in this RFP. Include references and contact information. 3of6 Attachment #3 g$ Ce 3. Proposals shall include a statement as to whether the applicant is sole proprietor, partnership or corporation, or other legal entity and include contact information. 4. Each proposal shall include a statement that all information included in the proposal is true and accurate as represented by the presenter. Any proposal containing information proven false shall be considered rejected by the City. Submission of Proposals. 1. All copies of the proposal and any related documents shall be submitted in a sealed envelope clearly stamped Golf Professional Services Proposal in a location on the face of the envelope so as to be easily identified. Ten (10) copies of the proposal must be submitted to the office of the City Clerk at 300 Seminary Ave, Ukiah, CA by 5:00 p.m. on Friday April 22, 2005. SUBMIT PROPOSALS TO: Marie Ulvila, City Clerk City of Ukiah 300 Seminary Dr. Ukiah, California 95482 Any questions regarding this request for proposals may be directed to Mr. Larry Deknoblough, Community Services Director at (707) 463-6221. 2. Proposals received after 5:00 p.m. on April 22nd or not submitted in accordance with the specifications in this RFP shall be returned unopened. 3. Oral, Facsimile, or electronic proposals shall be considered invalid and will not receive consideration. 4. Applicants shall submit ten (10), full color if applicable, copies of each proposal. 5. Applicants are strongly encouraged to visit the facility prior to submitting a proposal Consideration of Proposals. 1. It is the intent of the City to award a contract to the applicant whose proposal is in the best interest of the City, and based upon but not limited to the applicants demonstrated experience and ability. Applicants selected for an oral presentation shall be prepared to present evidence of professional and financial ability to perform. 2. Selection of the successful applicant shall be based upon a qualitative comparative analysis of professional qualifications, quality of proposal and oral presentation as opposed to a quantitative analysis of proposals. 3. The City shall rank acceptable proposals received and within two weeks conduct oral interviews with the top ranking applicants. The City will then initiate negotiations with the top candidate. Should negotiations be unsuccessful, the City will then initiate negotiations with the next highest ranking candidate. 4. As part of the evaluation process, the City may contact the applicant's current or most previous employer or visit facilities currently operated by the applicant. 4of6 Attachment #3 De Agreement for Services Attached to this RFP is a sample agreement for professional services. A substantially similar agreement shall be executed between the City and the successful applicant and shall include the specific terms and conditions resulting from the negotiation process. me References Provide a list of at least three client references who have received services from your firm. Provide names of contact person, addresses and telephone numbers for all references. Fe Exceptions Identify any exceptions you are proposing with respect to the Scope of Services. Additionally, if there are any exceptions to the City's insurance requirements and/or the City's contract provisions as shown in the attached exhibits, the applicant should list the exceptions in the proposal. VI. PHILOSOPHY AND CONCEPT OF OPERATION STATEMENTS The following information is intended to assist with the preparation of the proposal and solicit information from the applicant as to the philosophy of the City and the methodology by which the applicant will deliver services. The proposal narrative should include a philosophy statement demonstrating the applicants approach to service delivery to the general golf community with specific reference to the tasks defined in this RFP. Examples should include: Description of the applicant's goals and overall approach to operation of golf facilities with specific reference as to how these goals apply to Ukiah. · Delineate the applicants approach to customer service and relationships with local golf groups affiliated with the golf course. State specific examples of past experience. · Describe the methods and basis for budget development and fiduciary responsibility. · Describe methods and philosophy for evaluating service provision. · Describe the applicant's anticipated relationship with the City and any advisory committees. · Provide a description of your philosophy towards and methodology for providing the following programs: o 2. 3. 4. 5. o Marshalling program and rate of play Use of private carts on the course Fee structure development Instructional programs Establishment of discount programs, play incentives, resident priority, and comps. Senior play and related discounts 5of6 Attachment #3 o 8. 9. 10. Use of facility by schools and development ofjunior programs Tournament policies Pro shop design and dress code for golf professional staff Marketing of facilities and programs VII. EXPERIENCE Minimum qualifications include that the applicant has at least five (5) years experience of management responsibility in at least a similar size facility. Proposals should include a detailed description of all previous experience in working with public agencies and list specific references and appropriate contact information. Applicants must include any golf management operations contracts, which have been cancelled or otherwise terminated in the last ten years with appropriate contact information. Applicant shall list any additional golf related operations currently under contract and the remaining length of those contracts. VIII. PERSONNEL REQUIREMENTS Proposals shall include a list of the applicants anticipated personnel to be employed in the Pro shop and the qualifications and duties for each position. If a person other than the applicant is intended to be the Head Pro present, then that shall be specified in the proposal. Operator is expected to employ at least one other fulltime Class "A" Professional Golfers Association (PGA or LPGA) professional. The City expects the current full time staff, other than the Pro, to be given first priority for hire by the incoming applicant or to be retained for a reasonable period of time to be negotiated in the agreement. IX. RIGHT OF REFUSAL The City of Ukiah reserves the right to reject any or all proposals. 6of6 CITY OF UKIAH CITY COUNCIL AGENDA Regular Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 May 4, 20O5 6:30 p.m. 4:30 p.m.: GOLF COURSE FEE. WORKSHOP 1. ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. PROCLAMATIONS a. Police Officers Week b. Lyme Disease Awareness Week 4. APPROVAL OF MINUTES a. Regular Meeting Minutes of January 5, 2005 b. Special Budget Workshop & Discussion of Proposed Sales Tax Ballot Measure Minutes of February 1,2005 B 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's 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 Agreement With Adelphia Communications For Cable Franchise Services b. Notification of Bid Award to Install a Suppressed Current Cathodic Protection System on the 0.1 Million Gallon (Mg) Reservoir to Corrpro Companies, Inc. in the Amount of $6,000 c. Notification of Procurement of Services From Reliance Enterprises For Emergency Repairs to the Boilers at the Wastewater Treatment Plant in the Amount of $6,169.95 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 PUBLIC HEARING (6:45 P.M.) a. Continuation of Krauss/Toms Appeal of Planning Commission Conditional Approval of the Marin Ventures/VValgreens Store on East Perkins Street 1 UNFINISHED BUSINESS a. Introduction of Urgency Ordinance Imposing Moratorium on Outdoor Marijuana Cultivation b. Proposed Ordinance Prohibiting Skateboards on Posted Private Property 10. NEW BUSINESS a. Discussion of Urgency Ordinance Imposing Moratorium on New Marijuana Dispensaries b. Status Report on Labyrinth Project at Observatory Park c Discussion of Maintenance Issues and Corrective Measures For the Ukiah Municipal Swimming Pools d. Consideration of Lease With Mendocino County For The City Owned \ Property Located At 280 East Standley Street e. Request For Council's Discussion and Possible Adoption Of A Resolution Endorsing SB596 Regarding Choice Voting Methods- Councilmember Rodin 11. COUNCIL REPORTS 12. CITY MANAGER/CITY CLERK REPORTS 13. CLOSED SESSION Government Code ~54956.9~ Subdivision (a), Conference With Legal Council - Existing Liti.qation~ Ford Stree~Sidnie Court Neighborhood Committee v. City of Ukiah~ Case No. SCUKCRPT 0594063 14. ADJOURNMENT The City of Ukiah complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. deception and the weak against oppression; and WHEREAS, the men and women of the Ukiah Police Department unceasingly provide a vital public service. · NOW THEREFORE, I, Mark Ashiku, Mayor of the City of Ukiah, on behalf of.the Ukiah City Council, do hereby proclaim ~ '. May 15 - May 21, 2005, as "Police Week" in the City of Ukiah in honor of the law enforcement officers, past and present, who have rendered a dedicated service to the community, and do further proclaim 'May 15, 2005, as "Peace Officers' Memorial Day" in honor of those law. enforcement officers who, through their courageous deeds, have made the ultimate sacrifice in service to their community or have become disabled in the performance of duty. -.. · IN WITNESS WHEREOF, I have hereunto set my hand and caused the Seal of the City of Ukiah to be affixed this 4th day of .<~ - May, 2005. .: PROC M ION WHEREAS, Congress and the President of the United States have designated May 15 as Peace Officers' Memorial Day, and the week in which May 15 falls as National Police Week; and WHEREAS, the members of the Ukiah Police Department play an essential role in safeguarding the rights and freedoms of the City of Ukiah; and WHEREAS, it is important that all citizens know and understand the duties, responsibilities, hazards, and sacrifices of their law enforcement agency, and that members of our law enforcement agency recognize their duty to serve the people of the community by safeguarding life and property, by protecting them against violence and disorder, and by protecting the innocent against Ma"rk Ashiku. yor / WHEREAS, the California Legislature has declared May 4 to 10, 2005, Lyme Disease Awareness Week; and WHEREAS, Lyme disease (LD) is an infectious disease transmitted by the bite of an infected western black-legged tick (Ixodes pacificus) in Mendocino County, a highly endemic area where 12 percent of the poppy-seed-sized nymphal ticks that cause most human cases of LD carry the LD bacteria; and WHEREAS, these ticks are carded by mice, rabbits, deer, birds and other forms of wildlife and domestic animals into the backyards and homes of the citizens of the City of Ukiah, as well as in outlying fields and forests where they work and recreate; and WHEREAS, traditional methods of removing embedded ticks by burning, twisting or mutilating are dangerous and can increase the risk of acquiring the infection, we encourage the citizens of the City of Ukiah to seek accurate information about effective ways to protect themselves from ticks, appropriate treatment, and which tests to order for diagnosis of this serious and debilitating disease; and WHEREAS, a new generation of nymphal ticks emerges in early May, it is thus fitting that the first week of May be declared Lyme Disease Awareness Week; NOW, THEREFORE, I, Mark Ashiku, Mayor of the City of Ukiah, on behalf of my fellow City Councilmembers, Phil Baldwin, Mari Rodin, John McCowen, and Douglas Crane proclaim May 4 to 10, 2005, 2005 3b MINUTES OF THE UKIAH CITY COUNCIL REGULAR MEETING WEDNESDAY, JANUARY 5, 2005 The Ukiah City Council met at a Regular Meeting on January 5, 2005, the notice for which had been legally noticed, at 6:30 p.m. Roll was taken and the following Councilmembers were present: Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku. Staff present: Risk Manager Archibald, Community Services Director DeKnoblough, City Manager Horsley, City Attorney Rapport, Community Services Supervisor Sangiacomo, Museum Director Smith-Ferri, Public Works Engineer Steele, Planning Director Stump, Public Utilities Director Ziemianek Clerk Ulvila. 2. PLEDGE OF ALLEGIANCE Councilmember Rodin led the Pledge of Allegianc. 3. APPROVAL OF MINUTES 3a. Re, ular Meetin Minutes of Councilmember McCowen recc name on page 9, third paragraph. recting ~spelling of~ ~er's M/S Baldwin/Rodin approwng amended, carried by the McCowen, Rodin, Baldwin, and ABSENT: None. vote: !S: NO of November 17, 2004, as Councilmembers Crane, ABSTAIN: None. 3. APPROVAL 3b. Re, ular M/S McCowen ~e Regul presented, McCowen, n, B~ ABSEN' 2004 eeting minutes of December 1,2004, as AYES: Councilmembers Crane, NOES: None. ABSTAIN: None. . ¢ should read between the within the City l establishing no set~ PROVAL nt Meetin, 1 McCow ;il & Ukiah Valley Sanitation District of ~noted a correction on page 1, the second to last paragraph with regard to the number of allocations split UVSD, applying smart growth principals for potential infill kiah, the City and County's General Plans, and the option of )s between the UVSD and the City." M/S McCowen/Rodin approving the Regular Meeting minutes of December 15, 2004, as amended, carried by the following roll call vote: AYES: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku. NOES: None. ABSTAIN: None. ABSENT: None. 4. RIGHT TO APPEAL DECISION Mayor Ashiku read the appeal process. Regular Ukiah City Council Meeting January 5, 2005 Page 1 of 29 5. CONSENT CALENDAR M/S McCowen/Rodin approving items "a" through "e" of the Consent Calendar as follows: a. Rejected Claims for Damages Received from Katherine Graham and St. Mary's Catholic Church and Referred to Joint Powers Authority, Redwood Empire Municipal Insurance Fund; b. Adopted Resolution 2005-25 Approving Records Destruction; c. Rejected Proposals Received for Conference Center Roof Overlay; d. Received Notification of Purchase of 18 Wildland Fire in the Amount of $5,575.86; e. Approved Budget Amendment of $18,720 to the Ukiah Water Storage Expansion Project, Account #840-3850-250-000~ sed Costs for Quality Control Testing by Rau and Associates. Motion carried by the following roll McCowen, Rodin, Baldwin, and Mayor ABSENT: None. call AYES: mbers Crane, NOES: None. N: None. 6. AUDIENCE COMMENTS ON NON-AGEND~ Bruce Foster, past chairman of John Latimore, the Chamber's new mber of Commerce, introduced John Latimore stated he hopes th commerce and resourc~ ;hamber as a source of 8. UNFINISHI SINES~ 8a. enewal Authorizatil Museum with Car that to ex it is Board n House G un Houi uild & City of Ukiah Agreement and reement :al background of the City's involvement when the Ci acquired legal title to the Sun House and the City helped establish the Sun House Guild and 5-year agreement. As this agreement is scheduled new agreement. She thanked the Endowment and introduced their members to the City Council. Ross Beck, ~ Sun House Guild, provided a presentation on the Grace Hudson House; identifying it as the City's cultural legacy. He discussed the its success and stability, the growth of the estate and gifts received, exhibits a~ programs presented at the Museum, and thanked all of the volunteers, docents, board members, Guild members, City staff, and contributors for their efforts. It is their hope to be able to fund all of their growth in the future. M/S McCowen/Crane approving proposed Sun House Guild/City of Ukiah agreement and authorizing the City Manager to execute the agreement, carried by the following roll call vote: AYES: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku. NOES: None. ABSTAIN: None. ABSENT: None. m PUBLIC HEARING (6:45 P.M.) Regular Ukiah City Council Meeting January 5, 2005 Page 2 of 29 7a. Adoption of Resolution Certifying the Environmental Impact Report for the Orr Creek Bridge and Orchard Avenue Extension Project Planning Director Stump explained that on December 15, 2004, the City Council tentatively certified the Final Environmental Impact Report (EIR) for the Orr Creek Bridge and Orchard Avenue Extension Project. Council also directed Staff to return on January 5, 2005 with the required Resolution formally certifying the EIR, the Mitigation Monitoring and Reporting Program, and responses to four comments made by Vice- Mayor Baldwin. Council also directed Staff to include findings in the Resolution as to why the mitigation measure requiring a Specific Plan or oth~ planning document should not be required prior to the Communities Housing Development Corporation (RCH[ This was accomplished on page 18 of the Resolution 15, 2004 meeting, the EIR identifies one sig be successfully mitigated or avoided with bui "Building-out traffic would result in insuffici~ Perkins Street between Orchard Avenue accommodate eastbound traffic." of the ~hicular storage southbound H of comprehensive Iopment of the Rural ~rdable housing project. ssed at the December impact that cannot Street Triangle: on East ramps to Leonard Charles, consultant for the City questions and concerns raised attached to the Staff Report sub~ project of constructing a four-lane bP predict what type of develo ;nt will that many of the miti~ easurei clarified why a speci ~commi ,ecember City Cre by Staff. discussed his responses to '.004 Public Hearing, which are ~cil. He also discussed the d noted that it is difficult to of the bridge. He noted the bridge project and Director Stump specific EIR and wi iect is presently undergoing a project as any other project. Public Mem M~ i,m, in support of the EIR were: Emmett Jones and Jim MembE :he audiencl a comprel planni James Con~ Bruni Kobbe. ,eaking in opposition to the prepared EIR and in support of document for the RCHDC project were: Judy Pruden, idolph, Diane Zucker, Susan Sher, Ken Anderson, and Public Hearing Cio= ~d: 7:34 p.m. Council discussed whether to move forward with this item for discussion and if need be, continuing the matter to later in the agenda. It was also suggested that some of the agenda items be continued to the next meeting to allow adequate time for discussion of this item. M/S Baldwin/Rodin to continue the Public Hearing to the next Council meeting. Regular Ukiah City Council Meeting January 5, 2005 Page 3 of 29 Discussion followed relative to the motion and whether to open the meeting to further public comment. John Mayfield drew attention to a point of order; noting that Council closed the Public Hearing. City Attorney Rapport discussed Council's options regarding reopening the public hearing or continuing the matter to allow for further public comment. Vice-Mayor Baldwin noted his concern with the consultanl possible conflict of interest since he is a consultant for lard Charles, having a Discussion followed with regard to scheduling con Hearing on a day other than the regularly scheduled Council day ~ary 19th. There was also discussion of continuing other ag~ ems so that time could be allowed to discuss this item. Council consid~ oliciting audience co~ in writing up to the date of the next Council meeting w. be M/S McCowen/Baldwin to allow 12th. ople to sut comments through January Further discussion was had with consideration of this matter to later in whether to continue Mayor Ashiku notec audience would b therefore polled discussion followed with ti an o ~udience ;stablish agenda ~d wanted to ensure that the on the items that interest them. He order of the agenda items. Extensive matter. It was ti Council the continue this item after hearing item 9b on 7:54 p.m. 8:03 p.m. 9. NEW 9c. Discuss~ de Introduction of Ordinances Regulating Panhandli~ Cam~)in~ in the City of Ukiah Police Sergeant T= or discussed his Staff Report to Council in which he explained specific concerns of the community and business owners due to aggressive panhandling. He has been meeting with community groups, private property owners, and business owners regarding their concerns. The increased call volume involving transients is overburdening a police force that is already understaffed and who are unable to assist citizens in many cases due to the lack of regulations regarding these issues. An ad hoc committee was formed by the Homeless Services Planning Group (HSPG) to discuss specific problems with the transient population, particularly in the Ukiah Valley. In the opinion of the Police Department, the ad hoc committee and the HSPG, the proposed Ordinances will provide the police with useful tools to alleviate Regular Ukiah City Council Meeting January 5, 2005 Page 4 of 29 some of the problems which are described in the "Findings" contained in each Ordinance. City Manager Horsley reported that Councilmember McCowen spent a lot of time on this issue prior to becoming a Councilmember and has made some suggestions. She explained that the City Council and community groups have made an effort to provide shelter for the homeless in the City. It is now time to consider the health and safety of Ukiah citizens and the need to control panhandling and camping in the City limits. Public Comment Period opened: 8:12 p.m. Members of the audience that spoke in support of the Ackerstrom, Rod Johnson, Jeff Spharler, LaRose, Ragene Brown, Judy Pruden, Ross Li Rivera. Kathlee~ rdinances were: Gary Rebottaro, Mark and Kelsey Members of the audience that expressed Ben Thomas, Daphne MacNeil, and Dotty with t were: Public Comment Period closed: ,.m. Considerable discussion panhandling in the City. complaining about tra~ Concern was expre,, is not an attempt behavior. Also individuals, such · to use Depart~ followed It was meles~ many s, with homele~ Ordinance restricting the Police Department compared to 2003. Jblic and was noted that the Ordinance Instead, the City wants to control bad :es in Ukiah that are offered to homeless many of the homeless do not want the Police Department, the City's Fire ~ssues concerning fires. orney gram~ changes revised and that a revised panhandling Ordinance with minor to Council. He summarized the intent of the proposed Camping Ordinances. M/S McCow, acing Panhandling Ordinance by title only. Councilmember referred to the "Section One. Findings and Declarations" on page 1, and ended adding item "e" under number 3 to read, "Environmental degradation resulting from camping. City Attorney Rapport explained that if Council approves the recommended change to the Ordinance, the Ordinance would still be able to be adopted at the next Council meeting. The motion was revised to include Councilmember Rodin's recommended addition to the Ordinance, and agreed upon by the makers of the motion and the second. Regular Ukiah City Council Meeting January 5, 2005 Page 5 of 29 The motion carried by the following roll call vote: AYES: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku. NOES: None. ABSTAIN: None. ABSENT: None. City Clerk Ulvila read the title of the Ordinance, "An Ordinance of the City Council of the City of Ukiah Adding Division 7, Chapter 1, Article 9, Entitled "Unlawful Panhandling" to the Ukiah City Code." M/S McCowen/Baldwin introducing an amended version title only; carried by the following roll call vote: McCowen, Rodin, Baldwin, and Mayor Ashiku. N~ ABSENT: None. ~1 Ordinance by :ilmembers Crane, ABSTAIN: None. City Clerk Ulvila read the title of the the City of Ukiah Revising the Ukiah City Thereof, Entitled "Trailers and Trailer Cam Article 8, entitled "Camping". Ordinance by Repealing Divis Id addin ;reto Council of Chapter 4, 1, M/S McCowen/Rodin AYES: Councilmembers Crane, M( None. ABSTAIN: None. ABSENT: ance; cai ~din, B~ the following roll call vote: and Mayor Ashiku. NOES: 9. NEW BUSlNES~ 9a. Mayor Ashiku a November 2006. ~d Mike ~etzel t~ ssion Planning Commission to a term expiring Vice-Ma, expirin! to the Planning Commission to a term expin~ 200i Judy Pruden to the Planning Commission to a term Councilm term expirin! iappointed Kevin Jennin.qs to the Planning Commission to a Councilmember appointed Jim Mulheren to the Planning Commission to a term expiring November 2 08. Continued 7. PUBLIC HEARING (6:45 P.M.) 7a. Adoption of Resolution Certifying the Environmental Impact Report for the Orr Creek Brid_~e and Orchard Avenue Extension Project Leonard Charles, City of Ukiah consultant, advised that Council needs to consider whether it has adequate information in the EIR to make an informed decision. There was a substantial public discussion but that discussion focused on the suggestion in the Addendum that the City not require the preparation of a specific plan or comprehensive Regular Ukiah City Council Meeting January 5, 2005 Page 6 of 29 plan for the Brush Street Triangle area before approval of the RCHDC project. Council has all of the information and can certify the EIR, and then make the decision of 1) whether Council wants to approve the bridge and road project, and 2) if it does, will Council require, as stated in the Draft EIR, that a comprehensive or specific plan is completed before any projects can be approved. Mr. Charles responded to a question posed by Vice-Mayor Baldwin earlier in the meeting concerning whether it is a conflict of interest for him (Mr. Charles) to work for the City while being employed to prepare the EIR for the explained that his firm has an approved contract with the Cz RCHDC, to prepare an EIR on the RCHDC project. His to the County, in the same way that it has provided se objective information to allow the decision-makers firm has no personal interest in the constructionbridge, th project. It is responsible for preparing an :iai analysis impacts of the projects it is hired to evaluate project. Mr. Charles Mendocino, not with ill provide those services City on this EIR, with ~rmed decision. His or the RCHDC environmental He clarified that his firm did not say that the prepare a specific plan. He explained that mentioned throughout the EIR is ;e it was ti Staff is providing Council that ake an ~ould not require RCHDC to why the RCHDC project was ly change from two years ago. decision. Vice-Mayor Baldwin expressed his EIR. It is his opinion gative the mitigation erroneously significant suggests for traffi~ mitigation,, undere,, of th s may be did ni ~r any few Co~ City Staff the specific I ~ the decision on the underestimated and that 'he EIR inadequate because it all ne( imp but one can be mitigated to "less than measu it sugge He discussed the measures the EIR be aware that all of the traffic He discussed how the EI R :raffic impact:the City of Ukiah. He referred to page 2 stated that this City Council generally agreed that a ;cause of its cost and inflexibility. He stated that he Council say that the plan was inflexible and very it was too costly. He discussed the Addendum in which recommended the possibility that Council eliminate a 92 acres. In the EIR it was listed "as a major not understand how this change could occur in several to something that is too inflexible and too costly. I be costly. He questioned the cost of the inadequate mitigation months from a He questioned what measures upon motorist, taxpayers, pedestrians, and cyclists in the City. He went on to discuss the Statement of Overriding Considerations and noted that the consultant stated that only one of all the traffic problems can't be mitigated. He addressed the problem with traffic stacking on Perkins Street and the request by Staff and the consultant for the Council to make a Statement of Overriding Considerations and to find that the "economic, social, technological, or other benefits of the project outweigh the unavoidable risk arising upon build-out within the study area". He asked Council how it could, in good conscience, make that finding. Regular Ukiah City Council Meeting January 5, 2005 Page 7 of 29 Vice-Mayor Baldwin stated one reason for the project in the first place was to relieve the traffic problems on Ford Street and Clara Avenue. The other reason was to create a north-south corridor other than State Street. It was his opinion that the benefit to Ford and Clara will be temporary pending significant development of the Brush Street Triangle. The temporary alleviation will accrue only when Brush Street is reconstructed to Orchard Avenue and State Street. He was unsure if the road agreement guarantees that will happen right away. It was his opinion that the EIR lists a signal at the intersection of State and Ford Streets which demonstrates th; that the bridge will provide only temporary relief to the project objective of providing an alternative to State people from the Ukiah High School, Empire Gardens commercial areas nearer Orchard and Perkins Stre( consultant is aware ;r's neighborhood. The applies, in his opinion, to complex areas to the He challenged the Council, the consultant, economic, social, and technological benefi' temporary economic benefit to the did not foresee any long term economic, so¢ from this project, noting that the 'ect is outsid to tell are long term City from this pr He saw a worker,, develope~ he ical benefil to the City limits. He referred to page 3 of the Staff Ford Road and Orr Street, as well a area allowing for development in the study area could be bu belief that these the , almost which seeks sales sales tax how ii Brush e be pacts Triang the ~n pages 23 through 24 that "alre; rovide access to the study of the project. The He stated that it is his ~ as a fa The pressure to build ;itizens of Ukiah and the City, is fostered ~ndowners, developers, and the County ,ment. The City would not receive any He nt and does~ ed it. He before kiah City conceivabi igation intersection, RCHDC a RCHDC project t¢ concerning a possible conflict of interest between the this time, the City is advocating for the bridge, but it ~ultant has to be aware that certification of the EIR ,uncil and subsequent bridge construction is the only ihe negative impact to the Brush, State, and Low Gap to Orr and Ford Street from the construction of the It was his opinion that the only way for a new EIR for the impacts, which can't be avoided by RCHDC, is for the Orchard Bridge to be in place He referred to the Resolution on pages 1-1 and 1-4, and inquired as to how the City Council could certify the EIR as adequate and complete. He asked how Council can agree with an EIR which has determined that all the project's adverse environmental impacts can be mitigated to acceptable levels, when the City cannot guarantee funding. How can the City guarantee its residents funding for only certain inadequate traffic mitigations? We can't guarantee creek protection, aesthetic improvements, recreation, open space or decent circulation in the Triangle because it's outside the City's jurisdiction. It was Vice Mayor Baldwin's opinion that if the City approves the bridge, everything that happens in the Brush Street Triangle, other than some traffic impacts, is outside the City's jurisdiction. It was also his opinion that the Regular Ukiah City Council Meeting January 5, 2005 Page 8 of 29 City would have no power to convince the County to go with a specific plan. It does say that these mitigation measures as discussed in the EIR will provide guidance to the County of Mendocino in mitigating these impacts. He felt that would be inadequate protection for the health and safety of the citizens of Ukiah. He stated that the City should think long and hard before the City trusts the quality of life inside the City limits to the assumption that the County will heed that guidance. The EIR also says that according to the consultant the road improvement and land use agreement with the County only "partially mitigates the projects growth inducing impacts". He asked the Council to consider, before certifying the EIR as adequate, if mitigation is what it wants to achieve for the citizens of Ukiah. Mr. Charles responded by stating that Vice-Mayor him to deny the project He explained that as th cannot do anything about the traffic mitigation., disagreement. He has hired one of the most to evaluate traffic impacts. Their conclusi, traffic counts and projected increases in noted that the proposed roundabouts were MCOG study. He does not have any The traffic mitigations in the El intersections will all function within Perkins Street-Highway 101 ramp have to issue a Statement of Overridi~ recommend the City d is City wants to a the findings if the Co~ to recommendation Council they Consideration. or RCH the th, has two pad of IDC project cases c seen. He traffic mitk is all measures; ti whatever deve projects that cont~ as required by State identified reasons for e EIR, Mr. Charles which Baldwin is in pected traffic .ers in the west qd ,e based on ~ased assumed uses. He the EIR, but come out of an for roundabouts in the EI R. signal various intersections. Those of service except for the is 'eason why the City would regard, his firm does not , however, say that if the II have do that. Staff has prepared 'ect. He stated that it is not his firm's the Statement of Overriding and are not advocating for the bridge CHDC has submitted an application to no matter wt the City's actions are at this meeting. He work for the traffic analysis his firm has completed for engineers are going to look at the traffic impacts road are or are not built, so the impacts in both that Vice-Mayor Baldwin's referral to the cost of the the City's road plan with the County. It is those mitigation and the other road improvement, that will be paid by both within the Brush Street Triangle and any other to that particular intersection. There will be a cost share, AB1600, among those projects which contribute traffic. Each project's share of that cost will be determined based on how much traffic would be generated in that intersection by that specific project. Director Stump explained that in Vice-Mayor Baldwin's reading of the Addendum, he indicated that Staff suggested language to amend the mitigation about the specific plan to suggest that the specific plan be eliminated for the entire 95 acres. That is not correct. Regular Ukiah City Council Meeting January 5, 2005 Page 9 of 29 Vice-Mayor Baldwin drew attention to page 1, the first sentence of the second paragraph of the Executive Summary of the Addendum where it states that "the City may wish to modify the mitigation measure requiring preparation of the site development plan and specific plan for the entire Study Area prior to allowing any new development." Mr. Charles clarified that it may be bad language on their part. What it means is that rather than any new development in the area, that the City could limit it. Director Stump explained that it is clearly defined in the 18. He noted that it does not say the City is proposing the entire 95 acres. He read the mitigation measure study area prior to allowing new development. The any new development in the study area, other the acres of RCHDC property, APN #002-101-17. entity has jurisdiction, shall require the comprehensive planning documents for acre RCHDC piece of property and not the enl at the top of page inate the specific plan for a specific plan for the ;ounty or City, approval of a s is clearly prior to approving .ment on the eight ~ding on which or other the eight Councilmember Rodin comprehensive planning documen' Directo~ ific the difference between a Director Stump explained that at Staff to write a letter to in the Brush Street read a portion of ~tter to concluded that it imp the strategic area. use and Accordi land or includini City staff plan design, pul uses, pr( ilable to s by a comprei Staff has been they have been ' Council directed of S~ some sort of planning effort is wh; ~nguage the Resolution refers to. He Supervisors which stated, "The Council that a use planning document be prepared for would be to guide and manage land unplanned, disorderly development. urges ino County to facilitate the preparation of a for the Brush Street Triangle area. This document discussion of transportation options, circulation, infrastructure, general locations for land uses of Orr Creek, and identification of open space options. ~ort and contribute to that effort." That is what Staff meant document. He reiterated that for the last two years when the Council to develop the land use/roadway agreement, their relationship with the County. Since the conclusion of that effort and since pproaching the Board in September 2004, he has been meeting regularly with County Planning Director Ray Hall to discuss a wide variety of options for this project and other projects as well. That effort will continue. Councilmember Mc Cowen noted that one of the comments made by Mr. Charles, which was also made in the Addendum, is that, when specific objections were raised, certain assurances were made. One of the assurances, or broad statements, was that it is a growth inducing impact and CEQA doesn't require you to consider it. Although it's true that CEQA doesn't require that growth inducing impacts be considered, in the revised draft EIR, it states that the City requested that growth inducing impacts be Regular Ukiah City Council Meeting January 5, 2005 Page 10 of 29 studied and mitigated. He felt that because of the RCHDC project and the concern that people have that the project would move forward in advance of the specific plan, much of the focus has been on the Addendum. However, the City Council has been asked to certify the RDE EIR and its mitigation measures. He referred to the road improvement land use agreement between the City and County dated August 25th, that states that the City takes the position that under the requirements of CEQA, it cannot certify the RDE EIR and undertake the construction of the Orchard Avenue bridge improvement unless it can find that the accumulated adverse environmental impacts within the City of Ukiah from the construction of the Orr Creek Bridge, including in the Brush Street Triangle, are reduced below the threshold of signifkThe City's position is that it has to consider and mitigate all of the impacts take place in the Brush Street Triangle. City Attorney Rapport responded that the mitigate the impacts within the City that including development within the Brush development of the Brush Street Triangle to ap the EIR, has to ~m the constrL of the bridge, Triangle.; meaning that ins' City limit Councilmember McCowen advised that ther, specified in the road improvement ;ment manner, when actually it doesn't. referenced has not yet run and th accepts the County's action on ado that were said at the la that not as valid as it ~med. questioned the c~ :tion :he Street and the rice was that tracks. However, i' improvem~ be app railro in has devei ,nt, a signific State Gap Director that to acquire th. approving this timely fashion. O1 of Clara Avenue and implication that the timeline d the Council to act in a hasty ~und that the 45 day period ed the County whether it Some of the things making a decision were articular ;rn to him was when he of the bridge without improving Brush Street will be improved to the railroad the railroad tracks going west. The iroject and the City is hoping a grant will does nothing for Brush Street west of the that once the bridge has been constructed and the Brush Street, there will be, without any further traffic on Orchard Avenue to Brush Street to the intersection. It is contemplated in the EIR, according to II be minimum impact from that new traffic. He was unable at that location today. He stated he is uncomfortable ,ing that Brush Street would be improved to State Street in a e, he felt the City would be temporarily taking some burden off and Orr Streets, and shifting it to Brush Street. He explained that the left turn pockets at the State Street/Low Gap Road intersection do not have an independent light and traffic has to make left turns against oncoming traffic and it is a dangerous situation. He concurred with Councilmember Baldwin's statements regarding build-out to the Brush Street Triangle without the bridge and also without the cooperation of the City, unless other sources of water could be developed. Without that bridge, he expressed doubt that build-out would take place to the same level as it would with the bridge, and he thought that part of the Resolution needs correction. He also thought that the same may hold true for RCHDC in that he couldn't imagine that project being constructed without the bridge being constructed as well. Regular Ukiah City Council Meeting January 5, 2005 Page 11 of 29 He referred to page 22 of the final EIR, response E-12, which states, "The predicted levels of services include all mitigation measures." He did not see how it would be feasible to install a roundabout at the Perkins and Main Street intersection. One key mitigation measure that is problematic is the off and on ramps at Brush Street, which is cited as a major mitigation. He inquired what it does to the predicted levels of service when we say one of the major mitigations is unlikely to happen. In that regard, he was disappointed with Response No. 2 to Councilmember Baldwin's comments by Mr. Charles. It was his opinion that in that comment, Mr. Charles for the off and on ramp. Mr. Charles says that it will be gi~ City may or may not decide that it wants those off ramp City Council accepts the information that has been the Council would most likely want an on and off comment should be revised to emphasis the ne the City to press forward and to try to existing substandard situation at Perkins St~ freeway interchange, because it was sub,, Caltrans' objections are that they can't instal' substandard and don't fit the guidelines; guidelines. That off and on ramp to mit the inferior design of the existing i~ He would like further assurances as to priority ranking in the Brush Street Tr MCOG. As to a he away from the need ure study and that the his opinion that if the Iaff and the consultant, ion. He felt that the those ~nd the resolve of ~ltrans that the Llready has an Orchard Avenue, ard to the the ~it was built.' though ramps because they are interchange doesn't fit the of the problems created by strong position on that. He ~ on Brush Street and its that was completed for a No. 2 priority. Mr. Charles res whole issue of g looked at and that requires mitigati, of gr that ~ncilmei ~r McCowen's statements regarding the is and the City requested that they be is contained in the document. CEQA ~pacts but doesn't specifically require ~ey are spec[ He commented on their assessment ~e eight acre RCHDC site as if it was going to be 54 Councii ~ber Mt and yet it i ething the stated that concern was downplayed at the last meeting City specifically calls for to be addressed. Mr. Charles re,, that point was addressed in considerable detail. He noted that the findings rictly between Council and City Staff to develop. Also, the timeline in the agree~ lent that the City has with the Council is not any of his business. He also did not think it was any of his business concerning improving Brush Street to the railroad tracks. They have identified the mitigation measure and if Council doesn't think it will be done, it would be a consideration when Council decides whether to approve the project. He explained that there is an application into the County for the RCHDC project and his firm will be conducting an assessment and the County of Mendocino will make a decision on the project, with or without the bridge. It would be speculative for him to say whether any other development in that area has been approved by the County. He noted that the matter of a round about was contained in the MCOG Study, not the EIR. He explained that the Addendum is citing the MCOG Regular Ukiah City Council Meeting January 5, 2005 Page 12 of 29 Study and saying that because of the City's road and land, the study says that either one of those can be used. They put it in the EIR because it is required by the City's agreement with the County. He explained that the on and off ramps at Brush Street are contained in the EIR as a mitigation measure. His firm has no disagreement with Councilmember McCowen's comments regarding that matter. City Attorney Rapport responded to the time issue by stating that he did not think Staff stated at the last Council meeting that there was any provision of the agreement that was forcing Council to make a decision at that meeting or recollection that Staff stated at the last meeting that, agreement, Council should base its decision on the thinks the EIR is adequate or not, not on other policy lot of discussion at the previous Council meeting. is to try to keep to the construction schedule construction of the bridge, and given the required, the City needs to have the El regulatory approvals. That's what was specific provision of the agreement. He City is not obligated by the agreement. The timt requiring the City to act yet. If the~ City has 45 days from when the C its concerns are. The County ha.~ Ordinance. The first step is an urge second step is the en a p County's Planning ~d seen the permanE so The City has 90 wh~ 9 the EIR. Whether the McCow is no time les not ag it meeting. It was his the existence of the the EI R and whether it that were getting a ~uncil that if the goal the laid out for the regulatory that were before it can those other aboul not any ~r McCoi that the of the agreement are not fith the County's Ordinance, the City, to tell the County what a !.p process in enacting its good for 90 days. The 'Which will go through the Board pervisors. The City has not ¢'s time to comment on it has not started. a satisfactory Ordinance to approve adoption of the interim Ordinance or lot of time remaining. Councilmember uirement in the County agreement for the Mi statistic~ the rankin~ opposed ,r that he would prefer to review the accident the levels of hazards at Brush Street and State Street as IS. Mayor Ashiku Street improveme reduce his concern Councilmember McCowen that if he knew that the Brush in sync with the development of the bridge, would that that particular issue? Councilmember McCowen responded affirmatively and explained that he would like to see the bridge constructed. He would ask Staff and the City Manager what avenues are available to Council to possibly secure funding for improving Brush Street or can the priority on that be adjusted. He would like to know what assurances can be made that it would be addressed in a timely manner. City Attorney Rapport was unsure if Councilmember McCowen's concern is with existing conditions at the State Street/Low Gap Road intersection or how that Regular Ukiah City Council Meeting January 5, 2005 Page 13 of 29 intersection will function once development in the Brush Street Triangle begins to take place. Councilmember McCowen was of the opinion that the intersection is currently hazardous and he thought it would become worse once the bridge is opened even if no further development takes place. He continued to discuss the situation at that intersection. Mayor Ashiku expressed his concern with speculating witho and if Council makes these types of statements, people will when in fact, it may not be. We still need to make those concern that Council make evidence-based decisions specific knowledge ~e that it is dangerous, He expressed ;nts. Mr. Charles explained to Councilmember condition that when that intersection is im installed to avoid that conflicting movement. his alti ve is to include a that se turn lights be City Manager Horsley noted that at the last building but not opening the until Brush tracks. The County told the City not built until Brush Street was improve located in the County's jurisdiction. the County's road and pay for it out revenue from that Str limits. She did not mitigation fund mitigation d go that sig the Iternative of improved west of the railroad with having the bridge City to do that, although it is that it would not improve will be receiving any is within the City way w~ the RCHDC project that the .rojects and it could be that the RCHDC trea. Councilm, Mi .g, a those changes outlined by the City bethat is, if Staff and the City Attorney think it ake those changes. City ney when it wE However, increased leve referring to the agreement calls for to the that the specific provision that Councilmember out of the agreement, because there was objection by some people that would potentially be affected by it. provide that the parties will determine a schedule tied to for constructing the recommended mitigations. That is the City does not have to use the MCOG Study. The ie City and County to agree on a schedule for constructing those improvements and it has to be an agreement between both jurisdictions. City Manager Horsley explained that she did not agree with the priority list and, in fact, she made objections to the original list and MCOG actually bumped up the Perkins Street right turn lane and some others. For the City, the Brush Street/State Street intersection and the Perkins Street right hand turn lane onto Orchard Avenue were of utmost importance. Regular Ukiah City Council Meeting January 5, 2005 Page 14 of 29 Councilmember Rodin discussed the two competing needs of 1) getting the bridge constructed while the funds are available and 2) and getting the bridge built. She was in favor of constructing the bridge. She felt it will alleviate a lot of problems in the Wagonseller's neighborhood. She inquired whether the City has the legal authority to keep the bridge closed after it is constructed, until there is a plan and the segment of Brush Street west of the railroad tracks is complete. City Attorney Rapport was of the opinion that the City is in control of when the bridge would be opened to traffic. The agreement does require a traffic related mitigations and those mitigations, once s according to the schedule, and there have to be mitigation so they could be constructed on schedule, creates leverage for both the City and the that those mitigations are built when we've agree are le for constructing the led, have to be built funds to pay for that won't be approved. It to make sure Councilmember Rodin expressed her su be so onerous that it couldn't be corn ire the could be complete before the RCHDC proje, submitted to the County proposes a certain num supportive of taking out that le 18 in study area. She inquired about wi Diem wi1 ramp at Perkins Street is unmiti~ mitigated. Why can't we mitigate this ~r a plan for the are; it would not is construi The plan nd. The plan ,at RCHDC ~its they plan to build. She is itigations about the plan in the on the southbound on other impacts that can be Mr. Charles explain correctly to light, and the fr~ if the light is red, tf mitigated be m There not ad so that want because ramp was never designed space between Orchard Avenue, the on or off the ramps at that location, and intersection. It is not feasibly location. City to Ihe entrance to go' on the traffic g on Peri that a suggested mitigation for future consideration is .ound on ramp and have cars routed to Gobbi Street eliminate the traffic turning left in front of the Mr. Charles ion that the City needs to review the new study conducted by TKM with ret ges. That study is needed by the City as a baseline to see what is ~g from Highway 253 to Lake Mendocino Drive and how it is going to work, espec~ :lly as it relates to growth in the City of Ukiah. Mayor Ashiku was of the opinion that the language should be changed from a "specific plan" to a "comprehensive plan". A poll of the Council was taken with regard to whether RCHDC should or should not be exempt from the burden of costs that other owners are going to bear in terms of developing a plan for the entire area. Regular Ukiah City Council Meeting January 5, 2005 Page 15 of 29 Councilmember Crane stated that he does not understand why RCHDC should be exempted from the burden of costs that the other owners are going to bear in terms of developing a plan for the entire area. He would like to know why they should be exempted and if there is an overriding reason. Director Stump clarified that RCHDC is not exempted from mitigation requirements or solving traffic problems. The question is whether the specific plan for build out of the Brush Street Triangle should be prepared prior to allowing RCHDC to pursue development or if the RCHDC project can proceed prior specific plan being completed. City Manager Horsley explained that it is up to the going to fund that plan. They could designate th percentage of the cost which would be dete~ process. She noted that the County may improvements, such as CDBG or MCOG contribute their share of the costs for im whether Council wants to require RCHDC to to allow RCHDC to build and then require commences. ;rmine how they are that area to pay a during ounty's planning other sources' for the and may not to The question bi Council is place before it build or any other development Councilmember McCowen stated the developer of that 'ect woul~ mitigations. It was his ~ding south of the creek at Cia develop; those also to Orchard either the owner or share of the the City limits, including that RCHDC intends to ;ir fair share of the mitigation fees. Director Stump statements. Counci and ;ssed her o1: ~ition to carving them out in this mitigation comprehensive plan for the area. Ukiah send to fund it that is why he Bald' Plan h to opinion that the Ukiah General Plan and the called for a specific plan and he didn't think the City should County. On the other hand, he didn't think the County has require them to do it. It's in the hands of the County and about the whole process. Councilmember M, explained that if Council insists that it needs to be a specific plan, he would be willing to allow the RCHDC project to move forward. Mayor Ashiku attempted to discuss the differences between a comprehensive plan and a specific plan to the audience. He discussed his concepts of the differences between a comprehensive plan and a specific plan. Mr. Charles explained that a specific plan requires a funding plan and includes what infrastructure improvements are going to be made and who will be responsible for making them. Regular Ukiah City Council Meeting January 5, 2005 Page 16 of 29 City Attorney Rapport explained that the procedure for creating a specific plan as well as its content is specified in the Government Code by state statute. When using the term "specific plan" the same sections of the Government Code provide a procedure and the content for a specific plan, which is basically a general plan, for a limited or defined area. It's burdensome because it's a project under CEQA, so you have to do an environmental review in connection with developing it. There is a procedure you have to go through to adopt it so you have to go through public hearings before the Planning Commission and the Board of Supervisors, and there is a noticing and those types of things. It's as exacting a proces That's why it is expensive and time consuming. The they are talking about is whatever the City wants requirements for a comprehensive planning docu~ procedurally or in terms of content. You have a go about doing it and what it does. He law required procedure and content for a s of a planning.document that does development in that area but it doesn't have have all of the things in it that a spe~ [ic plan has uirement for public Iopting a general plan. nsive planning document There is no set of to follow, either ;al more ity as to how you difference is into the state plan versus coming h some kind think ds to be to guide all those same hoops and City Manager Horsley advised t~ this, and the City took in its letter that the Board wanted to do some sc seamless continuum fr, area. Counl of Supervisors discussed was a general agreement g for that area with a Triangle as it is an urban- Mayor Ashiku know what you are and speci should that a ic plan that ourse in other thinks ti want to well, we c( ourselve~ supports a County in an his h a specific plan you really do have to so that the infrastructure can be tuned makes it much more difficult if things or ti' of businesses that want to come into that the City would rather have, and now we have led for that. In some ways, we could be helping be shooting ourselves in the foot. Sometimes he things, and in an effort to make something turn out really much that we actually hurt ourselves. He advised that he plan and the notion that the City work closely with the sure that development is correct. He also supported Councilmember B 's position that the City begins the process of looking at those pieces of property th; we need to annex so the City won't have to go through this ritual. He also wanted to indicate that as much as we might try here, we are not going to be able to be dictatorial, unless we try to hold them hostage with the bridge. He maintained that the City has made an agreement with the County through the previous City Council. To do things that could be perceived or otherwise have the affect of breaking down the confidence we have worked together to build, we once again could be doing something that could be negative and not necessarily give us the result we want. He wanted to be careful that we balance the needs of the people in the neighborhoods and the City of Ukiah with the fact that we are dealing with other governmental bodies that have jurisdiction. We need to be careful or we will lose Regular Ukiah City Council Meeting January 5, 2005 Page 17 of 29 credibility to some extent. Mayor Ashiku questioned whether closing the bridge until Brush Street improvements are completed by the County could deprive residents in the Wagonseller's neighborhood of the benefits of constructing the bridge. He pointed out that the operation of the Low Gap Road/State Street intersection should be balanced against the benefits to the Wagonseller's neighborhood of allowing the bridge to be used before that intersection is improved. He also expressed concern about the Perkins Street/Orchard Avenue intersection, Councilmember McCowen advised that part of the project lane at Perkins which will, at least temporarily, alleviate With regard to our interaction with the County and the ir Low Gap Road, in County Administrative Officer Jim the Draft Environmental Impact Report, his first co that the City has removed improvements to Bru: At least as of December 5, 2002 when comm{ important consideration to the County. He anybody hostage. If there is agreement bl create or exacerbate a significant impact on E and not open it. That's the position that he favor include the right turn ns at that intersection. of Brush Street and letter of comment on g to see from ti ect description." being receii :hat was a very talking about usingidge to hold buildin( e will City could bu the bridge Mayor Ashiku advised that he Street bridge is finished, we may stil fficulty raffic :hat, just that once the Brush Iify the light. Councilmember McC Street. It's a questk and the bids signalization for So, it's just putting or more ~lher turn turn what were light at Statei and Brush Orig t in 1996, this went out to bid City anticipated and so the separate from the project and it was altered. thought was important 10 years ago that intersection. Mal wh~ complet satisfactory Brush we could do something with this tonight if we can garding keeping the bridge closed and opening it and the improvements to the intersection are City Attorn~ intersection an( that was unacce vised that he assumed the traffic study looked at that e determination as to when it would reach a level of service Mr. Charles confirmed Mr. Rapport's comments, however, he noted that there is a level of service concerning the accident history at or compared to other intersections that wasn't done. If that is something that interests Councilmember McCowen, he can have his traffic engineers look at that aspect as part of the RCHDC project. They can determine what the traffic accident history is at the Low Gap/State Street intersection compared to two or three other intersections along State Street. Councilmember McCowen advised that perhaps the timing of the improvements to that intersection, and that section of Brush Street, could be a subject of negotiations Regular Ukiah City Council Meeting January 5, 2005 Page 18 of 29 with the County so they are included in the process. This might be the initial position of the City that we would like to see the priority of those improvements advanced. If their position is the same as it was two years ago, perhaps there is a meeting of the minds. It is currently agreed upon by the City and County that a specific plan is a major part of this process. If we are going to back away from the requirement of the specific plan and come up with a comprehensive plan, by whatever description, that is beneficial to the County and it's beneficial to moving forward to the time when other development will be taking place in the Brush Street Triangle. He thought that there is a lot of room for cooperation. Staff, having heard Council's comments, might the Resolution, stating he disagrees with some of the lan~ that the idea that full build-out could take place whether t grossly overstated. It's true that they built a lot of m they don't use water. Therefore, build-out of involving the probable inclusion of three or fou box different. ~ider some revision of in there. He thought does anything or not, is units in that area and the RDEIR says, to be vastly Councilmember Rodin inquired about concerning the preparation of a comprehensi happens in the City. We all like this idea but the Id enforci mitigation City can only what be implemented? City Attorney Rapport explained 1 City can't force the County to do making. The proposed findings state impacts that are the findings go on to if t~ were drafted, says that the the City is to mitigate all of these not require that. The draft to mitigate all of those impacts, it's not for to dc ecause a lot of these impacts are outside its jurisdiction, a e basis CEQA specifically mitigate a~ not mitigating an impact under CEQA. ,.es that it is legitimate reason not to and it's infeasible to do it. to some if it would be conceivable that staff could be asked Council goes to the other issue on the agenda. City Rapport they want Io do. ConsideratioJ in the study ar add more to that express dissatisfacti~ ied that Council would have to provide direction as to what Ivised that he thought that on the "Statement of Overriding change would be to say "to allow for some development ~an "in the development in the study area" and Council could inted to. He explained that he heard several Councilmembers with the sentence in the Statement of Overriding Consideration that says that the access to the Brush Street Triangle from Ford, north, as well as Brush Street, could allow for the development of the study area without the bridge. He thought that everyone thought that was an overstatement. He thought that the simple way to fix that would be simply to say "to allow for some development in the study area", rather than an unlimited amount of development in the study area, although less development in the study area than would occur with the project. Mayor Ashiku summarized that one method is to give staff direction and ask them to bring back to Council new wording on this and be as specific as we can so we're not Regular Ukiah City Council Meeting January 5, 2005 Page 19 of 29 trying to rewrite it at the next meeting. Another one is to take a look at the remaining agenda and make some decisions about how to deal with it. City Manager Horsley advised that if Staff could have 15 minutes to work on the language, they feel they could bring it back for Council's consideration at this meeting. Councilmember Rodin reminded Council that they never finished their straw pole regarding the exclusion of RCHDC. Instead Council got hung up on discussion of a plan. Assume it's not a specific plan but a less of plan, how does Councilmember McCowen stand on that? Councilmember McCowen stated that if it is less ' their projected timeline, then he is in favor of includi comprehensive plan could take place in a timel being part of that. he doesn't interfere with some thought that a favor that project Councilmember Baldwin inquired if that could deal with open space, recreation, ar a plan Mr. Charles responded "no". you like in this comprehensive pll could identify what needs to be Iook~ that .n't a fo~ ncil can direct specifically what specific plan. The Council of detail. City Attorney staff could include th .d that changes he suggested · what ~lan is. Mr. Stump of Supervisors that be. That talking that. a compreh~ at he statem lm the letter the City sent to the Board planning document would the resolution to define what we are ing to direct' to prepare some language and work on it, but that was Staff's thought at the time of what was Mr. Ch a the Counl not requiring didn't think it application will g Council has some ~at no matter what you put in here, there is already an even though their draft UVAP calls for a plan, they are ect because that UVAP plan has not been adopted yet. He ifference what Council does on this and that the RCHDC without the preparation of a comprehensive plan, unless that he doesn't know about to stop anything. Mayor Ashiku stated it's a moot point. Councilmember Baldwin felt the City is basically impotent once the bridge is built. The City can't enforce or require anything. Mayor Ashiku stated that the City could not allow the bridge to open, which would be equivalent to not even building the bridge. Regular Ukiah City Council Meeting January 5, 2005 Page 20 of 29 City Manager Horsley explained that Council has an agreement with the County, and the City doesn't now want to add on multiple requirements that say we are not going to open the bridge because we now want this. There is an agreement, however, if there is a safety issue, then that is a different issue. Councilmember McCowen stated that the Council is simply responding to the concerns of the County as expressed in CAO Anderson's letter. City Attorney Rapport explained that he thought Mr. Anders~ the two-lanes of Brush Street from Orchard Avenue to Brusl referring to paving City Manager Horsley clarified that it was from Brush tracks. to the railroad City Attorney Rapport explained that Mr. An, those two lanes and he was disappointed which includes the bridge and Orchard, tracks. wanted the project descriptic inclu pay for paving this project, railroad Mayor Ashiku stated that if plan, we've made a big leap. If need to be completed prior to o least two members of the City Counci about the intersection two main things: th ~ive p Improvement as tion, an ore te if it plan or a specific Brush Street improvements ~ld satisfy, he believes, at some sort of conclusion that and just go with the :he spec~' .' plan and the Brush Street on this tonight. Councilmember Brush it. by the comments made earlier about :ity force the County to do anything with M; ;hiku langL :hat doesn't o at they were just talking about; putting into this some until Brush Street is finished. City Atto~ he mean the road? iired of the Mayor that when he says "Brush Street", does ih State Street or is he talking about just the paving of the Mayor Ashiku clarifi id that he is referring to the repaying of the road so that it will be through access. City Attorney Rapport explained that's been the City's position, so putting that into some part of this wouldn't be a change. He thought it is consistent with the County's expectations right now. City Manager Horsley explained that it is also consistent with the letter they received from the City. Regular Ukiah City Council Meeting January 5, 2005 Page 21 of 29 Councilmember McCowen stated that his point is the improvement to State Street. City Manager Horsley explained that Councilmember McCowen is referring to the Low Gap Road/State Street intersection. Mayor Ashiku explained that the traffic studies indicate that when it reaches a certain level, it would be appropriate. City Attorney Rapport stated that his concern about that is the record right now that said that construction of the increasing the safety hazards at Brush and State comfortable about the City actually imposing a conditi However, those facts are not in the record to supp the facts are the opposite. If the City conducted is a problem at that location. However, we If the City Council modifies the Resolution t~ facts to support it. the City had facts in will instantly result in he would feel more of approving this EIR. this point. In fact, studyht find that there that data in cord right now. that, the record contain the Mayor Ashiku stated that Director Stump h inquired if he was comfortable of State Street and Low Gap Road s until needs to be changed? r~ence with these issues and Street and leaving the signal at traffic study indicates it Director Stump res Councilmember that is an accept~ dispute that. Thi into it but he felt out, vel at t interse issu( the an the level of service, as 'om "a" t~ 'b" if the bridge is opened and No information has been submitted to information is something that weighs City M dire~ ~et with Cou mitig~ at immediatel ~ined that on way to handle to matter is for Council to intersection is the top priority for mitigations, and that possibly the City's Supervisor, to discuss ways to h RCHDC's contributions. Councilm ;r stated City Manager Horsley's recommendation was acceptable. Mayor Ashiku ended requiring a comprehensive plan rather than a specific plan because flexib ity in the current environment is important and environmental impacts will have to be evaluated no matter what type of development accompanies the RCHDC project since any new development would need to follow a specific planning process. He was in favor of utilizing Director Stump's language. Director Stump discussed the portion that describes or frames what is meant by a comprehensive land use plan. Staff said that the "document would include a discussion of transportation options, circulation, community design, public services and infrastructure, general locations for land uses including mixed uses, protection of Orr Creek, and the identification of open space options." Regular Ukiah City Council Meeting January 5, 2005 Page 22 of 29 Councilmember Baldwin expressed the opinion that it was inadequate language to merely suggest some options. Director Stump replied that staff could take the options out, such as a "discussion of transportation options" and maybe it could be a statement of alternatives modes of transportation instead. Mayor Ashiku advised that Vice Mayor Baldwin "comprehensive plan" and don't add that language to it opinion that it is a reasonable perspective. we just leave it as Ashiku was of the Director Stump advised that we would work with C( Councilmember McCowen stated that "specific plan" since that is what is called fo~ County and then Council could negotiate ~pproach is agreement betwee lng less the County. to leave it as and the City Attorney Rapport responded to Cc not aware of an agreement that ~as with th lcCowen by stating that he is ~nty regarding a specific plan. Councilmember McCowen correct, Mr. Charles advised th t is in the EIR. cai plan. Director Stump a specific plan ir accept the project. the ensu ~guage ,h under does ~quire the of the ~tion, suggested ng the "Project appr that He sens land tgreement does not have the language of the )rity of the City Council is not going to staff that would exempt the RCHDC would begin with the last sentence on "Land Us, y striking the last sentence and then the the center of page 18 would be stricken. The final ;ction would remain, which begins "Project approval take that discussion of alternative mitigation out ,reserving the mitigation that is contained in the EIR. He paragraph on page 18 under that section which begins, quire the City..." He recommended keeping that language. City Attorney R; inquired if Director Stump suggested changing the language from "specific plan" t~ "comprehensive land use plan" in the prior sentence? It would be contained in the prior sentence on page 17. Director Stump responded affirmatively. Councilmember Rodin noted that City Attorney Rapport suggested language regarding Overriding Considerations. She thought Council should decide if it wanted to keep that or not. Regular Ukiah City Council Meeting January 5, 2005 Page 23 of 29 City Attorney Rapport explained that he was trying to keep it simple. He noted on page 17 it states "the EIR suggests that a specific plan be prepared" and staff will change the wording to "comprehensive land use plan", per Council's discussions. Director Stump explained that the language, as stricken, as he described it, would tighten the Resolution. Mayor Ashiku explained that it would also address the Wag0nseller's neighborhood concerns and that is a positive feature City Attorney Rapport explained that he heard, as overstatement to say that the study area will develop stated on page 1-23, the last sentence on the addition, Ford and Orr Streets, as well as Study Area, allowing for development in the project." He thinks that has been inter can take place with or without the project. word "some" in front of "development" so development could take place in there with or wi! alrea~ without th ~y that the same true, that it is an the project. This is !3, which reads: "In ide access to the of the evelopment that Cz add the sting that the same level of ect. It was the consensus of the Resolution, as provided by staff, of specific language in the Director Stump also similar changes to Resolution be d mitig~ 3nitoring Mitig n Moni g Program. changes, it's inherent that ~rogram that is attached to the M/S as modified. Counci he is recen' For the ~ to go to build or the City Supervi audience. that he not thrilled with this, but one reason why s because he is confident that the City and County will ,rking relationship that they have been developing cooperatively to try to address these impacts. Wattenburger has just given us his assurance from the Councilmemb~ ~tated that he thought Council is making a mistake. Motion carried bl following roll McCowen, Rodin, and Mayor Ashiku. None. ABSENT: None. call vote: AYES: Councilmembers Crane, NOES: Councilmember Baldwin. ABSTAIN: 8. UNFINISHED BUSINESS 8b. Consideration and Adoption of Policy Resolution for Amplified Sound in Parks and Outdoor City Owned Facilities The City Council, by consensus, continued the matter to the January 19, 2005 meeting. Regular Ukiah City Council Meeting January 5, 2005 Page 24 of 29 8. UNFINISHED BUSINESS 8c. Approve Amendments to the Ordinance As Introduced Amending Section 19857 60587 and 6060 of the Ukiah City Code Re_clardin_¢l Noise Re.qulations The City Council, by consensus, continued the matter to the January 19, 2005 meeting. 8. UNFINISHED BUSINESS 8d. Update on Mariiuana Ordinance City Attorney Rapport explained that the City Council ordinance which allowed marijuana cultivation ~n res compliance with the Compassionate Use Act of 1996 plants per parcel, and permitted cultivation in other use permit. He went on to discuss recent court ca., Council. As a result, it is legal under state law medical purposes but it is still illegal to do that staff to develop an zoning districts in ct to a limit of three (3) pursuant to a major available to the City ~sess and marijuana for federal law. Considerable discussion followed · The possibility of the City taxing Attorney that the public woul need to The possibility of issuing a placing a disclaimer in the p, that it would be a good policy · Concerns that the is being grown · Risks to and theft. indoors, · Discussion pl~ noted of ap ,perty. ;ighboI Atl ;ed to al if there ~uld need to by City for a ce cultivat( City. les: It was noted "by the City matter since it would be a tax "uana within the City limits and y Rapport confirmed or even know that it concerning the danger of fire, vandalism, Rapport that if the plants were grown ~strate compliance with the Fire Code. of three (3) plants per parcel to six (6) ndoor growing. It was noted by Police Chief Williams the residence was in violation, the Police Department ,'h warrant to inspect the house. However, it was that the draft ordinance contains a section and giving consent to City officials to inspect the · It was the City Council limit a small number of plants per parcel and that c its be allowed to grow in residential districts. · It was sugg that cards be issued and annual inspections be conducted for those growing indoors. Public Comment Opened at: 11:10 p.m. Members of the audience that spoke to the issue of the proposed Ordinance were Ragene Brown, Tina Gordon, Mark Oswell, Molly Hart, Rose Miller, and Judy Pruden. Public Comment Closed at 11:25 p.m. Regular Ukiah City Council Meeting January 5, 2005 Page 25 of 29 Discussion continued among City Council and staff concerning: · Whether to issue a use permit for growing marijuana within the City limits and if it should be classified as a Planning matter, with the Police Department assisting with enforcement issues. · Council could stipulate that care givers cannot grow within the City limits. A legitimate user could find someone outside the City limits to cultivate marijuana for them. · The possibility of requiring an annual fee based ordinance. · Obtain permission from the property owner a., possession of the residence. · Adhering to zoning regulations. · The proximity of growing near schools or · A proposal to allow growing within com · Allowing the use of greenhouses for~ ing. to be secure against unauthorized ent · The pungent odor of the growing plants requirements of the as the person in legal free children. zoning districts It noted that Id need ny people find it offensive. City Attorney Rapport there should be a requirement welfare of the general public, and th; feet of the property. if the ;ouncil requires a use permit, to the health, safety, and :e to everyone within 300 Councilmember ordinance, item prosecution and the first :orrection on page 3 of the proposed 1 Ihe comma be deleted between criminal 9. NI 9b. City it allows Author for Cons! er Horsley move Orr Creek Bridge and Street Extension Project Permits and Solicit Com since Council approved the EIR for this Project, to solicit bids for the project. Councilmeml explained that ramps on either side of the bridge to access the south banks ',reek are built into the project and he advised that the City Engineer explained him that these are needed for maintenance vehicles to access these locations. He noted that on Myron there is a cul-de-sac where there is access with a chain that would access that entire stretch down to the west side of the bridge. He recommended that there be access to the east side of the bridge and that a driveway be installed with a chain across a portion of their parking lot and that driveway would access the south bank as opposed to installing the ramp structure, which may add more to the cost of the project. Public Works Director/City Engineer Steele advised that whenever there is earth moving, it is not an insignificant cost. It was her opinion that the west side of the bridge Regular Ukiah City Council Meeting January 5, 2005 Page 26 of 29 is a fire access. She was not sure if the Fire Department would want to enter the area from Myron and then have to back out. The City maintenance crews clean the creek at least once a year and fire access is of equal concern. She would have to study the plans further. She noted that the north side of the bridge is under the County's jurisdiction. Councilmember McCowen inquired if Director Steele could go through the process of assuring that these are really necessary, and if not, could they be dropped from the project without delaying anything or causing significant addit expense for redoing the proposal. Director Steele replied that she would need to s Fire Departments with regard to access and the :reet crews, Police and the ramps. Councilmember McCowen expressed a con~ would be conducive to people up methods that could be employed to ~at the bridge ~n and there might possibi areas that me Iow cost M/S McCowen/Crane approving Orchard Extension Project and auth~ to competitive bids for Councilmembers Crane, McCowen, Baldwin. ABSTAIN: None. ABSENT secl ,y the Creek Bridge and Street ulatory permits and solicit roll call vote: AYES: NOES: Councilmember 9. NEW BI 9d. Discussio~ Mayor Ashiku ballot measure. March 11th ballot ~ssible les led the to Ilot Measure - Ashiku he issue of the possibility of a sales tax ;iai Election would occur in June 2005. :ess of calling a Special Election for this It incre con,, I that there is a need for a half cent sales tax Considera Special Elect · Whether · The simple majori' needed. iscussion regarding the following matters related to calling a regarding a sales tax increase ballot measure: ~ should be a general tax measure. a general tax measure would be that to pass the measure, a vote in favor of the measure, instead of two-thirds, would be · Other concerns within the City of Ukiah that need to be addressed and the need for the Council to look at how these funds would be utilized. · There is a need to make it clear that the City's primary objective is to ensure the public safety of the community. · Council needs to review all departments and operations within the City's budget before coming to a conclusion as to how these resources would be utilized. · Whether to set a sunset clause and how long it should be. Regular Ukiah City Council Meeting January 5, 2005 Page 27 of 29 · The community needs to understand the City is serious about making sure the community understands the sacrifices that may need to occur because the City doesn't have the financial resources. · The City needs to engage the community and have them be part of the budget process with the City Council and provide public discussion. · The Council needs to make a significant effort in support of the proposed ballot measure, explain the budget situation to the public, and how restricted some of the City's funds are. · There is a need to look at how City resources are The City has $20 million in infrastructure im next 20 years. The public needs to be informed · The possibility of having an advisory measure. · The time frame for getting ballot measure · Discussion whether Council should be towards important needs of the City. · Having the resources to meet the nee improve efficiency. are needed in the issues. ~n to the tax County CI the ability to ,~. and he tax money Judy Pruden stated that she would be allocated. policy ating how the sales tax money Michael Stewart, Vice President of that his union has been sing equipment they te quality people only general tax if it ;cifically [ers Association, advised lifficult for them to get the y wouldn't be able to hire five years longevity. They supported a City Manager adopted consid ~t clause. for the ballot measure needs to be will ~k at the next meeting for Council's that the City of Santa Rosa recently adopted a 20 the Directors preferred a 10-20 year sunset clause. Employei to sup the City should make an effort to convince the the City's endeavor. Finance Dire and felt the suPl: may come from the that he was the treasurer for "Yes on Measure N" to come from the Council. He noted that more budget cuts budget. Councilmember Crane explained that he is a member of the Employers Council and does not agree with a five-year sunset but he thought it's negotiable. It was his opinion that the Employers Council's opinion would change if the City Council explains the situation more clearly. George Benson recommended that the City take the money from processing extra pot and spend it on public safety. Regular Ukiah City Council Meeting January 5, 2005 Page 28 of 29 It was the consensus of the City Council that Councilmember Crane and Mayor Ashiku be appointed to a subcommittee to meet with the Employers Council regarding the public safety sales tax ballot measure. Police Chief Williams stated that it is important to note that every department of the City's operation has been operating on a shoestring budget. A five year sunset clause will not make public safety departments any better than they are now. 10. COUNCIL REPORTS None. 11. CITY MANGER/CITY CLERK REPORTS City Attorney Rapport reported that a Cease and Control Board for the Russian River Flood C( be published tomorrow. is goin, m the Water Quality ~e revised and will City Manager Horsley distributed a re also explained that the notice of intent to app~ the Water Quality Control Board to the RedwooC the Go Gate Bride 9ase and Desi~ District. She Order from 12. CLOSED SESSION a. CONFERENCE WITH LEi Government Code §54956 Name of re: MCRRFC~ Iocino Con,, Improv L and SWRCB NG LITIGATION Desist Order Against Flood Control and Water (State Water Resources Not needed. 13. Tht the City Council meeting was adjourned at 1:00 a.m. Marie Ulvi Clerk Regular Ukiah City Council Meeting January 5, 2005 Page 29 of 29 MINUTES OF THE UKIAH CITY COUNCIL SPECIAL MEETING TUESDAY, FEBRUARY 1, 2005 The Ukiah City Council met at a Special Meeting on February 1, 2005, the notice for which being legally noticed, at 4:00 p.m. at the Ukiah Valley Conference Center, 200 South School Street, Ukiah, CA. Roll was taken and the following Councilmembers were present: Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku. Staff present: City Manager Horsley, Finance Director McCann, Public Ut Director Ziemianek, and City Clerk Ulvila. City Manager Horsley discussed the agenda containing options for advisory measures. She al. previous measures submitted to the voters with safety purposes. to a to Council yesterday voting outcome of 'ncrease for public 2. AUDIENCE COMMENTS ON NON-AG ITEMS No one came forward to address the City Cot 3. BUDGET WORKSHOP City Manager Horsley explained 2005 fiscal year. She provided an the City's budget went from being b $1.2 million in the red. due and increases to th~ System (PERS) d~ poor year. She went discuss positions have years and cts th; reduced a ~ately 76% only of General works, plan services t City is faci ignificant deficit for the 2004- history and noted that years to a projected economy, state take-away, 1 of Jblic Employees Retirement p rmance that hit the City of Ukiah hard last City e tyees' increasing workload since many General Fund cuts over the last two issues, equipment being idle due to replace equipment. The General Fund Summary Fund expenses are allocated to public safety, with ~nd Fire budgets being personnel costs. That leaves ($3.6 million) to cover all administration, public ~ng, parks, risk management, personnel and financial ,s to the public. Finance discussed the "Finance Director's Overview" of the City's financial situ~ in the Staff Report to Council. He advised that City revenues were cut i the General Fund and in Redevelopment due to State take aways. He continued with discussion of the property tax shift with the State, Transportation-Traffic Congestion Relief, Fund 342 and Proposition 42 grants, booking fees, and COPS funding. Discussion followed between the City Council and Staff with regard to the following issues and/or concerns: · Staff recommendations contained in the Staff Report. · Council needs to list priorities and what the consequences would be if certain services were limited or cut from the budget. It was noted by City Manager Special Ukiah City Council Meeting February 1,2005 Page 1 of 6 Horsley that $24 million is needed for Public Works projects in the next few years. She also discussed capital improvement items and departmental equipment needs. There was discussion regarding creating a five-year budget model so that the Council, staff and the community can anticipate future expenses. There was discussion concerning the ERAF model and the uncertainty of not knowing what the City's revenue will be. The City currently has very little stability in revenues. · There was discussion of operating costs at repairs/maintenance needed for the grounds and sb the School District allowed the City to use the Hi purposes in exchange for the use of Anton · A proposal regarding parking fees at Anb Ashiku. · There was discussion regarding sell Stadium and the possibility of · There was discussion about the futu It was noted that the original plan was money to pay all operating s. · A suggestion was made property along Cleveland Lar · There was a general and the cost of o The munici submitted the amounl many p~ lng fo, lity di fun, Stadium and the The agreement with ~ool gym for recreational ~ggested by Mayor for ti at Anton of the Stad Grace Hu~ Museum. Guild to raise enough of selling some of the expansion. Conference Center motels to assist in the ~ed and it was noted by staff that staff has for this project. Local matching funds in were also discussed. It was noted that g their assistance with work Poi 10 opera! De may be only be ~ief Willia and in the fL a minimal been pu to negative impact the situation at the Police Department during the past last several years the Police Department has been ]1 furniture and most equipment possessed by the with grant monies or through asset forfeiture. While it of the operating budget, any substantial savings will uctions in personnel. Any such reduction will have a severe lity of the Department to provide quality law enforcement for the community an( I result in a less safe environment. As the area continues to grow, demands on law enforcement will increase. Staff reductions will inevitably lead to diminished services. He explained the COPS funding program and noted that the Department cannot use it to supplant existing services. Fire Chief Latipow explained that the Fire Department is attempting to maintain a high level of service that the community expects. The Department continues to experience an increase in population and in services to the community, with a reduction in personnel. He explained that if the department drops below the OSHA mandated "2 in 2 out" requirements for interior fire attack the Fire Department will have to delay Special Ukiah City Council Meeting February 1,2005 Page 2 of 6 aggressive firefighting. The delay could result in additional property loss and the potential for a fire to spread to other structures. The elimination of the ambulance would save little, if any money, as the revenue pays for the additional firefighters hired for the ambulance service. Fire Chief Latipow discussed inventory of equipment and large apparatus and the cost of replacement for the Fire Department. He went on to discuss the ambulance program and noted that he will be coming before Council in the near future to discuss an increase in ambulance fees. He noted that as the popu it causes an increase in citizen assist calls and there is a higher ,blic safety services in multi family housing areas. Public Works Director/City Engineer Steele di,, and personnel for the Public Works De hold and there is a need for additional fundi discuss the possible increased cost in Upon questioning by Council regarding explained the road conditions and needed and Waugh Lane bridges require hi! h maintenar advised ! needed repair ~tenance should street withi~ .~nt projects funding is on .he went on to be delayed. City, she that the G Creek Planning Director Stump discu Community Development Departme itself with the fees it collects, while approximately 10%. schedUles for planni~ ,d res~ of otl' Building Divisions of the Iding Department pays for fees recovery rate is staff to look at the fee cities. Discussion Works Departmenl Public Wo~ City PI, with g the G landscaping Fund Summary related to the Public City Manager Horsley discussed ty Service issues concerning the the Conference Center and Alex Thomas City Rappo~ g that want fees, ,cial taxes to provide th He discussed Fund, if the vote increasing the State's Proposition 218 requirement for local ncrease revenues. He discussed the difference between id general taxes. The fees have to be set based on the cost is restricted to what the fund was set up to provide. Ins of transferring Enterprise Fund money to the General it. He went on to discuss problems associated with ;hise fee for its utilities. He noted that electric utilities are specifically excluded from Prop 218. PUBLIC COMMENT The following individuals spoke to the issue: Ross Liberty, Gordon Elton, and John Mayfield. Police Chief Williams explained that it takes approximately five years to train new officers once they are hired by the City. He further explained that the initial investment of the City to hire and train an officer is about a $50,000. There is State mandated Special Ukiah City Council Meeting February 1,2005 Page 3 of 6 training of officers that the City must continue to meet. He noted that with the lack of experience of an officer, a liability is associated with it. Discussion followed regarding the following concerns: · Concern with training individuals, only to have them leave for higher pay and the importance of not having a constant transition in public safety officers. · Directing Staff to prepare a cost analysis regarding the ambulance service fees. · Discussion of the Fire Departments insurance rating and how a reduced staff may affect the insurance rating for the community. · There was discussion of a Charter City v. General look into the matter of becoming a Charter City. · Each City Department will be coming before th~ il in the next few months with regard to revenue enhancemen, and if the City should It was the consensus of the City Council to Council with regard to revenue enhanceme~ provide info~ ~n to the City City Lrtments. Recessed: 6:47 p.m. Reconvened: 6:58 p.m. DISCUSSION OF POSSIBLE City Manager Horsley explained discussion regarding a ible sale analysis of local reven~ in 2004 election. She of City Attorney Coun¢ iconsid{ iURE - MAYOR ASHIKU asked for the Council's 9 discussed the recent voted on in the November ry Vote Only" alternatives, as prepared by )n. Discussion possible folh need to of w allot. W the meas[ Wh~ Concert the citizen concerns/issues associated with a ~re: ~'s advisory alternatives. safety. a sales tax proposal and an advisory measure on should be a general tax or a special tax. increase should be a half cent increase. sed that the City Council needs to make a commitment to on core issues affecting the City, utilize resources needed for public and to present information to the voters so they will understand the City's concern for the community. Councilmember McCowen voiced his support for a half cent sales tax increase and an advisory measure that would specify certain levels of service, noting that without an increase the City could see a significant decline in service to the community. It was the consensus of the City Council to move forward with a half cent sales tax increase ballot measure. Special Ukiah City Council Meeting February 1,2005 Page 4 of 6 Ross Liberty, a member of the Mendocino County Employers Council, suggested offering the voters a half cent sales tax increase with a five-year sunset clause. If the City Council approved such a proposal, the Employers Council would be willing to share the cost of a Special Election. Discussion continued concerning the agenda item with regard to: · Ensuring that the infrastructure of the City is adequately taken care of. · Providing adequate funding for public safety departments now and in the future. Staff expressed the difficulty of the City timeframe. · Considerable discussion related to setting a were made of five to twenty years. It was not~ measure that was passed in Santa Rosa because of financing concerns. · The negative aspects in recruiting qual at five years. · Gaining the support of the Police and · Discussion concerning the amount of City. · Vehicle License Fees fundingand VLF impacts on f It was noted that the sales community and th. would g for a five-year frame. Suggestions hat a recent sales tax its sunset clause sonnel if the sur ause were set for a plans to take from the ',cst 10% or less of VLF annual ets. ~ure would remain in the ~m the City Fire Chief Lati and how a sun~ for example 30 compiled a spread.~ available se has ed ;ier fo~ ,r review. placing a sunset clause on the measure ities. If the sunset clause is longer, Staff to project adequate planning. He for the Fire Department and it is ,mas and erri spoke to the issue. Coun~ does not needed. B~ Police and be necessary to Cr~ with a the he is a member of the Employers Council and sunset clause, however, he thought a sunset clause is of work the City needs to complete in Public Works, the s, etc., he thought a sunset clause 15 years or more would ;h the work needed. City Attorney Rapport explained each of the Advisory Vote alternatives he provided to Council. He also provided Council with legal advice related to the alternatives presented. He discussed placing a general tax with an advisory measure on the ballot. He noted that the City Council is not legally obligated to place an advisory measure on the ballot. A consensus of the City Council was agreeable to a half cent sales tax increase. Council also discussed a general tax verses a special tax, and the possibility of a sunset Special Ukiah City Council Meeting February 1,2005 Page 5 of 6 clause. At the next Council meeting, Council will discuss whether to approve an advisory measure and determine the number of years for a sunset clause. Staff will also provide revenue and expenditure projections for Council's review. It was the consensus of the City Council to include an advisory measure with the sales tax ballot measure for the June 2005 election. There was a brief discussion with regard to Councilmembers contacting City departments with regard to any questions they may have con, projects or budget item questions. 5. ADJOURNMENT There being no further business, the meeting meeting of the City Council and Ukiah Valley February 2, 2005 at 4:00 p.m. District 07 p.m. to the joint ng scheduled for Marie Ulvila, City Clerk Special Ukiah City Council Meeting February 1,2005 Page 6 of 6 ITEM NO. 6a DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: APPROVAL OF AGREEMENT WITH ADELPHIA COMMUNICATIONS FOR CABLE FRANCHISE SERVICES At the April 20 meeting Council approved in concept the fifteen year agreement with Adelphia Communications for the provision of cable television services within the City of Ukiah. The only revision requested by Council was that the agreement include language in Appendix 2 that required Adelphia to provide connectivity to any new government, education, or public facility in accordance to the specifications provided in the Appendix. Staff has revised the agreement accordingly and is now returning the item for formal approval. RECOMMENDED ACTION: Approve Agreement with Adelphia Communications for the provision of cable services within the City of Ukiah. ALTERNATIVE COUNCIL POLICY OPTIONS: 1. Determine approval of the agreement requires further consideration and remand to staff with direction. 2. Determine approval of the agreement is inappropriate at this time and do not move to approve. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A City Council Larry W. DeKnoblough, Community Services Director J_~ Candace Horsley, City Manager and David Rapport, City Attorney Proposed Agreement APPROVED:' .~' LD/C Ca~/ace ~rsley, City ~nager CableAgreemnet50405.Asr AN AGREEMENT BETWEEN THE CITY OF UKIAH AND ADELPHIA GRANTING NONEXCLUSIVE RIGHTS TO CONSTRUCT AND TO OPERATE A CABLE SYSTEM IN THE CITY OF UKIAH AND SETTING FORTH TERMS AND CONDITIONS RELATING TO THE EXERCISE OF THOSE RIGHTS. . . . . TABLE OF CONTENTS Page PARTIES; NOTICES; RIGHTS AND AUTHORITY GRANTED .................................. 3 1.1. Parties to the Agreement ...................................................................................... 3 1.2. Representatives of the Parties and Service of Notices ........................................... 3 1.3. Definitions ........................................................................................................... 4 1.4. Conflicts .............................................................................................................. 4 1.5. Grant ................................................................................................................... 4 1.6. Acceptance Required ........................................................................................... 4 1.7. Duration ............................................................................................................... 4 1.8. Agreement Not Exclusive ..................................................................................... 4 1.9. Scope of the Agreement ....................................................................................... 4 GENERAL REQUIREMENTS ....................................................................................... 6 2.1. Governing Requirements ...................................................................................... 6 2.2. Fee on Gross Annual Revenue .............................................................................. 6 2.3. Payment to Grantor .............................................................................................. 8 2.4. Insurance Requirements ....................................................................................... 8 2.5. Security for Grantee's Performance ...................................................................... 9 2.6 Fair Employment Practices ................................................................................. 11 RIGHTS RESERVED TO THE GRANTOR ................................................................. 11 3.1. Reservation ........................................................................................................ 11 3.2. Delegation of Powers ......................................................................................... 11 3.3. Right to Inspect Construction ............................................................................. 12 3.4. Right to Require Removal of Property ................................................................ 12 3.5. Right of Intervention .......................................................................................... 12 3.6. Option to Acquire the Cable System and Infrastructure ...................................... 12 SYSTEM CONSTRUCTION AND SPECIAL SERVICES ........................................... 12 4.1. System Construction .......................................................................................... 12 4.2. Notices Relating to System Construction ............................................................ 12 4.3. Services for Public, Educational and Community Facilities .................................. 13 4.4. Emergency Alert Capability ................................................................................ 13 4.5. Parental Control Devices .................................................................................... 14 4.6. Technical Standards ........................................................................................... 14 4.7. No Offset Against Fees ...................................................................................... 15 SERVICES, PROGRAMMING, AND CONSUMER PROTECTION STANDARDS... 15 5.1. Rates and Charges for Services and Equipment .................................................. 15 5.2. Consumer Protection and Service Standards ....................................................... 15 5.3. Broad Categories of Cable Services .................................................................... 15 5.4. Subscriber Surveys ............................................................................................. 16 . . . 10. 11. TABLE OF CONTENTS Page 7.1. 7.2. 7.3. 7.4. 7.5. 7.6. 7.7. 7.8. 7.9. 7.10. 7.11. 7.12. 7.13. 7.14. 7.15. SUPPORT OF LOCAL CABLE USAGE AND TECHNOLOGICAL INFRASTRUCTURE ........................................................................................ 16 System Construction and Extension .................................................................... 16 Construction Components and Techniques ......................................................... 17 Technical and Performance Standards ................................................................ 18 Construction Codes ............................................................................................ 18 Construction Default .......................................................................................... 18 Vacation or Abandonment .................................................................................. 18 Abandonment in Place ........................................................................................ 18 Removal of System Facilities .............................................................................. 18 Movement of Facilities ....................................................................................... 19 Undergrounding of Cable ................................................................................. 19 Facility Agreements .......................................................................................... 19 Repair of Streets and Public Ways .................................................................... 19 Erection of Poles Prohibited ............................................................................. 19 Reservation of Street Rights ............................................................................. 20 Miscellaneous Design and Construction Requirements ...................................... 20 COMPLIANCE AUDITS AND TECHNICAL DATA .................................................. 22 8.1. Compliance, Performance Audits, and future PEG support ................................. 22 8.2. System Testing and Technical Data .................................................................... 23 8.3. Emergency Repair Capability .............................................................................. 24 REVOCATION, TERMINATION, OR FORFEITURE ................................................. 24 9.1. Revocation ......................................................................................................... 24 9.2. Grounds for Revocation, Termination, or Forfeiture ........................................... 24 9.3. Removal of Property .......................................................................................... 25 RECORDS; REPORTS; RIGHT TO INSPECT AND AUDIT; EXPERTS .................... 25 10.1. Grantee to Provide Records ............................................................................. 25 10.2. Records ........................................................................................................... 25 10.3. Maintenance and Inspection of Records ............................................................ 26 10.4. Reports of Financial and Operating Activity ..................................................... 26 10.5. Performance Tests and Compliance Reports ..................................................... 27 10.6. Additional Reports ........................................................................................... 27 10.7. Communications with Regulatory Agencies ...................................................... 27 10.8. Inspection of Facilities ...................................................................................... 27 10.9. Right to Audit .................................................................................................. 28 10.10. Retention of Experts ........................................................................................ 28 ENFORCEMENT PROCEDURES ............................................................................... 29 11.1. Notice and Hearing upon Grantee's Default ...................................................... 29 TABLE OF CONTENTS Page 12. 13. 14. 11.2. Delegation ....................................................................................................... 29 11.3. Stop Work Notice ............................................................................................ 30 11.4. Authorized Fines, Penalties, and Other Sanctions ............................................. 30 CONTINUITY OF CABLE SYSTEM SERVICES .......................................................31 12.1. Continuity of Service ........................................................................................ 31 12.2. Operation and Management by Grantor ............................................................ 31 MISCELLANEOUS PROVISIONS .............................................................................. 32 13.1. Assignment, Transfer, Sale, and Change of Control .......................................... 32 13.2. Force Majeure .................................................................................................. 33 13.3. Possessory Interest ........................................................................................... 34 13.4. Indemnification ................................................................................................ 34 13.5. Bankruptcy of Grantee ..................................................................................... 34 13.7. Resolution of Disputes ..................................................................................... 34 13.8. Waiver by Grantor ........................................................................................... 35 13.9. Severability ...................................................................................................... 35 13.10. Amendments .................................................................................................... 35 13.11. Binding Upon Successors ................................................................................. 35 13.12. Counterpart Execution ..................................................................................... 35 13.13. Applicable Law ................................................................................................ 35 DEFINITIONS .............................................................................................................. 36 15. AUTHORITY AND EFFECTIVE DATE ...................................................................... 41 15.1. Authority ......................................................................................................... 41 15.2. Effective Date .................................................................................................. 41 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F SECTION 1.11.2 OF THE CITY OF UKIAH MUNICIPAL CODE AS ADOPTED AND IN EFFECT ON THE EFFECTIVE DATE OF THE AGREEMENT OWNERSHIP CHANNEL CAPACITY/SYSTEM CHARACTERISTICS CABLE SYSTEM SERVICES FOR PUBLIC, EDUCATIONAL AND COMMUNITY FACILITIES SUPPORT OF LOCAL CABLE USAGE GRANTOR'S UNDERGROUND CONSTRUCTION REQUIREMENTS ... III CABLE FRANCHISE AGREEMENT This Cable Franchise Agreement ("Agreement") is entered into this~ day of ,2004, at Ukiah, California, by the City of Ukiah, a political subdivision of the State of California ("Grantor"), and Century Mendocino Cable Television, Inc. d/b/a Adelphia Cable Communications ("Grantee" and/or "Adelphia"). RECITALS WHEREAS, under applicable laws, the City of Ukiah ("City") has the authority to regulate the use of Streets, public rights-of-way (Public Rights-of-Way), and other City property, and to grant access thereto upon certain terms and conditions; and WHEREAS, the City wishes to promote the availability of high quality and diverse Cable Services to City residents, businesses, the City, and other public institutions; 'to promote the availability of diverse information resources to the community, including through the development of advanced Cable Systems that can support public, educational, and governmental programming; to promote competitive Cable Services and rates; to take advantage of technologies to provide for more open government; to enhance educational opportunities throughout the community and provide opportunities for building a stronger community; and to allow flexibility to respond to changes in technology, Subscriber interests, and competitive factors within the cable television industry that will positively affect the health, welfare, and well-being of the community; and WHEREAS, the City is authorized by federal, state and local law to manage the use of Public Rights-of-Way and to Franchise Operators of Cable Systems which use such Public Rights-of-Way; and WHEREAS, Adelphia is currently operating a cable system within the City pursuant to a Franchise Agreement initially entered into with Group W Cable, Inc. on December 6, 1985; and WHEREAS, the Franchise Agreement was transferred to Century Communications and later transferred to Adelphia; and WHEREAS, the term of the Franchise Agreement expired on December 6, 2000 and Adelphia has been operating on a month to month basis since that time; and WHEREAS, in June 2002, Adelphia filed for creditor protection under section 365 of the Bankruptcy Code, Chapter 11 U.S.C. § 365. and is a debtor in possession of the cable system while in reorganization; and WHEREAS, the City is authorized to grant, renew and deny Franchises for the installation, operation and maintenance of Cable Systems within the City' s boundaries by virtue of federal and state statutes, by the City' s police powers, by its authority over its Public Rights-of-Way and by other lawful City powers and authority; and WHEREAS, Adelphia has requested a renewal of its Cable Franchise and has proposed to operate a state-of-the-art telecommunications system and to provide advanced telecommunications services to the City, its residents and Subscribers; and WHEREAS, the City, in conjunction with the California cities of Fort Bragg and Willits and the California County of Mendocino (the "Consortium"), undertook a review of Cable Service in the City, including but not limited to a review of Adelphia's proposed facilities design, the present and future cable-related community needs of the City, and Adelphia' s ability to carry out its commitments and its overall financial, legal and technical qualifications to hold a City Franchise; and WHEREAS, the City has conducted a public hearing and hereby finds that it would serve the public interest to grant the Franchise renewal subject to the terms and conditions set forth in this Agreement and in the City Code Section 1.11.2. In connection with Adelphia's request to construct and to operate a Cable System, Adelphia has offered to (i) provide certain services to the Grantor, including public, educational, and governmental access channels (PEG); and (ii) pay to the Grantor a percentage of the revenues that it receives from the provision of Cable System services to its subscribers in the City; and WHEREAS, the City, in conjunction with the other members of the Consortium; negotiated the terms of this Agreement with Adelphia, in accordance with applicable law; and WHEREAS, the City negotiated this Agreement with Adelphia in conjunction with the other members of the Consortium, and, therefore, there are direct and indirect references to the other members of the Consortium contained in this Agreement; and WHEREAS, Grantee has agreed to comply with the provisions of this Agreement and Section 1.11.2 of the City of Ukiah Municipal Code, as it now exists ("Section 1.11.2"). A copy of Section 1.11.2 is attached as Exhibit A and is incorporated by this reference; and WHEREAS, Grantor's City Council has reviewed the present and future cable-related needs of the City and its residents, and Adelphia' s financial, legal, and technical qualifications to perform its obligations under this Agreement, and has determined following a noticed public hearing that the public interest would be served by authorizing Adelphia to construct and operate a Cable System subject to the terms of this Agreement and the provisions of Section 1.11.2. NOW, THEREFORE, in accordance with the provisions of Section 1.11.2 and this Agreement, Grantor grants to the Grantee, and Grantee accepts from the Grantor, nonexclusive rights to construct and to operate a Cable System. 1. PARTIES; NOTICES; RIGHTS AND AUTHORITY GRANTED. 1.1. Parties to the Agreement. (a) Grantor: The City of Ukiah, a political subdivision of the State of California, having its principal office at 300 Seminary Avenue, Ukiah, CA 95482. (b) Grantee: Century Mendocino Cable Television, Inc. d/b/a Adelphia Cable Communications, whose ownership interests are set forth in the attached Exhibit B incorporated herein by this reference, and having an office at 5619 DTC Parkway, Greenwood Village, CO 80111. 1.2. Representatives of the Parties and Service of Notices. The representatives of the parties who are primarily responsible for the administration of this Agreement, and to whom notices, requests, demands and other communications must be given, are as follows: (a) Notices, requests, demands, and other communications to be given by either party must be in writing and may be effected by personal delivery, by overnight courier, by first class mail, or by certified mail, return receipt requested. (b) If the name or title of the principal representative or other recipients designated to receive the notices, requests, demands, and other communications, or the address of those persons, is changed, written notice must be given at least five (5) working days before the Effective Date of that change. (c) The principal representative of the Grantor is: Office of the City Manager City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 (d) The principal representative of the Grantee is: General Manager Adelphia Cable Communications 1060 North State Street Ukiah, CA 95482 and to: Adelphia Communications Corp. Attn: Legal Department 1125 Kelly Johnson Blvd., Suite 300 Colorado Springs, CO 80920 1.3. Definitions. Unless otherwise defined, or unless the use or context clearly requires a different definition, the words, terms, and phrases and their derivations, as used in this Agreement, have the meanings set forth below in Section 14. 1.4. Conflicts. If there is any conflict or inconsistency between the provisions of this Agreement and the provisions of Section 1.11.2, the provisions of this Agreement will control. 1.5. Gram. This Agreement confers upon the Grantee the authority, right, and privilege to construct, operate, and maintain a Cable System in the "designated service area," which is defined as the incorporated territory of the City of Ukiah as existing on the Effective Date of this Agreement, and any additional territory that may be added to the designated service area during the term of this Agreement. Grantee's construction of the Cable System within the designated service area will be in compliance with the provisions of Section 7 of this Agreement. 1.6. Acceptance Required. This Agreement will commence on the Effective Date of the Resolution authorizing this Agreement as defined in Subsection 15.2., or on the date specified as the Effective Date in that Resolution. On or prior to its Effective Date, Grantee must file with the City Manager a written acceptance of the Resolution approving this Agreement. 1.7. Duration. The term of this Agreement is fifteen (15) years from the Effective Date as specified in Subsection 1.6. Any renewal of the Agreement will be in accordance with then applicable law. 1.8. Agreement Not Exclusive. The rights granted by this Agreement may not be construed to limit in any manner the right of Grantor, through its authorized officers and in accordance with applicable law, to grant to other individuals or entities, by franchise, permit, license, or otherwise, any rights, privileges or authority similar to or different from the rights, privileges and authority set forth herein, in the streets, public ways, public places, or other property that the Grantee is entitled to occupy; provided, however, that those additional grants will not operate to revoke, terminate, or modify any rights granted to Grantee by this Agreement. 1.9. Scope of the Agreement. (a) Subject to Grantee's compliance with Grantor's permit procedures applicable to construction, encroachments, excavations, and pole attachments, Grantee is authorized and obligated to construct, reconstruct, operate, and maintain its Cable System within the public streets and rights-of-way. Grantee agrees to operate the Cable System within the specifications attached Exhibit C. (b) The authority granted by this Agreement includes the privilege to use the Grantee's Cable System in the designated service area for the provision of both cable and any other service authorized by law. (c) Grantor reserves all rights it now has or subsequently acquires with respect to the future authorization and regulation of non-video services, including, but not limited to, the right to impose reasonable terms and conditions in addition to or different from those set forth in this Agreement with respect to the provision of any non-video services, and to charge a fee or other form of consideration or compensation on those non-video services in lieu of that specified herein; provided that those terms and conditions and that fee or other form of consideration or compensation must not be in conflict with federal and state law applicable to non-video services; and provided further, that the Grantor and Grantee will negotiate in good faith an agreement as to those terms and conditions and that fee or other form of consideration or compensation. Grantee reserves all rights it now has or may subsequently acquire with respect to the provision of non-video services and does not waive any rights it may have to provide those services. (d) Grantor acknowledges that Grantee, upon the initial activation of its Cable System, intends to offer to its subscribers various residential communications services, including certain non-video services that, upon the Effective Date of this Agreement, are not subject to regulation by Grantor. Before offering or distributing on a commercial basis any new non-video services to subscribers within the designated service area, Grantee will, as an accommodation to Grantor, use all reasonable efforts to provide advance written notice to Grantor of its intent to offer or distribute such non-video services and a description of those services. Such notice by itself confers no jurisdiction or authority upon Grantor to regulate non- video services. (e) In approving this renewal and grant of Franchise, Grantor reserves any rights it may have to impose lawful conditions regarding access by third parties to Grantee's Cable System for the delivery of Internet access service, and Grantor's approval of the renewal and grant shall not be deemed to have waived any such rights it may have to impose such lawful conditions at a later date, regardless of whether an assignment, transfer of control or renewal is pending at that time. Grantee likewise does not waive any right it may have with respect to the imposition of such a condition. Prior to the enactment or enforcement of any such requirement, Grantee shall be provided with reasonable notice, an opportunity to be heard, and an opportunity to present evidence on any findings made or required to be made with respect to such a requirement. (f) Grantor and Grantee expressly reserve the right to seek a judicial determination as to whether any particular service offered by Grantee on its system constitutes cable service for purposes of this Agreement. 1.10. Renewal Application Fee. County may establish a franchise renewal application fee as may be permitted by state and federal law. Said fee shall not exceed $7,500.00. The $7,500.00 renewal application fee may be adjusted based upon increases in the cost of living index for the Mendocino County area,. 2. GENERAL REQUIREMENTS. 2.1. Governing Requirements. Grantee must comply with all provisions of this Agreement, the provisions of Section 1.11.2 as it exists on the Effective Date of this Agreement (except as it may be inconsistent with this Agreement), and all other applicable laws, ordinances, and regulations. 2.2. Fee on Gross Annual Revenue. (a) As compensation for the rights granted by this Agreement, and in consideration for Grantor's authorization to use its streets and public ways for the construction, operation, and maintenance of Grantee's Cable System, the Grantee will pay to the Grantor a fee of five percent (5%) of its gross annual revenue, as defined in Section 14 of this Agreement, received by Grantee from the operation of the Cable System in the Grantee's designated service area. Grantor acknowledges that, during the term of this Agreement, Grantee may offer to its subscribers, at a discounted rate, a bundled or combined package of services consisting of video services, which are subject to the fee referenced above in paragraph (a), and other services that are not subject to that fee. With regard to such bundled or combined services, the following provisions are applicable: 1. During the term of this Agreement, if Grantee, or any of its affiliates, bundles or combines the sale of some or all of its video services with non-video services, and it becomes necessary to separately compute the amount of gross annual revenue attributable to video services in order to determine the amount of fees or PEG access support fees that are payable to the Grantor, then the following methodology will be applied: Grantee must calculate and report gross annual revenue, the fees thereon, and any applicable PEG access support fees, based upon proportionality, i.e., the amount of gross revenue to be attributed to each of such services must be in the same proportion that the price of each service, as determined on a stand- alone basis, bears to the aggregate of the stand-alone prices for those services when purchased on an unbundled basis. 2. Grantee will not structure the pricing of any bundled or combined services so as to intentionally or unreasonably cause a reduction in the gross annual revenue against which franchise fees or other proportionately-derived taxes, surcharges, or fees may be imposed by the Grantor. 3. If Grantor reasonably believes that Grantee has unlawfully, inequitably, or contrary to this Subsection 2.2(a)1 allocated gross annual revenue between video services and non-video services in calculating franchise fee payments, then the parties will meet upon advance notice from the Grantor to discuss the allocation methodology. If the parties cannot resolve the dispute within a reasonable period of time, then the parties will submit the matter to a mutually approved third party for mediation. The cost of the mediation will be shared equally by the parties. If the mediation is not successful, or if the parties cannot mutually agree upon a mediator, then either party may file an action in a court of competent jurisdiction or pursue any other remedies available under the law or this Agreement. 4. In recognition of the regulatory uncertainties that exist on the Effective Date of this Agreement with regard to bundled services that are offered at a discount, the parties reserve all rights, claims, defenses, and remedies they may have relating to Grantor's authority to impose and to enforce requirements concerning the revenue allocation methodology to be applied in calculating franchise fee payments on gross annual revenue that is derived from the sale to subscribers of video services and non-video services in a discounted package. (b) The fee specified above in paragraph (a) must be computed and paid by Grantee to Grantor's Finance Department not later than forty five (45) days after the end of each calendar quarter. The payment must be accompanied by a report that contains the following information relating to the preceding calendar quarter: 1. The total gross revenue collected by Grantee, and an itemization of the various categories of gross revenue collected during that calendar quarter. 2. The methodology used by Grantee in determining any proration of revenues, such as those derived from advertising sales and home shopping commissions, among Grantor and other local franchising authorities that are within the regional cluster. 3. The percentage of subscribers within the designated service area as compared to the total number of subscribers in the regional cluster that includes Grantee's franchise service area and such related information concerning those subscribers as may be required by Grantor to verify and validate Grantee's calculations as to the proration of revenues, such as those derived from advertising sales and home shopping commissions, among Grantor and other local franchising authorities served by the Grantee. (c) If the payment of any fee on Grantee' s gross annual revenue, or any recomputed amount of such fee, is not made on or before the dates specified in Subsections 2.2 or 2.3, Grantee must pay to Grantor as additional compensation an interest charge, computed from the applicable due date, at a rate equal to eight percent (8%) percent per annum. (d) In addition to the interest charge on a late payment that is imposed in accordance with paragraph (c) above, if a payment continues to be delinquent for a period of ten (10) days following expiration of the time for cure of this default, as specified in Subsection 11.1 (a), Grantor may treat that delay as a material breach, subject to all applicable provisions of Subsection 9.2 (a) and Section 11 of this Agreement. (e) Grantee acknowledges its obligation to pay the fee specified above in paragraph (a), which is the maximum percentage amount authorized by 47 U.S.C. {}573 (c)(2)(B) of the Cable Communications Policy Act of 1984, as amended. If Congress, the FCC, or a court of competent jurisdiction alters this fee requirement in a manner that materially changes the benefits or obligations of either party, then the parties agree to comply with the requirements of such applicable law. (f) Grantee may pass through franchise fees to cable subscribers in accordance with federal law. 2.3. Payment to Grantor. (a) No acceptance of any payment by Grantor may be construed as an accord that the amount is in fact the correct amount, nor may acceptance of payment be construed as a release of any claim the Grantor may have against Grantee for any additional sums payable under the provisions of this Agreement. (b) All amounts paid are subject to independent audit and recomputation by Grantor, as provided for in Subsection 10.9. 2.4. Insurance Requirements. (a) Upon the Effective Date of this Agreement, Grantee, at its sole cost and expense, must obtain and maintain for the full term of this Agreement, all of the following insurance coverages: 1. Types of Insurance and Minimum Limits. The coverages required below may be satisfied by any combination of primary liability and excess liability policies. A. Workers' Compensation and Employer's Liability Insurance in conformance with the laws of the State of California B. Grantee's vehicles, including owned, leased, or hired vehicles, must each be covered with Automobile Liability Insurance in the minimum amount of $2,000,000 combined single limit per accident for bodily injury and property damage. C. Grantee must obtain and maintain Comprehensive or Commercial General Liability Insurance coverage in the aggregate annual amount of $3,000,000 combined single limit, including bodily injury, personal injury, and broad form property damage. This insurance coverage must include, without limitation, contractual liability coverage adequate to meet the Grantee's indemnification obligations under this Agreement. 2. All required Automobile Liability Insurance and Comprehensive or Commercial General Liability Insurance policies must contain an endorsement in substance as follows: "The City of Ukiah is added as an additional insured as respects the operations of the named insured under the Cable System Franchise Agreement entered into by the City and the named insured." 3. The insurance required of Grantee under this franchise is primary, and no insurance held by Grantor may be called upon to contribute to a loss under this coverage. 4. All insurance policies must provide that, in the event of material change, reduction, cancellation, or non-renewal by the insurance carrier for any reason, not less than thirty (30) days' written notice will be given to Grantor by registered or certified mail of such intent to cancel, materially change, reduce, or not renew the coverage. An authorized agent of the insurance carrier must provide to the Grantor, on such schedule as is requested by the Grantor, a certification that all insurance premiums have been paid and all coverages are in force. If for any reason Grantee fails to obtain or keep any of the insurance in force, Grantor may (but is not required to) obtain that insurance. In that event, Grantee must promptly reimburse Grantor its premium costs, plus one percent (1%) monthly interest thereon until paid. 5. Ail insurance must be obtained from companies that are authorized to transact business in California and that have a rating of A- or better in Best's Insurance Guide. 6. Any deductibles or self-insured retentions are subject to the Grantor's prior approval, which approval will not be unreasonably withheld. (b) Prior to the Effective Date of this Agreement, Grantee must provide to Grantor written insurance binders, statements of property coverage, certificates of insurance, or certified copies of policies evidencing the required coverage as specified by Grantor. 2.5. Security for Grantee's Performance. (a) Security for Grantee's Performance of Construction Obligations. If Grantee commences new system construction such that more that twenty-five percent (25%) of its plant is upgraded or replaced, on or before the date the Grantee commences construction, Grantee must provide to Grantor a construction bond in the amount of $500,000. The construction bond will guarantee the Grantee's faithful performance of its obligations under this Agreement. Prior to construction, Grantee will prepay or make a deposit towards the cost of Grantor's inspection fees and administrative costs. The construction bond will guarantee emergency repairs to public improvements that may be damaged in the course of Grantee's construction of the Cable System, and will guarantee that, upon any abandonment or other permanent cessation or termination of the work relating to the construction of Grantee's Cable System, the Grantor's streets, highways, and public rights-of-way will be restored to the condition existing prior to Grantee's construction work, and the facilities of the Cable System will either be removed or abandoned in place, as may be directed by the Grantor's principal representative. (b) Upon completion of the construction to the satisfaction of Grantor, the Construction bond may be released. Upon completion of the construction Grantee will provide the Grantor written notice. Within thirty (30) days of such notice, Grantor will release the construction bond obligation from Grantee. (c) Security Fund for Correcting Matters of Non-Compliance, Defective Work and Other Obligations. Within sixty (60) days after the Effective Date of this Agreement, Grantee must provide to Grantor a security fund to guarantee the Grantee's performance of its obligations under this Agreement. The security fund shall consist of a $30,000 irrevocable, replenishable letter of credit to the order of Grantor and a $100,000 performance bond. The security fund shall apply to Grantee's operations throughout the jurisdiction of Grantor. The security fund is subject to and must comply with the following requirements: 1. The irrevocable, replenishable letter of credit and the performance bond shall be in a form approved by Grantor's City Attorney. The letter of credit and performance bond shall be maintained in the required amount throughout the term of this Agreement. 2. The security fund will be available to Grantor to satisfy any and all claims, penalties, liens, fees, payments, costs, damages, or taxes due Grantor from Grantee that arise by reason of the construction, reconstruction, operation, or maintenance of the cable system. Grantor may elect whether to make a demand on the letter of credit or a claim against the performance bond, or both. 3. After the procedural requirements specified in Section 11 of this Agreement have been satisfied, if Grantee fails or refuses to pay to Grantor any amounts due under the terms and provisions of this Agreement, Grantor may draw against the letter of credit or claim against the performance bond on the unpaid amount plus accrued interest by making a demand in the form required by the letter of credit or performance bond. After the Grantor has made such a demand, Grantor must give written notice to Grantee of the amount, date, and the basis for the claim within five (5) days of making such demand. 4. Provided that Grantor follows the procedures for drawing down on the letter of credit or claiming against the performance bond, Grantee shall not initiate litigation to prevent or impair Grantor from assessing the security fund. Grantee's remedy, in the event Grantee believes any assessment against the security fund is improper, shall be through a legal action against Grantor after the security fund has been drawn upon by Grantor. In the event Grantor's action is found improper by a court of competent jurisdiction, Grantee shall be entitled to a refund of the monies withdrawn from the letter of credit or paid from the performance bond plus interest from the date of withdrawal or payment. 5. Unless Grantee has initiated litigation against Grantor that the Grantor's assessment against the security fund has been improper, Grantee shall replenish the letter of credit and/or performance bond to the amount required in this Agreement within sixty days (60) days of receipt of written notice from Grantor to Grantee that an amount has been 10 withdrawn from the letter of credit by Grantor or paid from the performance bond. 6. Within sixty (60) days after expiration of the term of the Franchise, Grantee will be entitled to a release of the letter of credit and performance bond provided, however, that Grantee is not then in default of its obligations under this Agreement. 7. The rights reserved to Grantor with respect to the security fund are in addition to all other rights of Grantor pursuant to this Agreement. Grantor's exercise of rights with respect to the security fund will not constitute an election of remedies or a waiver of any other rights Grantor may have under this Agreement or any applicable law. (d) Adjustments. 1. Fifth Anniversary. Upon written request from the Grantor within ninety (90) days of the fifth anniversary of this Agreement, Grantee shall increase the amount of the Letter of Credit by $10,000, making the total amount of the Letter of Credit equal to $40,000. Grantee shall have sixty (60) days from receipt of such written request to implement this increase. 2. Tenth Anniversary. Upon written request from the Grantor within ninety (90) days of the tenth anniversary of this Agreement, Grantee shall increase the amount of the Letter of Credit by an additional $10,000 making the total amount of the Letter of Credit equal to $50,000. Grantee shall have sixty (60) days from receipt of such written request to implement this increase. 2.6. Fair Employment Practices. (a) During the term of this Agreement, Grantee must comply with all applicable federal, state, and local laws and regulations relating to fair employment practices. (b) Grantee represents that, during the term of this Agreement, Grantee and any parties with whom it may contract will adhere to equal opportunity employment practices to ensure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, sexual orientation,=or age. Grantee further represents that it will not maintain any segregated facilities. 3. RIGHTS RESERVED TO THE GRANTOR. 3.1. Reservation. Grantor reserves every right it may have in relation to its power of eminent domain over Grantee's contractual rights and property. 3.2. Delegation of Powers. Unless otherwise provided in this Agreement, and except with regard to the grant, transfer, termination, revocation, or forfeiture of the Agreement, any right or power in, or duty retained by or imposed upon Grantor, or any officer, employee, department, commission, or board of Grantor, may be delegated by Grantor to any officer, employee, department or board of Grantor, or to such other person or entity as Grantor may designate to act on its behalf. 3.3. Right to Inspect Construction. The Grantor has the right to inspect all construction, installation, or other work performed by Grantee in connection with the Agreement, and to make such tests as may be necessary to ensure compliance with the terms of this Agreement, so long as that inspection and testing does not unreasonably interfere with Grantee's operations. 3.4. Right to Require Removal of Property. Consistent with applicable law, at the expiration of the term of the Agreement, or upon its lawful revocation or termination, the Grantor has the right to require the Grantee to remove, within a reasonable period of time that will not be less than one hundred eighty (180) days, and at Grantee's expense, all portions of its Cable System and any other property from all streets and public rights-of-way within the designated service area. 3.5. Right of Intervention. Grantor has the right to intervene in any suit, proceeding, or other judicial or administrative proceeding in which the Grantee is a party and in which the Grantor has any material interest. 3.6. Option to Acquire the Cable System and Infrastructure. Grantee agrees to comply with the requirements of Section 627 of the Cable Act. 4. SYSTEM CONSTRUCTION AND SPECIAL SERVICES. 4.1. System Construction. Grantor acknowledges that the Grantee's system was recently rebuilt to the standards described in Exhibit G. These provisions shall be the minimum standards that apply to any subsequent reconstruction of Grantee's system. 4.2. Notices Relating to System Construction. (a) Notices to Local Newspaper. If requested by Grantor, Grantee must publish a notice in a newspaper of general circulation before commencing construction of any phase of the Cable System that would affect more than twenty five percent (25%) of its subscribers. The notice must be published not less than thirty (30) days prior to construction. The notice must provide a general summary of the proposed construction, and a telephone number that the public may call for additional information. (b) Other Notices. 1. Grantee will provide to Grantor at least forty five (45) days prior written notice before commencing construction of any phase of the Cable System. 12 2. At least forty eight (48) hours prior to the scheduled construction date, Grantee must provide additional notice to residents within the proposed construction area by the use of door hangers that set forth a general description of the construction project, the anticipated dates of construction, and a telephone number for the Grantee that a resident may call with any questions or concerns. If driveways are to be blocked, additional notice must be given by Grantee to affected residents, as required by Subsection 7.15(g), which notice must specify the dates that access will be blocked. 4.3. Services for Public, Educational and Community Facilities. (a) Grantee will install, maintain, and repair, without charge, at a point of demarcation to be specified by Grantor, one cable drop at each of the public, educational and community facilities identified in Exhibit D. (b) Grantee will provide, without charge, extended basic analog cable service to one outlet at each of the public, educational and community facilities identified in Exhibit D. The parties agree that reasonable substitutions of locations identified in Exhibit D may be required from time-to-time, and those substitutions may be negotiated in a manner that is mutually beneficial to the parties. (c) Upon Grantor's written request, Grantee will also install additional drops and outlets for video services at specified public, educational and community administrative facilities. Grantor will pay Grantee for such additional drops and outlets at Grantee's cost for labor and materials. (d) Grantor will inform Grantee of the construction of new public, educational, and community facilities so that exterior and interior connections and cable drops can be installed by Grantee at the time of construction in order to minimize costs. One cable drop will be installed by Grantee without cost to Grantor, provided that the new facility requires no more than a standard 150-foot aerial drop line from the main feeder line. Grantor will pay Grantee for additional drops, connections, outlets, and construction costs at such new facilities at Grantee's cost for labor and materials. 4.4. Emergency Alert Capability. (a) In constructing the Cable System, Grantee must comply with all FCC rules and regulations relating to the national Emergency Alert System ("EAS"). To the extent that it is technically feasible and authorized by law, Grantee will provide the system with emergency override capability to enable Grantor's public safety personnel and designated public officials to cablecast emergency messages by interrupting and overriding the audio signals of all cable channels using remote coded-access activation devices at one or more sites to be mutually agreed upon by the parties. Equipment providing for this emergency override capability will be installed by Grantee at these sites, at no expense to Grantor. 13 (b) In the event of any conflict between the federally-mandated Emergency Alert System CEAS'') and the requirements of Grantor's emergency override system, the federally-mandated EAS will have priority. 4.5. Parental Control Devices. (a) Grantee must provide subscribers upon request with a "trap," "lockbox," digital code, or similar parental control device that enables a subscriber to block the reception of video and audio signals from selected channels on the Cable System, including any premium or pay-per-view channel that is scrambled. (b) No additional, continuing charge for the use of any such parental control device may be imposed by Grantee if that device is incorporated into equipment, such as a decoder, for which a subscriber is already paying a charge. (c) Upon request, Grantee must provide to subscribers written instructions on the methods by which selected channels on the Cable System may be restricted or blocked. 4.6. Technical Standards. (a) The FCC Rules and Regulations, including Part 76, Subpart K (Technical Standards), and any amendments or supplements thereto, will apply to the Grantee's operations to the extent permitted by applicable law. (b) The Grantor's obligations relating to the provision of emergency power for the Cable System include the following: 1. Grantee must provide standby emergency power equipment for its headend and for its fiber optic equipment transmitters and receivers, regardless of whether that fiber optic equipment is located at the headend or in the trunk or distribution system of the Grantee's plant. 2. Grantee's obligation to provide a standby emergency power supply includes the installation of equipment that cuts in automatically during a utility power failure and reverts automatically to commercial power when it is restored. Backup power supplies and associated equipment must be tested on a regular basis. Test results must be recorded in logs that are available upon request for inspection by the Grantor. 3. All standby emergency power equipment will be installed, activated, and maintained by the Grantee at its sole expense and, during a commercial power interruption, must be capable, at a minimum, of powering the Cable System as follows: for plant amplifiers, not less than one and one-half (1 1/2) hours; for nodes, a period of time that is consistent with acceptable industry standards; and for headend and hub, twelve (12) hours. 14 4. When one or more commercial power outages exceed a cumulative total of twenty four (24) or more hours during any twelve (12) month period in areas other than those where power is not available to residential subscribers, Grantee and Grantor may confer for the purpose of determining whether there is a need to develop a plan to reduce outage time below twenty four (24) hours. (c) The Cable System must be designed, installed, and operated to comply with the following general requirements: 1. Twenty four (24) hour daily operation. by non-subscribers. . Avoid causing interference with the reception of off-the-air signals 3. Operate in a wide range of outdoor temperatures that typically occur within the designated service area. 4. Assure that all subscribers will receive standard color and monochrome signals on the FCC-designated Class 1 channels without noticeable picture degradation or visible evidence of color distortion, or other forms of interference that may be attributable to deficiencies in the Cable System. 4.7. No Offset Against Fees. In accepting this Agreement, Grantee acknowledges that the costs of the commitments specified in this Section 4 will not be offset against any fees payable by Grantee to Grantor during the term of this Agreement. 5. SERVICES, PROGRAMMING, AND CONSUMER PROTECTION STANDARDS. 5.1. Rates and Charges for Services and Equipment. Grantor reserves the right to regulate Grantee's rates and charges for cable services and equipment in the manner and to the extent permitted by law now or in the future. 5.2. Low Income persons have special needs. The Grantor reserves its rights to require special discounts for qualified low income person consistent with state and federal law. 5.3. Consumer Protection and Service Standards. Except as otherwise expressly provided in this Agreement, Grantee must comply with the requirements of Subsections 1.11.2.1902 to 1.11.2.1907 and all applicable state and federal laws.: and regulations relating to consumer protection and service standards that are referenced. In the event of any conflict between local, state and federal requirements, the strictest standards shall apply. 15 5.4. Broad Categories of Cable Services. (a) Grantee must provide, at a minimum, the following broad categories of programming: local broadcast stations; news and weather; music; financial and business programming; cultural programming; contemporary movies; general entertainment; sports programming;; PEG access channel programming; family programming (including health and religious programming) and children's programming. (b) If any broad category of programming listed above in paragraph (a) becomes unavailable, or cannot be provided by Grantee under existing FCC regulations, then Grantee must provide, to the extent feasible, reasonably comparable programming. . SUPPORT OF LOCAL CABLE USAGE AND TECHNOLOGICAl, INFRASTRUCTURE. (a) The obligations of the Grantee that relate to the support of local cable usage, including the provision of adequate public, educational, and governmental access channel capacity, facilities, and financial support, are set forth in the attached Exhibits D and E. Grantee acknowledges that the costs of the commitments specified in Exhibit D and E will not be offset against any fees payable by Grantee to Grantor during the term of this Agreement. (b) Any pass-through to subscribers of costs incurred by Grantee in performing its obligations under Exhibit D and E must be in accordance with all applicable regulations, formulas, and requirements of the FCC. 7. DESIGN AND CONSTRUCTION. 7.1. System Construction and Extension. (a) The Cable System must be operated in accordance with Exhibits C, and all other applicable provisions of this Agreement. (b) Throughout the designated service area, Grantee is obligated to design and to construct its Cable System in order to pass every single-family dwelling unit, multiple-dwelling unit, hospital, rest-home, boarding house, school, and governmental building, subject to the following requirements and exceptions: 1. Grantee must make its Cable System services available to residential dwelling units in all residential areas; provided, however, that Grantee's extension of its Cable System to residential dwelling units in residential areas that are annexed to the City after the Effective Date of this Agreement will be subject to the line-extension requirements set forth below in Subsection 7.1 (b)2. 16 2. Where residential dwelling units (or any other structure referenced in Subsection 7.1 (b) above) are located in an area that does not meet the density requirement of at least thirty (30) homes per cable mile, Grantee is not obligated to provide service. However, Grantee must provide, upon the written request of a prospective subscriber desiring service, an estimate of the costs of extending service. These costs will be apportioned as follows: If there are ten (10) residential dwelling units per cable mile, then Grantee' s share will equal 10/30 or one- third (1/3) of the construction costs. These line-extension requirements will also apply to a portion of a cable mile that meets proportionate density requirements. Thus, if there are fifteen (15) residential dwelling units per one-half mile, then Grantee must construct its Cable System plant without requiring a capital contribution from prospective subscribers. Grantee may require an advance payment or an assurance of payment satisfactory to Grantee. If the area later achieves the density required for mandatory extensions of service, the amounts paid will be deemed to be consideration for early extension. 3. Subject to the exceptions set forth below in Subsection 7.1 (b)4, Grantee must extend and make its Cable System services available to owners or occupants of all residential dwellings who request connection, at the standard connection charge, if that connection requires no more than a standard 150-foot aerial drop line from the main feeder line. If a connection requires more than a standard 150-foot aerial drop line, or an underground service connection, the prospective residential subscriber must be given the option of paying the incremental cost for that installation. 4. If additional territory is annexed to the City after the Effective Date of this Agreement, and an incumbent cable operator is then serving that annexed territory, then Grantee may, but is not required to, overbuild in order to provide Cable System services to residential dwelling units in that territory. (c) Grantor may require Grantee to extend and make its Cable System services available to commercial, industrial, and other nonresidential zones within the designated service area subject to the density requirements stated above. (d) Service to prospective subscribers residing in multiple-dwelling units need only be provided if, after evaluating the terms and conditions for access that may be imposed by an owner or manager of such multiple-dwelling units, the Grantee determines that those terms and conditions are reasonably acceptable; provided, however, that Grantee will use all reasonable diligence to negotiate agreements with owners or managers of multiple-dwelling units to provide Cable System service. 7.2. Construction Components and Techniques. Construction components and techniques must comply with the terms of this Agreement and all applicable statutes, ordinances, regulations, and pole attachment agreements that relate to the management and use of the public rights-of-way. 17 7.3. Technical and Performance Standards. Grantee must construct, reconstruct, install, operate, and maintain its Cable System in a manner consistent with all applicable federal, state, and local laws and ordinances, FCC technical standards, and the additional standards and requirements that are set forth in Exhibit F of this Agreement. 7.4. Construction Codes. The Grantee must strictly adhere to all building and zoning codes now or hereafter in force and must obtain all necessary permits. Any such permits issued by Grantor will be processed in a timely manner and will not be unreasonably delayed or denied. The Grantee will make every reasonable effort to arrange its lines, cables, and other appurtenances, on both public and private property, in such a manner as to minimize interference with the use of that property by any person. In the event of such interference, the Grantor may require the removal or relocation of the Grantee's lines, cables, and appurtenances from the property in question. Grantee must give at least forty eight (48) hours advance notice to all property owners prior to installing any additional above-ground or underground structures upon easements located on private property. Grantor will not modify its construction requirements subsequent to the completion of construction so as to require reconstruction or retrofit unless the public health and safety so requires. 7.5. Construction Default. Upon the failure, refusal or neglect of Grantee to undertake or complete any phase of construction, repair, relocation or other necessary work as required by this Agreement, thereby creating an adverse impact upon the public health, welfare or safety, Grantor may (but is not required to) cause that work to be completed, in whole or in part, and upon so doing will submit to Grantee an itemized statement of costs. Grantee will be given reasonable advance notice of Grantor's intent to exercise this power, and fifteen (15) days to cure the default, unless a different period for cure is specified in Exhibit F. Grantee must, within thirty (30) days of billing, pay to Grantor the actual costs incurred. 7.6. Vacation or Abandonment. If any street, alley, public highway, or portion thereof used by the Grantee is vacated by the Grantor, or its use is discontinued by the Grantor, then upon reasonable notice the Grantee may be required to remove its facilities, unless otherwise specifically authorized, or unless easements for Cable System facilities have previously been reserved. Following that removal, Grantee must restore, repair, or reconstruct the area in accordance with the requirements of Exhibit F. Upon any failure, neglect, or refusal of the Grantee, after thirty (30) days' notice by the Grantor, to do such work, Grantor may cause it to be done, and within thirty (30) days of billing, Grantee must pay to Grantor the actual costs incurred. 7.7. Abandonment in Place. Grantor may, upon written application by Grantee, approve the abandonment in place by Grantee of any property, under such terms and conditions as Grantor may approve. Upon Grantor-approved abandonment in place of any property, Grantee must cause to t~e executed, acknowledged, and delivered to Grantor such instruments as Grantor may prescribe and approve in order to transfer and convey ownership of that property to Grantor. 7.8. Removal of System Facilities. If Grantee's plant is deactivated for a continuous 7.3. Technical and Performance Standards. Grantee must construct, reconstruct, install, operate, and maintain its Cable System in a manner consistent with all applicable federal, state, and local laws and ordinances, FCC technical standards, and the additional standards and requirements that are set forth in Exhibit F of this Agreement. 7.4. Construction Codes. The Grantee must strictly adhere to all building and zoning codes now or hereafter in force and must obtain all necessary permits. Any such permits issued by Grantor will be processed in a timely manner and will not be unreasonably delayed or denied. The Grantee will make every reasonable effort to arrange its lines, cables, and other appurtenances, on both public and private property, in such a manner as to minimize interference with the use of that property by any person. In the event of such interference, the Grantor may require the removal or relocation of the Grantee's lines, cables, and appurtenances from the property in question. Grantee must give at least forty eight (48) hours advance notice to all property owners prior to installing any additional above-ground or underground structures upon easements located on private property. Grantor will not modify its construction requirements subsequent to the completion of construction so as to require reconstruction or retrofit unless the public health and safety so requires. 7.5. Construction Default. Upon the failure, refusal or neglect of Grantee to undertake or complete any phase of construction, repair, relocation or other necessary work as required by this Agreement, thereby creating an adverse impact upon the public health, welfare or safety, Grantor may (but is not required to) cause that work to be completed, in whole or in part, and upon so doing will submit to Grantee an itemized statement of costs. Grantee will be given reasonable advance notice of Grantor's intent to exercise this power, and fifteen (15) days to cure the default, unless a different period for cure is specified in Exhibit F. Grantee must, within thirty (30) days of billing, pay to Grantor the actual costs incurred. 7.6. Vacation or Abandonment. If any street, alley, public highway, or portion thereof used by the Grantee is vacated by the Grantor, or its use is discontinued by the Grantor, then upon reasonable notice the Grantee may be required to remove its facilities, unless otherwise specifically authorized, or unless easements for Cable System facilities have previously been reserved. Following that removal, Grantee must restore, repair, or reconstruct the area in accordance with the requirements of Exhibit F. Upon any failure, neglect, or refusal of the Grantee, after thirty (30) days' notice by the Grantor, to do such work, Grantor may cause it to be done, and within thirty (30) days of billing, Grantee must pay to Grantor the actual costs incurred. 7.7. Abandonment in Place. Grantor may, upon written application by Grantee, approve the abandonment in place by Grantee of any property, under such terms and conditions as Grantor may approve. Upon Grantor-approved abandonment in place of any property, Grantee must cause to be executed,-acknowledged,-and deli3ered to G~antor such'instruments as G~antor may prescribe and approve in order to transfer and convey ownership of that property to Grantor. 7.8. Removal of System Facilities. If Grantee's plant is deactivated for a continuous period of thirty (30) days, (except for reasons beyond Grantee's control), and without prior 18 written notice to and approval by Grantor, then Grantee must, at Grantor's option and demand, and at the sole expense of Grantee, remove all of Grantee's property from any streets or other public rights-of-way in accordance with Subsection 9.3. Grantee must promptly restore the streets or other public areas from which its property has been removed, including aerial trunk and feeder lines, in accordance with the requirements of Exhibit F. 7.9. Movement of Facilities. If Grantor determines it is necessary to move or to relocate any of the Grantee's property because of a conflict with a public project, Grantee, upon reasonable notice, must move, at the expense of Grantee, its property in order to facilitate that public project. No such movement or relocation may be deemed a taking of Grantee's property. 7.10. Undergrounding of Cable. Cables must be installed underground at Grantee's cost where all existing utilities are already underground or all new utilities are being installed underground in the area in accordance with the Grantor's adopted undergrounding policy. Previously installed aerial cable will be installed underground at Grantee's pro rata cost in concert with other utilities when aerial facilities are required to be placed underground cv, ngtmct:,on pursuant to a policy or program by Grantor to underground existing overhead wires, or as otherwise may be required by law. 7.11. Facility Agreements. This Agreement does not relieve Grantee of any obligations to obtain pole or conduit space from Grantor, any utility company, or others maintaining utilities in Grantor's streets. 7.12. Repair of Streets and Public Ways. All disturbance or damage to streets and public ways, and to improvements located within those streets and public ways, caused by the Grantee or its contractors during the construction, operation, or maintenance of the Cable System, must be restored at Grantee's expense, within the time frame specified by Grantor, and in accordance with all applicable requirements of Exhibit F. 7.13. Erection of Poles Prohibited. (a) Grantee may not erect any pole on or along any street or public way where there is an existing aerial utility system. If additional poles in an existing aerial route are required, Grantee must negotiate with the appropriate public utility, including the Grantor if applicable, for their installation. Any such installation requires the advance written approval of the Grantor. (b) Subject to applicable federal and state law, the Grantee must negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction, under mutually acceptable terms and conditions. No pole line may be extended solely for the purpose of accommodating Grantee's facilities. Line extensions beyond any existing pole line must be underground where practical. 19 7.14. Reservation of Street Rights. Nothing in this Agreement precludes the Grantor from constructing, repairing, or altering any public work or improvement. That work will be done, insofar as practicable, . in such manner as not to unnecessarily obstruct, injure, or prevent the use and operation of any property of Grantee. If, however, any property of Grantee interferes with the construction, maintenance, or repair of any public improvement, that property must be removed or replaced in such manner as may be directed by Grantor so as not to interfere with the public work or improvement, and that removal or replacement will be at the expense of the Grantee. Grantor will give Grantee sixty (60) days prior written notice of any public work or improvement that may require the removal or replacement of Grantee's property; provided, however, that if the public work or improvement is necessitated by an emergency situation, notice will be given as far in advance as is reasonably feasible under the circumstances. 7.15. Miscellaneous Design and Construction Requirements. (a) Underground Installation of Conduit and Other Facilities. All underground installation by Grantee of conduit and other facilities related to its system must be in compliance with the Grantor's requirements, standards, and specifications that are set forth in Exhibit F. (b) New Development-Underground Utility Areas. Where new construction or property development occurs, and utilities are to be placed underground, Grantor will use its best efforts to require the developer or property owner to give reasonable notice to Grantee of that new construction or development. Grantee may be involved in all design aspects of the new construction or development that relate to the infrastructure required for Cable System service, including the provision of specifications and engineering assistance prior to construction. The costs of easements, trenching, and construction of the conduits required to bring Cable System service to the new construction or development will be borne by the Grantee, the developer, or the property owner, as may be agreed upon among them. Grantee will be notified of any date on which the installation of conduit, pedestals, vaults, or laterals will be available for Grantee's inspection. Grantee will bear all costs of installing cable, amplifiers, and other equipment required to construct and operate the Cable System. (c) Antennas and Towers. Antenna supporting structures, including towers, that are owned by or operated for Grantee must comply with all applicable electrical codes and FCC specifications, and must be erected, illuminated, painted, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration, as well as local ordinances and regulations that require the Grantor's approval of the siting of towers or other support structures within the City. (d) Tree Trimming. Grantee is authorized (but not required) to engage a licensed tree service contractor to trim trees on public property, at its own expense, as may be necessary to protect its wires, facilities, and equipment, subject to the direction and supervision of the Grantor. Trimming trees on private property that is not subject to a public easement requires 20 the written consent of the property owner or occupant. Each licensed tree service contractor proposed to be engaged by Grantee must be in possession of a valid City business license. (e) Mitigation of Adverse Visual Impacts. Grantee must take all reasonable measures, at its expense, to mitigate the adverse visual impacts of all power pedestals and flush- mounted equipment in accordance with the same standards and regulations that are prescribed by the City Engineer or other City designee and imposed by the Grantor upon the incumbent Cable System operator and upon public utilities. These measures may include, without limitation, (i) the installation of landscaping to minimize public view of any authorized above-surface power pedestals; (ii) the maintenance of the equipment in good condition, including compliance with Grantor's ordinances requiring graffiti removal; and (iii) the placement of overhead drops as close as possible to other utility drops, consistent with all applicable electrical codes. Ongoing maintenance of any landscaping required to mitigate adverse visual impacts is the responsibility of the property owner or the Grantee under Grantee's easement agreements. Grantee must regularly inspect all above-grade facilities located in the public rights-of-way and must complete any required maintenance or repairs within thirty (30) days after any such inspection. Grantee must respond within seven (7) days to requests or complaints received from the Grantor or members of the public relating to the repair, replacement, or cleanliness of above-grade facilities. (f) Use of Chalk-Based Paints. Grantee must use only chalk-based paints to mark public rights-of-way in connection with the construction or maintenance of the Cable System. All paint marks remaining after Grantee's cleanup following the completion of construction or maintenance work must be removed by Grantee by means of sand-blasting, chemicals, or high-pressure water within thirty (30) days following receipt of Grantor's written notice requesting such removal. (g) Vehicle Access to Private Property. If an owner's vehicle access to private property is anticipated to be precluded for more than three hours during any construction, operation, or maintenance of the Grantee's Cable System, then Grantee must give at least twenty- four (24) hours prior written notice to the owner. (h) Location of Utilities. Grantee must verify the location of all existing utilities to ensure that they are not damaged during construction or maintenance of the Cable System. Grantee must be a member of Underground Service Alert and must contact that entity 48 hours in advance of any underground construction in order to ensure that utilities are not damaged. Grantee is solely responsible for the replacement or repair of any utilities that are damaged by Grantee or its agents during construction or maintenance activities. (i) "As-Built" Construction Drawings. Following Grantee's construction of any new built portion of the Cable System, Grantee's updated "as-built" map will be available for review by Grantor at Grantee's local office during normal business hours. 21 8. COMPLIANCE AUDITS AND TECHNICAL DATA. 8.1. Compliance, Performance Audits, and future PEG support modifications. (a) Grantor may, at its option, and upon reasonable advance notice, require that compliance audits of the Cable System be conducted annually by an independent technical consultant selected and employed by Grantor, and at Grantor's expense, to verify that the system complies with all technical standards and other specifications of this Agreement. Grantee must be provided an opportunity to be present during any compliance audit, and the Grantor must deliver a copy of the test results to Grantee. If the test results demonstrate that Grantee has materially failed to comply with required technical standards, the cost of the compliance audit will be borne by Grantee. (b) Within ninety (90) days after the third, seventh, and, if applicable, the twelfth, anniversary dates of this Agreement, and at any other time, upon Grantor's request, Grantor and Grantee will meet to review the performance of the Cable System. This review may include consideration of the following: 1. The test results relating to Grantee's compliance with technical standards and specifications. 2. The reports required by this Agreement that relate to subscriber complaints received by the Grantee concerning technical problems or service-related issues. 3. The types and quality of services provided by Grantee, and the extent to which the Grantee's then-existing bandwidth is adequate to accommodate those services without degradation or loss of quality and to accommodate the anticipated demand for channel capacity on the Cable System by unaffiliated video programming providers. 4. Reports submitted by Grantee or any other person that address Grantee's compliance with the provisions of this Agreement. 5. Changes in Cable System technology and services, including but not limited to a comparison of the Grantee's technology and services with those of any other franchised multi-channel video programming provider then operating in the City, and an evaluation of established, operating state-of-the-art technology in comparable communities and the economic and technical feasibility of providing interactive, addressable, and other new services. 6. Changes in state and federal laws and regulations that affect the operation of the Cable System. 22 7. An assessment of the PEG access and community connectivity needs of the Grantor that is reasonably anticipated to exist. (c) Within thirty (30) days after the conclusion of a system performance review meeting, Grantor may issue findings with respect to system compliance as required under this Agreement. If noncompliance with required performance standards is identified, Grantor may direct Grantee to correct the noncompliance within a reasonable period of time. (d) Participation by Grantor and Grantee in this system performance and compliance review process does not impose upon Grantee any obligation not imposed by federal or state law, and neither Grantor nor Grantee waive any rights they may have under applicable federal or state law. (e) In addition to the meetings provided for under Subsection 8.1 (b) above, and upon Grantor's reasonable request, Grantee will meet with Grantor's representatives to discuss the extent to which the technology and services of the Cable System are comparable to established, operating state-of-the-art technology in franchised multichannel video programming systems serving comparable communities such as Santa Rosa, CA or other similar communities in California or adjacent states, it being understood by the parties that Grantee will provide to subscribers in the designated service area a level of overall service that is comparable, on average, to the services provided by multichannel video programming system operators that are then operating in similar communities in California or adjacent states. Nothing in this Agreement, however, may be deemed to require that Grantee provide a service where it is not technically or economically feasible to do so. Topics for discussion at these meetings may also include, without limitation, the future use of interactive services, the sharing of local production facilities with other jurisdictions, and the provision of additional capacity for public, educational, or governmental access channels. 8.2. System Testing and Technical Data. (a) Grantee must conduct performance testing of its Cable System, including its signal quality, in accordance with FCC rules and regulations. Upon Grantor's request, those test results will be provided to Grantor by Grantee. (b) During the phased construction of the Cable System, Grantee will incorporate test equipment wherever feasible in order to continuously monitor the system for outages and signal quality. (c) Upon Grantor's request, Grantee will provide to Grantor access to copies of "as-built" system drawings and technical documentation as specified in Subsection 7.15(i). Grantor may not disclose this information to third parties without the Grantee's prior written approval. 23 (d) Grantee must maintain at its local office specified in Subsection 1.2(b) a file of all documents that are required by the FCC or other governmental agencies to be made available for public inspection during normal business hours and upon reasonable advance notice. Grantee may charge a reasonable fee for any copies of documents that may be requested. 8.3. Emergency Repair Capability. It is Grantee's responsibility to ensure that its personnel are qualified to make repairs, that they are available at all reasonable times, and that they are supplied with keys, equipment location instructions, and technical information necessary to begin repairs upon notification of the need to maintain or restore continuous service to the Cable System. 9. REVOCATION, TERMINATION, OR FORFEITURE. 9.1. Revocation. Consistent with applicable law, and in addition to all rights and remedies provided elsewhere in this Agreement, Grantor reserves the right to revoke, terminate, or declare a forfeiture of this Agreement, subject to the procedural guidelines set forth in Section 11 of this Agreement, if the Grantee, whether willfully or negligently, violates any material provision of this Agreement and, following notice, thereafter fails to correct or remedy that violation in accordance with the terms of this Agreement. 9.2. Grounds for Revocation, Termination, or Forfeiture. Where the Grantee's violation is determined to constitute any of the following, each of which is deemed to be a material provision of this Agreement, the Grantor may revoke, terminate, or declare a forfeiture of this Agreement and all rights and privileges associated with it. (a) Grantee's failure to pay delinquent fees for a period of ten (10) days following expiration of the time specified for cure of this default, as provided for in Subsection 11.1 (a), unless Grantee is in good faith contesting that payment in a court or governmental agency of competent jurisdiction. (b) Grantee's failure to provide or to maintain the insurance coverage in the amounts specified in Subsection 2.4. (c) Grantee's failure to provide or to maintain the performance bond and letter of credit specified in Subsection 2.5. (d) Subsection 13.4. Grantee's failure to honor its indemnification obligations as specified in (e) Grantee's failure to receive and maintain all required approvals from the Federal Communications Commission in connection with its operation of the Cable System, unless Grantee is in good faith contesting that failure in a court or governmental agency of competent jurisdiction. 24 (f) Grantee's material violation of any final order or ruling of any regulatory body having jurisdiction over the Grantee relative to the Cable System services authorized by this Agreement, unless that order or ruling is in good faith being contested by the Grantee before the regulatory body or in a court of competent jurisdiction. (g) Grantee's willful attempt to evade compliance with any provisions of this Agreement or Section 1.11.2, or to practice any fraud or deceit upon the Grantor or upon existing or prospective subscribers. (h) Grantee's wrongful cessation of Cable System services to its subscribers for reasons within Grantee's control; provided that Grantee will not be determined to be at fault under any provision of this Agreement in any case where the performance of that provision is excused or excusable under Subsection 13.2. (i) Grantee's persistent failure or refusal to remedy violations, defaults, breaches, or incidents of noncompliance for which lesser penalties have previously been imposed, unless Grantee is then contesting the same in good faith in a court or governmental agency of competent jurisdiction. (j) Grantee's falsification of information set forth in any report required to be submitted to Grantor under this Agreement. 9.3. Removal of Property. Upon any termination, revocation, or forfeiture of this Agreement prior to completion of construction of the entire Cable System, Grantee may be required to remove its structures and property from the Grantor's streets and to restore those streets to their prior condition within a reasonable period of time specified by Grantor, but not less than one hundred eighty (180) days Upon Grantee's failure to do so, in addition to any other remedies available to Grantor, the Grantor may perform the work and collect all costs, including direct and indirect costs, from the Grantee. At Grantor's discretion, the cost of that work may be placed as a lien upon all plant, property, or other assets of the Grantee or a claim may be asserted against the performance bond referenced in Subsection 2.5(a). 10. RECORDS; REPORTS; RIGHT TO INSPECT AND AUDIT; EXPERTS. 10.1. Grantee to Provide Records. All reports and records required under this Section 10 must be furnished at the sole expense of Grantee. 10.2. Records. Grantee must maintain and make available for inspection and copying during normal business hours, and upon reasonable notice, a separate and complete set of business records that are reasonably related to Grantee's pertbrmance of this Agreement or Grantor's regulatory functions. Grantee need not maintain all such records at the office specified in Subsection 1.2(b). but will make them available for insoection at that location unless alternate (f) Grantee's material violation of any final order or ruling of any regulatory body having jurisdiction over the Grantee relative to the Cable System services authorized by this Agreement, unless that order or ruling is in good faith being contested by the Grantee before the regulatory body or in a court of competent jurisdiction. (g) Grantee's willful attempt to evade compliance with any provisions of this Agreement or Section 1.11.2, or to practice any fraud or deceit upon the Grantor or upon existing or prospective subscribers. (h) Grantee's wrongful cessation of Cable System services to its subscribers for reasons within Grantee's control; provided that Grantee will not be determined to be at fault under any provision of this Agreement in any case where the performance of that provision is excused or excusable under Subsection 13.2. (i) Grantee's persistent failure or refusal to remedy violations, defaults, breaches, or incidents of noncompliance for which lesser penalties have previously been imposed, unless Grantee is then contesting the same in good faith in a court or governmental agency of competent jurisdiction. (j) Grantee's falsification of information set forth in any report required to be submitted to Grantor under this Agreement. 9.3. Removal of Property. Upon any termination, revocation, or forfeiture of this Agreement prior to completion of construction of the entire Cable System, Grantee may be required to remove its structures and property from the Grantor's streets and to restore those streets to their prior condition within a reasonable period of time specified by Grantor, but not less than one hundred eighty (180) days Upon Grantee's failure to do so, in addition to any other remedies available to Grantor, the Grantor may perform the work and collect all costs, including direct and indirect costs, from the Grantee. At Grantor's discretion, the cost of that work may be placed as a lien upon all plant, property, or other assets of the Grantee or a claim may be asserted against the performance bond referenced in Subsection 2.5(a). 10. RECORDS~ REPORTS~ RIGHT TO INSPECT AND AUDIT; EXPERTS. 10.1. Grantee to Provide Records. All reports and records required under this Section 10 must be furnished at the sole expense of Grantee. 10.2.' Records. Grantee must maintain and make available for inspection and copying during normal business hours, and upon reasonable notice, a separate and complete set of business records that are reasonably related to Grantee's performance of this Agreement or Grantor's regulatory functions. Grantee need not maintain all such records at the office specified in Subsection 1.2(b), but will make them available for inspection at that location unless alternate arrangements are agreed upon by Grantor and Grantee. 25 10.3. Maintenance and Inspection of Records. Grantee must maintain accurate books and records, in conformity with generally accepted accounting principles. Grantor, upon reasonable notice, has the right to inspect those books and records of all maps, financial, statements, service complaint logs, performance test results, and other like materials which are reasonably necessary to monitor compliance with the terms of this Agreement. Grantor may receive copies to the extent that information is reasonably related to the scope of the Grantor's rights under this Agreement or Grantor's regulatory functions. For the purpose of this Section 10.3, the term "proprietary information" means any written information or data that the Grantee is required under this Agreement to submit to the Grantor, or to make available for inspection by the Grantor, which enables the Grantor to perform its regulatory functions relating to the Grantee's provision of cable services, and which, if disclosed to other persons, would result in unfair competitive disadvantage to the Grantee. Grantor will cooperate with Grantee in an effort to preserve and to protect, to the maximum extent authorized by law, the privileged and confidential nature of all proprietary information that, at the time it is submitted to or inspected by Grantor, is clearly identified by Grantee as being "proprietary, privileged, and confidential." If Grantor receives a request under the California Public Records Act (California Government Code Sections 6250 et seq.), or under any legal process that may require disclosure of Grantee's information, data, or documents that have been identified as "proprietary, privileged, and confidential," then Grantor will: (i) give Grantee prompt written notice of that request; and (ii) use all reasonable efforts to defer disclosure until Grantee determines to waive compliance with the provisions of this Section 10, or to seek an appropriate protective order, or to pursue such other legal remedies as may be necessary to protect the privileged and confidential nature of Grantee's proprietary information. This Section 10.3 is in all respects subject to the California Public Records Act, which will supersede the provisions of this section in the event of any conflict. This Section 10.3 does not require the Grantor to incur court costs, attorneys' fees or other expenses to protect the confidentiality of Grantee's proprietary information. 10.4. Reports of Financial and Operating Activity. (a) Not later than one hundred twenty (120) days after the close of each fiscal year of Grantee during the term of this Agreement, Grantee must submit to the Grantor a financial report, verified by a designated financial representative of Grantee, that sets forth the gross annual revenue from all sources within the designated service area, the annual gross subscriber revenues derived from each tier of service in the designated service area, the total amount and basis for the computation of the annual fees paid to Grantor, and such other relevant facts as may reasonably be required by Grantor to verify the accuracy of the payment of fees on gross annual revenue. To the extent authorized by law, Grantor will protect the confidentiality of information contained in Grantee's business records that are deemed by Grantee to be proprietary, except as may be ordered by a court of competent jurisdiction after reasonable written notice to Grantee. Grantee will retain for at least four (4) years documents that serve as the basis for this financial report. (b) During the term of this Agreement, and upon Grantor's request, Grantee must submit reports concerning any or all of the following operational matters: 26 1. A summary of Grantee's activities within the designated service area including, but not limited to, services added or discontinued, changes in technology, and the number of new installations. 2. A current list of Grantee's officers, directors, and other principals. 3. A summary of outage records and routine service-related calls received from subscribers for installation and service. If Grantee's collection and tabulation of subscribers' service calls and complaints covers a geographic area that is more extensive than the designated service area, then Grantee must use its best efforts to estimate the number of those service calls and complaints originating in the designated service area and must inform the Grantor of the methodology used in making those estimates. 4. A summary of subscriber complaints that were referred to Grantee by the Grantor, including the date of referral, the nature of the complaint, and the corrective action taken. 5. A description of the nature and purpose of any new construction that is anticipated to commence within the following two (2) years. 6. A summary of Grantee's compliance with the Consumer Protection Standards that are referenced in Exhibit E. 10.5. Performance Tests and Compliance Reports. Upon Grantor's request, and not more than once annually, Grantee must provide a written report of any required FCC tests that have been conducted. In addition, Grantee must provide reports of any tests and compliance procedures required by this Agreement not later than thirty (30) days after the completion of those tests and compliance procedures. 10.6. Additional Reports. The Grantee must prepare and submit to the Grantor in writing, at the times and in the form reasonably prescribed by Grantor, all additional reports that may reasonably be required with respect to Grantee's compliance with the provisions of this Agreement. Grantor will cooperate with Grantee and will accept existing reports that contain substantially similar information meeting this requirement. 10.7. Communications with Regulatory Agencies. Copies of all nonroutine and material communications between the Grantee and the Federal Communications Commission, or any other agency having jurisdiction in respect to any matters directly affecting the Cable System operations authorized by this Agreement, must be submitted to the Grantor within ten (10) days after their receipt or submittal by Grantee. 10.8. Inspection of Facilities. Upon reasonable notice, and during normal business hours, Grantee must permit inspection by any duly authorized representative of Grantor of all 27 facilities located within the designated service area as well as Grantee's headend, which may be located outside the designated service area. Grantee may appoint one or more representatives to accompany Grantor's representatives on any such inspection. 10.9. Right to Audit. (a) In addition to all other inspection rights under this Agreement, upon thirty (30) days prior written notice, Grantor has the right to inspect and audit, during normal business hours, documents pertaining to the Grantee's operations in the designated service area that are reasonably necessary to the Grantor's enforcement of its rights under this Agreement. Those documents will be made available at the Grantee's local office unless Grantor and Grantee agree otherwise. To the extent authorized by law, information derived from any records identified by Grantee as being proprietary will be held in confidence by Grantor, except as may be ordered by a court of competent jurisdiction after reasonable written notice to Grantee. (b) Any audit conducted by Grantor under this subsection will be conducted at the sole expense of Grantor, not more frequently than once in any 12-month period. Grantor will prepare a written report containing its findings, a copy of which will be mailed to the Grantee for its review. Grantee must reimburse Grantor for the expense of any such audit if, as the result of that audit, it is determined that there is a shortfall of more than four percent (4%) in the amount of fees on gross annual revenue or other payments that have been made or will be made by Grantee to Grantor under the terms of this Agreement. That reimbursement must be made by Grantee within thirty (30) days of written notice from the Grantor. There shall be an accord and satisfaction with respect to any payment not subject to audit within thirty six (36) months following the close of the fiscal year to which such payment relates. (c) In the event that Grantee claims to have overpaid by more than five percent (5%) the amount of franchise fee actually due during any given quarter, it shall file an application with the City within twelve (12) months following the close of the fiscal year to which such quarterly payment relates. The failure to timely and properly make such claim as required herein shall constitute a waiver by Grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other accommodation. All such applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the City to verify Grantee's claim. Upon request by the City, Grantee shall provide any further information that is deemed by the City to be relevant to said claim. Ail such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final. 10.10. Retention of Experts. When deemed to be necessary for the exercise of its rights under this Agreement, Grantor has the right to retain technical experts and other consultants to ensure compliance with and enforcement of the provisions of this Agreement. Except as provided elsewhere in this Agreement, the Grantor will bear the cost of retaining those experts. 28 11. ENFORCEMENT PROCEDURES. 11.1. Notice and Hearing upon Grantee's Default. (a) Unless otherwise provided in this Agreement, prior to formal consideration by Grantor of any termination, revocation, or forfeiture of this Agreement, or the imposition of any fine, penalty or administrative remedy available to Grantor, including liquidated damages, attributable to Grantee's failure to comply with any material provision of this Agreement, Grantor must make written demand on Grantee with at least thirty (30) days notice to correct the alleged default. Grantor and Grantee will expeditiously meet to discuss the alleged default, at which time Grantee must indicate, in writing, the period of time reasonably required to cure the default. Giving due consideration to Grantee's request, Grantor will at that meeting, or within three (3) days thereafter, state in writing the reasonable period of time Grantor will allow Grantee to resolve the problem. During this time period for cure, but in no event less than ten (10) days before the final date for correction, Grantee may request additional time to correct the problem, and Grantor will grant that request if Grantor reasonably determines that such additional time is necessary due to delays beyond Grantee's control. If the default continues for a period of ten (10) days after the deadline for correction, including any authorized extension of time, a hearing before the City Council will be scheduled by Grantor with regard to termination, revocation, or forfeiture of this Agreement, or the imposition of any other fine, penalty, or administrative remedy, subject to the provisions specified below. No changes (b) Grantor will provide to Grantee written notice of the hearing, including the grounds for the proposed action, not less than ten (10) days before the hearing. That written notice will also describe the procedures to be followed by the City Council to determine whether cause exists for termination, revocation, forfeiture, or the imposition of fines, penalties, or remedies. At a minimum, those procedures will afford the Grantee adequate notice and a fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to question and to cross-examine witnesses, and to obtain a transcript of the proceeding at Grantee's expense. At the hearing, the City Council will hear Grantee, and any other person interested in the matter, and will determine, at that or at any continued hearing, an appropriate course of action for enforcement of the Agreement. Ail decisions of the City Council will be in writing and will include findings of fact. A copy of the decision will be transmitted to the Grantee. The decision of the City Council will be final and dispositive but without prejudice to Grantee's right to pursue any remedies provided by state or federal law. 11.2. Delegation. The proposed imposition of remedies, such as liquidated damages or monetary penalties, that do not involve termination, revocation, or forfeiture of the Agreement may, at Grantor's option, be determined by an officer, employee, or agency of the Grantor to which it may delegate these administrative decisions, subject to the procedural rules contained in this section, and subject to Grantee's right to appeal to the City Council. The City Council must approve any such proposed imposition of remedies before they become effective. 29 11.3. Stop Work Notice. If any phased construction work is performed by or on behalf of Grantee in a manner that does not comply with the provisions of this Agreement, the Grantor's Public Works Director, or any other designee of the Grantor's, may order the work to be stopped. That order to stop work may be made by written notice and served upon any person engaged in or responsible for the construction, with a copy served within one working day upon the Grantee's principal representative designated in Subsection 1.2. No work that is stopped may be resumed until authorized by the Public Works Director or other designated representative of the Grantor. Grantor will have no liability for any revenues that may be lost by Grantee as a consequence of any stop work notice that is issued by Grantor. 11.4. Authorized Fines, Penalties, and Other Sanctions. (a) Grantor may impose fines, penalties, and other sanctions as set forth in this Subsection 11.4 for defaults under, or incidents of noncompliance with, the provisions of this Agreement. Grantor must first give Grantee written notice of the alleged default or incident of noncompliance in accordance with Subsection 11.1 (a) and an opportunity to correct the problem. (b) Following the expiration of any specified period within which Grantee has failed to cure a default or an incident of noncompliance as directed, the following fines, penalties, and other sanctions may be imposed by Grantor after the hearing required under either Subsections 11.1 or 11.2: 1. For Grantee's failure to comply in any material respect with any of the design and construction standards set forth in Section 7 of this Agreement, a penalty not to exceed $500 may be imposed for each day that the incident of noncompliance has not been remedied by the Grantee. 2. For Grantee's failure to comply in any material respect with the periodic performance testing requirements set forth in paragraph (a) of Subsection 8.2 of this Agreement, and failure to meet FCC signal quality standards for PEG access channels as required at Exhibit E subsection A(1)(5) of this Agreement, a penalty not to exceed $500 may be imposed for each day that the incident of noncompliance has not been remedied by the Grantee. 3. For Grantee's failure, in any material respect, to maintain or to provide any books, records, reports, or other documents in the manner and at the time specified in this Agreement, a penalty not to exceed $500 may be imposed for each day that the incident of noncompliance has not been remedied by the Grantee. 4. For Grantee's material breach of the Consumer Protection and Service Standards that are referenced in Exhibit E to this Agreement, except where the breach is not within the Grantee's reasonable control, a penalty not to exceed $200 may be imposed for each day that the incident of noncompliance has not been remedied by the Grantee. 30 5. For any other default or incident of noncompliance that is material and that is not specified in this Subsection 11.4, a maximum penalty not to exceed $350 may be imposed upon Grantee by Grantor for each day that the default or incident of noncompliance has not been remedied by the Grantee. 6. If any amounts become due under this section, Grantor must first make a demand for payment to Grantee before seeking payment under the Letter of Credit or performance bond. If Grantee does not make payment within thirty (30) days of written receipt of a request from Grantor, Grantor may make a demand on the Letter of Credit and/or the performance bond. 12. CONTINUITY OF CABLE SYSTEM SERVICES. 12.1. Continuity of Service. The parties acknowledge that it is the right of all subscribers to receive all services authorized by this Agreement so long as they honor their financial and other obligations to the Grantee. During Grantee's phased reconstruction of the Cable System, and upon any future sale of the system, Grantee must use commercially reasonable efforts to provide continuous service to subscribers. In the event of purchase by Grantor, or a change of operator, Grantee will cooperate with Grantor or the new operator to operate the system for an interim period in order to maintain continuity of service to all subscribers. If Grantee intentionally abandons all services on a system-wide basis for seventy-two (72) continuous hours or if this Agreement is revoked by Grantor, then Grantor may, by resolution, assume operation of the Cable System on an interim basis for the purpose of maintaining continuity of service. Grantor's operation of the system may continue until the circumstances that resulted in the cessation of cable services are resolved to Grantor's satisfaction. Grantor is entitled to receive all revenues and is responsible for all obligations and liabilities during any period in which it operates the system. 12.2. Operation and Management by Grantor. (a) During any period when the Cable System is being operated by Grantor under Subsection 12.1 above, Grantor will attempt to minimize the disruption of operations in a manner consistent with the maintenance of continuing service to subscribers. Notwithstanding the foregoing, Grantor may make any changes in any aspect of operations that, in Grantor's sole judgment, are required for the preservation of quality and continuity of service. During that period, Grantor will also maintain to the best of its ability the system's records, physical plant, financial integrity, funds, and other elements normally involved in operations. (b) Upon assuming operation of the Cable System, Grantor may appoint a manager to act for it in conducting the system's affairs. That manager will have such authority as may be delegated by Grantor and will be solely responsible to Grantor for management of the system. Grantee must reimburse Grantor for all reasonable costs, in excess of system revenues retained by Grantor that are incurred during Grantor's operation of the system during the term of this Agreement. 31 13. MISCELLANEOUS PROVISIONS. 13.1. Assignment, Transfer, Sale, and Change of Control. (a) Consummation of the following transactions related to this Agreement, or involving the Grantee under this Agreement, requires the prior written consent of the Grantor's City Council expressed by ordinance or resolution, which consent will not be unreasonably withheld, and then only under such conditions as may lawfully be prescribed: (1) The sale, transfer, lease, assignment, or other disposition of the rights granted by this Agreement, in whole or in part, whether voluntary or involuntary; provided, however, that such consent is not required for a transfer in trust, mortgage, or other hypothecation for the purpose of securing an indebtedness of the Grantee relating to the construction, reconstruction, operation, or maintenance of the Cable System. A transfer, assignment, or other disposition of this Agreement may be made only by an instrument in writing, a duly executed copy of which must be filed in the office of the City Clerk within ten (10) days after the consummation of that transfer, assignment, or other disposition. (2) Any merger, consolidation, reorganization, business combination, or other transaction that affects twenty five percent (25%) or more of the ownership interests in the Grantee, or in any parent company of the Grantee, and changes control of the Grantee. As used herein, "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the Grantee. A duly executed copy of any written instrument evidencing the closing and consummation of any such transaction must be filed in the office of the City Clerk within ten (10) days after the closing and consummation of that transaction. (b) In determining whether it will consent to any transfer, assignment, or other disposition of the Agreement, or to any transaction affecting the control of the Grantee, the Grantor may evaluate the financial, technical, and legal qualifications of the proposed transferee or controlling person. Grantee must ensure that the proposed transferee or controlling person submits an application, in the form required by Section 1.11.2, or by any applicable federal law, prior to the closing date of the proposed transaction. After considering the financial, technical, and legal qualifications of the proposed transferee or controlling person, the City Council may, by resolution, authorize the proposed transaction, subject to such conditions as may be lawfully imposed in order to protect the public interest. Grantor's consent to any such transaction may not be unreasonably denied or delayed. (c) Grantee and its proposed transferee or controlling person are jointly and severally responsible for reimbursement to the Grantor of certain costs and expenses, not to exceed $2,500, reasonably incurred in evaluating and processing the application related to the 32 proposed transaction. These costs and expenses may include, as may be determined by the Grantor to be reasonably necessary, the following: costs of administrative review; financial, legal and technical evaluation of the proposed transferee; costs for technical experts and consultants; notice and publication costs; and document preparation expenses. The costs and expenses shall be paid in the form of an application fee in the amount of $2,500, which will be deemed to be a deposit for Grantee's reimbursement of costs and expenses to be incurred by Grantor. The $2,500 application fee shall be made by certified or cashier's check made payable to the Grantor and shall be submitted by Grantee to Grantor within thirty (30) days of filing an FCC Form 394 or related change of control or transfer of ownership form. An application will be considered incomplete without receipt of said deposit. Grantee agrees to reimburse Grantor for additional reasonable costs in processing and analyzing the application up a maximum reimbursement of $5,000. If the Grantor's actual costs in processing and analyzing the application are less than the amount of the deposit, any remaining funds from the deposit shall be refunded to the applicant within sixty (60) days after final approval or denial of their application. Grantee's reimbursement of costs and expenses will be made not later than 30 days after receipt from Grantor of an itemized statement setting forth those costs and expenses. (d) Any application processing or analysis costs are exclusive of Grantee's obligation to pay other costs and fees required by this chapter, the franchise agreement or the franchise, including without limitation construction inspection fees, permit fees, and franchise fees. (e) The requirements of this Subsection 13.1 do not apply to the restructuring of debt or to the transfer of ownership interests between existing equity owners of any of the entities identified in the attached Exhibit B; provided, however, that the Grantee must provide to Grantor not less than thirty (30) days prior written notice of that proposed transaction and must represent that such transaction will have no foreseeable effect on the management and operation of the Grantee's Cable System in the designated service area. In addition, the requirements of this Subsection 13.1 shall not apply to transfers that occur purely as a result of Grantee's reorganization under Title 11 of the United States Bankruptcy Code and that are approved by the Bankruptcy Court. 13.2. Force Majeure. (a) If Grantee's performance of any of the terms, conditions, obligations, or requirements of this Agreement is prevented or impaired by any cause or event beyond its reasonable control and not reasonably foreseeable, that inability to perform will be deemed to be excused, and no penalties or sanctions will be imposed. Those causes beyond Grantee's reasonable control and not reasonably foreseeable include, but are not limited to, acts of God, civil emergencies, labor unrest, strikes, inability to obtain access to an individual's property, and inability of the Grantee to secure all necessary authorizations or permits to use necessary poles or conduits so long as Grantee exercises due diligence to obtain those authorizations or permits in a timely manner. 33 (b) Where any cause or event is beyond Grantee's reasonable control and is not reasonably foreseeable, and that cause or event only partially affects Grantee's ability to perform, Grantee must perform to the maximum extent possible. In that event, Grantee must give written notice to the Grantor of any such cause or event within ten (10) business days after Grantee has learned or should have learned of its occurrence. (c) Except as may be otherwise provided in paragraphs (a) and (b) above, Grantee's compliance with the terms, conditions, obligations, and requirements of this Agreement will not be excused on the basis of increases in the cost of performance, changes in economic circumstances, or nonperformance by an employee, agent, or contractor of the Grantee. 13.3. Possessory Interest. By accepting this Agreement, Grantee acknowledges notice was given to Grantee, as required by California Revenue and Taxation Code Section 107.6, that use or occupancy of any public property under the authority set forth in this Agreement may create a possessory interest that may be subject to the payment of property taxes levied upon that interest. 13.4. Indemnification. Except to the extent that they result from the intentional or gross negligent conduct of Grantor, or Grantor's agents, representatives, or employees, Grantee will indemnify, defend, and hold harmless the Grantor, its officers, agents and employees, from any liability, claims, damages, costs, or expenses, including reasonable attorney's fees, arising out of or attributable to the exercise or enjoyment of the rights granted by this Agreement. Grantee, at its sole cost and expense, and upon demand of Grantor, will appear in and defend all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, instituted by third persons or duly constituted authorities, against or affecting Grantor, its officers, agents, or employees, and arising out of or pertaining to the exercise of rights conferred by this Agreement within the designated service area, and injury to persons or damages to property proximately caused by any conduct undertaken by the Grantee, its agents, employees, or subcontractors, by reason of the Agreement. 13.5. Bankruptcy of Grantee. Grantee acknowledges that Grantor has the right to fully avail itself of any rights it may have under the Bankruptcy Code. Grantor does not waive any of those rights by entering into this agreement with Grantee. 13.6. Conflict of Interest. The parties agree that, to their knowledge, no member of the City Council, nor any other officer or employee of Grantor, has any interest, whether contractual, non-contractual, financial or otherwise in this Agreement, or in other business of the Grantee, and that if any such interest comes to the knowledge of either party at any time, a full and complete disclosure of that information will be made in writing to the other party, even if that interest would not be considered a conflict of interest under applicable laws. Grantee covenants that it has, at the time of execution of this Agreement, no interest, and that it will not acquire any interest in the future, direct or indirect, that would conflict in any manner with the performance of its obligations under this Agreement. Grantee further covenants that, in the performance of its obligations, no person having any such interest will be engaged or employed. 34 13.7. Resolution of Disputes. (a) Disputes regarding the interpretation or application of any provisions of this Agreement will, to the extent reasonably feasible, be resolved through good faith negotiations between the parties. (b) If any action at law or in equity is brought to enforce or interpret any provisions of this Agreement, that action must be initiated in the state courts located within Mendocino County, State of California or in the federal courts located in the Northern District of California, regardless of any other possible jurisdiction or venue. In addition, the prevailing party in any such action is entitled to reasonable attorneys' fees, costs and necessary disbursements, in addition to any other relief that may be sought and awarded. 13.8. Waiver by Grantor. The Grantor has the right to waive any provisions of this Agreement that apply to the Grantee's obligations, except those required by federal or state laws or regulations, if the Grantor determines (i) that it is in the public interest to do so, and (ii) that the enforcement of such provision will impose an undue hardship on the Grantee or its subscribers. To be effective, a waiver must be in writing and signed by a duly authorized representative of the Grantor. 13.9. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will not be affected unless their enforcement under the circumstances would be unreasonable, inequitable, or would otherwise frustrate the purposes of this Agreement. 13.10. Amendments. This Agreement supersedes all prior proposals, agreements and understandings between the parties and may not be modified or terminated orally. No modification, termination or attempted waiver of any of its provisions will be binding unless in writing and signed by the party against whom the same is sought to be enforced. 13.11. Binding Upon Successors. This Agreement is binding upon and inures to the benefit of each of the parties and to their respective transferees, successors and assigns. 13.12. Counterpart Execution. This Agreement may be executed in multiple counterparts, each of which is deemed to be an original and all of which constitute one and the same instrument. 13.13. Applicable Law. This Agreement and the transactions contemplated by it are to be construed in accordance with and governed by the applicable laws of the State of California and of the United States. 35 14. DEFINITIONS a. Defined Terms. For the purposes of this Agreement, the following words, terms, phrases, and their derivations have the meanings set forth below. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number. "Affiliate" has the same meaning as is set forth in 47 C.F.R. §76.100(g), which is a part of the FCC regulations relating to Cable Systems. "Basic Service" or "Basic Cable Service" or "Basic Service Tier" means the lowest service tier that includes the retransmission of local television broadcast signals, including those of public, educational, and governmental access channels "1984 Cable Act" means the Cable Communications Policy Act of 1984. "1992 Cable Act" means the Cable System Consumer Protection and Competition Act of 1992. "Cable Act" means the 1984 Cable Act as amended by the 1992 Cable Act and by the Telecommunications Act of 1996. "Cable Service" means the one-way transmission to subscribers of video programming, or other programming services, and subscriber interaction, if any, that is required for the selection or use of that video programming or other programming service. For the purposes of this definition, "video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station; and "other programming service" means information that a cable system operator makes available to all subscribers generally. "Cable System" means a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming and which is provided to multiple subscribers within the community, provided that the FCC has certified that such system complies with its regulations as set forth in 47 C.F.R. §76.1500 et seq. "Cable System Operator" or "CATV Operator" means any person or group of persons who provides cable service over a Cable System and directly or through one or more affiliates owns a significant interest in that Cable System, or otherwise controls or is responsible for the management and operation of that Cable System. "Community Channel" means any channel that is set aside for use by the Grantor, or by Grantor-authorized organizations or groups that are based in the designated service area or that are sponsored or funded by the Grantor, for the purpose of cablecasting noncommercial programming that is determined by the Grantor to be of community-wide interest. 36 "Complaint" means a billing dispute in which a subscriber notifies Grantee of an outage or degradation in picture quality that is not corrected following the initial telephone or service call, as well as any other communication from a subscriber that relates to the operation of the Cable System, whether or not it involves a billing dispute. "Control" or "Controlling Interest" means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, or debt instruments, as the case may be, of the Cable System of the Grantee. "Designated Service Area" or "Service Area" means that territory within the County of Mendocino that is specifically described in the Agreement. "Drop" means the cable and related equipment connecting the Cable System's plant to equipment at the premises of a subscriber or the facilities of the Grantor. "Education Channel" means any channel where nonprofit educational institutions are the primary designated programmers. "FCC" means the Federal Communications Commission or its designated representatives. "Franchise" means a written undertaking of the Grantor that authorizes the incumbent Cable System operator to use the Grantor's streets and public ways for the purpose of installing, operating and maintaining a Cable System to provide cable service. "Government Channel" means any channel where a local government agency is the primary designated programmer, and the programming is informational programming regarding government activities and services. "Grantee" means Century Mendocino Cable Television, Inc. dPo/a Adelphia Cable Communications, and the lawful successors, transferees, or assignees of that entity. "Grantor" means the City of Ukiah, acting by and through its elected governing body, or such representative as the governing body may designate to act on cable matters in its behalf. "Gross Annual Revenue" means all revenue and other consideration of any kind, as determined in accordance with generally accepted accounting principles, that is received by Grantee or its affiliates from the provision of cable service over the Cable System within the designated service area. Such revenue and other consideration include, without limitation, the following: (i) Fees received from residential and commercial subscribers to any tier of Cable Service and for all video programming services. 37 (ii) Fees received for installation, reconnection, downgrade, upgrade, and similar services. (iii) Late fees and interest collected on delinquent subscriber fees or charges. (iv) Fees paid for channels that are designated for commercial use. (v) Fees paid in connection with the rental, lease, or sale of converters, remote controls, and other equipment. (vi) Leased or access channel revenues received in connection with the distribution of any Cable Service. (vii) All bad debts that are recovered. (viii) Ail revenue that is received by Grantee, or its subsidiaries or affiliates, from the conduct of any service-related activity directly involving the video portion of the Cable System, including without limitation revenues derived from advertising sales, the sale of products or services on home shopping channels, and the sale of program guides. (ix) The fair market value of any nonmonetary consideration received by Grantee in any transaction with another person, such as a barter transaction, but not less than the customary prices paid in connection with equivalent transactions. (x) Ail carriage revenues received from unaffiliated video programming providers. (xi) A franchise fee if itemized and added to the bill. The term "gross annual revenue" does not include the following: (i) Refundable deposits, rebates, or credits. (ii) Bad debt that is unrecovered or unrecoverable. (iii) Taxes imposed by law on subscribers that Grantee is obligated to collect on behalf of any governmental agency. (iv) Revenues collected by unaffiliated video programming providers. (v) PEG fees paid to the City per subscriber as a part of this agreement. (vi) Advertising commissions paid to advertisers provided they are not wholly owned subsidiaries of Grantee. 38 (vii) Programming Launch Fees and Marketing Support where eligible fees include instances where Grantee has been reimbursed for the Marketing costs associated with the launch and promotion of services offered. This is not meant to include incentive fees for carriage, contra expense, barters, or other instances where GAAP would require treatment as revenue. "Headend" means that central portion of the Cable System where signals are introduced into and received from the balance of the system. "Hub" means a secondary signal processing location where the signals generated at the primary headend are combined with locally-generated signals for distribution to subscribers in the community. "Incumbent Cable System Operator" means any person who, in accordance with a franchise authorized by the Grantor, is providing cable service over a cable system. "Monitoring" or "Tapping" means observing or receiving a signal, where the observer is neither the sending nor receiving party and is not authorized by the sending or receiving party to observe that signal, whether the signal is observed or received by visual, electronic, or any other means. "Node" means a location in a hybrid fiber optic/coaxial cable system where light signals are converted into electrical signals in the downstream direction, and electrical signals are converted into light signals in the upstream direction. "Pay Cable," "Pay Service," "Premium Service" or "Pay Television" means signals for which there is a fee or charge to users over and above the charge for basic service, including any tiers of service; provided, however, the sale or lease of studio facilities, equipment, or tapes to local users are not deemed to be pay or premium services. "PEG Access Channels" means the channels that have been reserved by the incumbent Cable System operator for public, educational, or governmental use. "Person" means any individual, corporation, partnership, proprietorship, or organization authorized to do business in the State of California. "Plant" means the transmitting medium and related equipment that transmits signals between the headend and subscribers, excluding drops. "Pole Attachment Agreement" or "Attachment Agreement" means any agreement with the Grantor, with any other governmental entity, or with any public utility relating to the Grantee's use of utility poles, ducts, or conduits. 39 "Program" or "Programming" means the information content of a signal and the act or process of creating that content, whether that content is intended to be pictures and sound, sound only, or any other form of information. "Programmer" means any person who provides program material or information for transmission by means of a Cable System. "Property of Grantee" means all property owned or leased by Grantee within the designated service area in the conduct of its Cable System business under an agreement. "Public Channel," or "Public Access Channel," means any channel for which members of the public or community organizations may provide non-advertiser supported programming. "Regional Cluster" means the separate franchises serving Grantor, the County of Mendocino and the cities of Fort Bragg and Willits. "Residential Dwelling Unit" or "Dwelling Unit" means a home, mobile home, condominium, apartment, cooperative unit, and any other individual dwelling unit. "Service Tier" or "Tier" means a category of cable service or other services provided by the CATV operator and for which a separate rate is charged by the CATV operator, other than per-channel or per-event programming or packages of per-channel or per-event programming. "Shared Channel" means any channel carrying video programming that is selected by more than one video programming provider and is offered to subscribers. "Streets" means the surface of, and the space above and below, any public street, sidewalk, alley, or other public way or right-of-way of any type. "Subscriber" means any person electing to subscribe to, for any purpose, a service provided by Grantee by means of or in connection with its Cable System. "Video Programming Provider" means any person or group of persons who has the right under the copyright laws to select and to contract for the carriage of specific video programming on a Cable System. b. Terms Not Defined. Words, terms, or phrases not defined above in paragraph (a) shall first have the meaning as defined in the Cable Act, and next in Section 1,. ~ ~.2, and next the special meanings attributable to their use in any industry, business, trade, or profession where they commonly carry special meanings. If those special meanings are not common, they will be defined as set forth in commonly used and accepted dictionaries of the English language. 4o 15. AUTHORITY AND EFFECTIVE DATE. 15.1. Authority. The persons signing below represent that they have the requisite authority to bind the entities on whose behalf they are signing. 15.2. Effective Date This Agreement will become effective as of , the date the Resolution is adopted. It is the intention of the parties that the Grantee will first execute this Agreement and then submit it to the Grantor. The City Clerk will insert the Effective Date in all counterparts of this Agreement, attest to their execution by a duly authorized officer of the Grantor, and transmit one or more fully executed counterparts to the Grantee. TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth below the authorized signature. CITY OF UKIAH By: Date: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney CENTURY MENDOCINO CABLE TELEVISION, INC., a Delaware corporation By: Title: Date: APPROVED AS TO FORM: Corporate Counsel 41 EXHIBIT A SECTION 1.11.2 OF THE CITY OF THE UKIAH MUNICIPAL CODE AS ADOPTED AND IN EFFECT ON THE EFFECTIVE DATE OF THE AGREEMENT Subject to modifications contained within this agreement and/or additional standards established herein, the following sections of Section 1.11.2 of the Ukiah Municipal Code shall not apply to this Agreement: Section 1.11.2.1878 Transfers and Assignments Section 1.11.2.1884 Franchise Application Processing Costs A-1 EXHIBIT B COMMON OWNERSHIP ACC Cable Communications FL-VA, LLC ACC Cable Holdings VA, Inc. ACC Holdings II, LLC ACC Investment Holdings, Inc. ACC Operations, Inc. ACC Telecommunications Holdings, LLC ACC Telecommunications, LLC ACC Telecommunications of Virginia, LLC ACC-AMN Holdings, LLC Adelphia Acquisition Subsidiary, Inc. Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Arizona, Inc. Blairsville, LLC Cable Partners, LP Cablevision Associates, LP Cablevision Cablevis~on Cablevislon Cablevls~on Cablevislon Cablevis~on Cablev~s~on Cablevislon Cablevis~on Cablev~s~on Cablevision Cablev~s~on Cablevis~on Cablews~on Cablevision Cablevis~on Corp. of Boca Raton, LLC of Fontana, LLC of Inland Empire, LLC of New York, Inc. of Newport Beach, LLC of Orange County II, LLC of Orange County, LLC of San Bernardino, LLC of Santa Ana, LLC of Seal Beach, LLC of Simi Valley, LLC of the Kennebunks, LLC of West Palm Beach III, LLC of West Palm Beach IV, LLC of West Palm Beach V, LLC Cablevis~on, LLC California Cablevision, LLC Central Pennsylvania, LLC Cleveland, LLC Communications Corporation Communications International, Inc. Communications of California II, LLC Communications of California III, Communications of California, LLC Company of Western Connecticut LLC B-1 Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia Adelphia General Holdings III, Inc. GP Holdings, LLC GS Cable, LLC Harbor Center Holdings, LLC Holdings 2001, LLC International II, LLC International III, LLC Mobile Phones, Inc. of the Midwest, Inc. Pinellas County, LLC Prestige Cablevision, LLC Telecommunications of Florida, Inc. Telecommunications, Inc. Wellsville, LLC Adelphia Western New York Holdings, LLC Arahova Communications, Inc. Arahova Holdings, LLC Badger Holding Corporation Better TV, Inc. of Bennington Blacksburg/Salem Cablevision, Inc. Brazas Communications, Inc. Buenavision Telecommunications, Inc. Cable Sentry Corporation California Ad Sales, LLC CCC-III, Inc. CCC-Indiana, Inc. CCH Indiana, LP CDA Cable, Inc. Century Advertising, Inc. Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Alabama Corp. Alabama Holding Corp. Australia Communications Corp. Berkshire Cable Corp. Cable Holding Corp. Cable Holdings, LLC Cable Management Corporation Cable of Southern California Cablevision Holdings, LLC Carolina Corp. Colorado Springs Corp. Colorado Springs Partnership Cullman Corp. Enterprise Cable Corp. Exchange, LLC B-2 Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Century Federal, Inc. Granite Cable Television Corp. Huntington Company Indiana Corp. Investment Holding Corp. Investors, Inc. Island Associates, Inc. Island Cable Television Corp. Kansas Cable Television Corp. Lykens Cable Corp. Mendocino Cable Television Inc. Mississippi Corp. Mountain Corp. New Mexico Cable Television Norwich Corp. Ohio Cable Television Corp. Oregon Cable Corp. Pacific Cable TV Inc. Programming, Inc. Realty Corp. Shasta Cable Television Corp. Southwest Colorado Cable Television Corp. Telecommunications, Inc. Trinidad Cable Television Corp. Virginia Corp. Voice and Data Communications, Inc. Warrick Cable Corp. Washington Cable Television, Inc. Century Wyoming Cable Television Corp. Century-ML Cable Corporation Century-ML Cable Venture Century-TCI California Communications, LP Century-TCI California, LP Century-TCI Holdings, LLC Chelsea Communications, Inc. Chelsea Communications, LLC Chestnut Street Services, LLC Clear Cablevision, Inc. CMA Cablevision Associates VII, LP CMA Cablevision Associates XI, LP Coral Security, Inc. Cowlitz Cablevision, Inc. CP-MDU I LLC CP-MDU II LLC B-3 E. & E. Cable Service, Inc. Eastern Virginia Cablevision Holdings, LLC Eastern Virginia Cablevision, LP Empire Sports Network, LP FAE Cable Management Corp. FOP Indiana, LP FrontierVision Access Partners, LLC FrontierVision Cable New England, Inc. FrontierVision Capital Corporation FrontierVision Holdings Capital Corporation FrontierVision Holdings Capital II Corporation FrontierVision Holdings, LLC FrontierVision Holdings, LP FrontierVision Operating Partners, LLC FrontierVision Operating Partners, LP FrontierVision Partners, LP Ft. Myers Acquisition Limited Partnership Ft. Myers Cablevision, LLC Genesis Cable Communications Subsidiary, Global Acquisition Partners, LP Global Cablevision II, LLC Grafion Cable Company GS Cable, LLC GS Telecommunications, LLC Harron Cablevision of New Hampshire, Inc. Huntington CATV, Inc. Imperial Valley Cablevision, Inc. Kalamazoo County Cablevision, Inc. Key Biscayne Cablevision Kootenai Cable, Inc. Lake Champlain Cable Television Corporation Leadership Acquisition Limited Partnership Louisa Cablevision, Inc. Manchester Cablevision, Inc. Martha's Vineyard Cablevision, LP Mercury Communications, Inc. Mickelson Media of Florida, Inc. Mickelson Media, Inc. Montgomery Cablevision, Inc. Monument Colorado Cablevision, Inc. Mountain Cable Communications Corporation Mountain Cable Company, LP Mt. Lebanon Cablevision, Inc. Multi-Channel TV Cable Company LLC B-4 National Cable Acquisition Associates, LP Olympus Cable Holdings, LLC Olympus Capital Corporation Olympus Communications Holdings, LLC Olympus Communications, LP Olympus Subsidiary, LLC Owensboro Indiana, LP Owensboro on the Air, Inc. Owensboro-Brunswick, Inc. Page Time, Inc. Palm Beach Group Cable Joint Venture Palm Beach Group Cable, Inc. Paragon Cable Television, Inc. Paragon Cablevision Construction Corporation Paragon Cablevision Management Corporation Parnassos Communications, LP Parnassos Holdings, LLC Parnassos, LP Pericles Communications Corporation Pullman TV Cable Co., Inc. RentaVision of Brunswick, Inc. Richmond Cable Television Corporation Rigpal Communications, Inc. Robinson/Plum Cablevision, LP S/T Cable Corporation Sabres, Inc. Scranton Cablevision, Inc. Sentinel Communications of Muncie, Indiana, Inc. Southeast Florida Cable, Inc. Southwest Colorado Cable, Inc. Southwest Virginia Cable, Inc. Star Cable Inc. Starpoint Limited Partnership SVHH Cable Acquisition, LP SVHH Holdings, LLC Tele-Media Company of Hopewell-Prince George Tele-Media Company of Tri-States, LP Tele-Media Investment Partnership, LP Telesat Acquisition Limited Partnership Telesat Acquisition, LLC The Golf Club at Wending Creek Farms, LLC The Main InternetWorks, Inc. The Westover TV Cable Co. Incorporated Three Rivers Cable Associates, LP B-5 Timotheos Communications, LP TMC Holdings Corporation TMC Holdings, LLC Tri-States, LLC UCA, LLC Upper St. Clair Cablevision, Inc. US Tele-Media Investment Company Valley Video, Inc. Van Buren County Cablevision, Inc. Warrick Cablevision, Inc. Warrick Indiana, LP Wellsville Cablevision, LLC West Boca Acquisition Limited Partnership Western NY Cablevision, LP Westview Security, Inc. Wilderness Cable Company Young's Cable TV Corp Yuma Cablevision, Inc. B-6 EXHIBIT C MENDOCINO COUNTY CHANNEL CAPACITY/SYSTEM CHARACTERISTICS Century Mendocino Cable Television, Inc. operates a state-of-the-art broadband network designed to meet the telecommunications needs of City of Ukiah and Mendocino County residents for the foreseeable future. Following is a general description to the system, though it is understood that some technical specifications may change throughout the course of the franchise. The 860 MHz hybrid fiber-coaxial (HFC) network encompasses 436.08 miles of plant of which 337.38 are overhead and 98.7 are underground. The system extends fiber optics lines from the system headend to nodes throughout the County. At each node, the signals enter our coaxial network for transmission to the home. The system is capable of providing hundreds of channels using both analog and digital formats. Each analog video channel requires 6 MHz, however using digital compression Adelphia can provide 10-14 Digital Cable channels in 6MHz spectrum. The HFC system is two-way capable allowing for high-speed Internet service and "impulse" ordering of pay per view services. It is built, able to accommodate future services including telephony and video-on-demand. High-speed data (HSD) services use the "DOCSIS" industry standard, enabling customers to purchase any DOCSIS compatible cable modem. In addition, if a customer were to move they would be able to use the same modem in their new location, provided the cable system uses the DOCSIS standard. The City of Ukiah and Mendocino County system is built using a "node plus two" architecture, which is the standard for Adelphia Communications. This type of network design limits the number of amplifiers located between the fiber node and a customer's home. The benefit of this type of architecture is the placement of fiber optic cable deeper into the system, resulting in fewer homes per node and greater capacity to meet the individual needs of customers. Each node is designed to serve approximately 125-150 homes. All nodes have standby power capability for use during commercial power interruptions. The headend has standby power capable of providing twenty four (24) hours of power during any periods of commercial power interruptions. The system forward bandwidth is 54 to 862 MHz. The reverse bandwidth is 5 to 40 MHz. c-1 EXHIBIT D CABLE SYSTEM SERVICES FOR PUBLIC, EDUCATIONAL, AND COMMUNITY FACILITIES Grantee agrees to provide basic cable service to the following locations: Location Address Status Remarks Fort Bragg Town Hall 363 North Main Street Existing Fort Bragg PD 250 Cypress Street Existing Fort Bragg City Hall 416 North Franklin Existing MCCET Studio at Ft. Bragg High School 300 Dana Existing Fort Bragg Fire Dept 141 North Main Street Existing Fort Bragg Library 499 East Laurel New Mendocino High School (2 ROP Buildings & Performing Arts Building) 10700 Ford Existing Mendocino Performing Arts Existing Mendocino Coast District Hospital 700 River Drive Existing Mendocino Recreation Center School St (Mendocino) New Caspar Community Center 14990 Caspar Road New *See note below Detrich Education Center 208 Dana St. Existing College of the Redwoods 1211 De Mar Dr. Existing Comer of Lincoln and Not yet constructed, MCRPD Aquatic Center Willow Streets New future activation 111 and 125 East Willits City Hall and Justice Commercial (contiguous Center buildings) Existing Willits Community Television 85 East Conmlercial Existing Willits HS 299N. Main St. Existing 400 East Commercial Willits Museum St. New *See note below Ukiah City Hall and annex 300 Seminary Avenue Existing Ukiah HS 1000 Low Gap Road Existing School District to provide necessary conduit, Adelphia 1600 South State responsible for additional New Grace Hudson Campus New costs. Mendocino County Office of 2240 Eastside Road Ed. Talmage Existing Mendocino Community College (Ukiah) 1000 Hensley Creek Rd. New D-1 County Supervisor Chambers 501 Low Gap Rd, Ukiah Existing County Admimstrative Center, Office of Emergency Services 175 S. School Existing Albion School 30400 Albion Ridge Rd. New *See note below College of the Redwoods 1211 Del Mar Dr. New * See note below Ukiah Conference Center 200 S. School New *See note below Mendocino Community Collel~e (Willits) 11 Main Street New *See note below *Note: If a location noted above or an as yet identified public, education, or community facility requires no more than a standard 150-foot aerial drop line from the main feeder line, Adelphia shall pay the entire cost of construction necessary to connect that location to Adelphia's Cable System. If a location noted above or an as yet identified public, education, or community facility requires more than a standard 150-foot aerial drop line from the main feeder line, then Adelphia agrees to assume the first $2500 worth of construction costs related to connecting that location to Adelphia's Cable System. Any costs over and above the $2500 limit per location shall be the responsibility of the particular location. With respect to locations requiring more than a standard 150-aerial drop line from the main feeder line, Adelphia shall not be required to provide basic cable service to any location that will not agree to assume construction costs over and above the $2500 limit. D-2 EXHIBIT E SUPPORT OF LOCAL CABLE USAGE PEG ACCESS CHANNELS. A. Channel Capacity and Use. 1. Within six (6) months following the effective date of this Agreement, Grantee will make available to Grantor three analog channels for exclusive use by Grantor in support of community television (PEG), of which one is currently channel 3. 2. Use of the PEG access channels will be under the exclusive control of the Grantor, or its designee and subject to such rules and regulations as the Grantor may establish in accordance with federal law. In this regard, Grantor reserves the right to delegate the operation and management of any current or future PEG access channel to such individuals or entities as it may select, all of whom must comply with federal, state, and local laws and regulations relating to the operations of that channel. 3. All PEG access channels will be positioned on the lowest priced basic service tiers and will be fully accessible to subscribers, consistent with FCC regulations. Within ninety days of the activation of the second channel, Grantor agrees to locate all three channels in sequential order within the channel line-up. 4. Grantee will not change the positioning of Grantor's PEG access channels without ninety (90) days prior written notice to Grantor, where such change is within the Grantee's control. Where such change is not within the Grantee's control, Grantee will give Grantor as much prior written notice as is reasonably possible. Grantee must reimburse Grantor for all costs (up to a total of $3,000.00 each) reasonably incurred as a consequence of any such change in channel position, including costs of notices to subscribers and modifications to descriptive literature. 5. Grantee will ensure that the signal quality for all PEG access channel cablecasting complies with all applicable FCC technical standards. Failure to comply to these standards will result in liquidated damages pursuant to Subsection 11.4(b)(2). 6. Upon Grantor's request, but no more than once per year, Grantee will disseminate to subscribers information related to PEG access programming on Grantee's electronic program guide channel. In addition, Grantee will, upon request of Grantor, disseminate such information as an insert in subscriber bills once annually. The costs related to the dissemination of this information shall be borne by the Grantee. E-I 7. Except to the extent authorized by federal law, Grantee will not exercise any editorial control over the public, educational, or governmental use of channel capacity that is made available to Grantor under the provisions of this Exhibit D and E. 8. Grantee is responsible for the maintenance of the return fibers and reverse feeds associated with any distribution plant that is used for the transmission of PEG access programming between PEG studio facilities and Grantee's headends, or between Grantee's headend and the County's IS Department below (as described in Section E subsections 4 to 8 below). All costs associated with the maintenance of Grantee's fiber, coax distribution network and hardware, network management, and maintenance will be the Grantee's responsibility. 9. Grantee is not responsible for any costs, in excess of those costs outlined in this agreement, associated with the maintenance of Grantor's PEG equipment or operations. B. Restrictions. 1. Grantor agrees not to use its designated public, educational, or governmental access channels to provide commercial services that may compete directly with services provided by Grantee. C. Digital PEG Access Channels. 1. The parties acknowledge that Grantee may in the future use video compression technology in order to transmit PEG access video programming in a digital format to subscribers. Until such time as Grantee has converted all analog video programming to digital, consistent with federal law, Grantee must make PEG access channels available to both its analog and digital customers. 2. When Grantee has converted all video programming, both commercial and non-commercial, from analog to digital, then Grantee shall provide Grantor one (1) additional channel for PEG access programming (for a total of four (4) channels). D. Use of Fallow PEG Channels. 1. Grantee agrees not to request use of the two of the three initial channels described in subsection A. 1. However, if the third or subsequent access channel becomes programmed for less than four (4) hours per day for six (6) days per week for a continuous period of not less than twelve (12) consecutive weeks, the City may permit the Grantee to utilize unused channel capacity on that channel under the following conditions: 2. Any request from the Grantee to use any fallow capacity designated for PEG Access must be submitted in writing to the City Council at least one hundred twenty (120) days prior to desired utilization date. E-2 3. The City Council shall approve the petition from the Grantee to use fallow channel capacity if it finds that: (i) the utilization of the channel is as represented; (ii) the Grantee has not acted in violation of any of the provisions of the Franchise regarding utilization of the channel. After approval, the Grantee may continue to utilize the channel for any other purposes it so chooses, consistent with the Franchise, until it is required to be designated for PEG purposes pursuant to the provisions hereof; and (iii) rules are pre-scribed by the City in determining the rules the Grantee must follow in returning to the City channels loaned to the Grantee under this section. 4. City agrees to give Grantee one hundred twenty (120) days notice when requesting that a channel be returned. E. Definitions. meanings: For the purpose of this section, the following terms have the following a) Locally Produced means programming produced in either County of Mendocino or in any incorporated area that is shared between participating PEG organizations with the County. b) Original Programming means programming in its initial, first or second repeat cablecast on the cable system. c) Locally Scheduled means that the scheduling, selection, or playback of original programming on a per-program basis is determined in consultation with, or in accordance with the operating procedures of, the designated access provider or, with respect to programming received from an interconnection, the provider transmitting the programming over the interconnection. Carriage on any public access channel of all or a substantial portion of any non-local programming that duplicates programming carried by Grantee as a part of its basic or expanded basic cable services will not be considered to be Locally Scheduled. F. Live Cablecasting Capabilities. 1. Grantee will provide fiber and/or coaxial return capability for live origination of community programming from the following buildings: E-3 Location Status Remarks Fort Bragg Town Hall Existing Fort Bragg PD New *Sec note below Fort Bragg City Hall Existing Fort Bragg HS Existing Not yet constructed, future MCRPD Aquatic Center N/A activation Mendocino HS Existing Caspar Community Center New *See note below Mendocino Coast District Hospital N/A *See note below Detrich Education Center Existing Mendocino Recreation Center N/A *See note below Existing, but may require College of the Redwoods Existing activation of additional buildings * See note below Willits City Hall Existing Willits Community Television Existing Ukiah City Hall Existing Mendocino Community College (Ukiah) Existing County Supervisor Chambers New County Office of Emergency Services Existing Mendocino Community College New *See note below (Willits) Willits High School New *See note below Ukiah Conference Center New *See note below Grace Hudson Campus New *See note below *Note: With respect to the locations noted above, Adelphia agrees to assume the first $2500 worth of construction costs related to providing each of these locations with fiber and/or coaxial return capability for live origination of community programming. Any costs over and above the $2500 limit per location shall be the responsibility of the particular location. Adelphia shall not be required to provide fiber or coaxial return capability for live origination of community programming to any location that will not agree to assume construction costs over and above the $2500 limit. E-4 2. If not already provided, Grantee agrees, within six (6) months of receiving a request from the County, to connect the PEG studio identified by the County to the headend located within the designated PEG studio's service area via dedicated fiber. County agrees to consult with Adelphia during the selection process of any future PEG studio locations in an effort to minimize construction costs associated with connecting future PEG studio(s) to the appropriate headend via fiber. 3. Grantee agrees within six months of the effective date of the Franchise Agreement to provide necessary fiber transmission equipment to provide video and audio signals directly from the County's Information Services (IS) on South School St. to Grantee's headend for originating local programming onto the Ukiah and surrounding Ukiah County area. The County's IS Department will serve as the central control center for all three Ukiah Valley PEG channels. 4. In the event that Grantee ever interconnects the headends located in the areas of Fort Bragg, Ukiah and Willits via fiber or some alternative method (e.g. over the air frequency), Grantee agrees to also interconnect the PEG facilities serving the County, Fort Bragg, Ukiah and Willits. 5. Within twenty-four (24) months of the effective date of this agreement, Grantee agrees to provide and maintain equipment necessary to transmit live origination of community programming (i.e. modulators, lasers, etc.) at each live cablecasting location identified in section F(1) of Exhibit F. In addition, Grantee agrees to provide and maintain equipment at its headend necessary to receive (and retransmit over its Cable System) live origination of community programming (i.e. demodulators, receivers, etc.) Grantor agrees to reimburse Grantee for any loss of said equipment due to Grantor's negligence. The equipment required to be maintained and provided by Grantee under this section shall not be taken into account when calculating the $2500 construction limit described above in Section F. 6. Grantee agrees to maintain for the term of this Franchise Agreement these dedicated return lines for the purpose of connecting the aforementioned live origination locations with the company's related headends. 7. Grantee also agrees to assist the respective IT or IS staff of Grantor for the purpose of coordinating interconnecting PEG facilities to existing facilities of the Grantor's networks or those of the Grantee that are being provided under separate fiber lease agreements. G. Grants for PEG Access Production and Programming Equipment. 1. Within sixty (60) days after the effective date of this Agreement, Grantee will pay to Grantor a capital grant in the amount of $200,000 prorated on a per subscriber basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits. Within sixty (60) days after the 2nd, 4th, 6th, and 9th anniversary of the Effective Date of this Agreement, Grantee will pay to Grantor capital grants in the amount of $200,000 respectively prorated on a per subscriber basis among the County of Mendocino and the Cities of Fort Bragg, E-5 Ukiah and Willits. 2. Grantee will pay an additional grant to Grantor during years 10 to 15 of this Agreement in the amount of $0.25 (as adjusted by the increase in the applicable Consumer Price Index for Mendocino County from the Effective Date of this Agreement) per subscriber per month for every subscriber of record in the entire Mendocino County service area (including the incorporated cities) that exceed the number of subscribers existing on the January 1, 2004 (14,264 subscribers countywide, number includes equivalent basic units), prorated on a per subscriber basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits. Payments of these additional grants will occur quarterly consistent with the scheduling of franchise fee payments. II. PROGRAMMING OPERATIONS FUNDRAISING BILL STUFFERS. A. Upon Grantor's request, Grantee will insert once a year at a mutually agreed upon time a bill insert consisting of a pledge card that seeks pledges of money in support of PEG programming. The pledge form shall be approved by Grantor and shall direct that the form be returned to Grantor or the PEG organization designated by Grantor. The pledge form must allow subscribers to designate a method of donation such as by check, automatic bank charges, debit card or credit card. All costs related to printing and mailing of the bill insert to the subscriber will be borne by Grantee. In addition, Grantee will run spot ads promoting this PEG fundraising effort on all the cable channels it normally runs local advertisements at the time the pledge cards are sent to subscribers. Said spot ads will run at least 14 consecutive days coinciding with the mailing, with no less than 500, 30 second spots, run hourly between the hours of 6am and 10pm. Grantor will produce and provide the copy of the spot ad, but all other costs of airing these ads shall be borne by Grantee. The spot ad should indicate that it is a public service announcement from Adelphia. III. OPTIONAL ANNUAL PEG OPERATIONS PAYMENT. A. Upon the written request of Grantor, Grantee will allocate a sum of money designated by Grantor to be paid annually (but not to exceed the 5% franchise fee) for the operation of the PEG channels. Such amount shall be paid at the time the franchise fees are paid by Grantee for the first quarter of each year of the Franchise Term. Grantor agrees that Grantee may deduct this payment from the franchise fees due. E-6 EXHIBIT F GRANTOR'S UNDERGROUND CONSTRUCTION KEOUIREMENTS I. INSTALLATIONS IN PARKWAYS. A. All conduit installations in parkways must have a minimum cover of eighteen (18) inches below the finish grade. B. All existing improvements in parkways, including landscaping and sprinklers, must be protected from damage, or, if damaged, restored to pre-construction conditions. All repairs and replacements must be made in-kind. C. All service boxes and vaults must be set to finish grade on six (6) inches of one- inch crushed rock. D. No access to new service boxes or vaults may be located within the sidewalk, wheelchair ramps, or drive apron areas unless authorized by the City Engineer. II. INSTALLATIONS IN ROADWAYS A. Conduit may be installed at locations shown on plans submitted by Grantee after approval by the City Engineer. If a location is available, the preferred alignment is two feet from the outer edge of an existing gutter. Where it cannot be located on the preferred alignment, the location must be approved by the City Engineer. Removal and replacement of all damaged pavement between the trench and the edge of existing roadway pavement is required on all streets. The edge of the trench must be a minimum of one foot from the edge of the gutter. Exceptions to this requirement must be approved by the City Engineer. B. Concrete pavement serving as bus pads, spandrels, cross gutters, or local depressions may not be cut. At these locations, the conduit must be bored or jacked. C. It is mandatory to maintain a straight alignment. Routing of conduit at bus pads, and any other protrusions beyond the gutter edge, must be approved by the City Engineer. Some installations may require locations in the parkway. Locations directly above or in conflict with existing utilities are not permitted, unless approved by an agreement with the affected utility. D. Open-cut transverse trenches are not allowed within streets, except at intersections, unless otherwise provided. To serve customers on the other side of a street, a parallel line on the opposite side of the street must be installed. An alternative to this procedure is mid-block crossings installed by jacking or boring conduit under the street. If the conduit is to be jacked under the street, Grantee must abide by the following guidelines unless otherwise directed by the City Engineer: 1. Crossings must be at least 150 feet apart. F-1 2. Jacking pits must be in the parkway adjacent to the main cable trench. . boring operations. Written approval must be obtained from the City prior to any jacking or E. Conduit must be installed at a consistent depth throughout a block with a minimum cover (below the established edge of the gutter) of thirty (30) inches in all streets and alleys. III. ABOVE-GROUND SERVICE BOXES OR VAULTS. A. Above-ground service boxes or vaults are not permitted in the public rights-of-way without prior consideration of the need, which consideration will include industry technical standards, the safety and aesthetics of the placement, and the cost of below-ground alternatives. Grantee will flush mount all facilities where current technology enables Grantee to do so. When it is not possible to underground a facility entirely, Grantee will evaluate options for placing as much of the facility below ground as possible. B. Above-ground service boxes or vaults may not be installed without the prior approval of the appropriate City department, which approval shall not be unreasonably withheld. If existing landscaping and irrigation are disturbed during the construction process, landscaping and irrigation requirements may be imposed by the appropriate City department. Grantee will coordinate the siting and choice of pedestal materials with the appropriate City department(s) and with residents adjacent to proposed above-ground service boxes and other facilities. C. Above-ground facilities shall be constructed so as to connect and lock to some form of concrete footing, except if the above-ground facility is manufactured pre-formed vault that does not require a concrete footing. D. Grantee will minimize the negative impacts of above-ground facilities on aesthetics, public convenience, and public safety to the extent reasonably feasible, through such means as creative siting and landscaping, placement of facilities on private property, and partial undergrounding. E. Above-ground service boxes or vaults must be properly maintained for safety, public convenience, and aesthetic reasons in accordance with the following procedures: 1. Safety repairs, including graffiti removal, must be completed within 24 hours after discovery of the need for such repairs by the Grantee's personnel or notification from the City Engineer or other designated representative of the Grantor. 2. Grantee must provide routine maintenance (e.g., painting, leveling, service box replacement, fastening to base) within ten (10) working days after the discovery of the need for such maintenance by Grantee's personnel or notification from a resident, the City Engineer, or other designated representative of the Grantor. F-2 3. Grantee must replace above-ground service boxes or vaults if routine or emergency maintenance is not sufficient to return the facility to a safe and aesthetically acceptable condition as determined by the City Engineer. 4. Grantee must patrol all areas of the designated service area having above- ground service boxes or vaults on a regular basis, at intervals not in excess of three months, to inspect for damage and to determine the need for any required maintenance. F. Based on advances in technology related to pedestal housings, Grantor and Grantee will meet periodically to discuss potential locations where above-ground service boxes or vaults can be eliminated, or converted to flush-mounted enclosures, without compromising the technical operation, reliability, and economic viability of the Cable System. Grantee will place existing or proposed above-ground facilities below ground, as may be required of all other similarly-situated occupants of the Grantor's rights-of-way. IV. PERMITS A. All work within the public rights-of-way must be conducted under a permit from the Public Works Department. Grantee must comply with all City excavation policies and procedures. B. An excavation permit must be obtained for each increment of work, and inspection must be requested at least twenty four (24) hours prior to any excavation. All inspection costs will be charged directly to the Grantee. Grantor will include all inspection costs with permit fees charged to Grantee. Note: Agencies should check how this conforms to current practices. C. Detailed plans for all work must be submitted to and approved by the appropriate City department prior to issuance of any permits. Complete detailed plans shall clearly indicate the horizontal alignment of the facilities. Plans must clearly show streets, property lines, curbs, centerlines, and existing utilities. D. Above-ground power pedestals must be clearly delineated on the plans at the time they are submitted for review. Review and permitting for power pedestals will be conducted by the appropriate City department. All power pedestals and related connections must comply with the City of Ukiah Municipal Code and all other applicable laws and regulations. V. PRE-CONSTRUCTION A. A pre-job meeting must be scheduled prior to start of work at each permitted location as determined by the City Inspector. Representatives of the Grantee, including its contractors, and of the appropriate City department, must be included in these pre-job meetings. Grantee must call for inspection at least twenty four (24) hours before starting any work F-3 B. Telephonic notices must be provided to the Underground Service Alert (USA) at least two (2) working days prior to starting work on any permitted project. Grantee must have an approved permit from the appropriate City department before contacting USA. C. All utility services must be marked prior to excavation using chalk-based paint ["AERVOE" brand available from Surveyor's Services at (714) 546-0606)] with a visibility life not to exceed three (3) weeks. D. Affected residents must be notified by the Grantee in writing not less than ninety six (96) hours prior to excavation on their streets. This written notification must be approved in advance by the City Inspector. This paragraph does not apply in the case of emergencies. VI. CONSTRUCTION A. Compliance is required at all times with all provisions of the latest edition of the Work Area Traffic Control Handbook (WATCH), all applicable portions of the City of Ukiah Municipal Code, and the latest edition of the "Standard Specification for Public Works Construction - Green Book," including any supplements. B. Unless otherwise approved in advance by the City Engineer, no excavations may be made by Grantee anywhere in the City between November 15 and January 3 of each year within public rights-of-way. C. Open-trench protection, and noise and dust curtailment methods, acceptable to the City Inspector, must be provided. D. Pavement cuts and restoration must conform to City of Ukiah Standard for asphalt and concrete pavement restoration. E. All trenching activity that is commenced each day in the street must be backfilled to a depth specified by the City Inspector at the end of the day; final resurfacing must be completed within five (5) working days on all streets and alleys. Final roadway clean-up must be completed within five (5) days following resurfacing. Final clean-up of vault installations and other work behind the curb must be completed within ten (10) days following roadway resurfacing. F. operations. Grantee, or its contractor, must designate a project superintendent to handle field G. If utility services must be exposed, the trench must be hand-excavated to the service line after saw-cutting pavement, or, in the alternative, a vacuum truck may be used subject to approval by the appropriate authorizing department. H. Residents must be notified immediately of any damage affecting their property, and repairs must be promptly made. F-4 VII. MISCELLANEOUS A. Where field conditions are such that these Underground Construction Requirements are conflicting or apparently prevent progress, all work will cease until modified specifications are approved in writing by the City Engineer. B. Grantee will participate in all meetings convened by Grantor for the purpose of identifying, scheduling, and coordinating excavation work in the public rights-of-way, provided said public rights of way are located in Grantee' s existing or proposed service area. C. The security deposit referenced in Subsection 2.5(a) of the Agreement will be available during the entire period of construction to secure Grantee's obligation to correct any defective work in the public rights-of-way that is discovered. D. If there is any conflict or inconsistency between the provisions of this Exhibit F and the provisions of the Agreement to which this Exhibit F is attached, then the provisions of this Exhibit F will have precedence and will control. F-5 ITEM NO. 6t~ DATE: MAY 4, 2005 AGENDA SUMMARY REPORT SUBJECT: Notification of Bid Award to Install A Suppressed Current Cathodic Protection System On The 0.1 Million Gallon (Mg) Reservoir To Corrpro Companies, Inc. In The Amount Of $68OO.OO Submitted for Council review is this report awarding of the bid for the installation of a new Suppressed Current Cathodiic Protection System on the 0.1 MG Reservoir. The system now in place is well over 40 years and repair parts, if needed, are not available. This upgrade is necessary to protect the reservoir, which is made out of steel, from developing leaks that occur both through water chemistry and inductive reaction. It seems appropriate during the reservoir upgrades that are currently in place. This project will be funded from monies budgeted under account 820.3908.250.000. Corrpro Companies, Inc. have long been involved with the City's cathodic protection and are familiar with the requirements of the reservoir in question. They were the only qualified bidder to submit a bid and they were lower than the projected cost estimate. RECOMMENDED ACTION: Receive and file notification. ALTERNATIVE COUNCIL POLICY OPTION: N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Bernie Ziemianek, Director of Public Utilities Alan Jamison, Water Treatment Plant Supervisor Candace Horsley, City Manager AP P ROVE D: ~~_~,~~.~~~--. Canda~ce Horsley, City ~nager ITEM NO. 6c DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: Notification of procurement of services from Reliance Enterprises for emergency repairs to the Boilers at the Wastewater Treatment Plant in the amount of $6169.95 SUMMARY: Reliance Enterprises of Ukiah is contracted to perform semi annual inspection and maintenance on the Boilers which provide heat to the anaerobic digesters at the Wastewater Treatment Plant. During the most recent inspection it was discovered that the burner assemblies had become damaged from corrosion. The corrosion is a common occurrence resulting from using digester methane gas as a fuel source which contains significant sulfide compounds. Reliance Enterprises obtained the burner assemblies from the manufacturer installed and adjusted the burners for a total cost of $6169.95 Money for the service is available in maintenance account 612-3580-302-000. 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, CitX~Manager ITEM NO: 8a DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: CONTINUATION OF KRAUSSITOMS APPEAL OF PLANNING COMMISISON CONDITIONAL APPROVAL OF THE MARIN VENTURES/VVALGREENS STORE ON EAST PERKINS STREET SUMMARY: On April 20, 2005, the City Council conducted a public hearing and considered the appeal filed by Mr. Krauss and Mr. Toms regarding the Planning Commission's conditional approval of the Walgreen's store Site Development Permit project. After hearing from the public, discussing the project, and considering the Planning Commission's action, the Council concluded that there was not sufficient variety, creativity, and articulation to the architecture and design of the structure, and that it was too box-like and uninteresting in its appearance. The Council then provided design suggestions and direction to the applicants for improving the design. The applicants are in the process of reviewing the suggestions and direction provided by the Council, and have indicated that they need additional time to complete their review. Staff is recommending the Council grant the applicant's request for additional time and continue the appeal hearing to the May 18, 2005 regularly scheduled meeting. RECOMMENDED ACTION: Continue the appeal hearing to the May 18, 2005 City Council meeting. ALTERNATIVE COUNCIL POLICY OPTION: Do not continue the hearing and take action on the appeal. Citizens Advised: Publicly noticed according to the requirements of the Ukiah Municipal Code Requested by: Albert Krauss and Michael Toms Prepared by: Charley Stump, Director of Planning and Community Development Coordinated with: Candace Horsley, City Manager Attachments: None Candace Horsley, City M~nager ITEM NO. 9a DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: INTRODUCTION OF URGENCY ORDINANCE IMPOSING MORATORIUM ON OUTDOOR MARIJUANA CULTIVATION SUMMARY: The City Council requested staff to prepare an urgency ordinance banning the outdoor cultivation of marijuana, pending the development of a permanent ordinance regulating the cultivation of marijuana within the City. The attached ordinance prohibits the growing of marijuana in the City, except as specifically set forth in the ordinance. Those limitations are as follows: 1. The possession and cultivation of marijuana must be lawful under state and federal law. 2. No more than six plants may be grown on a lot. 3. No outdoor marijuana cultivation shall be permitted. Growing marijuana shall only be permitted in a fully enclosed greenhouse or structure that must be locked and secure against unauthorized entry. 4. Marijuana shall not be grown on lots the exterior boundaries of which are within 300 feet of the exterior of any lot containing a school, whether public, private or chartered. "Lot" is specifically defined in the City Zoning Ordinance as a "... parcel of real property with a separate number or other designation shown on a record of survey, parcel map or subdivision map recorded by the County; or a parcel legally created Continued on Page 2 RECOMMENDED ACTION: Motion to adopt ordinance. ALTERNATIVE COUNCIL POLICY OPTIONS: Revise and adopt ordinance or decline to adopt ordinance Citizen Advised' N/A Requested by: City Council Prepared by: David J. Rapport, City Attorney Coordinated with' Candace Horsley, City Manager Attachments: 1. Interir~JJ_E.gency Ordinance APPROVED ~~%,'~'~~~ Candace Horsley, ~i.ty Manager May 4, 2005 Page 2 of 2 pursuant to applicable regulations in effect prior to the effective date of this Code." (Ukiah City Code ("UCC") §9278.) A violation of the proposed ordinance is subject to the remedies and penalties set forth in the zoning ordinance for other violations of the zoning ordinance. (See in Division 7, Chapter 2, Article 22 of the UCC, commencing with Section 9350.) These include a civil action to abate a public nuisance under UCC Section 9353 and criminal prosecution as a misdemeanor under Section 9352. Government Code Section 65858 authorizes a city council to adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal without following the procedures otherwise required prior to the adoption of a zoning ordinance. In order to do this, the City Council must adopt the urgency measure by, at least, a four- fifths vote. The interim ordinance shall be of no further force and effect 45 days from its date of adoption, unless it is extended. To extend the ordinance beyond 45 days, the city must publish a newspaper notice of and conduct a public hearing on the proposed time extension. Notice of the time, date, location and general subject matter of the hearing must be published at least 10 days prior to the hearing. The City Council may extend the interim ordinance for 10 months and 15 days and subsequently extend the interim ordinance for one year. Any extension shall also require a four-fifths vote for adoption. Not more than two extensions may be adopted. In order to adopt an urgency ordinance, the City Council must make legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in a threat to public health, safety, or welfare. The proposed ordinance in Section Three contains these findings. Ten days prior to the expiration of an interim ordinance or any extension adopted pursuant to Section 65858, the City Council is required to issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. Staff will agendize an extension of the ordinance, if a permanent ordinance is not available for adoption by the City Council before the initial term of the urgency ordinance is due to expire. ORDINANCE NO. URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH IMPOSING AN INTERIM MORATORIUM ON THE OUTDOOR GROWING OF MARIJUANA AND THE GROWING OF MARIJUANA WITHIN 300 FEET OF SCHOOLS WITHIN THE CITY OF UKIAH. The City Council of the City of Ukiah hereby ordains as follows. SECTION ONE. While this interim ordinance is in effect, it shall be unlawful and constitute a violation of this Ordinance for any person to grow marijuana within the City of Ukiah, except as provided below: 1. The cultivation of marijuana must be lawful under state and federal law. 2. No more than six plants may be grown on a lot. 3. No outdoor marijuana cultivation shall be permitted. Growing marijuana shall only be permitted in a fully enclosed greenhouse or structure that must be locked and secure against unauthorized entry. 4. Marijuana shall not be grown on lots the exterior boundaries of which are within 300 feet of the exterior of any lot containing a school, whether public, private or chartered. A tenant or owner of real property in the City shall be deemed in violation of this ordinance, if he or she knowingly allows the lot of which he or she is the tenant or owner to be used to grow marijuana in violation of this ordinance. SECTION TWO. A violation of this ordinance is subject to the enforcement and penalty provisions contained in Division 7, Chapter 2, Article 22 of this Code, commencing with Section 9350. SECTION THREE. The City Council of the City of Ukiah hereby finds as follows. 1. The City Council has directed the Planning Commission to conduct a public heating and make recommendations to the City Council concerning a draft zoning ordinance that would regulate the cultivation of marijuana within the City of Ukiah, when grown pursuant to the Compassionate Use Act of 1996 and in compliance with applicable federal law. 2. The City Council anticipates that it could take several months before it receives those recommendations from the Planning Commission. 3. The unregulated cultivation of marijuana in the City of Ukiah has and will continue to create a serious public nuisance and serious public safety risks, particularly in residential areas. 4. This ordinance will become effective early in the growing season before marijuana can begin to create a public and attractive nuisance and harm the public safety. 5. If no action is taken, marijuana plants will likely mature to the point where they begin to cause these adverse effects. If detailed regulations are adopted after that, the difficulty of enforcement will be greatly compounded. 6. It is necessary, therefore, to adopt this moratorium ordinance on an urgency basis in order to protect the public health, safety and general welfare. SECTION FOUR. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason determined by a court to be invalid or unenforceable, such decision shall not affect the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each section, subsection, sentence, clause, and phrase thereof irrespective of the fact that any one or more such provision be declared invalid or unenforceable. SECTION FIVE. This Ordinance shall become effective immediately as an urgency ordinance adopted pursuant to Government Code Section 65858 and is repealed and of no further force or effect 45 days thereafter, unless extended as provided in Section 65858(a). Adopted on May 4, 2005, at a duly called meeting of the City Council of the City of Ukiah by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk ITEM NO. 9t~ DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: SUMMARY: PROPOSED ORDINANCE PROHIBITING SKATEBOARDS ON POSTED PRIVATE PROPERTY At its April 20, 2005, meeting the City Council instructed staff to prepare an ordinance prohibiting the use of skateboards on private property, when the owner of the property objects to such use. Attached is a proposed ordinance prohibiting the use of skateboards on private property located in commercial zoning districts and used for commercial purposes which has been posted with signs meeting the requirements contained in the ordinance. (See Attachment 1.) As defined in the ordinance, "commercial purpose" does not include residential rental property. The ordinance is patterned after Ukiah City Code section 7389, which prohibits parking on private property when the property has been posted with similar signs. The proposed ordinance would become part of Division 7, Chapter 2, Article 6 of the Ukiah City Code which currently makes it an infraction to use skateboards on public property in violation of UCC Section 6180, if signs prohibiting that use have been posted pursuant to a resolution adopted by the City Council. Section 6181 of that Article contains the infraction penalty. By adding a new Section 6180.5 to that Article, the same infraction penalty would apply to violations of section 6180.5 as currently applies to violations of Section 6180. The ordinance does not require the City Council to adopt a resolution before a property owner can post signs prohibiting skateboard use on his or her property. Under the proposed ordinance the owner of any property in the City could make the use of a skateboard on his or her property an infraction by posting the required signs. RECOMMENDED ACTION: Adopt motion to introduce ordinance by title only followed by motion to introduce ordinance. ALTERNATIVE COUNCIL POLICY OPTIONS: Request changes to ordinance before its introduction. Refuse to introduce ordinance. Citizen Advised: Rod Johnson Requested by: Rod Johnson Prepared by: David J. Rapport, City Attorney Coordinated with: Candace Horsley, City Manager Attachments: 1. Propose, cd,,ord ina n ce APPROVED:~' -- Horsley,~,y Manager Attachment ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING SECTION 6180.5 TO DIVISION7, CHAPTER 2, ARTICLE 6 OF THE UKIAH CITY CODE The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE. Section 6180.5 is hereby added to Division 7, Chapter 2, Article 6, Entitled: Skateboards, of the Ukiah City Code to read as follows. §6180.5: PROHIBITION ON USE OF SKATEBOARDS ON PRIVATE PROPERTY: No person shall operate, ride, propel or use a device with wheels commonly known and designated as a "skateboard" or any variation thereof in, on or over any privately owned real property located in the CN, C-1, C-2 or M zoning districts which property is used for commercial purposes, when such property is posted with appropriate signs or markings prohibiting such use. "Commercial purposes" does not include residential rental property. A. Sign requirements: 1. Location: The sign must be posted in plain view and visible at all entrances to the property. 2. Standards: The portion of the sign containing the message must measure not less than twenty two inches by seventeen inches (22" x 17") with lettering not less than one inch (1") in height. 3. Permissible Messages: The sign must contain the following message: "Private Property. Skateboard use prohibited by Ukiah City Code §6180.5. Violations constitute an infraction." SECTION TWO EFFECTIVE DATE. This Ordinance shall be published as required by law in a newspaper of general circulation in the City of Ukiah, and shall become effective thirty (30) days after its adoption. ORDINANCE NO. 1 Introduced by title only on AYES: NOES: ABSENT: ABSTAIN: ,2005, by the following roll call vote: Adopted on AYES: NOES: ABSENT: ABSTAIN: ,2005 by the following roll call vote: Mark Ashiku, Mayor ATTEST: Marie Ulvila, City Clerk ORDINANCE NO. 2 ITEM NO. DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: DISCUSSION OF URGENCY ORDINANCE IMPOSING MORATORIUM ON NEW MARIJUANA DISPENSARIES SUMMARY: Council member .John McCowen has requested a discussion of a moratorium on marijuana dispensaries, pending the development of an ordinance regulating these establishments. Currently, there are two marijuana dispensaries located in the City. "Marijuana dispensary" is not a specifically identified use in the Ukiah City Code ("UCC'~). The marijuana dispensary was determined to be a use similar to either a drug store or a retail business, which is an allowed use in the C-1 zone where it is located. (See UCC Section 9081.) Government Code Section 65858 authorizes a City Council to adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal without following the procedures otherwise required prior to the adoption of a zoning ordinance. :In order to do this, the City Council must adopt the urgency measure by, at least, a four-fifths vote. The interim ordinance shall be of no further force and effect 45 days from its date of adoption, unless it is extended. To extend the ordinance beyond 45 days, the City must publish a newspaper notice of and conduct a public hearing on the proposed time extension. Notice of the time, date, location and general subject matter of the hearing must be published at least 10 days prior to the hearing. The City Council may extend the interim ordinance for 10 months and 15 days and subsequently extend the interim ordinance for one year. Any extension shall also require a four-fifths vote for adoption. Not more than two extensions may be adopted. Continued on Page 2 RECOMMENDED ACTION: Instruct staff regarding interim urgency ordinance declaring a moratorium on marijuana dispensaries. ALTERNATIVE COUNCIL POLICY OPTIONS' N/a Citizen Advised: Requested by: Prepared by: Coordinated with: APPROVED: N/A Council member John McCowen David J. Rapport, City Attorney Candace Horsley, City Manager Candace Horsley,~t~, Manager May 4, 2005 Page 2 of 2 If the City Council were to enact such an urgency ordinance, the existing marijuana dispensary would be considered a pre-existing, non-conforming use and would not be required to immediately shut down. That situation could change, depending on the outcome of the U.S. Supreme Court decision in Raich v. Ashcroft. In order to adopt an urgency ordinance, the City Council must make legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in a threat to public health, safety, or welfare. Ten days prior to the expiration of an interim ordinance or any extension adopted pursuant to Section 65858, the City Council is required to issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. An urgency ordinance could define marijuana dispensary and declare a moratorium on such uses, pending adoption of a permanent ordinance. ]:f the permanent ordinance was not ready for adoption within the initial 45 day term of the ordinance, staff would prepare a time extension for. an appropriate city council meeting occurring before the initial term expires. ITEM NO. DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: STATUS REPORT ON LABYRINTH PROJECT AT OBSERVATORY PARK. SUMMARY: During the conceptual plan review of Observatory Park, Council approved the addition of a walking labyrinth based upon input received from various individuals and groups. Given budget constraints, the development of Observatory Park has been completed in phases with the labyrinth considered a Iow priority. However, last year the Asset Building Coalition (ABC)identified the labyrinth project as a viable match for the program and has since incorporated the project into its strategic plan. To this end, the ABC has dedicated administrative time and funds to the development of the labyrinth. Asset Building Coalition (ABC) Background Coordinated by the Department of Public Health, Alcohol and Other Drug Prevention Services, the ABC is a collective group of individuals and agencies that work collaboratively with all sectors of the community to assess needs and promote policies that strengthen factors that protect youth from substance abuse while mitigating the factors that place youth at risk. Most notable of the programs undertaken by the ABC is the RuralMurals Project which annually supports six countywide youth art teams that produce public art murals in their respective communities. The project increases youth resiliency and leadership through adult mentorship, school/community bonding and art skill development. Continued on Page 2 RECOMMENDED ACTION: Receive status report on labyrinth project at Observatory Park. ALTERNATIVE COUNCIL POLICY OPTIONS: 1. N/A Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Asset Building Coalition, Department of Public Health N/A Sage Sangiacomo, Community Services Supervisor Candace Horsley, City Manager and Larry W. Community Services Director 1. Observatory Park Plan 2. Labyrinth Project Site Map 3. Labyrinth Example DeKnoblough, APPROVED: Candace Horsley, City I~nager Observatory Park Background The Observatory property is approximately three acres with frontages facing Luce Street and Observatory Ave. The property is both historic and special in that only five such International Latitude Observatory sites exist around the world. The other four sites are located in Maryland, Italy, Japan, and Russia. Ukiah's original Observatory was built on this site in 1899 with the current buildings constructed in 1948. The historical residence and three small outbuildings, comprising approximately one acre, are concentrated on the south side facing Observatory Ave. The remaining property extends north to Luce St. and is marked by a large specimen Oak tree with substantial open space extending back to the structures. The Department of Interior granted the property to the City of Ukiah for the purpose of developing a public park. The property's extensive size has provided an excellent opportunity to create an expansive green space in a developed residential area that is surrounded by single family dwellings and a number of high density apartment complexes. Due to budget constraints, development of the park has been completed in phases. The first phase was completed approximately three years ago and included site preparations and irrigation and turf installation. Recently, the Parks Division has addressed the security concerns of neighbors with the installation a new 6 foot fence that replaced a dilapidated 3 foot fence. In addition, most of the plants for the perimeter native species garden have been purchased and will be installed with the completion of the pathway scheduled for June. Refer to Attachment #1 for a detailed landscape plan of the park. Labyrinth Project Labyrinths are best described as walkable, interactive art piece that provide an experience that is both visual and kinesthetic. The planned design of the labyrinth at Observatory Park is that of a 3,000 square foot, 5 petal vesica as shown below. Refer to Attachment #2 for the project site location for the labyrinth within Observatory Park. It will consist of a sunken path and elevated each mounds that will be seeded with grasses, similar to that shown in Attachment ~3, The path will be constructed using decomposed granite and will connect to the park's perimeter pathway, In addition, the ABC has coordinated a free summer a~ class for youth to design and fabricate ceramic medallions, some of which may be selected for installation within the labyrinth, The ABC has employed Alex Champion, an expert in labyrinth construction, to oversee and coordinate installation. The project is being undertaken as a community project that will utilize volunteer adults and youth for the actual construction of the earth mounds. The ABC is coordinating public service announcements and will canvas the neighborhood with flyers inviting participation in the work party scheduled for May 21. A similar community park development project at Orchard Park was a great success and 2 attracted more than 30 volunteers. The undertaking of the project comes at an optimal time since City staff is currently excavating the perimeter park pathway and the large quantity of soil resulting from this excavation can be utilized in the labyrinth construction. The City is providing onsite assistance throughout the construction, but will not have to expense any funds for the development of this portion of the park. Funding for the project comes from grants secured by the ABC. Furthermore, the simple nature of the project will require very little ongoing maintenance. LIS qvE Attachment #3 Labyrinth Example ITEM NO. tOc DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: DISCUSSION OF MAINTENANCE ISSUES AND CORRECTIVE MEASURES FOR THE UKIAH MUNICIPAL SWIMMING POOLS. SUMMARY: Over the past two weeks, the Ukiah Municipal Swimming Pools has suffered a number of structural and mechanical failures that are critical to ongoing pool operations and will have to be corrected prior to the pool opening for the 2005 summer season. Over the past five years, Staff has reported to Council on a regular basis about the deteriorating condition of the facility. However, the availability of City funds for capital improvements has been severely limited due to the facility's yearly operation deficit of more than $80,000. Staff has applied for two grants for funding from the 2000 and 2002 State of California Resource Bond Acts. The 2000 grant application was denied and the 2002 application is pending. Staff has exhausted routine maintenance efforts and a number of repairs are now pending. With no outside funding sources readily available, the only option to bdng the facility on line for the upcoming season is to use the City's General Fund. Staff is filing this report with Council to inform and seek direction as to the extent Council is willing to fund corrective measures. Continued on Page 2 RECOMMENDED ACTION: 1. Receive report and provide direction as to the extent Council is willing to fund corrective measures for the Ukiah Municipal Swimming Pools. 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 W. DeKnoblough, Community Services Director Pool Site Map APPROVE I:~'--~~~J,,~~. Cafi~-ace Hor~ley, City M~ager Ukiah Municipal Swimming Pool Background The Ukiah Municipal Swimming Pool (UMSP) is the only public swimming facility in the greater Ukiah area where youth and families have affordable access to supervised aquatic activities, including open swim, lap swim, aqua fitness classes, and swim lessons. The pool is a summer seasonal facility operating from June through August. Attendance for public swim exceeds 20,000 per year and over 400 swim lessons are completed per year. The facility includes two swimming pools, one of which is a 35 x 15 meter incline pool (built in the 1930's) that ranges in depth from 3ft to 10ft and the other is a 25 x 20 meter lap pool (build in the 1960's) that is 4ft deep throughout. Other infrastructure includes an office, restrooms, storage, grandstands, lights, solar panels, pump house, and two springboards. See ^ttachment #1 for a facility site map. Over the past years the operational deficit of the UMPS has continued to increase due to raising maintenance and staffing cost. As previously reported by staff, the maintenance needs of the pools will continue to rise with the age of the facility. In Fiscal Year 98/99, the maintenance and supply costs were at approximately $16,500 while in the current budget these costs total over $28,000. At the same time, staffing costs have increased over $24,000 during the past five years and are correlated with rising minimum wage laws and certification requirements. The annual operational deficit has ranged between to approximately $80,000 and $90,000 per year over the last five years. The facility is extremely old and will require significant renovation measures in the short term to remain operational. To this end, Staff has actively sought after grants to cover renovation costs. The City has a grant application pending with the State of Califomia for approximately $700,000. In addition, the City has also requested assistance from the County of Mendocino who has recently received over $1.2 million in State Park Bond Per Capita money that is to be used for park and recreational facilities. With a good maintenance plan in place, the Park Division Staff have been able to keep most of the equipment and systems operational well beyond that of their normal life expectancy. Unfortunately, the equipment and systems identified in this report have aged beyond that of routine maintenance or repair. Mechanical and Structural Problems Over the past two weeks, Parks Division Staff have identified a number of major mechanical and structural problems that will prevent the opening of the facility for the 2005 summer season if they are not addressed immediately. Small Pool Paint During a pool inspection, Staff found that the paint on the small pool may be breaking down. The deterioration appears to be so bad that rubbing the side of the pool in certain areas will cause the paint to flake off. Typically, we would expect the deterioration of paint to occur in year four or five. However, the interval between painting and deterioration has shrunk to less than one year. The decreasing interval between repainting may be due to the large number of applications applied over the years and/or a deteriorating subsurface. Both of which may be compromising bonding. The chlorinated rubber-based pool paint previously used on the pool allowed for repainting without having to strip the old layer off. However, this type of paint is no longer available for use in the State of California. Unfortunately, the existing chlorinated rubber surface is not compatible with the new epoxy paint. Thus, repainting will require stripping and/or other surface preparation prior to applying the epoxy. This option is contingent on the assumption that there is a viable method to strip or prepare the surface without causing damage to the structure. The estimated cost of repainting the pool with an epoxy is estimated at $10,000. If the problem is actually due to a deteriorating subsurface and/or the previously mention assumption is false, the subsurface would have to be replace. Staff estimates this work to cost $15,000 to $20,000. At the time this report was filed, Staff was still in the process of actively seeking additional information about this problem and about possible corrective measures. Up to date information will be provide at the Council Meeting for consideration. Filtration System The sand filtration tanks for the lap pool are failing. The problem was identified when a large quantity of sand particles were discovered in the bottom of the pool. Our representative with Lincoln, a commercial swimming pool equipment distributor, has informed Staff that this is a clear sign that the filtration tanks need to be replaced. The tanks are approximately 15 years old and replacement parts are not available. ^ new bank of three tanks, tandem plumbing kits, and sand will cost approximately $5,000. Parks Division Staff should be able to complete the installation. Chemical Control System The chemical control system for the incline pool has also recently malfunctioned. Chemical automation is necessary for the proper treatment of public swimming pools. The controller initiates the addition of chlorine and the pH control chemical based on need and maintains the desired level based on health and safety requirements. The system at the facility is well over 10 years old and the Lincoln representative has reported that repair of the unit is not feasible. A new unit will cost approximately $4,500. Parks Division Staff should be able to complete the installation. Professional Pool Inspection Given the current number of mechanical and structural problems recently identified and the overall age of the facility, Staff recommends the purchase of professional services for a comprehensive evaluation of the pool facility from a licensed engineer specializing in pool operations. Please note that there is a tremendous amount of equipment at the facility. Since there are two pools, there are similar pieces of equipment operating on each pool, essential two separate operating systems. Staff has researched and identified a qualified candidate from the Bay Area who could provide such services. The written report would include a complete analysis of equipment, a summary of equipment performance, recommended repairs and/or replacement, and for budgetary purposes, repair/replacement costs. The cost for professional services is estimated at $2,500 and a written proposal has been requested from the vendor. Options The identified maintenance needs listed in this report must be addressed immediately if the pool is to open on June 11 for the 2005 summer season. Furthermore, it may be necessary to expedite the bid process for certain items. Staff is concerned that there may not be enough time to complete the formal bid process for purchases greater than $10,000 which requires a ten day noticing period and Council approval. This formal bid process takes approximately 15-20 days to complete. If it is Council's desire to continue full operation of the facility, the formal bid process may need to be waived with regard to the purchase of services to repaint or repair the subsurface of the lap pool. The City will still be able to solicit competitive bids without the formal noticing in the newspaper. The following table is a cost estimate summary. As noted in the table, the total amount of additional funds needed is estimated at $17,000 - $27,000, given that there is currently about $5,000 in funds able in the current fiscal year budget. Item Cost Estimate Summar~ Estimated Cost New bank of three sand filtration tanks, tandem plumbing kits, and sand. Chemical Control System Repair of the Lap Pool Paint or Plaster Professional Pool Inspection Total Cost Fiscal Year 2004/05 Equipment Budget Additional Funds Needed $5,000 $4,500 $10,000 - $20,000 $2,500 $22,000- $32,000 $5,000 $17,000 - $27,000 Other options for Council's consideration include full or partial closure of the facility. The full closure option would shut down all facility operations and no repairs would be needed. Some maintenance operations would be recommended in order to avoid complete deterioration of all systems. Since the majority of the identified problems are with the lap pool, there is the potential that the facility could be opened with limited services utilizing the incline pool. Community Impacts Related to Closure Option~ Full or partial closure of the facility would have a tremendous impact on the community. The greater Ukiah area hosts a number of alternative aquatic environments, including lakes, rivers, ponds, dams, and backyard pools. While these environments offer a number of aquatic activities, the Ukiah Municipal Swimming Pool is the only place that offers lifeguard supervised access in a controlled setting. Furthermore, the UMSP is the only facility in inland Mendocino County that offers certified swimming instruction and community water safety classes. Nearly every lifeguard and swim instructor for inland Mendocino County receives their training through the facility. Even in a partial closure scenario, swim lessons would be severely limited since only the lap pool is heated. In addition, UMSP is utilized by a number of human service and recreational agencies to enhance their programs, including the City of Ukiah Summer Safad Day Camp, Boys and Girls Club, Nuestra Casa, and Family and Children Services. These programs have come to rely on the affordable programs and services offered at the facility. ITEM NO. DATE: May 4, 2005 AGENDA SUMMARY REPORT SUBJECT: CONSIDERATION OF LEASE WITH MENDOCINO COUNTY FOR THE CITY OWNED PROPERTY LOCATED AT 280 EAST STANDLEY STREET. Pursuant to an agreement between the Ukiah Redevelopment Agency and the County of Mendocino, the City has leased the City owned property located at 280 East Standley Street to the County of Mendocino for one dollar per year for the last fifteen years. The lease, which was entered into in 1990, expired in January 2005. The property previously housed the Ukiah Police Department prior to the construction of the Civic Center. The County has placed criminal probation offices there. With the expiration of the lease pending, County General Services Director, Pete Halstad contacted City staff in the fall of 2004 and indicated the County's desire to renew the lease. Just prior to Mr. Halstad's contact, the Mendocino Transit Authority (MTA) had contacted staff regarding the potential to place a downtown mass transit center in the building or surrounding area. As several sites for the transit center were being discussed and the project needed to be analyzed by the City's parking and transportation study consultants, the County agreed to put the negotiations on hold until the transit center issue was closer to resolution. (Continued on Page 2) RECOMMENDED ACTION: Approve lease with Mendocino County for City owned property located at 280 East Standley. ALTERNATIVE COUNCIL POLICY OPTIONS: 1. Determine approval of lease requires further consideration and remand to staff with direction. 2. Determine approval of lease is inappropriate at this time and do not move to approve. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: County of Mendocino County of Mendocino Larry W. DeKnoblough, Community Services Director Candace Horsley, City Manager Draft Lease LD/C Candace Horsley, City CountyProbation Lease.Asr During the continued discussions with MTA it was determined that the first priority for the transit center should be the Perkins Street railroad depot site with a portion of the Standley Street site to be reserved in case the Depot site failed. MTA indicated that a building adequate to meet their needs could be constructed on a small landscape area in the southeast corner of the property. The area currently is a grass lawn with a few Liquidamber trees right on the corner of Standley and Mason Streets. The County has agreed to include in the lease an option on that portion of the property in case it should be needed for the transit center. The term of the lease is three years commencing May 1,2005. The monthly rent amount is $2,800 or approximately $.55 per square foot, which is within the market range for that area. The County is responsible for all maintenance, utilities, and insurance. In the event the City should need the building at any time during the three year period, the lease can be terminated with ninety days notice. Although no immediate use for the property has been identified, the area may be recommended for changes subject to completion of the parking and transportation studies. Staff has limited the agreement to three years and included the ninety day termination clause in the event the property does become needed for a public improvement. Staff believes the lease is a fair value for the property and continuing to allow the County to utilize the property is beneficial to the community. Staff is recommending approval of these as proposed. ATTACHMENT.~ LEASE AGREEMENT This Lease, made this 1st day of May 2005, by and between the City of Ukiah, State of California, acting by and through its City Council, hereinafter referred to as "Lessor" and the County of Mendocino, hereinafter referred to as "Lessee." RECITALS: 1. Lessor has the authority contained in Government Code 37380, 37389 and 37395 to lease municipal and airport property. 2. Under Government Code section 37389 the Lessor has the authority to lease property for a term not to exceed fifty (50) years. AGREEMENT 1. LEASE. The parties hereto agree that on the terms and conditions hereinafter expressed, Lessor does hereby let to Lessee and Lessee does hereby hire from Lessor the real property and improved property located at 280 East Standley, more accurately identified in Exhibit A and known as "the leased premises." 2. TERM. 2.1 Term. The term of this lease shall commence on the date indicated above, and shall continue in effect for a period of three (3) years, expiring at midnight on December 31, 2008. Lessee shall have the right to extend this lease for a term not to exceed two (2) years contingent upon the terms and conditions agreed upon at that time. 2.2 Option. The City reserves the right to exempt from the leased premises that portion of the property located on the south east corner of the property, more specifically identified in Exhibit A. 3. RENT. 3.1 Amount. As rent for the term hereby demised, Lessee agrees to pay to Lessor , the sum of $2,800 per month for the use of said property commencing on January 1, 2005. At the commencement of the second year and each subsequent year thereafter, the rent shall increase at the rate equal to the Consumer Price Index, however not to exceed 5%. 3.2 When due; late fees and interest. Rent shall be due on the fifth (5th) day of each month and shall be considered delinquent if not received by the Lessor's Finance Department located at 300 Seminary Avenue in Ukiah by 5:00 p.m. on the tenth (10th) day of the month. Lessee shall pay a late fee of $50, if the payment is delinquent. In addition, Lessor may charge Lessee interest on the unpaid portion of the delinquent payment until paid in full as provided in Ukiah City Code section 2051. 3.3 Payment of taxes and assessments. Lessee shall also pay any real property, possessory interest or personal property taxes, and assessments imposed on the leased premises, property located on or affixed to the lease premises or as a result of the lease, use or ownership of the leased premises. 4. USE AND IMPROVEMENTS. 4.1 Condition of the leased premises. Lessee hereby agrees to maintain all improvements to the property in its condition at the time of the commencement of this lease and accept the use of the leased premises in "AS IS" condition, understanding that Lessor makes no representations as to the condition of the premises or its suitability for the uses contemplated by Lessee. Lessee assumes the obligation at its own expense to remove and properly dispose of any toxic or hazardous substances that may exist on the premises, if such substances are found to exist on the premises and must be removed in order for Lessee to make use of the leased premises. Lessee represents that it has made a thorough inspection of the premises and has undertaken to repair or adequately warn of any conditions on the premises that might constitute a hazard or danger to persons using or present on the leased premises. 4.2 Use of Property. Lessee shall use the leased premises exclusively for professional offices and related purposes. If Lessee fails to use the Leased Premises for such purposes for a period of ninety (90) days, the lease shall terminate and Lessee shall restore possession to Lessor. Lessee shall keep the property neat and orderly, and clear of all debris, cans, rags, boxes, and other items and shall not maintain or allow a nuisance on the Premises. 4.3 Improvements and modifications. Lessee shall not initiate any improvements or alterations to the leased premises without the prior written approval of Lessor through its City Manager or his or her designee. All improvements completed and/or installed by Lessee shall become property and the sole ownership of Lessor upon completion and/or instillation. 4.4 Maintenance and repair. Lessee agrees at Lessees sole expense to keep the premises and all improvements in good repair and order and to bear the full cost for all maintenance and repair of the leased premises and all improvements including all perimeter landscaping and irrigation. 4.5 Storage or use of toxic or hazardous substances. Lessee shall not dispose or permit the disposal of hazardous or toxic substances on the leased premises. If any hazardous or toxic substances are disposed of or released on the leased premises during the term of this lease, Lessee shall assume the entire obligation to clean up any such substances and shall fully indemnify, defend and hold harmless the Lessor and its officers, agents and employees from any claim, damage, loss, liability, cost or expense of any nature whatsoever arising out of the release or disposition on the leased premises of any toxic or hazardous substance. 4.6 Permits. Lessee shall acquire any necessary or required permits from the appropriate regulating body for the use of the leased premises. 4.7 Compliance with laws. Lessee shall insure that no alcoholic beverages are possessed or consumed on the leased premises at any time. Lessee shall not use or permit the leased premises to be used except in full compliance with all rules, regulations, laws or ordinances of the City of Ukiah and the State of California, and the Federal Government. 4.8 Utilities. Lessee shall furnish at its sole expense all utilities necessary for use of the leased premises, including, but not limited to, water, sewer service, electricity, natural gas, and garbage collection. 5. ASSIGNMENT. Lessee will not assign this Lease or any interest therein and will not let or sublet the said premises or any part thereof without the written consent of the Lessor. Lessor may terminate this lease and recover possession of the lease premises, including any improvements which become the property of the Lessor upon termination of the lease, if any assignment occurs in violation of the terms of this paragraph. "Assignment" includes both voluntary assignments and assignments that occur involuntarily or by operation of law. 6. INDEMNIFICATIONS AND INSURANCE. 6.1 Indemnification. Lessor shall not be liable for and is free from the cost of any damages for personal injury or property damage resulting from the use made by Lessee of the leased premises, any defective condition or faulty construction of the leased premises existing at the time of letting or arising thereafter and Lessee covenants and agrees to indemnify and save harmless said Lessor and its officers, agents and employees from and against any and all claims, liability, loss, cost, or other obligation, including reasonable attorneys' fees, on account of or arising out of Lessee's use of the leased premises. 6.2 Liability insurance. Lessee covenants and agrees during the life of this Lease at Lessee's sole expense to comply with the requirements of Exhibit B, Insurance Requirements for Lessees (No Auto Risks), attached hereto and incorporated herein by reference. 7. TERMINATION. Failure to pay rent, when due, or to comply with any other provision of this lease shall constitute a material breach of the lease and furnish grounds for termination of this lease. Any action taken or suffered by Lessee as a debtor under any insolvency or bankruptcy laws, including the filing of a voluntary or involuntary petition in the United States bankruptcy court, any assignment for the benefit of creditors or the appointment of a receiver shall constitute a breach of this lease. In such event, Lessor shall have the right to terminate this lease and retake possession of the lease premises and any improvements which upon termination of the lease become the property of Lessor. Lessor or Lessee shall have the right to terminate this Lease on ninety (90) days' prior notice of termination. 8. HOLDING OVER. Holding over by the Lessee after the termination of this lease shall not constitute a renewal or extension thereof or give the Lessee any rights hereunder or in or to the leased premises. 9. INSPECTION. The Lessor and its authorized representatives shall have the right, at any reasonable time during the term of this lease, to enter upon the leased premises, or any part thereof, to inspect the same and all buildings and other improvements erected and placed thereon. 10. ATTORNEY'S FEES. In any legal action to enforce any of the terms of this Lease the prevailing party shall pay the other party its reasonable costs and attorneys' fees. 11. TIME OF ESSENCE. Time is of the essence of this agreement. 12. WAIVER. City's waiver of any default in Lessee's performance of any condition of this Lease, including the obligation to pay rent, shall not constitute a waiver of remedies available for a subsequent breach of the same or a different condition of this Lease. Acceptance of subsequent rental payments from Lessee or its assignees shall not constitute a waiver of the failure of Lessee to pay rent or obtain prior approval to an assignment of this Lease. 13. NOTICES. Any written notice required hereby shall be deemed given and received when personally served or placed in the United States mail, with proper first class postage prepaid, and addressed as follows: TO LESSEE: TO CITY: City Manager Ukiah Civic Center 300 Seminary Avenue Ukiah, CA 95482 14. PARAGRAPH HEADINGS. Paragraph headings are included for the convenience of the parties and are not intended to define or limit the scope of this Lease. 15. PREVIOUS AGREEMENTS. Any and all existing statements or agreements, whether oral or written, or renewals thereof, between the parties hereto, covering the same subject matter, are hereby canceled and superseded by the terms of this Lease, and such prior agreements, statements or understandings shall have no further force or effect. 16. DUPLICATE ORIGINALS. This Lease may be executed in one or more duplicate originals bearing the original signature of both parties and when so executed any such duplicate original shall be admissible as proof of the existence and terms of this Lease. Entered on the date first written above. CITY OF UKIAH COUNTY OF MENDOCINO City Manager its: ATTEST: City Clerk its: APPROVED AS TO FORM City Attorney County Counsel COUNTY PROBATION LEASE EXHIBIT A 1 inch equals 30 feet AGENDA ITEM NO: MEETING DATE: May4, 2005 SUMMARY REPORT SUBJECT: REQUEST FOR COUNCIL'S DISCUSSION AND POSSIBLE ADOPTION OF A RESOLUTION ENDORSING SB596 REGARDING CHOICE VOTING METHODS--RODIN Councilmember Rodin has requested the Council's discussion and possible approval of a resolution supporting choice voting methods. She has submitted attachments for Council's review. The documents delineate the facts about instant runoff voting, which ensures the election of a candidate preferred by the most voters and prevents the need for runoff elections. Councilmember Rodin is requesting Council's discussion, direction, and possible adoption of the resolution in support of SB596 (Attachment 1) regarding choice voting. RECOMMENDED ACTION: Discuss and possible approval of resolution. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Councilmember Rodin Candace Horsley, City Manager N/A 1. 2. 3. 4. SB594 digest Proposed resolution endorsing choice voting methods Instant runoff voting articles Instant runoff voting fliers Approved:', ~)~~~~ Cand--ace Homley, C-~ty Manger · 4:CAN/ASR.ChoiceVoting.050405 AttaChment SENATE BILL No. 596 Introduced by Senator Bowen (Coauthor: Assembly Member Hancock) February l8,2005 An act to add Section 10105 to the Elections Code, relating to municipal elections. LEGISLATIVE COUNSEL'S DIGEST SB 596, as introduced, Bowen. Municipal Elections: Voting Methods. Existing law provides procedures for the nomination of candidates for elective offices in general law cities. It specifies the procedures for the conduct of the election, the canvass of ballots, and certification of persons elected to office. Related provisions require the holding of a runoff election if no candidate has been elected at the municipal election. It provides that a vacancy in an elective office may be filled by appointment, at a special election, or at the next regular municipal election, as specified. This bill would provide that, notwithstanding any provision of law, a city may elect officers or fill vacancies in elective offices by means of a method of cumulative voting, limited voting, choice voting, or instant runoff voting. The bill would require the Secretary of State to adopt regulations for the conduct of elections and the counting of ballots by each of these voting methods. It would permit a voting method authorized by this bill to be enacted by ordinance enacted by any of three specified ways. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. 99 SB 596 2 The people of the State of California do enact as follows: 1 SECTION 1. Section 10105 is added to the Elections Code, to 2 read: 3 10105. Notwithstanding any provision of law, a city may elect 4 offiCers or fill vacancies in elective offices by means of a method 5 of cumulative voting, limited voting, choice voting, or instant 6 runoff voting. The Secretary of State shall adopt regulations for 7 the conduct of elections and the counting of ballots by each of 8 these voting methods. A voting method authorized by this section 9 may be enacted by any of the following ways: 10 (a) By ordinance enacted by the legislative body of the city. 11 (b) By approval of a proposition submitted to the voters at any 12 general or special election, without a petition therefor, by the 13 legislative body of the city. 14 (c) By initiative ordinance adopted pursuant to Chapter 3 15 (commencing with Section 9200) of Division 9. O Attaint Resolution 2005- A Resolution of the City Council of the City of Ukiah Endorsing Choice Voting Methods WHEREAS, choice voting is an election system that empowers voters by allowing them to rank candidates, that encourages positive campaigning, and that maximizes voter representation; and WHEREAS, instant runoff voting and proportional voting are ranked choice voting systems applied to elections with single and multiple winners, respectively; and WHEREAS, the city of Ukiah is a forward-thinking community that recognizes the value of fair representation for all its community members; and WHEREAS, choice voting allows for instant resolution in close elections without the cost of a runoff election and therefore saves taxpayers money; and WHEREAS, choice voting is gaining positive recognition in California, with the successful use of instant runoff voting in San Francisco, and the recent passage of instant runoff voting measures in San Leandro, Oakland, Berkeley, and Santa Clara County; as well as cities in Michigan and Vermont and the state of Washington; and WHEREAS, many universities in California have adopted ranked choice voting for their student government elections, including UC Berkeley, UC Davis, UC San Diego, UC Santa Barbara, Stanford, and Caltech; and WHEREAS, the city of Cambridge, MA has successfully used proportional voting for nearly 65 years, and countries like the United Kingdom, Ireland, New Zealand, and Australia have also adopted its widespread use; and WHEREAS, SB 596, introduced by Senator Debra Bowen and co-authored by Assemblymember Loni Hancock, would let all cities and counties in California use ranked choice voting, in addition to chartered cities and counties; and WHEREAS, the city of Ukiah is a general law city whose voters wil benefit from the use of ranked choice voting in both city and county elections; THEREFORE BE IT RESOLVED, that the City Council of Ukiah, California supports the use of choice voting in local and state elections and urges the State Legislature to pass SB 596; and THEREFORE BE IT RESOLVED, that this resolution be sent to Senator Debra Bowen, Assemblymember Loni Hancock, Senator Wesley Chesbro, Assemblymember Patty Berg, and appropriate media outlets. PASSED AND ADOPTED this 4th day of May, 2005, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk Attachment # ABOUT FAIRVOTE WHATS NEW DONATE FOR PRESS IN THE NEWS Home > IRV America > Resources > IRV Factsheet Instant Runoff Voting (IRV) A Fairer Way to Conduct Single- Winner Elections by the Center for Voting and Democracy CONTACT Google Search NEWSLETTER Most U.S. elections are held under plurality voting rules in which the candidate with the most votes wins. :If three or more candidates run in the race, then the winner can have less than a majority of the vote. But the question always arises: was that winning candidate really preferred by most voters? Instant Runoff Voting (:[RV) is a sensible reform for elections where one person wins. Examples include elections for governors, mayors, legislatures using single-seat districts, and US president (for allocation of Electoral College electors). ]:nstant Runoff Voting is better than plurality elections because: · it ensures the election of the candidate preferred by most voters · it eliminates the problem of spoiler candidates knocking off major candidates ·' it frees communities of voters from splitting their vote among their own candidates · it promotes coalition-building and more positive campaigning ]:RV is also better than "two-round" runoff or primary elections, which often result in a change in voter turnout between the two rounds. ]:RV finishes the job with one election, which means that · election officials and taxpayers don't have to foot the bill for a second election · candidates don't have to raise money for two races, providing some campaign finance reform · the decisive election occurs when voter turnout is highest How ]:RV Works: Each voter has one vote, and ranks candidates in order of choice (1, 2, 3, etc.). The counting of ballots simulates a series of run- off elections. All first choices are counted, and if no candidate wins a majority of first choices, then the last place candidate (candidate with the least first-choices) is eliminated. Ballots of voters who ranked the eliminated candidate first then are redistributed to their next-choice candidates, as indicated on each voter's ballot. Last place candidates are successively eliminated and ballots are redistributed to next choices until one candidate remains or a candidate gains over 50% of votes. Voters have the option to rank as many or as few candidates as they wish--their favorite candidate first, their next favorite second and so on. Voters have every incentive to vote for their favorite candidate rather than the "lesser of two evils"' because their ballot can still count toward a winner if their first choice loses. There also is every reason for a voter to rank as many candidates as they want, since a voter's lower choice will never help defeat one of their higher choices. [RV is used to elect the parliament in Australia and the presidents of the Republic of Ireland and the American Political Science Association. A related method is used in Cambridge (MA) for city council. Example: ]:n both 1992 and :[996, Bill Clinton was elected president with less than 50% of the popular vote. ~[RV could have been used to elect a majority-winner. Here's how it could have worked. The 1992 Presidential First Candidate Choice % Election--a Simulation Ballots redistributed Final to 2nd Tally choices George 38% + 10% = 48% Bush Bill Clinton 43% +9% = 52°/0 Ross Perot 19% - :[9% X Assume that, of the :[9 percent of voters who ranked Ross Perot first, slightly more than half (e.g. 10% of all voters) ranked George Bush second on their ballots, and slightly less than half (e.g. 9% of all voters) ranked Bill Clinton second. When Ross Perot is eliminated, those votes are redistributed. Bill Clinton ends up with 52 percent of the overall vote, a clear majority, and is declared the winner. For more on :Instant Runoff Voting, click here. INTERNSHIPS EMPLOYMENT ABOUT FAIRVOTE WHATS NEW Home > IRV America > Resources > FAQ DONATE FOR PRESS I'N THE NEWS CONTACT Google Search NEWSLETTER Frequently Asked Questions About Instant Runoff Voting What is instant runoff voting? Znstant runoff voting is a method of electing a single winner. Tt provides an alternative to plurality and runoff elections. Tn a plurality election, the highest vote getter wins even if s/he receives less than 50% of the vote. In a runoff election, two candidates advance to a runoff if no candidate receives more than 50% in the first round. How does it work? Voters rank candidates in order of choice: 1, 2, 3 and so on. It takes a majority to win. Tf anyone receives a majority of the first choice votes, that candidate is elected. If not, the last place candidate is defeated, just as in a runoff election, and all ballots are counted again, but this time each ballot cast for the defeated candidate counts for the next choice candidate listed on the ballot. The process of eliminating the last place candidate and recounting the ballots continues until one candidate receives a majority of the vote. With modern voting equipment, all of the counting and recounting takes place rapidly and automatically. IRV acts like a series of runoff elections in which one candidate is eliminated each election. Each time a candidate is eliminated, all voters get to choose among the remaining candidates. This continues until one candidate receives a majority of the vote. Isn't this too complex for the voter? No. All the voter has to do is rank one or more candidates. It's like renting a video or picking an ice cream: What video (or flavor) do you want? That's your first choice. If they don't have that video (or flavor), what would you like? That's your second choice. If they don't have that, what's your third pick? That's all there is to it. It's as easy as 1-2-3. Doesn't this give extra votes to supporters of defeated candidates? No. Tn each round, every voter's ballot counts for exactly one candidate. In this respect, it's just like a two-round runoff election. You vote for your favorite candidate in the first round. If your candidate advances to the second round, you keep supporting that candidate. If not, you get to pick among the remaining candidates. In IRV candidates gets eliminated one at a time, and each time, all voters get to select among the remaining candidates. At each step of the ballot counting, every voter has exactly one vote for a continuing candidate. That's why the Courts have upheld the constitutionality of IRV. Does ]:RV eliminate "spoilers" and vote- splitting? Yes. In multiple-candidate races, like- minded constituencies such as Latinos, liberals, conservatives, etc. can split their vote among their own competing candidates, allowing a candidate with less overall support to prevail. IRV allows those voters to rank all of their candidates and watch as votes transfer to their candidate with the most support. In partisan races, IRV prevents the possibility of a third party candidate "spoiling" the race by taking enough votes from one major candidate to elect the other. Does ]:RV save money? Yes. Traditional two- round, "delayed" runoffs are common around the country. IRV halves the cost of those elections because it determines a majority winner in a single election. Before adopting IRV, for example, San Francisco spent as much as $2 million on each election in its delayed runoff, and statewide runoffs in places such as Texas cost far more. In addition, many states and cities use two rounds of special elections to fill vacated seats and instead could elect a popular winner with IRV in one round of voting. In such situations IRV also reduces the reliance of candidates on special interest donors because they only have to campaign and raise money for one election rather than two. Does :[RV affect voter turnout? Yes. Turnout generally increases. IRV gives every voter incentive to participate because your vote still counts even if your first choice candidate is defeated. Also, since IRV only requires one election, the, decisive election takes place when turnout is highest, typically November. Does :I:RV affect campaign debate? Yes. Because IRV may require second and third choice votes to win, candidates have incentive to focus on the issues, to attract voters to their positions and to form coalitions. Negative campaigning and personal attacks are much less effective in an IRV election. Where is IRV used? Many places. Ireland uses IRV to elects its president, Australia to elect its House of Representatives, London to elect its mayor, San Francisco to elect its major city offices such as mayor, Utah Republicans to nominate congressional nominees at its state convention, many major universities for their student government elections and the American Political Science Association to elect its president. Literally hundreds of jurisdictions, organizations and corporations use :[RV to elect leaders. Whom does ZRV advantage? ZRV advantages the majority, since it ensures that a minority of voters can never defeat a candidate supported by a majority. ]:t also gives the voter more power, since s/he can express a range of choices. Can the voting equipment handle :[RV? Modern voting equipment, such as optical scanners and computer touch screens, can handle [RV at no additional cost. Older technologies such as punch cards and lever machines cannot handle :[RV, so it doesn't make sense to adopt ]:RV until new equipment is purchased. :In these cases, we recommend legislation authorizing the use of ~[RV when the equipment is available. For reasons unrelated to :[RV, the trend in voting equipment is away from the older technologies, so more and more jurisdictions are acquiring equipment that can handle ]:RV. Why don't more places use ]:RV? Prior to the advent of modern vote counting equipment, [RV required a time-consuming and costly hand count. Some jurisdictions that used :[RV in statewide primaries found that they rarely had plurality (less than majority) winners, so ]:RV seemed unnecessary. With today's diversity and proliferation of parties and candidates, Iow plurality winners are more common, and hand counts are unnecessary. Who opposes ]:RV? Little organized opposition to ZRV exists. Election officials are understandably cautious about a system that may increase their workload, and some incumbents fear any change to the system that elected them. you can win an election under a plurality or runoff system, however, the odds are that you would also win under [RV. The exceptions are rare but can be important. Examples include several recent House races in New IVlexico, where Green Party candidates threw races to Republicans, and state legislative races in Alaska in which Libertarians and Alaskan ]:ndependent Party candidates knocked off Republicans. Some political minorities may believe that they can only win representation in a plurality election. Such groups may oppose TRV, but of course, in such situations, a larger groups stands to gain representation by ]:RV. INTERNSHIPS ENIPLOYM ENT ABOUT FAIRVOTE WHATS NEW Home > IRV America > In the News DONATE FOR P[itE$$ ]tN THE NEWS CONTACT Google Search NEWSLETTER Articles Commentary Op-Eds Editorials Instant runoff bill goes to governor Vancouver could be first to test a plan that would allow voters to rank preferences in nonpartisan, multicandidate races By Foster Church Published 2005-04-14 in The Oregonian For state Rep..lim Moeller, D-Vancouver, it is a moment to savor. Instant-runoff voting, an issue he has championed since the late '90s, has received the Legislature's approval. The Senate, on a 38-9 vote Tuesday, passed Moeller's bill establishing a pilot project to test instant runoff. Because the measure passed the House last month, 63-34, the legislation now goes to Gov. Christine Gregoire. She has not indicated whether she would support it, but if she does, Vancouver could be the first city in the state to test it. "It's a great idea," Moeller, a former Vancouver city councilman, said Wednesday. "I think it offers a real opportunity for municipal governments to have an election that encourages voter participation, that is cheaper and that relies on people appealing to a broad base." In instant-runoff voting, which has also been referred to as "ranked-choice voting," a voter ranks each candidate with a number. If nobody receives a majority in the first round, the last-place candidate's ballots are redistributed based on his or her supporters' second choice. Vote counters repeat the process until one candidate has at least 50 percent. The bill sets up a five-year pilot project to be conducted by the Secretary of State's Office. It will be used as a local option for nonpartisan offices in cities that qualify. Qualifying cities must have populations greater than 140,000 but less than 200,000 and must approve a city charter amendment authorizing the city council to use the voting method for the election of city officers. Vancouver, according to Moeller, is the only city in the state that would now qualify for such an election. That is partly because of his efforts. ]:n 1999, Moeller began encouraging members of the Vancouver City Council to place a City Charter amendment on the ballot that would allow instant-runoff voting. "! talked three other council members into going along with me," he recalled. "No one thought it would pass as a charter amendment. :It was surprising to them that it did." It was only after voters passed the measure that the city learned state law wouldn't allow it. When Moeller was elected to the Legislature in 2002, establishing instant-runoff voting was high on his legislative priority list. "When I got here, I really started to push it," Moeller said. "I talked with the secretary of state and the county auditors, and we worked out all the kinks. I got it to a place where I got the majority support of my caucus to move it through, and then to the Senate." The only city in the United States that now allows instant-runoff voting is San Francisco, according to Moeller, though he said cities in many other countries use it. Moeller explained that the Vancouver City Council would have to approve an instant- runoff election, and he could not predict whether the council would. The earliest such an election could take place, he said, would be in 2007. "Now they have the opportunity, and they have the charter amendment," he said, noting that in Washington, "Vancouver is poised to be the first city to participate in it." Clark County Auditor Greg Kimsey, who oversees county elections, said he is "not necessarily an opponent" of instant-runoff voting, but that he thinks the current system has worked well. ]:nstant-runoff voting, he said, could be confusing to people. "A plus to the system we currently use is its simplicity," he said. "We can put the ballots in ABOUT FAIRVOTE Home > IRV America > In the WHATS NEW DONATE News > Op-Eds FOR PRESS IN THE NEWS CONTACT Google Search NEWSLETTER Instant runoff voting saves time, money By Mark Green Published 2005-04-25 in New York Daily News All 10 candidates running for the Democratic nomination for Manhattan borough president share one strategy: get 20% of the 20% of Democrats who are likely to show up for the primary. Since there's no runoff and no competitive general election, an aspiring borough president needs only 30,000 votes of nearly 1 million registered voters to win. With only one in 30 voters casting his or her ballot for the winner, this election mocks the democratic ideal of majority rule. One reform that has been adopted in other cities and states - instant runoff voting - would bring more fairness to our city elections and to the way we choose the leaders of our so-called dysfunctional state government. We already hold some runoff elections for citywide offices in New York City. T was in one for mayor in 2001, and another may occur this September. Tnstant runoffs go a step further, completing a primary and runoff election in one shot. Tn an instant runoff vote, voters rank candidates in preferential order, and if no candidate receives a majority of first-choice votes, a "runoff vote" is electronically tabulated in which the candidates with the fewest votes are eliminated. When just two remain, the person with an absolute majority wins. While TRV would save taxpayers millions of dollars through the elimination of an additional round of elections, the real advantages are the ones that advance voter enfranchisement. Tnstant runoffs encourage candidates to run high-minded races, because they need to simultaneously court voters for their second- and third-choice votes. So instead of seeking a plurality by only working their respective racial, religious or community niches, candidates have to seek votes outside their own particular constituency. That avoids the scenario of a winner who gets elected by a sliver of voters only because the majority was divided among more generally favored candidates. Instant runoffs also can level the general election playing field when the challenger's party has an additional - and often divisive - runoff contest while the incumbent saves money, face and energy. On Election Day, IRV frees voters to vote their consciences without the worry of wasting their vote on a long-shot spoiler candidate like a Ralph Nader since their ballots will be recast for their next choices if their first loses. Last November, San Francisco voters elected seven City Council members in one IRV election - saving the city $1.2 million dollars and saving voters from obnoxious mudslinging ads. Some minority politicians worry that minority candidates can win a plurality but not a majority and thus want to stick with the status quo. But David Dinkins beat Ed Koch with an absolute majority in a 1989 primary. And the coalition that supported IRV in .San Francisco included a large number of minority groups. In the 1990s, before New York City's community school boards were abolished, Asian-Americans were able to win their first ever legislative offices in New York State when elections included a ranked-choice system very similar to IRV. The Assembly should pass bills 3509 or 3510 to require IRV in all party primaries and as an option for general elections in New York City and the state. Green, pubfic advocate for New York City (1994-2001), is president of The New Democracy Project. INTERNSHIPS EMPLOYMENT ABOUT FAIRVOTE WHATS NEW DONATE FOR PRESS ]~N THE NEWS CONTACT Home > IRV America > ;In the News > Op-Eds San Francisco's Innovation in Democracy- Instant Runoff By Steven Hill and Rob Richie Published 2005-02-24 in Chrisitan Science IVlonitor SAN FRANC]:SCO AND WASHI~NGTON - Problems with American elections run deeper than shoddy voting equipment and inadequate election administration. For instance, there is the problem of our top leaders winning with less than a majority of the popular vote. Google Search NEWSLETTER The last two California governors, including Arnold $chwarzenegger, won their elections without support from a popular majority. In Massachusetts, the Democratic primary for governor was won by a candidate with a mere third of the vote. Since 1990, most states have had governors who won elections with less than 50 percent of the popular vote. And of course, Bill Clinton and George W. Bush both won their initial presidential elections with less than a majority of the popular vote. And then there's the problem of filling vacancies through special elections. With the death of Iongtime Congressman Bob Matsui, California must now hold a special election in May. Special elections are notorious for Iow voter turnout, and by law if no candidate wins a majority in a congressional special election, a runoff election is required to fill the vacancy, an additional expense for taxpayers. The city of Oakland, Calif., will also soon hold a special election to fill a vacancy on its city council. But they don't use a runoff, and in their last special election, the winner had 33 percent of the vote. ]:n Massachusetts, three special elections soon will be used to fill vacancies, including the seat of former Speaker of the state House Thomas Finneran. Fortunately there's a solution to both problems of winning without a majority or needing a runoff election to ensure a majority winner. ]:t's called instant runoff voting. [RV elects a majority winner in one election by simulating a series of traditional runoffs. Voters rank candidates in order of choice: first, second, third, and so on. ]:f no candidate wins a majority of first choices, voter rankings are used to determine which candidate has support from a popular majority. ]:f your first choice gets eliminated from the "instant runoff," your vote counts for your second- ranked candidate - the one you'd support if forced to come back to the polls. ]:n last November's election, San Francisco used instant runoff voting for local races. Two exit polls showed that city voters liked their new system and found it easy to use, including the city's many non-English speaking minorities. Previously, San Francisco decided majority winners in December runoffs. Citywide runoffs cost on average about $3 million, and voter turnout plummeted by as much as 40 percent in recent years. Candidates also had to raise more money for the runoff, and independent expenditures tended to soar. But with ]:RV, San Francisco taxpayers are saving millions of dollars. The city also is electing winners when voter turnout is at its peak in November, and reducing the costs of campaigns. Other cities or states electing leaders in multiple elections (including a primary-general election cycle) could see similar gains by adopting ]:RV. The use of ]:RV has national implications as well. Think back to the 2000 presidential election. ]:f the nearly 100,000 Ralph Nader voters in Florida could have ranked a second candidate as their runoff choice, many probably would have chosen Al Gore and boosted him to the presidency. Similarly, Republicans could have responded to Ross Perot's candidacies in :~992 and 1996 by trying to get second choices from Perot voters, enhancing their chances against Bill Clinton. ]:RV is the fairest way to deal with the spoiler controversy that produces non-majority winners. ]:t allows independent and third-party candidates to run and raise important issues that major-party candidates have decided to avoid in this era of poll-tested sound bites and bland appeals to swing voters. Voters are free to cast their ballots knowing that, even if their first choice can't win, their vote can go to a front-runner as their second or third choice. IRV also offers something for those tired of polarized politics and mudslinging campaigns. It discourages negative campaigns because winners may need to attract the second or third rankings from the supporters of rival candidates. In San Francisco's TRV elections, we saw a noticeable rise in positive, issue- based campaigning and coalition-building in many races. In fact, a New York Times article was headlined: "New Runoff System in San Francisco Has the Rival Candidates Cooperating." Legislative bills for instant runoffs were introduced in 22 states in the past two years, with states poised for real action in 2005. The topic has drawn bipartisan support from Republicans such as Sen. John McCain of Arizona and Democrats such as Howard Dean, the new chairman of the Democratic National Party and former Vermont governor. Ballot measures supporting IRV passed by 2-to-1 margins in all three cities where it was on the ballot in 2004: Ferndale, Mich.; Burlington, Vt.; and Berkeley, Calif. Places like Australia and Ireland already have been usinq instant runoffs for decades to elect their hi~]hest offices. California often has started national trends, from hula hoops to property-tax revolts. Tnstant runoff voting could be next - an upgrading of our democratic methods that better accommodates the reality of American politics today. Steven Hill is Irvine Senior Fellow with the New American Foundation and author of 'Fixing Elections: The Failure of America's Winner Take All Pofitics.' Rob Richie is executive director of FairVote, the Center for Voting and Democracy. INTERNSHIPS EMPLOYMENT Attachment #