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HomeMy WebLinkAbout2005-08-03 Packet CITY OF UKIAH CITY COUNCIL AGENDA REGULAR MEETING CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482-5400 August 3, 2005 5:15 p.m. 5:15 p.m.: Commission Applicant Interviews: Airport Commission & Paths, Open Space, and Creeks Commission 6:00 p.m. 1. ROLL CALL 2. PLEDGE OF ALLEGIANCE ,, PRESENTATION a. Presentation by Lorraine Duvernay Regarding The Small Development Corporation Expansion Into Mendocino County Business 4. APPROVAL OF MINUTES a. Joint Meeting of the City Council & UVSD - July 14, 2005 b. Regular Meeting of July 20, 2005 Si 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. 1 CONSENT CALENDAR The following items listed are considered routine and will be enacted by a single motion and roll call vote by the City Council. Items may be removed from the Consent Calendar upon request of a Councilmember or a citizen in Which event the item will be considered at the completion of all other items on the agenda. The motion by the City Council on the Consent Calendar will approve and make findings in accordance with Administrative Staff and/or Planning Commission recommendations. a. Authorize the City Manager to Award an Emergency Construction Contract for Repair Of The Wastewater Treatment Plant Outfall To Ashland Pacific Construction, Inc. Of Petaluma, California for A Total Lump Sum Amount Of $96,444 b. Authorize The City Manager To Execute Change Order No. 4 to the Water Storage Expansion Project with Western Water Constructors, Inc. c. Accept Federal Aviation Administration Grant in the Amount of $114,285.00 d. Award of Sole Source Bid to Mallory Fire Equipment in the Amount of $151,207.36 for the Purchase of Replacement Firefighter Breathing Apparatus e. Adoption of an Ordinance Adding Section 9254, Entitled "Marijuana Cultivation" to Division 9, Chapter 2, Article 19 of the Ukiah City Code f. Report to City Council Regarding the Purchase of Emergency Services From NCD Painting, Inc. to Remove the Old Paint on the Interior of the Lap Pool at the Ukiah Municipal Swimming Pools g. Approval of Adelphia Cable TV Franchise Agreement h. Report to Council Regarding Purchase of Recording System 7. AUDIENCE COMMENTS ON NON-AGENDA ITEMS The City Council welcomes input from the audience. If there is a matter of business on the agenda that you are interested in, you may address the Council when this matter is considered. If you wish to speak on a matter that is not on this agenda, you may do so at this time. In order for everyone to be heard, please limit your comments to three (3) minutes per person and not more than ten (10) minutes per subject. The Brown Act regulations do not allow action to be taken on audience comments in which the subject is not listed on the agenda. 8. PUBLIC HEARINGS (6:45 P.M.) a. Adoption of Resolution Amending the General Plan Land Use Classification and Introduction of an Ordinance to Change the Zoning District for the Lands Designated as Assessor Parcel No. 001-430-35 9. UNFINISHED BUSINESS a. Interim Urgency Ordinance Imposing a Moratorium on Formula Formula Businesses within the Downtown Business District and Perkins and Gobbi Streets (Continued from July 20, 2005) on on 10. NEW BUSINESS a. Adoption of Resolution Making Appointments to the Airport Commission and the Paths, Open Space, and Creeks Commission b. Review of Fire Department's Capital Equipment Replacement Needs c. Designation of Voting Delegate for the 2005 Annual League of California Cities Conference 11. COUNCIL REPORTS 12. CITY MANGER/CITY CLERK REPORTS 13. CLOSED SESSION a. Conference with Labor Neqotiator C.C. §54957.6 Public Employee Performance Evaluation: City Manager 14. ADJOURNMENT I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue, Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda. Dated this 28th day of July, 2005. Gail Petersen-Latipow Deputy City Clerk For Marie Ulvila, City Clerk APPLICANT INTERVIEW TIME SCHEDULE ,, FOR '-'*~ .._ UKIAH AIRPORT COMMISSION AND UKIAH PATHS, OPEN SPACE, AND CREEKS COMMISSION ,INTERVIEW DATE: AUGUST 3~ 2005 AIRPORT COMMISSION 5:15-5:25 Bill Beard 461 Vichy Hills Drive 5:25-5:35 Benjamin Winter 304 Cooper Lane PATHS, OPEN SPACE & CREEKS COMMISSION 5:35-5:45 Ms Lindsay Leland 3041 Guidiville 5:45-5:55 James (Jamie) Conn'erton 906 NOrth Oak Street Dan Holbrook (on vacation) Commsn: Application Interview Time Schedule- August 2005 DATE: CITY OF UKIAH APPLICATION FOR APPOINTMENT AIRPORT COMMISSION JuN 2 '8' 2005 CITY OF UKIAH CITY CLERK'S DEPARTMENT I am .applying for an appointment to the City of Ukiah's Airport Commission 2. Residence Address 3. Business Address Res. Phone Bus. Phone 4. Employer ..~_.,/~..~ ,("¢,-~, orr/)~--~%/%Job title ¢~ ~.?,~,~ Employed since 5. How long have you resided in Ukiah?_ ~..? _ years.; Mendocino Count? ~ ~ California?~ 6. Please list communi~ groups or oEganJzations ou are a ' ' . · · M H ~ -~_- ~~~'~"'~'~'Z~Z~~ed w~. Ind~te off~e held? _ .. Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to serve on the City of Ukiah's Airport Commission? -- 8. What is your understanding of the purpose, role and responsibility of theAirport Commission? 9. How do you believe your own skills, experience, expertise and. perspectives will be beneficial to the work of the Airport Commission? .... ~, 10. What do you believe is the single most important Airport related issue facing our cornrnunity? and why? . 11. In your opinion, what type of Airport programs or Airport development should the City encourage? 12. In your opinion', what type of Airport programming or Airport development should the City discourage? 13. What kind of ideal community do you envision for Ukiah? 14. Do you have any .known projects or conflict of interest related to this Commission? ---' Please return this application and attachments to the City Clerk bY Noon on June 28, 2005. Thank you. for your interest in serving the City of Ukiah. - Signature ~ Date ' ~- --- ~ ,~'.-- o ~'- .City ~of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Phone: 463-6217 ~Email: _marieu~.citvofukiah.com Fax: 463-6204 Forms: Airport Commission Application Revised: 6/6/05 CITY OF UKIAH APPLICATION FOR APPOINTMENT AIRPORT COMMISSION I am applying for an appointment to the City of Uki'ah's Airport Commission 2. Residence Address ~O~ ~ ~..¢~. · _ oo.~e.r Res. Phone -- 3. Business Address_ ":/2v\ ,~ I~o¢ ~. Bus. Phone 4. Employer ~' ~, A~,,:~,: b,13, S. - Job title - _Employed since 5. How long have you resided in Ukiah? ~ years; Mendocino County?_!c~'ib~ California'~ :2.0 Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to serve, on the City of Ukiah's AirPort Commission? 8. What is your understanding of the purpose, role and responsibility of the Airport Commission? 9. How do you believe your own skills, experience, expertise and perspectives Will be beneficial to the work of the Airport Commission? . 10. What do you believe is the single most important Airport related issue facing our c°mmunity'~ and why? _ . 11. In your opinion, What type of Airport programs or Airport development should the City encourage~ 12. In your opinion, what type of Airport programming or Airport development should the City discourage~ 13. What kind of ideal community do you envision for Ukiah? " · , , 14. Do You.have any known projects or conflict of interest related to this Commission'~ ' Please return this application and attachments to the City Clerk by Noon on June 28~ 2005. Thank you for your interest in serving the City of Ukiah. - - Signature ~~__. Date ___~ -' \ ~ - 0 ~' City of Ukiah, 300 Seminary. Avenue, Ukiah, CA 95482-5400 Phone: 463-6217 Fax: 463-6204 Email: marieu~citvofukiah.com Forms: Airport Commission Application Revised: 6/6/05 i. Benjamin Winter 7-11-05 CITY OF UKIAH APPLICATION FOR APPOINTMENT AIRPORT COMMISSION Why are you applying to serve on the city of Ukiah 's Airport Commission? I am applying for the vacancy on the Uldah Airport Commission because it provides an opportunity to learn and to be involved, both with the political process and with aviation. As a student pilot and potential future air traffic controller, I see this as a doorway t'o "behind the scenes" experience, which will be invaluable to my career goals. What is your understanding of the purpose, role and responsibility of the Airport Commission? Ukiah is a quickly growing community, and the seat of Mendocino County. Commerce and tourism are growing, and the Uklah Municipal Airport is the ideal site for bringing in further development. The Airport Commission's role, as I see it, is to ensure and maintain the safety (and enjoyment) of all pilots who come here. A safe and efficient airport is often the center of trade for growing cities, be it the courier flights from San Francisco or the student's VFR solo. 9. How do you believe your own skills, experience, expertise, and perspectives will be beneficial to the work of the Airport Commission? I will only be 21 this year, and am often considered too young to be part of many projects and offices. All who know me, however, consider me to be almost too mature for my age. While I don't-have any experience in City politics or governance, I look forward to the opportunity to learn. I am a quick study, and am eager to become involved with the operation of the Uldah Airport. 10. What do you believe is the single most important Airport related issue facing our community¢ And WhY? ~ As I am not yet a pilot, and have so far been training out of'the Sonoma County Airport, I do not know of many airport-related issues facing our community. The one issue that I am familiar with that will affect all airports, however, is the proposed airport usage tax which will be added to the already existing fuel surcharge. I believe it to be the most important issue simply because it raises operating costs of every, pilot and company that uses any airport above and beyond the fees and taxes already levied. 11. In your opinion, what type of Airportprograms or Airport development shouM the city encourage? As there is only space for the one nmway already established, there is not much room for structural development. As always, however, there is a need for personnel...even more so when ak traffic begins to increase and a tower becomes necessary. I believe that at the moment, however, the city should simply continue to encourage commercial traffic and FBOs, especially flight schools that will increase the number of local pilots. If this development plan succeeds, there will also be a need for office space for these new businesses, further increasing the revenue of the airport. 12. In your opinion, what type of Airport programming or Airport development should the City discourage? ~ Flight is an expensive hobby. Anyone and everyone who becomes involved with flight learns this as soon as they get a quote for what their training will cost. In an ideal world, I would say lct~_yfligh, t s.h, oul_d be for eye,one: that the skies should not be owned by those with equally pomcemooks. I realize that this is not a realistic goal, especially with fuel costs, but towards this ideal the only programming I would discourage would be the raising of usage, parking, or associated fees, with the exception of strict necessity. 13. What kind of ideal community do you envision for Ukiah? Ukiah is actually very close to reaching its potemial. The two improvements I would offer are an increase in inter- and intradepartmental communication within all branches of the City government, and an increase in recreational opportunities. I am often considered biased when I try to promote youth recreation, but I encourage it for the simple fact that more opportunity for constructive activity reduces the amount of crime, drinking, and violem behavior among youth. As a Ukiah Daily Journal reader said, we don't need to discourage gang activity..we need to provide it. · 14. Do you have any known projects or conflict of interest related to this Commission? There is no conflict of interest and as of yet I have no involvement with the Ukiah Airport or the Commission. :. 'i'" CITY OF UKIAH APPLICATION FOR APPOINTMENT PATHS, OPEN SPACE,'AND CREEKS COMMISSION DATE: I am applying for an appointment to the City of Ukiah's Paths, Open Space, and Creeks Commission 1.Name 2. Residence Address 3. Business Address .Res. Phone -7 o'7 L~/o qS- 'i58 q -7 Bus. Phone %7 o-7-'~ ¢o-7- ~ Iq 0 4. Employer ..'~r~&\ ~-~-2o7oJr~/~t~/~Job title ~f$~/~V~,~t~t~e-_~mployed since q-["~ 5. How 10ng have you resided in Ukiah? ~O years; Mendocino County? 2.O California? 6. Please list community_g, ro. ups.Or organizations you are affiliated with. Indicate office held'~ Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to serve on the City of Ukiah's Paths, Open Space, and Creeks Commission? 8. What is your understanding of the purpose, role and responsibility of the Paths, Open Space, and Creeks Commission? . How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Paths, Open Space, and Creeks Commission? 10. In your opinion, what type of programs or development should the City encourage? 11. What kind of ideal community do you envision for Ukiah? 12. Do you have any known projects or conflict of interest related to this Commission? Please return this application and attachments to the City Clerk by Noon on June 2872005, Thank you for your interest in serving the City of Ukiah. - Date City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Forms: Paths, Open Space, and Creeks Commission AppliCation Revised: 4/22/03 Phone.: 463-6217 Fax: 463-6204 CITY OF UKIAH APPLICATION FOR APPOINTMENT PATHS, OPEN SPACE, AND CREEKS COMMISION QUESTIONS: 7-12 7. Why are you applying to serve on the City of Ukiah's Paths, Open Space, and Creeks Commission? I am interested in serving on the commission because, I have a genuine interest in the future of Ukiah's open spaces, paths, and creeks. I grew up in Ukiah and after a 8-year absence I have returned. I moved back to Ukiah with the intention of becoming involved in the betterment of my hometown and the surrounding areas. I believe that places and spaces improve when people care for them. I want to be involved in that process and I believe serving on the board of Paths, Open Space, and Creeks is a great place to start. 8. What is your understanding of the purpose, role and responsibility of the Paths, Open Space, and Creeks Commission? I have not been able to speak with anyone as to the exact responsibilities of an acting member of the commission. My assumption is that as a member I would be responsible for continuing the work of the past members of the commission as well as initiating new projects proposals to the City Council. I assume I would be responsible for a meeting or two a month, and certain amount of research and work between meetings. In addition, I would continue to educate myself on projects that would benefit Ukiah's streams, paths and open spaces. 9. How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Paths, Open Spaces, and Creeks Commission? In 2000 1 graduated from CSU Monterey Bay, with a degree in Visual and Public Art. This program taught me the importance of public space for a healthy community. My classes focused on the logistics of working in the public sphere, integrating the community into the process, creating work that was relevant to the area, and representative of local history. My focus within this major was environmental public art. This experience has given me the tools necessary to work as a representative of the- community. ' I have worked extensively in the field of wild land restoration. I have worked under this heading in many respects. I have experience in invasive plant removal, creek restoration, native plant propagation,' rare plant identification and protection, and bioengineering. This work has given me the technical knowledge necessary to work with our beloved creeks, paths,and open spaces. 10. In your opinion, what type of programs or development should the city encourage? I would love to see Ukiah with healthy riparian corridors for all of our urban creeks. I encourage the continuation of all efforts to clean the creeks. Creeks and the water they carry are an integral part of our watershed. If we work to restore them and keep them clean, so many other species will benefit. I also feel that the City should strongly support the creation of a pedestrian and bicycle greenway throughout Ukiah. There are many areas of Ukiah that are pleasant and safe to walk or bike through, however there are some areas that are difficult and dangerous to traverse without a vehicle. I would encourage any efforts to connect all parts of Ukiah with a safe network of paths. I also believe that it would be in Ukiah's best interest to work with landowners and the neighboring towns of Redwood Valley and Hopland to create a bike path along the railroad tracks that would connect the communities. This path could be used for recreation as well as alternative transportation. I fully support'any project that would keep Ukiah's open spaces, open. I also believe that these spaces shouldn't be neglected. Any effort to restore them to their historic native plant communities would be great. The removal of invasive non-native speciei allows space for natives to return, bringing with them habitat for birds, animals, insects, and a chance for the neighbor kid to see a Gardner snake or possible a Pileated woodpecker. 11. What kind of ideal community do you envision for Ukiah? I envision Ukiah as a place where you can walk. You can walk to the store down a shad~_ street, or up to the park, maybe even past the park up the hill onto a network of pathways.~'''-'~''' You can walk for recreation, exercise, or simply because it is an easy way to get around. Walking encourages chance encounters with others, which leads to recognition, which leads to a sense of community, which gives a sense of belonging, which promotes pride, which encourages an individual to throw trash in a can and not on the street. That is my ideal vision of Ukiah a clean well-loved town where people know each other. 12. Do you. have any known projects or conflict of interest related to this commission? I am currently working for the Coyote Valley Band of Pomo Indians. I am in the early stages of creating an organic vegetable garden and Native Plant Nursery for them. The plants that are grown in the nursery will be used for location specific restoration projects. I don't really see this as a conflict, unless there was a project that the commission was undertaking that involved the use of native plants. Thank you for your time and consideration DATE: CITY OF UKIAH APPLICATION FOR APPOINTMENT PATHS, OPEN SPACE, AND CREEKS COMMISSION I am applying for an appointment to the City of Ukiah's Paths, Open Space, and Creeks Commission 1. Name.~_~_~~ ~ t~ Cc' ~' I,/t~ ("" '~//,1 2. Residence Address_ ~ (.~/~ /~/, ~ '{~.. '~, Res. . ~/(:;, ~'--~/'(2 ft/' ~' _~/J( IC, t~ ? Phone_ 3 Business Address ~_"Z.-14o ~Jc~ ~lV'e(" ¢"'~(/~--Bus. Ph0ne ~,~ ~' --q/&~'oC)--7 4. Employer f'~ ,'¢---, O~ '~, Job title_ +~c.J,~.~/,- ~Employed since _..L..~.~.~' 5. HOw long have you resided in Ukiah? %¥V~, years; Mend0cino Count '~ 2..¥\ C ' ' '~ · i . . Y._ Y al~forn~a. '~v 6 Please list community groups or or izatio ' "' / · ,-, _ _ _ ga, Q n.~ you ~.re affiliated with Indicate ' . ,~ O.~C. (.~ '~4,~ - - ~.¢-- ;--~-~,~ . ,, - _L -- · off~ce held. Please answer the following questions on separate sheets of paper and attach.. 7. Why are you apPlying to serve On the City of Ukiah's Paths, Open Space, and Creeks Commi'ssion'~ 8. What is your understanding of the purpose, role and responsibility of the Paths, Open Space, and Creeks Commission? Si How do you believe your own skills, experience, expertise and perspectives will. be beneficial to the work of the Paths, Open Space, and Creeks Commission? 10. In your opinion, what type of programs or development shoUld the City encourage?. 11. What kind of ideal community do yoU envision for Ukiah? 12. Do you have any known projects or conflict of interest'related to this Commission? Please return this application and attachments to the City Clerk by Noon on _ you for your interest in serving the City of Ukiah. ---___ i,.2005. Thank City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Forms: Paths, Open Space, and Creeks Commission Application Revised. 4/22/03 'ba, e. 7( I t Phone: 463-6217 Fax: 463-6204 C /V ! T(,,~,~ Is' s, CITY OF'UKIAH APPLICATION FOR APPOINTMENT PARKS, RECREATION & GOLF COMMISSION I am applying for an appointment to the City of Ukiah's Parks, Recreation & Golf Commission. Res. Phone 1.Name i¢)~ ~/. 2. Residence Address 3. Business Address Bus. Phone 4. Employer /~~P~._ (~, ~_-~.,~.,~ Job Title~~Employed Since/~,~ 5. How long have you res~ed in Ukiah?~_years; Mendocino County___years; Calif.? years 6. Please list community groups or organizations you are affiliated with and indicate any offices held Please ·answer the following questions on separate sheets of paper and attach to application. 7. Why are you applying to serve on the City of Ukiah's Parks, Recreation and Golf Commission? 8. What is your understanding of the purpose, role and responsibility of the Parks, Recreation and Golf Commission? , How do you believe your own skills, experience, expertise and perspeCtives will be beneficial to the work of the Parks, Recreation and Golf Commission? · 10. What do you believe is the single most important parks, recreation, and golf issue facing our community? And why?' 11. In your opinion what. type or types of parks development or recreational and golf programs should the City encourage? 12. In your opinion what type or types of parks development or recreational and golf programs should the City discourage? 13. 14. What kind of ideal community do you enviSion for Ukiah? Are there any other Cit~ of Ukiah Committees/Commissions in which you are interested and on which you would be willing to serve? ~lease return this application an,d attachments to the City Clerk by Noon on ,2005. Thank you·for your inter, est in ser.~ng/~¢City of Ukiah. - - Signature '.. ' Date ~., / 4) ~ ' City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Phone: 463-6217 Fax: 463-6204 Forms: Parks, Recreation & Golf Commission Application Revised: 6/6/05 ~-'..Dan Hoibr'oOk ... ... '..1158 Maple 'Avenue: . Ukialq,'CA 95482. h'orn¢: 707 467 9I:!'6 Work: -707 743 1142: ext 234 Fc~x': 707 743 2878 14 ~Tuly 05 To: AAorie Ulvila, City Clerk AAembers of City Council Subject: Reoppointment to PO$C Commission Recently i returned from summer travel and found a letter stating that my appointment on PO5C¢ expired on ,Tune 30th. ;[ interpreted this as a mistake because of the AAay 23, ;?003 letter appointing me to the commission until ?-006. However, ~ recent conversation confirmed that the original three, year appointment was o clerical error and that ~ must reopply if interested. Therefor, 3: formally apply for reappointment to the Paths, Open Space and Creeks Commission. While it took some time for our commission to become fully engaged, we ore now informed, engaged, ~nd making distinct progress. Completion of the proposed "City Hills. Trail' linking Low Gap Pork to Todd Grove Pork and securing open space in Ukioh volley ore my key interests. During an additional term, I would like to see both these projects to fruition and respond to other quality of life issues. Since the application form ;[ received was for o different commission, please review my original application/letter in regards to my interest and qualification for serving on POSCC. Sincerely, May 23, 2003. Dan Holbrook 1158 Maple Avenue 'Ukiah, CA 95482 Dear Mr. Holbrook: Thank you for your interest in serving on the City of Ukiah's Paths', Open Space, and. Creeks Commission. At their meeting of May 21,2003, the Ukiah City Council appointed you to this Commission to a term that expires June 30, 2006. Members appointed to this Commission are James Connerton, Howie Hawkes, Dan Holbrook, Fred Koeppel, and William Randolph. We sincerely appreciate your willingness to serve in this regard and congratulate you on your recent appointment. Our staff will contact you about the meeting dates, etc. If you should have any questions concerning this matter, please do not hesitate to contact me at 463-6217. Sincerely, Marie Ulvila City Clerk Commsn~,ppointments letter .... _30,~0_S_E__M_IN_AR..Y_A__V.E_N_U_E__UK!.AH .CA 95482-5400 APPLICANT INTERVIEW TIME SCHEDULE FOR UKIAH AIRPORT COMMISSION AND UKIAH PATHS, OPEN SPACE, AND CREEKS COMMISSION INTERVIEW DATE: AUGUST 3~ 2005 AIRPORT COMMISSION 5:15-5:25 Bill Beard 461 Vichy Hills Drive 5:25-5:35 Benjamin Winter 304 Cooper Lane PATHS, OPEN SPACE & CREEKS COMMISSION 5:35-5:45 Ms Lindsay Leland 3041 Guidiville 5:45-5:55 James (Jamie) Connerton 906 North Oak Street Dan Holbrook (on vacation) Commsn: Application Interview Time Schedule- August 2005 AGENDA ITEM NO: 3a MEETING DATE: August 3, 2005 SUMMARY REPORT SUB3ECT: PRESENTA~ON BY LORRAINE DUVERNAY REGARDING THE SHALL BUSINESS DEVELOPHENT CORPORATION EXPANSION INTO HENDOCINO COUNTY Several months ago, the City was contacted by Lorraine DuVernay, Director of the Redwood Empire Small Business Development Corporation (SBDC), to discuss the possibility of the SBDC expanding it's role in Mendocino County. A meeting was held with representatives from the Chamber, the Savings Bank, Ukiah Chamber of Commerce, Mendocino College, the County, EDFC and West Company to discuss SBDCs plans to expand their services and have a field office in Ukiah. The Economic Development Financing Corporation has graciously offered an office for the SBDC personnel and they are working on finalizing plans to come to this area in the very near future. Ms DuVernay has stated that there is a real need in Mendocino County for the expertise that the SBDC can provide to local businesses and start-ups including professional business counseling and training. Ms DuVernay will be giving a short presentation to the Council on the reasons for coming to Ukiah and the services the SBDC provides. RECOMMENDED ACTION: ALTERNATIVE COUNCIL POLICY OPTIONS: Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A The Small Business Development Corporation Candace Horsley, City Hanager SBDC brochure Approved: Candace Horsley, City Manager m< < 0 ~ CD ? 8 0 AGENDA SUMMARY ITEM NO. 6a DATE: August 3, 2005 REPORT SUBJECT: AUTHORIZE THE CITY MANAGER TO AWARD AN EMERGENCY CONSTRUCTION CONTRACT FOR REPAIR OF THE WASTEWATER TREATMENT PLANT OUTFALL TO ASHLAND PACIFIC CONSTRUCTION, INC. OF PETALUMA, CALIFORNIA FOR A TOTAL LUMP SUM AMOUNT OF $96,444. On March 2, 2005, a portion of the outfall for Ukiah's Wastewater Treatment Plant (WWTP) collapsed. The outfall is the permitted discharge point for tertiary effluent to the Russian River from October 1 through May 14. The existing outfall consists of approximately 1,925 feet of 42-inch diameter reinforced concrete and corrugated metal pipe. The last 50 feet of pipe (near the discharge to the Russian River)is corrugated metal pipe, which is badly corroded and consequently collapsed under the weight of rain-soaked ground. The outfall repair work was scheduled as one of the initial tasks in the WWTP Improvement Project. The delay in starting construction of the project has necessitated repairing the outfall as a separate project. Formal bidding of this work would require approximately three months from the time the project is advertised to the time the work is complete. It is essential to the operation of the plant the outfall is repaired and functional prior to the onset of the seasonal rains. (Continued on Page 2) RECOMMENDED ACTION: Authorize the City Manager to award an emergency construction contract for repair of the Wastewater Treatment Plant out"fall to Ashland Pacific Construction, Inc. of Petaluma, California for a total lump sum amount of $96,444. ALTERNATIVE COUNCIL POLICY OPTIONS: Choose not to award a contract at this time, and direct staff to solicit proposals from other firms. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A. Bernie Ziemianek, Director of Public Utilities Ann Burck, Project Engineer Candace Horsley, City Manager 1. Bid Proposal prepared by Ashland Pacific Construction, Inc. APPROVED:' Candace Horsley, Cit~anager Page 2 AUTHORIZE THE CITY MANAGER TO AWARD A CONSTRUCTION CONTRACT FOR REPAIR OF THE WASTEWATER TREATMENT PLANT OUTFALL TO ASHLAND PACIFIC CONSTRUCTION, INC. OF PETALUMA, CALIFORNIA FOR A TOTAL LUMP SUM AMOUNT OF $96,444. AUGUST 3, 2005 Due to the lateness in the construction season, staff obtained a bid proposal from Ashland Pacific Construction, Inc. (Ashland Pacific) of Petaluma for repair of the outfall. Ashland Pacific specializes in pipeline installations for municipal water and wastewater systems. In June 2005, Ashland Pacific successfully completed installation of two 24-inch diameter, 600-foot pipelines for Ukiah's Water Treatment Plant Improvement Project. They have also completed pipeline projects for Caltrans, Sonoma County Water Agency, Marin Municipal Water District and the cities of Davis, Petaluma, Windsor, Cotati, and Willits. Ashland Pacific has the resources to complete the outfall repair by October 1,2005. Construction knowledge involving proper working procedures and practices in and around the Russian River must be followed. This project will require work in both the discharge area of the river and its bank. In light of the immediate need to commence this work, and the specific experience and expertise demonstrated by the prospective contractor, staff recommends award of an emergency construction contract to Ashland Pacific Construction, Inc. for repair of the WWTP outfall. The lump sum amount of bid, prepared by Ashland Pacific included here as Attachment 1, totals $96,444. Funds are available in the maintenance account 612.3580.302.000 to cover this expense. 07721/2005 09' 44 7077954137 Ashlin Pactflc Construction, Inc. July 20, 2005 C~yof~ 411 W. Clay Stroot Ukiah, CA 95482~5400 ATTN: Ann Burek RE: URiah Outfsll Piping Modification Projeet AshLin Pacific Construction, Inc.(ALPC) to equipment for thc following: pipeline. The following Drawing by Brown and Caldwell (Drawing Number what is included in this proposal will be done on _ I abor, materials and taken off of the Civil Any other work than basis. OF 50 LF of 42" Class 3 RCP with Gasketed Bell Ends pipe in case more than 50 feet of pipe is wait for them to be made. ffthey are not city of Ut~.) .ALPC will install 24" rip rap for the 2' perimeter ALPC will install 12" rip rap for the 6" rip rap ' detail, ALPC will provide the SWPPP prepared by an ALPC will backfdl per section 9.200 and the typical and Caldwell. to purchase 2 extra sticks of we are not delayed having to will be left on site for the creek discharge detail. ouffall creek discharge this project. provided by Brown TOTAL LUMP SUM AMOUNT 07/21/2005 Ashlin Pacific Construction, Inc. Proposal is good for 30 days. CONTI~CTORS ARE REQUII~.~ BY LAW TO BE LICENSt CON2RACTOR5 LICENSE BOARD, ANY QUESTIONS COI~ REFERRED TO THE REGISTRAR OF THE BOARD WItOSE , LICE2~SE BOARD, P.O. BOX 26000, SACRAMENTO, CA 958 DA] ~D~ 26 Ol Proposal Submitted By: AshLin Pacific Const~ction, ~c License #: 63495~ ~ Richard Meto ~ Estimator AshLin Pacifi, ~ C ~ of Propo~ for Project: The above price, specifications and conditions re s~ accepted. You are authoriz~ to do the work as ~0cifled. Authorized Signture: Name: · , Title: ,Date: PAGE 03 L.lc. 634959 1390 No. IVicO~. 5re. (~ #117 Petmunm. C,A 94954 707-79G.?.~ifi0 - I~x. 70';'-79.6-.4't 37 ~D RECRJI~TED BY THE .qlNG A CONTRAC'IDR MAY BE ~55 I$: CONTRACTORS STATE ~stmction, Inc. tisfactory and are hereby AGENDA SUMMARY ITEM NO. 6b DATE: August 3, 2005 REPORT SUBJECT: AUTHORIZE THE CITY MANAGER TO EXECUTE CHANGE ORDER NO. 4 TO THE WATER STORAGE EXPANSION PROJECT WITH WESTERN WATER CONSTRUCTORS, INC. On May 26, 2005, Western Water Constructors, Inc. (WWC) and their earthwork subcontractor, Cats 4U submitted a proposed change to the slope behind the Zone 1 Reservoir to facilitate backfilling behind the tank. The proposed change would have increased the amount of cut slope and removed additional trees. City staff reviewed the proposal and was not able to accept it due to the environmental issues. Owen Engineering & Management Consultants (OEMC), construction manager for the project, developed an alternative plan. The alternative plan reduces the amount of backfill behind the Zone 1 Reservoir from 20 feet to 3 feet. The purpose of the backfill was to provide an additional site for spoils disposal and is no longer needed. With no back fill, a means of access to top of the reservoir and additional guardrail are needed. WWC will install guardrail and a ladder similar to the one used on the Finished Water Reservoir. (Continued on Page 2) RECOMMENDED ACTION: Authorize the City Manager to execute Change Order No. 4 to the Water Storage Expansion Project with Western Water Constructors, Inc. ALTERNATIVE COUNCIL POLICY OPTIONS: Reject change order and direct staff as to alternatives. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A. Bernie Ziemianek, Director of Public Utilities Ann Burck, Project Engineer Candace Horsley, City Manager 1. Letter from Owen Engineering and Management Consultants 2. Change Order No. 4 APPROVED: Candace Horsley~ City ~nager Page 2 AUTHORIZE THE CITY MANAGER TO EXECUTE CHANGE ORDER NO. 4 TO THE WATER STORAGE EXPANSION PROJECT WITH WESTERN WATER CONSTRUCTORS, INC. AUGUST 3, 2005 In accepting the reduction in the amount of required backfill, WWC also agrees not to pursue any claims on the project. WWC had previously informed the City the installation of a slough wall, to protect workers during construction of the Zone 1 Reservoir, resulted from a changed site condition and was therefore, considered extra work. WWC notified the City they intended to file a claim for approximately $250,000. The alternate plan proposed by OEMC provides a mechanism to resolve any potential claims from WWC on this project without litigation in exchange for eliminating the Zone 1 Reservoir backfill, which is no longer needed. Therefore, OEMC and Staff recommend the City Council authorize the City Manager to accept Change Order No. 4, a no cost change order, to the Water Storage Expansion Project with WWC. 3377 Coach Lane, Suite K Cameron Park, CA 95682 Phone 530.677.5286 Fax 530.677.5606 OWEN ENGINEERING & Management Consultants, Inc. Attachment July 26, 2005 Ms. Ann Burck City of Ukiah Department of Public Utilities 300 Seminary Avenue Ukiah, CA 95482 Re: City of Ukiah Distribution System Water Storage Expansion OEMC Project No. 04-275 Proposed Change Order No. 4 Dear Ann: Enclosed are two copies of a proposed change order for the Distribution System Water Storage Expansion. The proposed change order has been signed by WWC. This is the change order for resolving all of the issues of claims made by WWC on this project. We understand that the City Council will be asked to act on this change order. Over the last 7 months we have reviewed and had significant communications with the City regarding the issues. Attached is a summary of events with respect to this change order. We believe this change order is fair and justified. Therefore, we recommend the City to authorize this change order as soon as possible. Please return one signed copy for us to distribute to WWC. If you have any questions, please contact me directly. Const u ' vb Enclosures CC: Sig Hansen, SPH Associates (w/o enclosures) Shahin Yousefian, OEMC (w/o enclosures) Specializing in Water, Recycled Water & Wastewater Treatment Systems Plant Management, Construdion Management- 0 & M Services~ Process Design ZONE 1 RESERVOIR SEQUENCE OF EVENTS - CHANGE ORDER NO. 4 The following is a summary of the facts and events that relate to the back slope at the Zone 1 Reservoir. We have assembled this summary in chronological order. It includes references to conversations with the Design Engineer. . The Zone No. 1 Reservoir was designed to be backfilled up to the top of the reservoir. The Design Engineer and City had decided to place the backfill as shown in the construction drawings in order to reduce the amount of surplus excavation and avoid related hauling and disposal costs. . The Construction Contract requires the Contractor to excavate and backfill behind the reservoir. Related to this work, the Contractor is required to provide shoring and bracing of the excavation behind the reservoir as needed to provide a safe work space for all employees. 3. The Design Engineer included the geotechnical report as an appendix to the specifications to assist the bidding contractors' in understanding the nature of the rock and soil. 4. In October and November 2004, WWC excavated the site. 5. In late December 2004, a portion of the exposed excavation slid down close to the reservoir under construction. The reservoir Subcontractor asked WWC to make the site safe. . In meetings with the City, Contractor, Designer and Geotechnical Consultant over the early weeks of January 2004, it became apparent there was a difference of opinion between WWC and the City (team). WWC indicated they felt there was a changed soil condition and were stopping work on the Zone No. 1 Reservoir and demanding as much as $277,000 in extra compensation. . On behalf of the City, the Designer, Geotechnical Consultant, City staff and OEMC researched the situation and came to the conclusion that the claim was not justifiable. In addition, contacts were made by both WWC and the City to determine how shoring could be installed. . In March 2005, WWC proceeded to have shoring installed behind the reservoir noting that they would be submitting a claim. Construction of the reservoir then resumed. The reservoir was completed in June 2005 and is now in service. . During Spring 2005, two other "claim" items were also presented by WWC. One claiming that earthwork at the Zone 2 Reservoir required extra work. The other claiming restoration of paving on the golf course was not required by the Contract. 10. In June 2005 in a meeting with the City and the Design Engineer, it was decided that the City had three basic options as how to proceed. They were: Backfill the reservoir in accordance with the Contract Documents, expect a claim to be filed and be prepared to defend against the claim. Reduce the backfill cost by adjusting grades on the uphill side of the reservoir. This idea was discarded due to significant environmental mitigation problems. ·, Swap the cost of the backfill with the cost for WWC to install guardrail and a ladder on the reservoir and place aggregate base of the access road. 11. On July 22, 2005, WWC agreed to the idea of deleting the backfill, installing the guardrail, ladder and aggregate base at no cost, and withdrawing all claims. By withdrawing all claims, this resolves the issues that could be costly for the City to defend even if the City were to prevail on all matters. Change Order No. 4 Date of Issuance: 07/20/05 Project: City of Ukiah I Owner: City of Ukiah Owner's Contract No.: PU - 04-08 Contract: Distribution System Water Storage Expansion Date of Contract: August 4, 2004 Contractor: Western Water Constructors, Inc. CM's Project No.: 04-275 The Contract Documents are modified as follows upon execution of this Change. Order: Description: This change order resolves all of the claims and issues raised by WWC and in particular these issues of the Zone 1 Reservoir uphill slope, backfilling of the Zone 1 Reservoir, restoration of the access read and slope sluffing uphill of the Zone I Reservoir. The consideration from the City being that the Zone 1 Reservoir will not be back-filled. Specific Technical changes are: Backfill adjacent to and on the uphill side of the tank would only be made to depths of 2-3 feet. Road base would be used for the top 6-inches. The backfilled area would be sloped to convey surface drainage around the tank. 2. The waterproofing and Marifi would only be installed up to 6-inches above the finish grades mentioned above. 3. The slough wall would be removed to grade. . The "orange fence" on the slope would be removed. Final erosion control measures (e.g. including seeding and mulching) would be installed on slope areas that have not been re-vegetated. Direct drainage from adjacent areas away from the slope. Remove the silt fence. 6. A DYK standard ladder would be added to allow City staff to access the top of the tank. 7. A DYK standard guard rail would be added to extend the guard rail around the entire tank perimeter. 8. The temporary spoils pile adjacent to the existing tank would be used for the backfill and the spoils site would be generally graded to its preconstruction condition. 9. The spoils pile to the east of the existing tank (across the access read) would be graded to finished contours and provide drainage. 10. Final erosion control measures would be installed on all spoils areas and the remaining areas that have been disturbed and have not been re-vegetated, (including seeding, mulch, etc.). 1 of 2 Specific Contract terms are revised as follows: . The City would pay Line Item Nos 70, 71,72, 73, 74 and 75 of the Schedule of Values at 100 percent complete, as if the Contract terms were met. The final Contract amount would be $4,756,607, which includes Change Order Nos 1-3. Payment Requests can be submitted per standard Contract terms upon timing of both parties signing this Change Order. 2. WWC would not pursue any claims on this project, including Zone 1 Reservoir slope related issues, Zone 2 Reservoir slough issues, pavement restoration, etc. The City would not pursue liquidated damages for failure to complete the Contract on time, except the revised overall completion date is set for September 15, 2005. Liquidated damages would be applied if work did not meet these dates. In accepting the embankement as constructed at the Zone 1 Reservoir, the City indemnifies and holds WVVC harmless from any event that may occur with respect to the stability of the hillside above the Zone 1 and Zone 2 Reservoirs. This includes release of liability for safety as well as property damage. TOTAL THIS CHANGE ORDER $0 Attachments: SPH Drawings including: - C-5: Zone 1 Golf Course Reservoir Area Site Plan - SP-4: Zone 1 Golf Course Reservoir Foundation and Roof Plan CHANGE IN CONTRACT PRICE: Original Contract Pdce: $ 4,498,620.00 [Increase] from previously approved Change Order No. 1 to Change Order No.~3: $ 257,986 Contract Pdce pdor to this Change Order: $ 4,756,606.00 Increase of this Change Order: Contract price including this Change Order: $ 4,756,606.00 CHANGE IN CONTRACT TIMES: Original Contract Times: [] Working Days [] Calendar Days Substantial completion: September 1,2005 Ready for final payment: September 15, 2005 RECOMMENDED: By: Owen Engineering Date: ACCEPTED: By:. City of Ukiah Date: ACCEPTED: ~stem Wate~structors Date: 2of2 3 ~ 2 ~ 1 I~ND BOX ITLET T /A\ J / / \ < ~ > \ \ \ / A / / / \ / AC~SS HATCH, TYP 2. SL~ DETAIL 6' FLAN(~D PENE'~A~90N THROUGH ROOF. BY TM:K WFE. PROVIDE :2' HN.F COUPU~ ~ ~' BUnD FL~ FOR t. EVa. ~ (PROVtDE 2' PLU¢ ~ COUPUN~ U, Tt SDaSm IS INSTALLED) //ROOF VENT BY TANK IQFR, PER SPEC/C~nON 13215 // \\ ~' //> - \ Nv/ // '~ - /A~ COUJMN AND DRC~ PANEL / ~..> / ',~~ ~ T~K ~ //~~ < ~ / 't/ ~ '- // v i N /A~ < C, > / /- < ~ > / ~ / / ~ ~ / < > ~ < .t~ > N / N / 1' = 10' j~ w City of UKIAH Public Utilities Distribution System Water Storage Expansion Project ZOI~ I GOLF CCXJRSE RESERVOFI FOLI~ATION AI~ ROOF PLAN D~ 1' = 10' J~'SP-4 _ CONC WALL THICKNESS PER TANK UFR 4'-0' SQ DRAIN POCKET ~ ..-'""' 12'11 ~.R .OW 16"1~ INLET/O~JTLET /-~,'~---COLUMN AND FOOllNG PIPE- LAYOUT PER TANK IdFR TANK OU'O. ET, 'FfP 2 S~ DETAIL, SHT SP-6 -- I I I I I ~ PER TANK kER~ TANK INLET, 1YP 2 ~Z ROOf' COLUMN, TYP PS-I, < SEE SHT SP-6 FOR ENLARGED PIPING ~P-5~,~ PLAN, SEC110NS AND DETAILS 8"~ TANK DRAIN 12"11 OVERFLOW INLET/OUTI_F'T PIF SAgPLE UNE EBAA IRON C0NNECliON DRAIN UNE H-20 PRE:CAS1 V~TH H-20 UD o - BOLLARDS -- SAMPLE STAllC SEE SHT SP-6 PLAN AND SEC ~ CONCREIE ENC 12' AROUND Pi, 6' LEAK DETEC110N PIP[ FOUNDAllON PLAN 1'= 10' i , , 16'I // "8' NON~ERF~AI~D DRAIN PIPE ./ ~RAI~ AT 820.0 EXIS~NO 150F'T ~ WA'I IR STORAO[ TANK 2' X 2' H-20 DRAIN BOX W~-20 COV~ 15 FOOT W)E CONS'TRt)C110N 6214225.51 ~ ACCESS AR(XJND UPHILL SIDE OF TAkK. , ARE,*, TO BE ~CI(Fi. LEO AT · x,, / OF TANK CONSTRUCllON. City of UKIAH Public Utilities Distribution System Water Storage ay Expansion Project ~" 0-5 NO'II: 1.O"l~' TO RELOCA']'[ OV['EHF-AD ~ AND POLES PRIOR 10 CONS~JC'I]ON. / / // OV~ RLL N~.A AREA ~ BY CONS'I~C'nON ' I / ITEM NO. 6c MEETING DATE:August 3, 2005 AGENDA SUMMARY REPORT SUBJECT: ACCEPT FEDERAL AVIATION ADMINISTRATION GRANT IN THE AMOUNT OF $114,285.00 In February of this year, Council authorized staff to hire a grant writer/administrator for the Ukiah Regional Airport. In the short time since, Ford Aviation Consultants has assisted staff in obtaining the grant offer (see attachment 1 ). This grant is for phase I of reconstruction of the storm drain system and crack sealing of the runway at the Ukiah Regional Airport. The airport has over two miles of storm drain and a large portion of it was constructed during World War II. Staff has experienced two failures in the system and it is clear that major repair/reconstruction is necessary. In addition, the runway surface has developed many cracks with weeds penetrating through and crack sealing will help safeguard the integrity of the surface. Phase I of the reconstruction will be a study of the storm drain system to evaluate existing conditions and provide specific recommendations for improvements and related costs as shown on attachment "2", attached. Also included as attachment "3", is a copy of the project cost estimate prepared by the consultant showing the City's share of cost for this project to be $331.00. The fees for the ~lrant writer/administrator are included in this ~lrant. RECOMMENDED ACTION: Accept grant offer and authorize the City Manager to sign the grant documents ALTERNATIVE COUNCIL POLICY OPTION: Reject the grant offer and remand back to staff CITIZEN ADVISED: N/A REQUESTED BY: Airport Commission PREPARED BY: Paul Richey, Airport Manager COORDINATED WITH: Diana Steele, City Engineer ATTACHMENTS: 1) Grant Offer 2) Project Description 3) Project Esti~e Sheet APPROVED: ',,__~-'"~ ~,~'~ ~,~ Candace Horsley, City IV~nager U.S. Department of Transportation Federal Aviation Administration San Francisco Airports District Office 831 Mitten Road, Room 210 Burlingame, California 940'10-1303 July 7, 2005 CERTIFIED MAIL Ms. Candace Horsley City Manager City of Ukiah 300 Seminary Avenue Ukiah, California 95482 Dear Ms. Horsley: Airport: Ukiah Municipal, CA; AIP Project No. 3-06-0268-08; Contract No. DTFA08-05-C-31590; Grant Offer Enclosed are four (4) original sets of the approved Grant Offer for the above project. Acceptance of the Grant Offer will obligate the Sponsor to accomplish the described development. The United States commits itself to participate in the allowable cost of the project not to exceed the amount shown on Page 2 of the Grant Offer. The offer must be accepted on or before August 22, 2005, as specified in Condition 6, Page 2 of the Grant Offer. Ail four (4) sets of the Grant Offer must be signed, dated, certified and atteste~ with stamp. Basic considerations are that members of the Sponsor's governing body know the full content of the Grant Offer and that the method of acceptance conforms to local law. The official of the sponsor authorized to accept the enclosed Grant Offer shall accept same by signing said offer and inserting the date in the space provided under Part II - Acceptance. The Sponsor's attorney shall certify that the acceptance complies with all applicable laws and constitutes a legal and binding obligation of the sponsor by executing the "CERTIFCATE OF SPONSOR'S ATTORNEY". The date of said certificate shall be the same as, or later than the date of the execution. When the document is fully executed, certified, attested and appropriate seals are impressed, please return three (3) sets of the four (4) original sets of~the executed Grant Agreement to this office. ,? anag~, Airpor~istrict Office Eric 2~'~ure s DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION GRANT AGREEMENT Part 1 - Offer Date of Offer July 7, 2005 Ukiah Municipal Airport/Planning Area Project No. 3-08-0268-08 Contract No. DTFA08-05-C-31590 TO: City of Ukiah (herein called the "Sponsor") FROM: The United States of America (acting ttu-ough the Federal Aviation Administration, herein called the "FAA") WHEREAS, the Sponsor has submitted to the FAA a Project Application dated April 29, 2005, for a grant of Federal funds for a project at or associated with the Ukiah Municipal Airport/Planning Area which Project Application, as approved by the FAA, is hereby incorporated herein and made a part hereof; and WHEREAS, the FAA has approved a project for the Airport or Planning Area (herein called the "Project") consisting of the following: Reconstruct storm drainage system- phase I (design only); rehabilitate Runway 15/33 and taxiways (crack seal and repairs) all as more particularly described in the Project Application. Page 1 of 6 NOW THEREFORE, pursuant to and for the purpose of carrying out the provisions of Title 49, United States Code, as amended, and in consideration of (a) the Sponsor's adoption and ratification of the representations and assurances contained in said Project Application and its acceptance of this Offer as hereinafter provided, and (b) the benefits to accrue to the United States and the public from the accomplishment of the Project and compliance with the assurances and conditions as herein provided, THE FEDERAL AVIATION ADMINISTRATION, FOR AND ON BEHALF OF THE UNITED STATES, HEREBY OFFERS AND AGREES to pay, as the United States share of the allowable costs incurred in accomplishing the Project, 95.00 percent of the allowable project costs. The Offer is made on and subject to the following terms and conditions' . . . . . Conditions The maximum obligation of the United States payable under this offer shall be $114,285.00. For the purposes of any future grant amendments which may increase the foregoing maximum obligation of the United States under the provisions of Section 512(b) of the Act, the following amounts are being specified fbr this purpose: $0.00 for planning $114,285.00 for airport development or noise program implementation. The allowable costs of the project shall not include any costs determined by the FAA to be ineligible for consideration as to allowability under the Act. Payment of the United States share of the allowable project costs will be made pursuant to and in accordance with the provisions of such regulations and procedures as the Secretary shall prescribe. Final determination of the United States share will be based upon the final audit of the total amount of allowable project costs and settlement will be made for any upward or downward adjustments to the Federal share of costs. The sponsor shall carry out and complete the Project without undue delays and in accordance with the 1;erms hereof, and such regulations and procedures as the Secretary shall prescribe, and agrees to comply with the assurances which were made part of the project application. The FAA reserves the right to amend or withdraw this offer at any time prior to its acceptance by the sponsor. This offer shall expire and the United States shall not be obligated to pay any part of the costs of the project unless this offer has been accepted by the sponsor on or before, August 22~ 2005, or such subsequent date as may be prescribed in writing by the FAA. The sponsor shall take all steps, including litigation if necessary, to recover Federal funds spent fraudulently, wastefully, or in violation of Federal antitrust statutes, or misused in any other manner in any project upon which Federal funds have been expended. For the purposes of this grant agreement, the term "Federal funds" means funds however used or disbursed by the sponsor that were originally paid pursuant to this or any other Federal grant agreement. It shall obtain the approval of the Secretary as to any determination of the amount of the Federal share of such funds. It shall return the recovered Federal share, including funds recovered by settlement, order or judgment, to the Secretary. It shall furnish to the Secretary, upon request, all documents and records pertaining to the determination of the amount of the Federal share or to any settlement, litigation, negotiation, or other efforts taken to recover such funds. All settlements or other final positions of the sponsor, in court or otherwise, involving the recovery of such Federal share shall be approved in advance by the Secretary. The United States shall nOt be responsible or liable for damage to property or injury to persons which may arise from, or be incident to, compliance with this grant agreement. Page 2 of 6 . 10. 11. 12. The sponsor agrees to request cash drawdowns on the letter of credit only when actually needed for its disbursements and to timely reporting of such disbursements as required.. It is understood that failure to adhere to this provision may cause the letter of credit to be revoked. Approval of the project included in this agreement is conditioned on the Sponsor's compliance with applicable air and water quality standards in accomplishing project construction. Failure to comply with this requirement may result in suspension, cancellation, or termination of Federal assistance under this agreement. It is mutually understood and agreed that if, during the life of the project, the FAA determines that the maximum grant obligation of the United States exceeds the expected needs of the Sponsor by $25,000.00 or five percent (5%), whichever is greater, the maximum obligation of the United States can be unilaterally reduced by letter from the FAA advising of the budget change. Conversely, if there is an overrun in the total actual eligible and allowable project costs, FAA may increase the maximum grant obligation of the United States to cover the amount of the overran not to exceed the statutory percent limitation and will advise the Sponsor by letter of the increase. It is further understood and agreed that if, during the life of the project, the FAA determines that a change in the grant description is advantageous and in the best interests of the United States, the change in grant description will be unilaterally amended by letter from the FAA. Upon issuance of the aforementioned letter, either the grant obligation of the United States is adjusted to the amount specified or the grant description is amended to the description specified. For a project to replace or reconstruct pavement at the airport, the Sponsor shall implement an effective airport pavement maintenance management program as is required by Airport Sponsor Assurance Number C- 11. The Sponsor shall use such program for the useful, life of any pavement constructed, reconstructed, or repaired with federal financial assistance at the airport. As a minimum, the program must conform with the provisions outlined below: Pavement Maintenance Management Program An effective pavement maintenance management program is one that details the procedures to be followed to assure that proper pavement maintenance, both preventive and repair, is performed. An airport sponsor may use any form of inspection progran~ it deems appropriate. The program must, as a minimum, include the following: a. Pavement Inventory. The following must be depicted in an appropriate form and level of detail: (1) location of all runways, taxiways, and aprons; (2) dimensions; (3) type of pavement, and; (4) year of construction or most recent major rehabilitation. For compliance with the Airport Improvement Program (ALP) assurances, pavements that have been constructed, reconstructed, or repaired, with federal financial assistance shall be so depicted. b. Inspection Schedule. (1) Detailed Inspection. A detailed inspection must be performed at least once a year. Ifa history of recorded pavement deterioration is available, i.e., Pavement Condition Index (PCI) survey as set forth in Advisory Circular 150/5380-6, "Guidelines and Procedures for Page 3 of 6 13. Maintenance of Airport Pavements," the frequency of inspections may be extended to three years. (2) Drive-By Inspection. A drive-by inspection mugt be performed a minimum of once per month to detect unexpected changes in the pavement condition. c. Record Keeping. Complete information on the findings of all detailed inspections and on the maintenance performed must be recorded and kept on file for a minimum of five years. The types of distress, their locations, and remedial action, scheduled or performed, must be documented. The minimum information to be recorded is listed below: (1) inspection date, (2) location, (3) distress types, and (4) maintenance scheduled or performed. For drive-by inspections, the date of inspection and any maintenance performed must be recorded. d. Information Retrieval. An airport sponsor may use any form of record keeping it deems appropriate, so long as the information and records produced by the pavement survey can be retrieved to provide a report to the FAA as may be required. ee Reference. Refer to Advisory Circular 150/5380-6, "Guidelines and Procedures for Maintenance of Airport Pavements," for specific guidelines and procedures for maintaining airport pavements and establishing an effective maintenance program. Specific types of distress, their probable causes, inspection guidelines, and recommended methods of repair are presented. The sponsor agrees to perform the following: Furnish a construction management program to FAA prior to the start of construction which shall detail the measures and procedures to be used to comply with the quality control provisions of the construction contract, including, but not limited to, all quality control provisions and tests required by the Federal specifications. The program shall include as a minimum: (1) The name of the person representing the sponsor who 'has overall responsibility for contract administration for the project and the authority to take necessary actions to comply with the contract. (2) Names of testing laboratories and consulting engineer firms with quality control responsibilities on the project, together with a description of services to be provided. (3) Procedures for determining that testing laboratories meet the requirements of the American Society of Testing and Materials standards on laboratory evaluation, referenced in the contract specifications (D 3666, C 1077). (4) Qualifications of engineering supervision and construction inspection personnel. (5) A listing of all tests required by the contract specifications, including the type and frequency of tests to be taken, the method of sampling, the applicable test standard, and the acceptance criteria or tolerances permitted for each type of test. Page 4 of 6 14. (6) Procedures for ensuring that the tests are taken in accordance with the program, that they are documented daily, and that the proper corrective actions, where necessary, are undertaken. b. Submit at completion of the project, a final test and quality control report documenting the results of all tests performed, highlighting those tests that failed or did not meet the applicable test standard. The report shall include the pay reductions applied and reasons for accepting any out-of-tolerance material. An interim test and quality control report shall be submitted, if requested by the FAA. Failure to provide a complete report as described in paragraph 2, or failure to perform such tests, shall, absent any compelling justification, result in a reduction in Federal participation for costs incurred in connection with construction of the applicable pavement. Such reduction shall be at the discretion of the FAA and will be based on the type of types of required tests not performed or not documented and will be commensurate with the proportion of applicable pavement with respect to the total pavement constructed under the grant agreement. d. The FAA, at its discretion, reserves the right to conduct independent tests and to reduce grant payments accordingly if such independent tests determine that sponsor test results are inaccurate. Buy American Requirement. Unless otherwise approved by the FAA, it will not acquire or permit any contractor or subcontractor to acquire any steel or manufactured products produced outside the United States to be used for any project for airport development or noise compatibility for which funds are provided under this grant. 15. In accordance with Section 47108(b) of the Act, as amended, the maximum obligation of the United States, as stated in Condition No. 1 of this Grant Offer: a) may not be increased for a planning project; b) may be increased by not more than 15 percent for development projects; c) may be increased by not more than 15 percent or by an amount not to exceed 25 percent of the total increase in allowable costs attributable to the acquisition of land or interests in land, whichever is greater, based on current credible appraisals or a court award in a condemnation proceeding. 16. 17. It is understood and agreed by and between the parties hereto that this Grant Offer is made and accepted upon the basis of preliminary plans and specifications; and the parties agree that within 180 days from the date of acceptance of this Grant Offer, the Sponsor shall furnish final plans and specifications to the FAA, that no construction work will be commenced hereunder, and that no contract will be awarded for the accomplishment of such work until the said final plans and specifications have been approved by the FAA; and the parties do further agree that any reference made in this Grant Offer or in the aforesaid Application to plans and specifications shall be considered as having reference to said final plans and specifications as approved. The Part V Assurances dated September 1999, submitted as a part of the Sponsor's Project Application, is hereby revised to include new assurance numbers 38 and 39, and revisions to assurance number 31. The updated assurances, dated March 2005, is attached hereto and made apart hereof. The Sponsor's acceptance of this Offer and ratification and adoption of the Project Application incorporated herein shall be evidenced by execution of this instrument by the Sponsor, as hereinafter provided, and this Offer and Acceptance shall Page 5 of 6 comprise a Grant Agreement, as provided by the Act, constituting the contractual obligations and rights of the United States and the Sponsor with respect to the accomplishment of the Project and compliance with the assurances and conditions as provided herein. Such Grant Agreement shall become effective upon the Sponsor's acceptance of this Offer. UNITED STATES OF AMERICA FEDEPy WESTE /? R~mo~ Acrid// AV/~tTIOb K7 ~hiang -t [anager, Airpo  }~!M1NISTRATION ON i~istrict Office / Part II - Acceptance The Sponsor does hereby ratify and adopt all assurances, statements, representations, warramies, covenants, and agreements contained in the Project Application and incorporated materials referred to in the foregoing Offer and does hereby accept this Offer and by such acceptance agrees to comply with all of the terms and conditions in this Offer and in the Project Application. Executed this day of ,2005. (SEAL) Ci_ty of Ukiah (NAME OF SPONSOR) By (SPONSOR'S DESIGNATED OFFICIAL REPRESENTATIV. E) Title Attest: Title: CERTIFICATE OF SPONSOR'S ATTORNEY , acting as Attorney for the Sponsor do hereby certify: That in my opinion the Sponsor is empowered to enter into the foregoing Grant Agreement under the laws of the State of Further, I have examined the foregoing Grant Agreement and the actions taken by said Sponsor and Sponsor's official representative has been duly authorized and that the execution thereof is in all respects due and proper and in accordance with the laws of the said State and the Act. In addition, for grants involving projects to be carried out on property not owned by the Sponsor, there are no legal impediments that will prevent full performance by the Sponsor. Further, it is my opinion that the said Grant Agreement constitutes a legal and binding obligation of the Sponsor in accordance with the terms thereof. Dated at this day of~ a. The date of execution by the Sponsor should be entered under Part II - Acceptance, on this page. SIGh b. The date of the Certificate of Sponsor's Attorney MUST BE. the same or later than the date of execution. Page 6 of 6 c. The original SEAL ~MUST BE stan~ped on this page. ATTACHMENT~ ~_ -- City of Ukiah has included the construction phase'of the project in our FAA Airport Capital Improvement Program (ACIP) for the 2006/2007 Fiscal Year. III. SCOPE OF SERVICES The scope of this study shall include tasks described below, as well as other elements or modifications, which may be suggested by consultants presenting proposals to better meet the needs of the City. All services shall be provided in accordance with the City's standard Professional Services Agreement, a sample of which is attached as "Exhibit B" to this request for proposal. The Consultant's evaluation shall include, but not be limited to the following: · Create an as built drawing of the existing Storm Drain System · Catalog the type, size, length, and condition of the components of the system (pipelines and catch basins) · Conduct a video inspection of the pipelines · Complete a hydraulic analysis, in accordance with FAA Advisory Circulars of the drainage system to determine runoff from the respective drain areas and capacity needs of the system, including those watershed areas to the west which are served through the airport storm drain system · Evaluate the future conditions based on anticipated growth and identify any problems that may arise when growth occurs · Identify improvements to be made to accommodate additional capacity needs · Identify costs associated with improvements needed to accommodate growth · Prepare a description of phased implementation, including recommendations for prioritization · Develop cost estimates for design and construction/repair of the system ' · Summarize all findings in a report to be presented and adopted by the City Council. Consultant shall be required to meet with the City of Ukiah Airport Commission and assist City staff in conducting a public meeting before this body. The Consultant should expect to attend a minimum of two (2) public meetings, including a presentation to the City Council. The Consultant should provide an estimated cost per extra meeting (assuming each meeting is 2 hours) in their proposal. Based on the above general information, the City has prepared this Request for Qualifications for distribution to consultants. 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 C"'. 3of6 A'I-rACHMENT -.~ Ukiah Regional Airport PROJECT COST ESTIMATE April 2005 . restriP~ runway Reconstruct stom.!&ain system,,and:afie~ardS: restore. apron' iby }~ay Total $ 27,500 $ 69 $ $ 92,800 120,300 1308 $ 26,125 $ 232 $ 4,408 5,716 $ 88,160 $ 114,285 AGENDA SUMMARY ITEM NO. 6d DATE:August 3, 2005 REPORT SUBJECT: AWARD OF SOLE SOURCE BID TO MALLORY FIRE EQUIPMENT IN THE AMOUNT OF $151,207.36 FOR THE PURCHASE OF REPLACEMENT FIREFIGHTER BREATHING APPARATUS. SUMMARY: During the 2005-2006 Budget Review and Approval process the City Council approved the Fire Department's Budget which includes funding for replacement of firefighter breathing apparatus. Staff is proposing to replace the Department's aging inventory of Scott Breathing Apparatus with breathing apparatus that is fully compliant with the most recent NFPA Standards. In addition to being compliant with NFPA, the new breathing apparatus conforms with the recommendations developed by a multi-agency Task Force made up of numerous fire departments from throughout the County. The recommendation of the Task Force was that in order to maximize interoperability and economy of scale, fire departments in the County should standardize their breathing apparatus to one brand. This standardization will result in our ability to share spare parts, annual testing equipment and other services. The brand of breathing apparatus the Task Force recommends is MSA. Mallow Fire is the exclusive distributor for this product in our area and they have submitted a bid Based on tagging on to the state contract (Attachment 1 ) in the amount of $151,207.36. Staff is recommending that Mallow Fire Equipment be awarded the bid. RECOMMENDED ACTION: Award bid to Mallow Fire Equipment in the amount of $151,207.36 for account 699.2101.800.016 ALTERNATIVE COUNCIL POLICY OPTION: 1. Provide additional direction 2. Take no action. Citizen Advised: N/A Requested by: City Council Prepared by: Kurt Latipow, Fire Chief Coordinated with: Candace Horsley, City Manager Attachments: 1. Bid APPROVED: Candace Horsley, C~ Manager Jul-27-05 12: 53P Attachment # ] July 26, 2005 Kurt Latipow Fire Department City of Ukiah 300 Seminary Avenue Ukiah, CA 95482-5400 RE: Quotation Breathing Apparatus & Related Equipment In conformance with the State of California Contract # 1-04-42-04 Breathing Contractor-Mallory Fire, we are pleased to quote the following: 28 MSA#JCMB21 R01C 14X0 CBRN Compliant Firehawk Air Mask co CM- 4500 Firehawk Air Mask B- Airframe Double Pull without chest strap 2- Swiveling Lumbar Pad l- 30 minute Carbon Cyclinder R- MMR Regulator Type-CBRN Firehawk PTC, Threaded hose, S 0- No airline options l- Emergency Breathing System-Quick-Fill Shoulder Mounted C- Ultra Elite Hycar, Medium l-Medium Nosecup 4- Head Harness Speed On with neckstrap X- ICM2000+TX Pass Device less Heat 0- No Case 3,763.85 28 MSA#807587 30 Min. 4500PSI Carbon Cyl. 465.56 28 MSA# ! 0024074 Clear Command Voice Amp. N/C (Value $381.44 ea. Under current promotion until Aug. 30,2005) 22 MSA#10035682 Ultra Elite Mask PTC 239.42 50 Unita Mask Bag 8.50 3 MSA#10041231 Rescue AirII Firehawk Mask, 3" quick fill hose 1,656.14 3 MSA#807588 60 min. 4500PSI Cyl. 768.53 I TSIN8020T PortaCount Quantitative Fit Tester 7,315.00 1 MSA#10040052 Mask Adapter for Fit Test 88.92 kpparatus- ~sisting of: :)lid cover I 10t,387.80 1 ],035.68 'ix o/Charge 267.24 425.00 z 968.42 L305.60 '.315.00 88.92 I::) . 02 Jul .- 27-.05 1 2: ..$ :3 P >Mammoryco Fire · Safety · Forestr~ · Industrial I M SAri802710 Quick Check I cartridge or Fit TesT 28 Ziamatic #UH-5-30-3-SS Track Brackets 12 Ziamatic #CRS Restraint Strap 32.50 50.00 40.00 Subtotal $1 Mendocino County Tax 7.25% Freight Cost (Ziamatic & TSI Only) Grand Total $1 The following services will be performed at no charge to the City of Ukiah Fi: Department. Fit testing using Mallory Fire test equipment on site for entire departm Training Department on the application and use of PortaCount Equiprr User training on MSA SCBA Equipment onsite for all Department use Thank you for the opportunity to be of service. Respectfully submitted by: Jim Peterson Fire Specialist Authorized by: David Marquart General Manager-California Mallory Fire 32.50 1.400.00 480.00 40,706.16 0,201.20 300.00 51,207.36 :rtL staff. ent. 'S. P.03 ITEM NO: 6e DATE: August 3, 2005 AGENDA SUMMARY REPORT SUB3ECT: ADOPTION OF ORDINANCE ADDING SECTION 9254~ ENTITLED "MARI3UANA CULTIVATION" TO DIVISION 9~ CHAPTER 2, ARTICLE 19 OF THE UKIAH CITY CODE SUMMARY: On July 20, 2005, the City Council conducted a public hearing and considered Planning Commission recommendations for regulating marijuana cultivation in the City. The Council agreed with most of the Planning Commission recommendations, but based on public testimony and Council discussion, further modified the proposed Ordinance before unanimously introducing it. The attached Ordinance includes the Council's modified language illustrated in bold print, and is ready for formal adoption. RECOMMENDED ACTI:ON: 1) Adopt the Ordinance establishing regulations for the cultivation of marijuana. ALTERNATJ:VE COUNCTL POLTCY OPT/ON: Do not adopt the Ordinance and provide direction to Staff. Citizens Advised: N/A Requested by: Charley Stump, Director of Planning and Community Development Prepared by: Charley Stump, Director of Planning and Community Development Coordinated with: Candace Horsley, City Manager and David Rapport, City Attorney Attachments: 1. Ordinance for Adoption Candace Horsley, City Mai~ager ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING SECTION 9254, ENTITLED: "MARIJUANA CULTIVATION," TO DIVISION 9, CHAPTER 2, ARTICLE 19 OF THE UKIAH CITY CODE The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE The City Council hereby finds and declares as follows: 1. In November 1996, the voters of California approved Proposition 215, the Compassionate Use Act of 1996, which enacted Health and Safety Code Section 11362.5. Under the Compassionate Use Act, Health and Safety Code Section 11357, making it a crime to possess marijuana, and Section 11358 making it a crime to cultivate marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. 2. Since the enactment of the Compassionate Use Act, 264 persons with residence addresses in the City of Ukiah have been issued medical marijuana identification cards by the Mendocino County Sheriff's Department. 3. The number of parcels in the City used to grow marijuana has increased substantially. The City Police Department estimates that up to 250 parcels are currently being used to grow marijuana throughout the City's residential neighborhoods. 4. Marijuana plants as they begin to flower and for a period of 2 months or more during the growing season (August- October) produce an extremely strong odor, offensive to many people, and detectable far beyond property boundaries. One popular strain of marijuana is called "Skunk" or "Super Skunk" and has a strong odor that resembles the smell of a skunk. 5. The strong smell of marijuana as well as its visibility from adjacent parcels or from areas accessible to the general public advertises its presence in the neighborhood and creates both an attractive nuisance and the risk of robbery and armed robbery. 6. Recently, the City planning and police departments have received numerous odor complaints related to the growing of marijuana in residential neighborhoods. The Mendocino County Air Quality Management District ("MCAQMD") reports an accelerating MARIJUANA CULTIVATION ORDINANCE NO. 1 increase in formal air quality complaints associated with the growing of marijuana in residential neighborhoods in the City of Ukiah. In 2002, the MCAQMD received two such complaints; in 2003, five complaints; and by October 31, 2004, it had received over 20 formal complaints for 2004. In addition, in 2004 MCAQMD received an additional two dozen informal calls complaining about marijuana odor in residential neighborhoods in the City. 7. Several highly publicized recent events have called attention to the impact on public safety caused by the growing of marijuana in residential neighborhoods of the City. In one recent incident a property owner was shot in the hand by an intruder caught stealing marijuana from the property owner's backyard. The intruder gained entrance through a neighboring property and passed the neighbor's bedroom window, carrying a loaded handgun. In 2004 the City police department reports numerous calls to the department to respond to incidents related to the growing of marijuana in residential neighborhoods. 8. At a series of City Council meetings commencing on November 3, 2004, and concluding on July 20, 2005, several members of the public testified to problems in their neighborhoods related to marijuana cultivation, including impacts associated with intense cultivation of mature plants, growing as tall as 14 feet, within and exceeding a 100 square foot area. These impacts ranged from increased traffic to acts of violence and intimidation, and armed guards stationed in backyards. 9. The Mendocino County District Attorney refuses to prosecute persons who grow marijuana as long as the person claims to be growing it pursuant to Proposition 215 and within a 100 square foot area on his or her property. As a result, City Police have been unable to take enforcement action, even where cultivation of marijuana for sale is suspected. 10. The City of Ukiah is a relatively small city with a population of approximately 15,000 people. It has three full-time planners in its Planning Department, one part-time code enforcement officer and one building inspector. It has limited resources available to engage in extensive regulation of marijuana cultivation. 11. Limiting the number of plants per parcel that medical marijuana patients may grow in residential neighborhoods and requiring that the majority of plants be grown indoors within a secure structure should alleviate a number of the above-described problems. These requirements should substantially reduce the public nuisance caused by the odor of mature plants. It should make marijuana cultivation less visible and less attractive to young people or potential thieves. It should prevent cultivation for sale and the associated public safety problems. MARIJUANA CULTIVATION ORDINANCE NO. 2 12. Prior to the enactment of Health and Safety Code Section 11362.77 in 2003, the US government established for research purposes a medical marijuana dose range of between one half and three quarters of a pound per patient per month.~ After reviewing the dose range established by the federal government, the Oakland City Council adopted a limit of three pounds per year per patient, with a related plant-count limit for cultivation. In Sonoma County medical marijuana patients were allowed to possess enough cannabis to support their personal use of up to three pounds per year. Other communities had set limits per patient of between one-half to two pounds. 13. According to Cannabis Yields by the DEA, various types of cannabis plants under various planting conditions may yield averages of 236 grams, or about one half pound, to 846 grams, or nearly two pounds. A weighted average results in an average domestic plant yield of 448 grams, or approximately 1 pound per plant.2 14. While a particular patient under Health and Safety Code Section 11362.77 may be exempt from criminal prosecution under state law, if he or she possesses eight ounces of dried marijuana, six mature plants or twelve immature plants, six mature plants can yield six to twelve pounds of marijuana which should provide access to sufficient marijuana for the medical use of most patients under the Compassionate Use Act. Any additional marijuana required by a patient can be obtained from other sources, including marijuana dispensaries in the Ukiah area, or from cultivation permitted under this ordinance in non-residential zoning districts. 15. Given the above-described public nuisance and public safety problems associated with growing marijuana in residential neighborhoods within the City, a six plant per parcel limit strikes a reasonable balance between a medical marijuana patient's requirements and the quality of life in the City's residential neighborhoods. 16. It is the City Council's intention that nothing in this Ordinance shall conflict with federal law as contained in the federal Controlled Substances Act, 21 U.S.C. Section 801 et seq., nor to otherwise permit any activity that is prohibited under that Act. It is further the City Council's intention that nothing in this Ordinance shall be construed to (1) allow persons to engage in conduct that endangers others or causes a public nuisance, (2) allow the use of marijuana for non-medical purposes, or (3) allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal. 1 See: Chronic Cannabis Use in the Compassionate Investigational New Drug Program: An Examination of Benefits and Adverse Effects of Legal Clinical Cannabis. 2. See study at: Cannabis Yields, June 1992, DEA. Information from Marijuana Patient Use And Cultivation Limits, Martin Martinez, Lifeline Foundation at www.cannabismd.orq/foundation. MARIJUANA CULTIVATION ORDINANCE NO. 3 SECTION TVVO Section 9254 is hereby added to Division 9, Chapter 2, Article 19 of the Ukiah City Code to read as follows. §9254: MARIJUANA CULTIVATION: Marijuana may be grown in the zoning districts of the City of Ukiah, if at all, only in accordance with the provisions of this Section. Cultivation of marijuana on parcels within the City that does not comply with this Section constitutes a violation of the zoning ordinance and is subject to the penalties and enforcement as provided in Article 22, commencing with § 9350. A. Definitions: For purposes of this Section, the following terms shall have the following meanings: 1. "Evidence" means with respect to a qualified patient, the information described in Health and Safety Code §11362.715(a)(2) or a medical marijuana identification card issued by the Mendocino County Health Department or Sheriff's Department, and with respect to a primary caregiver, evidence that the caregiver's patient is a qualified patient and a written designation from the caregiver's qualified patient designating him or her as that patient's primary caregiver, and additional information demonstrating that the primary caregiver satisfies the definition of primary caregiver in Health and Safety Code Section 11362.7(d). 2. "Owner" means the owner or owners of record of a parcel as shown on the last equalized assessment roll maintained by Mendocino County. 3. "Parcel" means property assigned a separate parcel number by the Mendocino County Assessor; 4. "Person in lawful possession" means the person who has the legal right to occupy and use a parcel on which medical marijuana is cultivated. 5. "Primary caregiver" means a "primary caregiver" as defined in Health and Safety Code Section 11362.7(d). 6. "Qualified patient" means a "qualified patient" as defined in Health and Safety Code Section 11362.7(0. 7. "Secure location" means a space within a building or structure which can only be entered through a locked door that requires a key or combination to open and which is secure against unauthorized entry. MARIJUANA CULTIVATION ORDINANCE NO. 4 B. Marijuana Cultivation in Residential Zoninq Districts. Marijuana cultivation may be permitted in the R-l, R-2, R-3, and C-N zoning districts, and on legal non-conforming residentially used parcels in the C-I, C-2, M, and A-E zoning districts in the City, subject to first securing a use permit pursuant to the provisions in Section 9262 and compliance with the following additional requirements. 1. No more than six mature or twelve immature marijuana plants may be grown on a parcel. 2. The person with legal possession of the parcel must be a qualified patient. 3. The property owner or owners have signed and filed with the Planning Department a form adopted by the Planning Department in consultation with the City Attorney that contains all of the following: a. Acknowledgment that growing marijuana on the property may constitute a violation of the federal Controlled Substances Act with potential civil and criminal penalties, including (1) imprisonment for up to five (5) years and a fine of up to $250,000 or both, and (2) the possible forfeiture of the property pursuant to 21 USC § 853; b. Consent to the use of the property for growing marijuana in accordance with this Section; and c. An agreement releasing the City and its officers, employees and agents from any liability to the applicant and the owner for issuing a use permit and for the acts or omissions of the City and its officers, employees and agents in the administration of this Section. 4. The parcel must be located not less than 300 feet from the grounds of an educational facility, park or recreation center, or facility catering to children, the elderly or the infirm, unless it is determined through the discretionary review process that a distance of not less than two hundred {200) feet will not be detrimental to the public health, safety, or general welfare. 5. The plants must be located in an indoor secure location. However, based on lot size and shape, the presence of structures and mature landscaping, and the adjacent land uses and densities, the Use Permit applicant may request that not more than two plants per parcel be grown outdoors. All outdoor plants must be kept a minimum of fifteen feet from all property lines, kept less than six feet in height, and secured behind a six (6) foot tall locked fence/gate. MARIJUANA CULTIVATION ORDINANCE NO. 5 The decision-makers must find that the growing of up to two outdoor plants per parcel would not have a detrimental impact on the public's health, safety, and general welfare." The decision-makers must also find: a. That the size and shape of the parcel, as well as the presence of structures and mature landscaping would allow the planting of no more than two (2) plants hidden from view that could comply with the yard setback and height standards above; and b. That the land uses and densities of adjacent parcels are not incompatible and would not conflict with the growing of no more than two (2) outdoor marijuana plants. 6. The facilities or equipment used in the indoor cultivation must comply with the Uniform Fire Code, Uniform Electrical Code, Uniform Mechanical Code, and Uniform Building Code, and not be deemed to create an undue fire hazard by the City's Fire Marshall, or a health or safety hazard to persons present in the building or structure where the marijuana is being grown. 7. As a condition of receiving a use permit, the applicant must sign an agreement that, for the entire time that the permit application is pending and the permit is in effect, consents to inspection of the parcel and any building or structure on the parcel by any City employee with responsibility for verifying compliance with this Section. C. Marijuana Cultivation in Non-residential Zoninq Districts. Marijuana cultivation may be permitted in the C-1, C-2, M, A, and A-E zoning districts in the City, subject to first securing a use permit pursuant to the provisions in Section 9262 and compliance with the following additional requirements. 1. No more than twelve immature and six mature plants per qualified patient may be grown on a parcel. 2. The person with legal possession of the property must be a qualified patient or a primary caregiver. If the person is a primary caregiver: a. the limits in subsection C.1 above apply to each qualified patient he or she is a primary caregiver for; and b. a use permit shall not be approved, unless the City makes a finding based on a report from the Police Chief or his designee that the applicant does not have a criminal history that would pose a threat of marijuana sales, the diversion of marijuana to non-medical uses or of conduct that endangers others. MARIJUANA CULTIVATION ORDINANCE NO. 6 3. The property owner or owners have signed and filed with the Planning Department a form adopted by the Planning Department in consultation with the City Attorney that contains all of the following: a. Acknowledgment that growing marijuana on the property may constitute a violation of the federal Controlled Substances Act with potential civil and criminal penalties, including (1) imprisonment for up to five (5) years and a fine of up to $250,000 or both, and (2) the possible forfeiture of the property pursuant to 21 USC § 853; b. Consent to the use of the property for growing marijuana in accordance with this Section; and c. An agreement releasing the City and its officers, employees and agents from any liability to the applicant and the owner for issuing a use permit and for the acts or omissions of the City and its officers, employees and agents in the administration of this Section. 4. The parcel must be located not less than 300 feet from the grounds of an educational facility, park or recreation center, religious assembly, or building or facility catering to children, the elderly or the infirm. 5. The plants must be grown indoors in a secure location. 6. The facilities or equipment used in the indoor cultivation must comply with the Uniform Fire Code, Uniform Electrical Code, Uniform Mechanical Code, and Uniform Building Code, and not be deemed to create an undue fire hazard by the City's Fire Marshall or Building Inspector, or a health or safety hazard to persons present in the building or structure where the marijuana is being grown. 7. As a condition of receiving a use permit, the applicant must sign an agreement that, for the entire time that the permit application is pending and the permit is in effect, consents to inspection of the parcel and any building or structure on the parcel by any City employee with responsibility for verifying compliance with this Section. 8. Marijuana may not be smoked or consumed on the parcel. D. Applications for Use Permits under Subsections B and C. In addition to complying with the provisions of Section 9262, applications for a use permit under Subsections B and C, above, shall comply with the following requirements. 1. The use permit shall be considered a major use permit and the Planning Commission shall conduct the initial public hearing. MARIJUANA CULTIVATION ORDINANCE NO. 7 2. The application shall be accompanied by an additional fee established by resolution of the City Council that covers all costs of processing the application, including, but not limited to, the full cost of the criminal history report required by Subsection C.2.b. The City Council may establish by resolution a separate fee for a renewal application under Subsection E below. 3. A primary caregiver applicant must (1) submit to the City Police Department his or her fingerprints and his or her criminal history for use in investigating the applicant's criminal history through the Criminal Justice Information System (CJIS) and information maintained by the United States Federal Bureau of Investigation (FBI) and (2) to the extent required by law, a written consent to the use of the CJIS and FBI data base and to the use of the information obtained in acting on the application for a use permit. A public hearing shall not be scheduled until the Police Chief, or his designee, submits to the Planning Department his or her written recommendation concerning the findings required by Subsection C.2.b, above. 4. The application must include all of the following information: plants; a, Name, address, Assessor's Parcel Number and number of b. Evidence that the applicant is in lawful possession of the parcel; c. Evidence of status as a qualified patient or evidence of status as a primary caregiver as to each patient the applicant claims to be a primary caregiver for. d. Site plan showing location of plants and plans demonstrating satisfaction of the requirements of Subsections B.4 and B.5 or C.4 and C.5. e. Sufficient information to determine that a primary caregiver will only receive payments from a qualified patient that constitute bona fide reimbursement for his or her actual expense of cultivating and furnishing marijuana for the patient's approved medical treatment. 5. The use permit granted pursuant to this Section is personal to the applicant, cannot be assigned or transferred, does not run with the land, and expires twelve months after it is issued, unless renewed pursuant to Subsection E. E. Permit Renewal. The use permit must be renewed annually in connection with which the City shall conduct an inspection of the premises to verify compliance with the requirements of this Section. The permit shall expire and thereafter marijuana cultivation on the parcel shall be subject to a new use permit application, unless a renewal application accompanied by the required fee is received by the Planning Department no later than forty-five days prior to the anniversary date of the issuance of the use permit. A hearing on the renewal of the use permit shall be conducted before the Zoning MARIJUANA CULTIVATION ORDINANCE NO. 8 Administrator, as for a minor use permit, according to the procedures in Section 9262. In addition to any other determinations permitted or required by Section 9262, the Zoning Administrator shall refuse to renew the permit, if he or she determines that the applicant has willfully violated any material conditions of the permit or the requirements of this Ordinance. SECTION THREE 1. ENFORCEMENT. Violations of this Ordinance shall be enforced and abated according to the requirements of the Ukiah City Code. 2. SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. The City Council hereby declares that it would have adopted this Ordinance and any section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional or otherwise invalid. 3. 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. Introduced by title only on July 20, 2005, by the following roll call vote: AYES: Councilmembers McCowen, Crane, Rodin, Baldwin and Mayor Ashiku NOES: None ABSENT: None ABSTAIN: None Adopted on ,2005 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk MARIJUANA CULTIVATION ORDINANCE NO. 9 ITEM NO. 6f DATE: August 3, 2005 AGENDA SUMMARY REPORT SUBJECT: REPORT TO CITY COUNCIL REGARDING THE PURCHASE OF EMERGENCY SERVICES FROM NCD PAINTING, INC. TO REMOVE THE OLD PAINT ON THE INTERIOR OF THE LAP POOL AT THE UKIAH MUNICIPAL SWIMMING POOLS. Pursuant to the requirements of Section 1522 of the Municipal Code, staff is filing with the City Council this report regarding the emergency purchase of services from NCD Painting, Inc. in the amount of $11,000 to sandblast off the old paint on the interior of the lap pool. As previously reported, the paint on the lap pool had deteriorated to a point were it was flaking off in large quantities. The chlorinated rubber-based pool paint previously used on the pool allowed for repainting without having to strip off the old layer. However, this type of paint was no longer available for use in the State of California and was not compatible with the new epoxy paint. Thus, repainting required that the pool surface be sandblasted to remove the old paint. Continued on Page 2 RECOMMENDED ACTION: 1. Receive report regarding the purchase of emergency services from NCD Painting, Inc to remove the old paint on the interior of the lap pool at 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 and General Services Director Candace Horsley, City Manager N/A APPROVED: (-.~,,, "~ ~~ Candace Horsley, Cit~nager At the meeting on May 4, 2005, Council directed staff to seek emergency services to repair the pool and bring it into operation for the summer. Estimates for sandblasting services were sought from various vendors in Mendocino, Lake, Sonoma and Napa Counties. NCD Painting of Ukiah provided a quote of $11,000 for the requested services and was the only respondent that was able to meet the time schedule, insurance requirements and environmental standards. The sandblasting services from NCD Painting were charged to the Aquatic's Equipment Maintenance and Repairs account (100.6130.302.000) and required a corresponding budget amendment to increase the account by $11,000. AGENDA ITEM NO: 6g MEETING DATE: August 3, 2005 SUMMARY REPORT SUB3ECT: Approval of Adelphia Cable TV Franchise Agreement The Council had previously approved the Adelphia Cable TV Franchise Agreement at the April 20, 2005 meeting. However, several of the attachments needed to be updated and the agreement language has had minor revisions made by the City Attorney. The effective date of the agreement Will be proVided in time for the Council meeting, once verified by Adelphia. Staff is recommending approval of the agreement. RECOMMENDED ACTION: Approve Adelphia Cable TV Franchise Agreement. ALTERNATIVE COUNCIL POLICY OPTIONS: Prepared by: Coordinated with: Attachments: Candace Horsley, City Manager David Rapport, City Attorney Agreement and exhibits Approved: Can~be Horsley, ~Manager 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 o o o o , Page PARTIES; NOTICES; RIGHTS AND AUTHORITY GRANTED .................................... 3 1 1 Parties to the Agreement 1.2. Representatives of the Parties and Service of Notices ............................................. 3 1.3 Definitions ............................................. 1.4. Conflicts 1.5. Grant 1.6. Acceptance Required ............................................................................................... 4 1.7. Duration 1.8. Agreement Not Exclusive 1.9. Scope of the Agreement ........................................................................................... 4 GENERAL REQUIREMENTS ........................................................................................... 6 2.1. 2.2. 2.3. 2.4. 2.5. 2.6 Governing Requirements ......................................................................................... 6 Fee on Gross Annual Revenue ....................... 6 Payment to Grantor .................................................................................................. 8 Insurance Requirements ........................................................................................... 8 Security for Grantee' s Performance ......................................................................... 9 Fair Employment Practices RIGHTS RESERVED TO THE GRANTOR 3.1. Reservation 3.2. Delegation of Powers. 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 SERVICES, PROGRAMMING, AND CONSUMER PROTECTION STANDARDS .... 15 5.1. 5.2. 5.3. 5.4. Rates and Charges for Services and Equipment .................................................... 15 Consumer Protection and Service Standards ......................................................... 15 Broad Categories of Cable Services Subscriber Surveys ................................................................................................. 16 -i- TABLE OF CONTENTS . , , 10. 11. Page SUPPORT OF LOCAL CABLE USAGE AND TECHNOLOGICAL INFRASTRUCTURE ............................................................................................ 16 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. 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 Removal of System Facilities ................................................................................ 18 Movement of Facilities 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. 8.2. 8.3. Compliance, Performance Audits, and future PEG support .................................. 22 System Testing and Technical Data ....................................................................... 23 Emergency Repair Capability ................................................................................ 24 REVOCATION, TERMINATION, OR FORFEITURE ................................................... 24 9.1. 9.2. 9.3. Revocation ·............................................................................................................24 Grounds for Revocation, Termination, or Forfeiture ............................................. 24 Removal of Property .............................................................................................. 25 RECORDS; REPORTS; RIGHT TO INSPECT AND AUDIT; EXPERTS ..................... 25 10.1. 10.2. 10.3. 10.4. 10.5. 10.6. 10.7. 10.8. 10.9. 10.10. Grantee to Provide Records ................................................................................. 25 Records ................................................................................................................ 25 Maintenance and Inspection of Records .............................................................. 26 Reports of Financial and Operating Activity ....................................................... 26 Performance Tests and Compliance Reports ....................................................... 27 Additional Reports ............................................................................................... 27 Communications with Regulatory Agencies ....................................................... 27 Inspection of Facilities ......................................................................................... 27 Right to Audit ...................................................................................................... 28 Retention of Experts ............................................................................................ 28 ENFORCEMENT PROCEDURES ................................................................................... 29 11.1. Notice and Hearing upon Grantee's Default ........................................................ 29 TABLE OF CONTENTS 12. 13. 14. .Page 11.2. Delegation ............................................................................................................ 29 11.3. Stop Work Notice 11.4. Authorized Fines, Penalties, and Other Sanctions ............................................... 30 CONTINUITY OF CABLE SYSTEM SERVICES .......................................................... 31 12.1. Continuity of Service 12.2. Operation and Management by Grantor ............................................................... 31 MISCELLANEOUS PROVISIONS .................................................................................. 32 13.1. 13.2. 13.3. 13.4. 13.5. 13.7. 13.8. 13.9. 13.10. 13.11. 13.12. 13.13. Assignment, Transfer, Sale, and Change of Control ........................................... 32 Force Majeure ...................................................................................................... 33 Possessory Interest .......... ..................................................................................... 34 Indemnification .................................................................................................... 34 Bankruptcy of Grantee ......................................................................................... 34 Resolution of Disputes ......................................................................................... 34 Waiver by Grantor ............................................................................................... 35 Severability .......................................................................................................... 35 Amendments ........................................................................................................ 35 Binding Upon Successors .................................................................................... 35 Counterpart Execution Applicable Law .................................................................................................... 35 DEFINITIONS 15. AUTHORITY AND EFFECTIVE DATE..' ....................................................................... 41 15.1. 15.2. Authority .............................................................................................................. 41 Effective Date EXHIBIT A ARTICLE 2 OF THE CITY OF UKIAH MUNICIPAL CODE AS ADOPTED AND IN EFFECT ON THE EFFECTIVE DATE OF THE AGREEMENT EXHIBIT B OWNERSHIP EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F 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 lawto 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 Article 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 Article 2 of Chapter 11 of Division 1 of the City of Ukiah Municipal Code, commencing with Section 1878 as it now exists ("Article 2"). A copy of Article 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 Article 2. NOW, THEREFORE, in accordance with the provisions of Article 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 ofUkiah, a political subdivision ofthe 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 Article 2, the provisions of this Agreement will control. 1.5. Grant. 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 Article 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. All 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. Securi _ty for Grantee' s Performance. (a) Securi _ty 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 County 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. 10 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 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. 11 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. 12 (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. 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 Capabili _ty. 13 (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. (b) In the event of any conflict between the federally-mandated Emergency Alert System ("EAS") 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 14 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 ½) hours; for nodes, a period of time that is consistent with acceptable industry standards; and for headend and hub, twelve (12) hours. 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. o signals by non-subscribers. Avoid causing interference with the reception of off-the-air 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. 15 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. 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. o 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: 16 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. 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 County 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. 17 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. 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, which permits 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 18 as Grantor may approve. Upon Grantor-approved abandonment in place of any property, Grantee must cause to be 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 period of thirty (30) days, (except for reasons beyond Grantee's control), and without prior 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 construction 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. 19 (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. 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 between 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 County. 20 (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 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. 21 (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. 22 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. 23 7. An assessment of the PEG access and community connectivity needs of the Grantor that are 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 progranuning 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. 24 (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. 25 (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 Article 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. 26 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. 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: 27 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. . 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 facilities located within the designated service area as well as Grantee's headend, which may be 28 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. All 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. 29 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 (3 0) 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 Board of Supervisors 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 heating, an appropriate course of action for enforcement of the Agreement. All 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. 30 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. 31 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 per $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 b¥ 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. 32 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 1878(C), 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 33 exceed $2,500, reasonably incurred in evaluating and processing the application related to the 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 evaluati°'fi 15f 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. 34 (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 Board of Supervisors, 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. 35 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. 36 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 37 noncommercial programming that is determined by the Grantor to be of community-wide interest. "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 "Controllina 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. d/b/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: 38 (i) Fees received from residential and commercial subscribers to any tier of Cable Service and for all video programming services. (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) All 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) All 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. 39 (vi) Advertising commissions paid to advertisers provided they are not wholly owned subsidiaries of Grantee. (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. 40 "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. "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 Article 2, and next the special meanings attributable to their use in any industry, business, trade, or profession 41 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. 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 Attomey CENTURY MENDOCINO CABLE TELEVISION, INC., a Delaware corporation By: Title: Date: APPROVED AS TO FORM: 42 Corporate Counsel 43 EXHIBIT A ARTICLE 2; CHAPTER 11, DIVISION 1 OF THE CITY OF THE UKIAH MUNICIPAL CODE AS ADOPTED AND IN EFFECT ON THE EFFECTIVE DATE OF THE AGREEMENT 1. Attached hereto is Article 2, Chapter 11, Division 1 of the Ukiah Municipal Codee 2. Subject to modifications contained within this agreement and/or additional standards established herein, the following sections of Article 2 of the Ukiah Municipal Code shall not apply to this Agreement: Section 1878. Transfers and Assignments Section 1884. Franchise Application Processing Costs A__z-1 ORDINANCE NO. 1048 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH, AMENDING IN ITS ENTIRETY CHAPTER 11, ARTICLE 2 OF THE CITY OF UKIAH MUNICIPAL CODE, REGULATING CABLE, VIDEO, AND TELECOMMUNICATIONS SERVICE THE CITY OF UKIAH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 11, Article 2 of the City of Ukiah Municipal Code is hereby amended to read as follows: CHAPTER 11, ARTICLE 2 CABLE TELEVISION SYSTEMS General Provisions 1870 Short title 1871 Authority 1872 Definitions Procedures for Granting, Renewing, Transferring, and Acquiring Cable Television Franchises 1873 1874 1875 1876 1877 1878 1879 1880 1881 1882 1883 A Franchise is required to operate a Cable System The City may grant a Cable Franchise Franchise duration and renewal Limitations of Franchise Rights reserved to the City Transfers and assignments Franchise Area; annexations Application for Franchises; contents of application Selection of Grantee Franchise renewal Multiple Franchises 737846.1 1884 1885 Franchise application processing costs Franchise fee 1886 Contents of cable television Franchise 1887 Breach of Franchise; grounds for assessment of penalties and Franchise revocation 1888 1889 1890 1891 Procedure for adjudication of breaches of the Franchise City Council hearing procedures Hearing officer procedures Penalties for breach of the Franchise 1892 Alternative remedies 1893 Removal and abandonment; purchase of system 1894 Receivership and foreclosure Design and Construction 1895 Undergrounding 1896 Use of poles 1897 Construction standards 1898 1899 1900 1901 Approvals Submission of drawings Relocation of facilities and equipment Maintenance Minimum Customer Service Standards 1902 Subscriber service standards 1903 1904 Identification required Notification to Subscribers 1905 Verification of Subscriber service standards 1906 Subscriber complaints 737846.1 1884 1885 1886 1887 1888 1889 1890 1891 1892 1893 1894 Franchise application processing costs Franchise fee Contents of cable television Franchise Breach of Franchise; grounds for assessment of penalties and Franchise revocation Procedure for adjudicatiOn of breaches of the Franchise City Council hearing procedures Hearing officer procedures Penalties for breach of the Franchise Alternative remedies Removal and abandonment; purchase of system Receivership and foreclosure Design and Construction 1895 Undergrounding 1896 Use of poles 1897 Construction standards 1898 Approvals 1899 Submission of drawings 1900 Relocation of facilities and equipment 1901 Maintenance Minimum Customer Service Standards 1902 1903 1904 1905 1906 Subscriber service standards Identification required Notification to Subscribers Verification of Subscriber service standards Subscriber complaints 737846.1 1907 Compatibility with consumer electronics equipment Rates 1908 1909 1910 1911 1912 1913 1914 Rate regulation Billing procedures Refunds Notice of rate increases Non-discrimination and customer privacy Written or oral notice to enter property Notice regarding channel scrambling Service Provisions 1915 Tenant rights 1916 Continuity of service mandatory Open Video Systems 1917 Applicability 1918 Application required 1919 Review of application 1920 Agreement required Other Video and Telecommunications Services and Systems 1921 1922 1923 Other multichannel video programming distributors Video providers-registration; customer service standards Telecommunications service provided by telephone corporations 737846.1 GENERAL PROVISIONS § 1870 SHORT TITLE. This title is known and may be cited as the "Cable, Video, and Telecommunications Service Providers Ordinance" of the City of Ukiah. § 1871 AUTHORITY This chapter is enacted by the City of Ukiah pursuant to the Cable Act, the City' s police powers, its powers and rights to control the use of the Public Right-of-Way, within the City, and all other applicable laws. § 1872 DEFINITIONS. For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in singular number include the plural number. Words not defined by this section shall be given the meaning set forth in the Cable Act, and if not defined therein, their common and ordinary meaning. ACCESS, PEG ACCESS OR PEG USE. Refers to the availability or use of a Cable System or Open Video System for public, educational or government use (including Institutional Network use) by public or private agencies, institutions, organizations, groups, and individuals, including but not limited to Grantor and its designated Access providers, to acquire, create, and distribute programming not under Grantee's editorial control, including but limited to the following: Public Access or Public Use where members of the general public are the primary or designated programmers or users having editorial control over their programming. . Educational Access or Educational Use where educational institutions are the primary or designated programmers or users having editorial control over their programming. o Government Access or Government Use where Grantor or other governmental institutions designated by Grantor are the primary or designated programmers having editorial control over their programming. AFFILIATE. Any Person directly or indirectly Controlling, Controlled by, or under common Control of Grantee. CABLE ACT. The Cable Communications Policy Act of 1984 (47 USCS 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 (Public Law No. 102-385) and the Telecommunications Act of 1996 (Public Law No. 104-104) as hereinafter may be amended. 737846.1 4 CABLE SERVICE. Constitutes the following: (A) the one-way transmission to Subscribers of (i) video programming, or (ii) other programming service, and (B) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, as hereinafter may be amended. CABLE SYSTEM OR SYSTEM. Grantee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide video programming and which is provided to multiple Subscribers within the City. Such term does not include: . o , o A facility that serves solely to retransmit the television signals of one or more television broadcast stations; or A facility that serves Subscribers without using any Public Right-of-Way; or A facility of a common carrier which is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code, except that such facility shall be considered a Cable System (other than for purposes of 47 USC 541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; or if such facility is used to provide Cable Service, whether on a common carrier or non-common carrier basis, directly to customers; or An Open Video System, as defined below, that complies with 47 USC Section 573; or Any facilities of any electric utility used solely for operating its electric utility systems. CITY. The City of Ukiah. CITY MANAGER. The City Manager of the City of Ukiah, or his or her designee. COMMUNICATIONS ACT. The Communications Act of 1934 (48 Stat. 1064, 15 USCS § 21; 47 USCS §§ 35, 151--155, 201--221,301--329, 401--416, 501--505,601- -609 (as subsequently amended and as hereinafter may be amended). COMPLETE SYSTEM CONSTRUCTION. The point in time when all transmission equipment, facilities, and construction work is installed and completed, and when all appropriate tests have been completed such that applicable performance standards pertaining to or dependant upon such construction is verified. The term Complete System Construction does not include marketing and installation of Subscriber service. 737846.1 5 CONTROL (ING/ED). The possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a specified Person, whether through the ownership of voting securities, by contract or otherwise. DISTRIBUTION FACILITY/(IES). Cable equipment which is not specific to a Subscriber, including trunk and distribution lines, but excluding drop lines to specific locations. DROP LINES. The cable and related equipment connecting the Cable System's plant to equipment at the Subscriber's premises. EDUCATIONAL ACCESS CHANNEL. A channel on the Cable System which designates educational institutions as the primary providers of non-commercial programming. FCC. The Federal Communications Commission. FRANCHISE. The right to construct, operate and maintain a Cable System using the City's streets and rights-of-way pursuant to the terms and conditions of this chapter and other relevant provisions of the Municipal Code, the Franchise Agreement, any Resolution approving the transfer of the Franchise, and any agreement between the City and Grantee relating to the operation of the Cable System. FRANCHISE AGREEMENT. An agreement granting a Franchise pursuant to the terms of the agreement and this chapter. Any conflict between the terms of this chapter and the Franchise Agreement shall be resolved in favor of the Franchise Agreement. FRANCHISE AREA. The geographic area within the City designated in a franchise where Grantee may operate a Cable System, as defined in the Franchise Agreement. GOVERNMENT ACCESS CHANNEL. A channel on the Cable System which is provided by Grantee to Grantor and other governmental institutions designated by Grantor on which non-commercial informational programming regarding government activities and programs may be presented. GRANTEE. Any Person to whom a valid Franchise is granted by the City under this chapter, and the lawful successor, transferee or assignee of such Person. GROSS REVENUES. Any and all revenue which is received, whether directly or indirectly, by Grantee, from or in connection with the provision of Cable Services over the subject Cable System, or any part of such system. Such revenue shall include but not be limited to the following: Any and all fees charged to Subscribers for Cable Services including without limitation fees for any and all basic service, optional service, tier service, audio service, commercial service, premium service, pay 737846.1 b) c) d) e) g) television service, pay-per-view service and related per-event service, or for the distribution of any other Cable Services over the Cable System; Any and all fees charged to Subscribers for installation, disconnection, reconnection, change in service, and similar fees; Any and all fees charged to Subscribers for converters, remote controls or other equipment leased, rented or sold to Subscribers in connection with the delivery of Cable Services; Any and all fees charged to Subscribers for service charges and/or late fees attributable to delinquent accounts; Any and all revenue collected by Grantee from its Subscribers for direct payment to a third party as a cost of doing business (including without limitation possessory interest tax, copyright fees, program license fees and Subscriber payments for PEG access); Any and all revenue received from Cable Services related activities including without limitation any and all revenue received from leased access programmers and other users, or the use, license or lease of studio rental and production equipment, or the sale, exchange or cablecast of any programming developed on or for community service channels or institutional users, or the sale of advertising or the lease of channel capacity on a Cable System, without deduction for any commission paid to an advertising agency in connection with the sale of advertising on a Cable System. Any and all revenue of any Person which is derived directly or indirectly from or in connection with the provision of Cable Services over the Cable System, including but not limited to revenue or compensation which is paid by any of the following: (i) the Subscribers or users of such Cable System, or (ii) the advertisers on such Cable System, or (iii) any other party; and is paid to any of the following: (i) the suppliers of programming on such Cable System, or (ii) home shopping services in connection with the sales of products or services derived from programming transmitted over such Cable System, to the extent such revenue represents payment, in whole or in part, for the use of a channel on the system; or (iii) leased access programmers for programming transmitted over such Cable System; and Refundable deposits that are not returned to Subscribers following termination of service. Gross revenues shall include revenue derived from subscriptions to Cable Information Services as defined by the Communications Act provided over the Cable System in the Franchise Area should a final determination by Congress, a court of competent jurisdiction, or the FCC which classifies Cable Information Service, or any other service offered by Grantee, as a Cable Services (as that term is defined in the Cable Act) beginning on the effective date of the final determination. 737846.1 Gross Revenues shall not include any tax of general applicability imposed upon Grantee by the city, state, federal or any other governmental entity and required to be collected by Grantee and passed through to the taxing entity, provided such taxes are identified as a separate line item on Subscriber statements. The Franchise fee shall be included in Gross Revenues. In computing Gross Revenues from sources other than Subscribers, including but not limited to revenue from the sale of advertising, lists of the names and addresses of Grantee's Subscribers, home shopping services, guide sales, or the lease of channel capacity over its Cable System, which revenue is attributable both to the operation of Grantee's Cable System inside the City and in areas outside the City, the aggregate revenue received by Grantee from such other sources shall first be multiplied by a fraction, the numerator of which shall be the number of Grantee's Subscribers in the City as of the last day of the relevant billing period and the denominator of which shall be the number of Subscribers within all relevant areas served by Grantee for that specific service as of the last day of such period, and then assessed for Franchise fees. Gross Revenues shall include revenue received by any entity other than the Grantee where necessary to prevent evasion or avoidance of the obligation under this Agreement to pay the Franchise fees. MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR or VIDEO PROGRAMMING DISTRIBUTOR. A Person such as, but not limited to, a Cable System operator, an Open Video System Operator, as defined below, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive- only satellite program distributor, who makes available multiple channels of video programming for purchase by Subscribers or customers. OPEN VIDEO SYSTEM. A facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Services, including video programming, and that is provided to multiple Subscribers within the City, provided that the FCC has certified that such system complies with 47 CFR [3 1500 et seq., entitled "Open Video Systems." OPEN VIDEO SYSTEM OPERATOR. Any Person or group of Persons who provides Cable Services over an Open Video System and directly or through one or more Affiliates owns a significant interest in that Open Video System, or otherwise controls or is responsible for the management and operation of that Open Video System. NORMAL OPERATING CONDITIONS. Service conditions that are within the control of Grantee. Those conditions that are ordinarily within the control of Grantee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, and scheduled maintenance or upgrade of the Cable System. Those conditions that are not in control of Grantee include, but are not limited to, natural 737846.1 8 disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. PERSON. Any individual, corporation, partnership, proprietorship, or other organization authorized to do business in the State of California. PUBLIC ACCESS CHANNEL: A channel on the Cable System which is provided by Grantee for non-commercial programming produced by members of the public or a nonprofit corporation formed by the City to operate and manage such a channel. PUBLIC RIGHT(S)-OF-WAY. Any of the following that are controlled, used or dedicated for use by .the public and located within the City's jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, rights of way and similar public property within which Grantee may place its facilities for operating a Cable System. SERVICE INTERRUPTION. The loss or impairment of the Cable Services on one or more channels or frequency bands of the Cable System used in connection with the provision of Cable Services to any Subscriber. SUBSCRIBER. Any Person who pays for Cable Services provided by Grantee by means of the Cable System. VIDEO PROVIDER: Any person, company, or service that provides one or more channels of video programming to a residence, including a home, condominium, apartment, or mobile-home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights-of-way are used in the delivery of that video programming. A "Video Provider" includes, without limitation, providers of cable television service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, whatever their technology. PROCEDURES FOR GRANTING, RENEWING, TRANSFERRING, AND ACQUIRING CABLE TELEVISION FRANCHISES § 1873 A FRANCHISE IS REQUIRED TO OPERATE A CABLE SYSTEM. (A) It shall be unlawful for any Person to establish, operate or carry on the business of distributing to any Persons in the City any Cable Service, by means of a Cable System, unless a Franchise therefore is first obtained pursuant to the provisions of this chapter, and unless such Franchise is in full force and effect. (B) It shall be unlawful for any Person to construct, install or maintain within any Public Right-of-Way in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a Public Right-of-Way but is designated or delineated as a proposed Public Right-of-Way on any tentative subdivision map approved by the City, any equipment or facilities for distributing any Cable Services, by means of a Cable System, unless a Franchise 737846.1 9 authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such Franchise is in full force and effect. (C) It shall be unlawful for any Person to make any unauthorized connection, whether physically, electronically, acoustically, inductively or otherwise, with any part of a Franchised Cable System within this City for the purpose of enabling him or herself or others to receive any Cable Services carried on a Cable System, without the permission of Grantee. (D) It shall be unlawful for any Person, without the consent of Grantee, to willfully tamper with, remove, or injure any cables, wires, or equipment used in conjunction with a Cable System. (E) This section shall be construed to require a Franchise in every instance, except to the extent that such requirement is preempted by state or federal law. § 1874 THE CITY MAY GRANT A CABLE FRANCHISE. The City may grant a Franchise to any Person, whether operating pursuant to an existing Franchise or not, who offers to provide a Cable System pursuant to the terms and provisions of this chapter. The Franchise shall be subject to all ordinances and regulations of general application now in effect or subsequently enacted, including, without limitation, those concerning encroachment permits, business licenses, zoning, and building. § 1875 FRANCHISE DURATION AND RENEWAL. (A) The term of the Franchise or any Franchise renewal shall be established in the Franchise Agreement. (B) A Franchise may be renewed bY the City upon application of Grantee pursuant to procedures established by the City, subject to applicable federal and state law. In the event the City does not establish such renewal procedures, the Franchise renewal procedures set forth in the Cable Act shall apply. § 1876 LIMITATIONS OF FRANCHISE. (A) Any Franchise granted under this chapter shall be nonexclusive and for the term specified by the Franchise Agreement. (B) No privilege or exemption shall be granted or conferred by any Franchise granted under this chapter except those specifically presented herein. (C) The grant of a Franchise, right, or license to use Public Right-of-Way for purposes of providing Cable Service shall not be construed as a right or license to use such Public Right-of-Way for any other purpose. 737846.1 10 (D) Any privilege claimed by Grantee under a Franchise in a Public Right-of- Way or any other public property shall be subordinate to any prior or subsequent lawful occupancy or use thereof, or easement therein, by the City or other government entity. (E) A Franchise granted hereunder shall not relieve Grantee of any obligation related to obtaining pole space frOm any department of the City, utility company, or from others maintaining poles in the Public Right-of-Way. (F) Any right or power in, or duty imposed upon any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. § 1877 RIGHTS RESERVED TO THE CITY. (A) Subject to those restrictions, if any, that are mandated by state or federal law, neither the granting of any Franchise nor any of the provisions of this chapter shall be construed to prevent the City from granting additional Franchises. (B) Grantee, by its acceptance of any Franchise, agrees to be bound by all ordinances and regulations of general application now in effect or subsequently enacted (including without limitation those that concern encroachment permits, business licenses, zoning and building) and to comply with any action or requirements of the City in its exercise of such rights or power; p.rovided, however, that such ordinances and regulations shall not materially affect Grantee's rights or obligations under the Franchise. (C) Neither the granting of any Franchise, nor any of the provisions of this chapter, shall constitute a waiver or bar to the exercise of any governmental right or power of the City. (D) This chapter shall not be construed to impair or affect, in any way, the right of the City to acquire the property of Grantee through the exercise of the power of eminent domain, in accordance'with applicable law. (E) The City Council may do all things which are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any Franchise granted under this chapter. § 1878 TRANSFERS AND ASSIGNMENTS. (A) No Franchise shall be transferred, sold or assigned, nor shall any of the rights, privileges, interests or property related to the Franchise be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, voluntarily or involuntarily, to any Person without the prior consent of the City granted by resolution of the City Council. The granting of a security interest in any assets of the Grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section. 737846.1 11 (B) Transfer of a Franchise includes but is not limited to any transaction in which control of the Franchise is transferred from one Person or group of Persons to another Person or group of Persons, or ownership or other interest in Grantee or its Cable System is transferred from one Person or group of Persons to another Person or group of Persons, or the rights and obligations held by Grantee under the Franchise Agreement are transferred or assigned to another Person or group of Persons. In addition, a transfer of the Franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of 20% of (1) the voting interest of Grantee, or (2) the Person exercising management authority over Grantee. (C) Grantee shall promptly notify the City in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer ("Transfer Application"). The Transfer Application shall meet the requirements of § 1880 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial, technical and other qualifications of the transferee. (D) In making a determination on whether to approve the Transfer Application, the City Council shall consider the legal, financial, technical and other qualifications of the transferee to operate the system, whether the incumbent Cable System operator is in compliance with its Franchise Agreement and this chapter and, if not, the candidate transferee's commitment and plan to cure such noncompliance, whether operation by the transferee would adversely affect Cable Services to Subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law. (E) A Transfer Application shall not be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of this chapter, the Franchise Agreement, and such other agreements, regulations or restrictions that pertain to the Franchise, assume the obligations and liabilities of the previous Grantee under the Franchise, and assume such other conditions as may be prescribed by the City Council resolution approving the transfer. (F) Approval by the City of a Transfer Application does not constitute a waiver or release of any of the rights of the City under this chapter or a Franchise Agreement, whether arising before or after the date of the transfer. § 1879 FRANCHISE AREA; ANNEXATIONS. (A) The Franchise Area shall be established by the Franchise Agreement. (B) Territory annexed to the City ("Annexed Territory") which is not within the Franchise Area of an existing Franchise may be added to Grantee's Franchise pursuant to City Council resolution. (C) All rights acquired under a Franchise or license granted by a public entity other than the City ("Foreign Franchise") shall terminate by operation of law as to Annexed Territory where Grantee of such Franchise or license has not commenced 737846.1 12 installation of a Cable System in the annexed territory before the date such annexation becomes effective. Where feasible, City shall provide notice to the holder of a Foreign Franchise of the City's intent to annex territory that may result in a termination under this section. Failure to provide such notice shall not affect the termination of the Foreign Franchise. (D) Where Grantee of a Foreign Franchise has commenced installation of a Cable System in annexed territory on or before the date such annexation becomes effective, Grantee may continue to provide Cable Services to the annexed territory for the balance of the initial term of said Franchise (exclusive of any renewal or extension not granted by the City), subject to the terms and conditions then in effect under such Franchise, and the timely payment to the City of all Franchise fees paid in connection with such servi, ce (or such other fees imposed by the City up to the maximum permitted by law). § 1880 APPLICATION FOR FRANCHISES; CONTENTS OF APPLICATION. (A) Applications for the grant of a new Franchise may be submitted by any Person pursuant to the requirements of this chapter. The City may, by advertisement or any other means, solicit applications for a new Franchise pursuant to a request for proposal ("RFP"). (B) An application for a new Franchise to construct, operate, or maintain any Cable System in the City shall be filed with the office of the City Clerk and shall be on forms prescribed by the City. The City reserves the right to waive all applicatiOn formalities where the City determines that the best interests of the City would be served by such waiver. The City may, at its sole discretion, request new or additional proposals. (C) Unless waived in writing by the City, all applications for a Franchise shall at the minimum contain the following: 1) The name, address, and telephone number of the applicant; 2) A detailed statement of the corporation or business entity organization of the applicant, including but not limited to, the following: a) The names, residence and business addresses of all officers and directors of the applicant; b) The names, residence and business address of all officers, Persons and entities having an ownership interest of 5% or more in the applicant and the respective ownership share of each such officer, Person or entity; c) The names and address of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or 737846.1 13 controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to Cable Systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby; d) A detailed description of all previous experience of the applicant in providing Cable Service or other similar or related communications services; e) A detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year preceding the date of the application. The City may require a statement from an independent certified public accountant or a recognized lending institution, certifying that the applicant has available sufficient financial resources to construct and operate the proposed Cable System in the City; A detailed financial plan (pro forma) for the operation of the proposed Cable System, during the term of the proposed Franchise, in the format required by the City; and g) A description of any other Cable System Franchise(s) awarded to the applicant, its parent or subsidiary, including the place and term of these Franchises; the status of their completion, the total cost of completion of each Cable System; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion of these Cable Systems; 3) A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: a) A detailed map indicating all areas proposed to be served, and a proposed time schedule for the construction of the Cable System and the installation of all equipment necessary to become operational throughout the entire area to be serviced; b) A statement or schedule setting forth all proposed classifications of rates and charges to be made against Subscribers, including installation charges and other service charges; c) A detailed statement describing the actual equipment and operational standards proposed by the applicant; 737846.1 14 d) A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any Subscriber; and e) A detailed statement describing any existing or proposed agreements and undertakings between the applicant and any Person, which materially relates to the application and the granting of the Franchise; 4) A detailed description of the applicant's plan to provide Public, Educational and Government Access Channel capacity services, facilities and equipment; 5) A detailed description of the applicant's plans to address the institutional network needs of the City 6) A copy of any agreement covering the Franchise area, if existing between the applicant and the local telephone and/or electric utilities providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; and 7) Any other details, statements, or information pertinent to the subject matter of such application which shall be required or requested by the City. § 1881 SELECTION OF GRANTEE. (A) The City may make such investigations as it deems necessary to determine the ability of an applicant to satisfactorily perform its obligations under a Franchise. The applicant shall timely furnish to the City all such information and data as the City may request. Failure to provide any such information shall constitute sufficient grounds for rejection of any application. (B) Upon receipt of a complete application, with all information required by the City, and after the City staff completes its investigation and review of the application, the City Manager shall prepare a report and make recommendations to the City Council concerning the application. (C) The City Council shall hold a noticed public hearing on the application. Written notice shall be given at least ten (10) days prior to the hearing on the application. Within sixty (60) days after the close of the hearing, unless an extension of time is mutually agreed upon by the City and the applicant, the Council shall make a decision as to whether the Franchise should be granted, and if granted, subject to what conditions. The Council may grant one or more Franchises, or may decline to grant any Franchise. (D) In making its determination as to whether to grant an application for a new Franchise, the City may consider any and all factors which affect the interests of the community including, but not limited to, the quality of the Cable Service proposed, the 737846.1 15 areas to be served, the rates to be charged, the amount of Franchise fee to be generated, the experience, character, background, performance history and financial responsibility of an applicant (and its management and owners), the technical performance and quality of equipment, the applicant's willingness and ability to meet construction requirements and all other limitations and requirements pertaining to the F~anchise, and all other matters deemed pertinent by the City for protecting the interests of the City and the public. (E) Any decision of the City Council concerning the granting or denial of a Franchise pursuant to this chapter shall be final. § 1882 FRANCHISE RENEWAL. Franchise renewals shall be processed and reviewed in accordance with then applicable law. The City and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the Franchise. § 1883 MULTIPLE FRANCHISES. (A) The City may in its sole discretion limit the number of Franchises granted at any one time based upon its consideration of all appropriate criteria which shall include but not be limited to the following: (1) The capability of the Public Rights-of-Way to accommodate the facilities of any proposed additional Cable Systems. (2) The advantages and disadvantages that may result from additional Cable System competition. (B) The City may require that any Grantee be responsible for its own underground trenching and any associated costs if, in the City's opinion, the Public Rights-of-Way in any area do not feasibly and reasonably accommodate the additional cables, machinery, equipment, or other items contemplated in connection with the construction, maintenance and operation of a proposed new Cable System. In addition, Grantee shall comply with applicable federal and state laws regarding pole attachments. § 1884 FRANCHISE APPLICATION PROCESSING COSTS. (A) In connection with any application for a new Franchise, a Franchise renewal, or a Franchise transfer, each applicant shall pay a filing fee equal to the estimated costs determined by the City in processing and analyzing the application. Such costs shall include all administrative, consultant, noticing and document preparation expenses. No application shall be considered without payment of such fee. If the City's actual costs in processing and reviewing the application are less than the amount of the fee, any remaining funds from the fee shall be refunded to the applicant within 60 days after final approval or denial of their application. In the event that the deposit is less than 737846.1 16 the City's actual costs, Grantee shall pay such additional costs to the City within 30 days after written notice from the City that such additional payment is required. (B) Any application fees 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. § 1885 FRANCHISE FEE. (A) As compensation for any Franchise granted, and in consideration of permission to use the Public Right-of-Way in the operation of its Cable System, and because the City will incur costs (other than application fees) in regulating and administering the Franchise, Grantee shall pay to the City a Franchise fee in the amount equal to five percent of Grantee's Gross Revenues, or such other amount as the City Council may set by resolution or specify in the Franchise Agreement. (B) The Franchise fee assessed shall be paid quarterly, to be received by the City Treasurer not later than 45 days after the close of each quarter of Grantee's fiscal year. (C) On a quarterly basis, Grantee shall provide the City a complete and accurate statement verified by a financial officer of Grantee indicating Gross Revenues for the past quarter, listing every revenue source, and depicting gross revenue computations. (D) On an annual basis, Grantee shall file a complete and accurate statement certified by Grantee's chief financial officer, indicating all Gross Revenues for said year, listing every revenue source, and depicting gross revenue computations. If the City has any concerns or objections relating to such report, the City shall have 60 days to notify Grantee and request additional information. Grantee shall have 60 days to provide additional information to resolve any concerns or objections to the City's satisfaction. Thereafter, the City may, at its sole discretion, request that such statement be certified by an independent certified public accountant, at Grantee's sole cost; provided, however, that any such request shall be made within 60 days after Grantee's response is received. (E) At any time during the term of a Franchise, the City shall have the right to conduct, or require Grantee to obtain, an independent audit by certified public accountants of any and all records of Grantee that are related to Gross Revenue reports or computations. Grantee shall pay the costs of such audit not more frequently than once every five years or upon a proposed transfer or change of control of the Franchise. Grantee shall cooperate with any such audit making readily available any and all information requested by the City. The certified public accountants shall be required to certify in the audit that the Grantee is in compliance with this chapter and the Franchise Agreement. Grantee shall maintain in a readily accessible place all such records for a minimum of four years after any payment period that such record pertains to. This right shall be in addition to City' s right to conduct any other audit. 737846.1 17 (F) In the event that any Franchise fee payment is not paid by the due date, interest shall be charged monthly at a monthly rate of one and one-half percent. In addition, if any Franchise fee is not paid in full within 15 days after receipt of notice from the City as to the delinquency of such payment, a late fee in amount of five percent of the delinquent amount shall be assessed. (G) In the event Grantee claims to have overpaid by more than five percent the amount of Franchise fee actually due during any given quarter, it shall file an application with the City within one year after said payment was made. The failure to timely and properly make such claim 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 relevant by the City. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final. § 1886 CONTENTS OF CABLE TELEVISION FRANCHISE (A) The terms and provisions of a Franchise Agreement for the operation of a Cable System may include, without limitation, the following subject matters: The nature, scope, geographical area, and duration of the Franchise. 2. The applicable Franchise fee to be paid to the City, including the percentage amount, the method of computation, and the time for payment. 3. Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the Cable System. 4. Requirements relating to the construction, upgrade, or rebuild of the Cable System, as well as the provision of special services, such as outlets for public buil'dings, emergency alert capability, and parental control devices. 5. Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the Grantee's obligations under the Franchise Agreement. 6. Requirements relating to liability insurance, workers' compensation insurance, and indemnification. 7. Additional requirements relating to consumer protection and customer service standards, including the resolution of Subscriber complaints and disputes and the protection of Subscribers' privacy rights. 8. Requirements relating to the Grantee's support of local cable .usage, including the provision of Public, Educational, and Government Access Channels, 737846.1 1 8 the coverage of public meetings and special events, and financial or technical support for Public, Education, and Governmental Access uses. 9. Requirements relating to construction, operation, and maintenance of the Cable System within the Public Rights-of-Way, including compliance with all applicable building codes and permit requirements, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards. 10. Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, and performance reviews, and the inspection of Grantee's books and records. 11. Acts or omissions constituting material breaches of or defaults under the Franchise Agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and termination. 12. Requirements relating to the sale, assignment, or other transfer or change in control of the Franchise. 13. The Grantee' s obligation to maintain continuity of service and to authorize, under certain specified circumstances, the City's operation and management of the Cable System. 14. Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the Franchise Agreement and that will, in the judgment of the City, best serve the public interest and protect the public health, welfare, and safety. § 1887 BREACH OF FRANCHISE; GROUNDS FOR ASSESSMENT OF PENALTIES AND FRANCHISE REVOCATION. (A) In addition to all other rights and powers retained by the City under this chapter or otherwise, the City reserves the right to terminate any Franchise and all rights and privileges of Grantee, or assess damages or penalties against Grantee, in the event of any material breach of its terms and conditions. A material breach by Grantee shall include, but not be limited to the following: (1) Violation of any material provision of this chapter, the Franchise Agreement or any material rule, order, regulation or directive issued in connection with the Franchise; (2) Evasion of any material provision of this chapter or the Franchise Agreement, or the practice of fraud or deceit upon the City or its Subscribers and customers; (3) Material misrepresentation of fact in an application for a new Franchise, renewal or transfer of a Franchise, whether by act or omission; 737846.1 19 (4) Failure to pay any Franchise fee when said payment is due; (5) Failure to restore Cable Service after 72 consecutive hours of interrupted Cable Service, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption; (6) Failure to provide at least 80% of subscribed Cable Services over the Cable System for a period of five days, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption; (7) Failure to substantially meet customer service standards established in the Franchise over any consecutive three-month period of time; (8) Failure to initiate or Complete System Construction, or reconstruction within the time set forth in the Franchise, unless the City Council expressly approves the delay by motion or resolution, due to the occurrence of conditions beyond Grantee's control; (9) Failure to provide or maintain in full force and effect at all times any insurance coverage, letter of credit or bonds required by the Franchise Agreement; (1 O) Violation of orders or rulings of any regulatory body having jurisdiction over Grantee relating to the Franchise; (11) Failure to provide, upon written request, data, documents, reports or information; and (12) Failure to pay debts and obligations as they mature in accordance with normal business practices; assignment of Grantee or its assets for the benefit of its creditors; dissolution, liquidation or ceasing to conduct business; application by Grantee for (or consent by Grantee to) the appointment of a receiver, trustee, liquidator; or the filing of a bankruptcy petition by Grantee to the extent permitted by federal law or the sale of all or substantially all of Grantee's assets. § 1888 PROCEDURE FOR ADJUDICATION OF BREACHES OF THE FRANCHISE. (A) Prior to imposing any liquidated damages, sanction or penalty upon Grantee, including termination of the Franchise, the City Manager, shall demand in writing that Grantee cure such breach within a specified period, which period shall not be less than 30 days following notification. However, only 15 days notice shall be required in the case of failure to pay monies due. In addition, the City may, in an emergency, prescribe a notice less than 30 days consistent with the nature of the emergency. An 737846.1 20 emergency under this subsection (A) means an occurrence or condition that creates an actual or imminent danger to life or property. (B) Should Grantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being actively and expeditiously pursued by Grantee, then the City Manager may, in his or her sole discretion, elect to either place the issue of termination or other penalty before the City Council pursuant to § 1889 of this Ordinance or refer the matter to an appropriate hearing officer for his or her determination pursuant to § 1890. § 1889 CITY COUNCIL HEARING PROCEDURES. (A) The City Council may hold a public hearing to determine whether Grantee materially breached the Franchise and the appropriate penalty to be imposed, if any, as a result of such breach. The City shall cause to be served upon Grantee, at least ten days prior to the date of such hearing, written notice of any intent to terminate the Franchise and the time and place of the hearing. Grantee may appear at such hearing and present such evidence, orally or in writing, that it deems relevant and appropriate to the Council's deliberations. Based on the evidence presented at the hearing, the City Council shall determine in its discretion whether or not a material breach occurred and whether to terminate the Franchise or take other appropriate action. (B) Should the City Council find that there has been a material breach of the Franchise, but that termination of the Franchise is inappropriate, then the Council may assess and levy or impose such other relief as the Council deems appropriate. (C) The City shall cause Grantee to be served with written notice of any action taken by the City Council following such public hearing. The decision of the City Council as to such matters shall be final, but may be challenged by Grantee in a court of competent jurisdiction. (D) Nothing herein is intended to limit the City Council's right to make other determinations which are reasonably related to the Franchise, or to seek any other appropriate relief to which the City may be entitled, at law or equity, as a result of any breach by Grantee of its obligations under the Franchise. § 1890 HEARING OFFICER PROCEDURES. (A) The City Manager may, at his or her sole discretion, refer to a hearing officer any controversy or claim arising out of or relating to the Franchise or its existence, construction, interpretation, performance, enforcement, operation, breach, continuance or termination. Such hearing proceedings shall be initiated by the City Manager by written notice to Grantee. (B) Within 90 days of referral of a controversy or claim, the hearing officer shall commence a hearing unless the parties and the hearing officer otherwise agree in writing. 737846.1 21 (C) The hearing officer shall be vested with quasi-judicial authority, and shall be authorized to (i) order Grantee to undertake remedial action to cure any breach of its obligations under its Franchise, (ii) assess liquidated damages and/or levy a penalty upon Grantee in accordance with the terms of this chapter and the Franchise Agreement, (iii) determine that Grantee has not violated any of its obligations under its Franchise and/or (iv) terminate the Franchise. The hearing officer shall make findings in support of his or her determinations which must be supported by substantial evidence. (D) Except as may be apportioned between the parties by the hearing officer in his or her discretion, each party shall bear one-half of the fees and expenses of the hearing officer. Each party shall bear its own witness and attorneysv fees or other expenses. (E) Failure of Grantee to fully and promptly comply with an order of a hearing officer shall be deemed a material breach of the Franchise. (F) The decision of the hearing officer shall be final and subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5. § 1891 PENALTIES FOR BREACH OF THE FRANCHISE. The City Council or hearing officer may impose the following penalties for any breach of the Franchise, including any breach of Subscriber service standards: (A) Up to $1,000 for each day of each material breach, or such other amount provided in the Franchise Agreement. (B) For a second material breach ofthe same nature occurring within 12 months where a fine or penalty was previously assessed, up to twice the maximum penalty allowed for the first such breach. (C) For a third or further material breach of the same nature occurring within 12 months of the first such breach, where a fine or penalty was previously assessed, up to four times the maximum penalty allowed for the first such breach. § 1892 ALTERNATIVE REMEDIES. The remedies provided in this chapter are cumulative and in addition to all other rights the City may have at law or equity or under the Franchise Agreement, including but not limited to liquidated damages, which remedies may be exercised at any time. In no event shall the amount of any bond or letter of credit be construed to limit Grantee's liability for damages. § '1893 REMOVAL AND ABANDONMENT; PURCHASE OF SYSTEM. (A) Subject to applicable law, in the event that a Franchise is terminated, revoked, or is not renewed upon expiration, then Grantee shall, upon demand of the City, and at its sole expense, promptly remove all or any portion of its Cable System. In 737846.1 22 removing its Cable System, Grantee shall restore all streets to the City's standard specifications and repair any damage to utilities or other infrastructure caused by such removal. The liability, indemnity, insurance, security fund and bonds required under the Franchise shall continue in full force and effect until such removal is accepted as complete by the City. (B) Subject to applicable law, in the event that a Franchise is not renewed and the City acquires ownership of a Cable System or effects a transfer of ownership of a Cable System to another Person, any such acquisition or transfer shall be at fair market value, determined on the basis of the Cable System valued as a going concern, but with no value allocated to the Franchise itself. If a Franchise is revoked for cause and the City acquires ownership of the Cable System or effects a transfer of ownership of the Cable System to another Person, any such acquisition or transfer shall be at an equitable price. The value of a Cable System (fair market value or equitable price) shall be determined by an appraisal committee consisting of three disinterested appraisers. The City and Grantee shall each select one appraiser, and the two selected appraisers shall agree upon and appoint a third appraiser. (C) If a Grantee's plant, or a portion thereof, is deactivated for a continuous period of 30 days, (except for reasons beyond the Grantee's control), and without prior written notice to and approval by City, then the Grantee must, at City's option and demand, and at the sole expense of the Grantee, promptly remove all of the Grantee's property from any streets or other Public Rights-of-Way. The Grantee must promptly restore the streets or other public areas from which its property, including Distribution Facilities, has been removed to the condition existing prior to the Grantee's use. (D) City may, upon written application by a Grantee, approve the abandonment in place by a Grantee of any property, under such terms and conditions as City may approve. Upon City-approved abandonment in place of any property, the Grantee must cause to be executed, such instruments as the City may prescribe in order to transfer and convey ownership of the abandoned property to the City. § 1894 RECEIVERSHIP AND FORECLOSURE. (A) Subject to applicable provisions of the United States Bankruptcy Code, any Franchise shall, at the option of the City, cease and terminate 120 days after the appointment of a receiver or trustee to take over and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless: (1) Such receiver or trustee shall have, within 120 days after his or her election or appointment, fully complied with all terms of the Franchise and remedied all breaches of the Franchise or provided a plan for the remedy of such breaches which is approved in writing by the City; and, 737846.1 23 (2) Such receiver or trustee shall, within said 120 days, execute an agreement duly approved by the Court having jurisdiction, under which such receiver or trustee agrees to be bound by each and every term, provision and limitation of the Franchise. (B) Upon the foreclosure or other judicial sale of all or a substantial part of a Cable System, Grantee shall notify the City of such fact, and such notification shall be treated as a notification that a change in ownership of Grantee has taken place and the provisions of this chapter governing such changes shall apply. DESIGN AND CONSTRUCTION § 1895 UNDERGROUNDING. (^) conduit. At no time shall Grantee place cable underground without appropriate (B) The Cable System shall be placed underground in all portions of the Franchise area where either telephone or electric lines are underground. Whenever the poles on which the Cable System is constructed are eliminated, Grantee shall concurrently replace its aerial facilities with underground facilities. At no time shall the Cable System be the only aerial facility in any given area. (C) Where the Cable System is installed underground, line extenders, amplifiers, taps, power supplies, traps and related electronic equipment and components may be placed in appropriate housings above the surface of the ground to the extent that the method employed is compliant with any and all applicable City, state, federal or other regulations, and consistent with any other generally applicable guidelines, policies or procedures which may from time to time be adopted by the City or other applicable government agency. Grantee shall provide a procedure for undergrounding taps and pedestals, the cost of which the Subscriber will bear, and relocating the taps and pedestals within the technical constraints of the Cable System. § 1896 USE OF POLES. Grantee shall be authorized to utilize existing poles, conduit, and other facilities of a public utility, but shall not be authorized to construct or install any new, different, or additional poles in any City streets without prior written approval by the City. § 1897 CONSTRUCTION STANDARDS. Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with applicable California Public Utilities Commission pole attachment standards, electrical codes and industry standards of the Cable television industry generally applicable to the type of Cable System which Grantee has constructed, owns or operates any applicable pole agreements, and all Franchise Agreement requirements. Grantee shall adhere to all building and zoning regulations currently in force or hereafter enacted. Grantee shall repair and restore any cuts and/or trenching in the roadway or 737846.1 24 sidewalks to City standards. Grantee shall locate and maintain its lines, cables, and other appurtenances, on public property, in such a manner as to cause no unreasonable interference with the use of such public property by any Person. § 1898 APPROVALS. The City Engineer shall be authorized to approve the location and method of construction of all underground facilities and equipment located on Public Right-of-Ways (including any above-grade portion of such facilities and equipment). The City Engineer also shall approve the location and installation of all new aerial facilities. All construction shall be subject to City permit and inspection fees as may be required by other applicable laws or regulations. § 1899 SUBMISSION OF DRAWINGS. Grantee shall file with the City "as-built" drawings of the entire Cable System, excluding technical specifications. Additionally, within 30 days after completion of any material modification of the Cable System (e.g., a system rebuild or Distribution Facility replacement), Grantee shall file with the City "as-built" drawings, excluding technical specifications, of the modified Cable System. The City may require that the "as-built" drawings be submitted in an electronic format specified by the City. § 1900 RELOCATION OF FACILITIES AND EQUIPMENT. (A) Grantee shall remove or relocate at its sole cost any facilities installed, used or maintained in connection with the Franchise if and when such removal or relocation is made necessary by any project. For purposes of this section, the word 'project' means any change of grade, alignment or width of any public street, way, alley or place, including but not limited to, the construction of any subway or viaduct, that the City may initiate, either by or through itself or any redevelopment agency, community facility district, assessment district, undergrounding district, reimbursement agreement or generally applicable impact fee program. (B) In the event that such removal or relocation is required, Grantee shall commence physical fieldwork on the removal or relocation on or before 120 days after written notice of such requirement is provided by the City Manager. If, despite its reasonable efforts, Grantee is unable to commence removal or relocation within such period, Grantee shall provide the City Manager with written notice explaining in detail the reasons for the delay and a date certain upon which such removal or relocation is expected to commence. Grantee shall diligently proceed and promptly complete all such removal or relocation after it is commenced. § 1901 MAINTENANCE. Should Grantee fail, refuse or neglect to properly perform any maintenance or construction work required by the Franchise following due notice from the City and a reasonable opportunity to cure as provided for under this chapter, or should Grantee fail to commence performance of such work within the required period of time, or fail to 737846.1 25 diligently proceed and promptly complete such work thereafter, the City Manager may, upon five days prior written notice to Grantee (except in cases of emergency), cause such work or other act to be completed in whole or in part by the City forces or others, and upon so doing shall submit to Grantee an itemized statement of the costs thereof. Grantee shall pay to the City the entire amount due, without offset or deduction, within thirty (30) days from the date of such statement. MINIMUM CUSTOMER SERVICE STANDARDS § 1902 SUBSCRIBER SERVICE STANDARDS. Grantee shall comply with the FCC customer service standards set forth at Section 76.309 of Title 47 of the Code of Federal Regulations, and such additional standards that may be imposed by ordinance or the Franchise Agreement, and each of the following requirements: (A) The Grantee shall maintain a local, toll-free or collect call telephone access line ("Access Line") which will be available to its Subscribers 24-hours a day, seven-days a week; (B) Trained, knowledgeable and qualified customer service representatives will be available to respond to customer telephone inquiries during normal business hours. Normal business hours shall be a minimum of 59 hours weekly, from 7:00 a.m. to 6:00 p.m., Monday through Friday, and at least four additional hours one evening per week or on Saturdays (or such other times as are approved in writing by the City Manager); (C) During non-business hours, the Access Line may be answered by a service or an automated response system, including an answering machine. Inquiries received during such hours must be responded to by a trained company representative during the next business day; (D) A business and service office located within the City shall be open Monday through Friday from 7:00 a.m. to 6:00 p.m., and adequately staffed to accept Subscriber payments and respond to service requests and complaints. Additionally, Grantee will staff the business and service office at least four additional hours one evening per week or on Saturdays. Other locations and hours are permissible if approved in writing by the City Manager; (E) Telephone answer time by Grantee's customer service representatives, including waiting time, shall not exceed 30 seconds after a connection is made, and a busy signal shall not be obtained more than three percent of the time. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90% of the time under Normal Operating Conditions, measured on a quarterly basis. 737846.1 26 (F) Grantee shall provide and maintain an emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24- hour basis; (G) Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between midnight and 6:00 a.m.; (H) Under Normal Operating Conditions, Grantee shall respond to the following Subscriber complaints or requests for service, within the time frame specified below, no less than 95% of the time (measured on a quarterly basis): (1) System Outages: Within two (2) hours, including weekend days, of receiving Subscriber calls reporting a System outage which, by number of calls, identify a Cable System outage of sound or picture of one (1) or more channels, or a loss of any other Cable Service, affecting five (5%) percent or more of the Subscribers of the Cable System. (2) Service interruptions: within 24 hours, excluding Sundays and 'holidays, after the interruption becomes known. (3) Inferior reception quality: within 48 hours after receiving a request for service identifying a problem concerning picture or sound quality. (I) Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location, if necessary, or otherwise begins work on the problem. In the case of a Subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival. (J) The appointment window alternatives for installations, service calls, and other installation activities offered to a Subscriber will be either a specific time or, at a maximum, a four (4) hour time block during normal business hours. A Grantee may schedule service calls and other installation activities outside of normal business hours or outside the parameters of response time outlined above for the express convenience of the Subscriber. Further, the following additional requirements shall apply to service appointments: (1) A Grantee shall, in accordance with Section 1722 (b) of the California Civil Code, inform Subscribers of their right to service connection or repair within a four (4) hour period, if the presence of the Subscriber is required, by offering the four (4) hour period at the time the Subscriber calls for service connection or repair. Grantee also agrees to notify all Subscribers by mail of their rights under Section 1722(b) at least annually during each year of the Franchise. (2) If the service connection or repair is not commenced within the specified four-hour period, except for delays caused by unforeseen or unavoidable 737846.1 27 occurrences beyond the control of a Grantee, the Subscriber shall receive one month of free service at the service level subscribed to by the affected Subscriber. (K) Standard installations will be performed within seven (7) business days after an order has been placed. Standard installations are those that are located up to one hundred fifty (150) feet from the existing distribution system. (1) If the Grantee cannot perform the standard installation within seven (7) business days of request by a Subscriber, the Subscriber shall receive one month of free service at the service tier subscribed to by the affected Subscriber. (2) In the event that any services to any Subscriber are interrupted for forty-eight or more hours in any seven-day period, except for acts of God or other circumstances beyond Grantee's control and outside the Cable System, and except in circumstances for which the prior approval of the interruption is obtained from the City Manager, Grantee shall provide a twenty percent rebate of the monthly fees to affected Subscribers. (L) Grantee shall have equipment and perform surveys to measure compliance with the telephone answering standards set forth in this section. The results of the surveys shall be submitted to the City quarterly. After one year of submitting telephone- answering surveys to the City, Grantee may request that it be relieved of the requirement of submitting such surveys. The City Manager may relieve Grantee of the survey requirement if he or she finds, based on the surveys and the level of customer complaints, that Grantee is in full compliance with telephone answering standards. City reserves the right to reinstitute the survey reporting requirement if the City receives three complaints in any twelve-month period of Grantee failing to meet these telephone answering standards. § 1903 IDENTIFICATION REQUIRED. All personnel, agents and representatives of Grantee who have contact with Subscribers and/or the public, including subcontractors, shall wear photo identification badges. Upon request by the City, Grantee shall provide a list of current employees, contractors, and subcontractors performing work in the City. § 1904 NOTIFICATION TO SUBSCRIBERS. Grantee shall provide written information on each of the following areas at the time of installation of service, and at least annually, to all Subscribers and at any time upon request by any resident of the City: (A) Products and services offered; (B) Prices and options for programming services and conditions of subscription to programming and other services; (C) Installation and service maintenance policies; 737846.1 28 (D) Instructions on how to use the Cable Service; (E) Cable channel positions and identification; (F) Customer service telephone number and office hours; (G) Billing and complaint procedures, including how to resolve Subscriber billing disputes; (H) Credit procedures; (I) Employee identifications; (J) Service call response time scheduling; (K) Time allowed to pay outstanding bills; (L) Grounds for termination of service; (M) Steps Grantee must take before disconnecting or terminating service, and the steps necessary to have service reconnected after involuntary termination; (N) The Subscriber's right to speak with a supervisor and, if none is then available, that a supervisor shall return the Subscriber's call within one working day; (O) The appropriate regulatory authority with whom to register a complaint, including any rate complaint, and how to contact such authority. (P) Instructions on the channel compatibility problems that occur when using a set-top channel converter to view scrambled or encrypted programming, including that Subscribers may not be able to use special features and functions of their TV receivers and videocassette recorders. (Q) Instructions regarding the availability of remote control equipment from other sources, such as retail outlets, and a list of the models of remote control units currently available from retailers that are compatible with Grantee's converters. § 1905 VERIFICATION OF SUBSCRIBER SERVICE STANDARDS. (A) Grantee shall demonstrate compliance within the City with all of the standards contained in (or referenced by) § 1902 by providing quarterly customer service reports to the City, unless otherwise provided by its Franchise Agreement. The reports shall provide the following information: (1) department. Volume of telephone calls received by the customer service rate. (2) Percentage of time trunk lines were busy, and the abandonment 737846.1 29 (3) Average time to complete out-of-service calls, and all other service calls. (4) Average time to complete new installations. (5) Detailed customer complaint and outage reports. (B) Grantee shall maintain a written log or an equivalent stored in computer memory and capable of access and reproduction, for three years indicating the time and date of all Service Interruptions, requests for Cable Service or repairs, and responses to request for Cable Service or repairs. § 1906 SUBSCRIBER COMPLAINTS. (A) Grantee's complaint handling procedures shall be designed to accomplish the following: (1) Receive and acknowledge any complaint made in person or by telephone within fifteen minutes, regardless of the time the complaint is made. (2) Acknowledge any complaint received by mail within three business day of the date such complaint is received. (3) Complaints not resolved within twenty-four hours of receipt shall be listed in a log of "Delayed Action on Complaints" which shall give the detailed reasons for non-resolution within the twenty-four-hour period. (4) Provide the complainant access to the Grantee's management or supervisory personnel on a'basis convenient to the complainant in the event resolution is not immediately obtained by Grantee's personnel normally assigned to handling complaints. (5) Provide complete information to the complainant regarding his or her ability to take the complaint to the grantor's representative if it is not resolved by the Grantee. (B) Grantee shall establish procedures for receiving, acting upon and resolving Subscriber complaints and shall submit such procedures to the City Manager for review and approval. The Grantee shall furnish a notice of such procedures to each Subscriber at the time of initial subscription to the system. (C) Grantee shall maintain a written record, or "log" listing date and time of customer complaints, identifying the Subscriber and describing the nature of the complaints and when and what action was taken by the Grantee in response thereto; such record shall be kept at Grantee's local office, reflecting the operations to date for a period of at least three years, and shall be available for inspection during regular business hours without further notice or demand by the City Manager. 737846.1 30 (D) As Subscribers are connected or reconnected to the Cable System, the Grantee shall, by appropriate means such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of Grantee's employee or agent to whom such inquiries or complaints are to be addressed and furnish information concerning the City office responsible for administration of the Franchise with the address and telephone number of the office. (E) Grantee shall provide written notice to each Subscriber at intervals not to exceed one year of the procedure for reporting and resolving Subscriber complaints, including the Subscriber's right to complain in writing to the City of Grantee's failure to resolve a service complaint. The proper address of the City and Grantee to which complaints may be directed shall be included in said notice. § 1907 COMPATIBILITY WITH CONSUMER ELECTRONICS EQUIPMENT. (A) The Grantee shall not scramble or otherwise encrypt signals carried on the basic service tier. Requests for waivers of this prohibition must demonstrate either a substantial problem with theft of basic tier service or a strong need to scramble basic signals for other reasons. (B) The Grantee shall comply with equipment compatibility rules and commercial availability of navigation equipment rules of the FCC. (C) The Grantee shall offer Subscribers the option to receive an A/B switch at the time of initial Cable Service installation and shall provide Subscribers with written information as to how to use such a switch. The Grantee may charge a reasonable price for said switch. Upon Subscriber request, the Grantee shall provide an A/B switch after the initial installation of Cable Service. If the Subscriber requests installation of such a switch (to receive broadcast television without Cable hookup), the Grantee may charge reasonable fees for such installation and equipment. RATES § 1908 RATE REGULATION. The City may regulate a Grantee's rates, charges, and prices to the maximum extent permitted by law now or at a future time. (A) Filing of Rates and Charges. Throughout the term of any Franchise Agreement entered into pursuant to this chapter, Grantee shall maintain on file with the City a complete schedule of all rates and charges related to providing Cable Services under the Franchise, in a form satisfactory to the City. (B) Changes in Rates and Charges. Grantee shall provide written notice to the City and Subscribers at least thirty (30) days in advance of any proposed changed s in rates and charges within the control of Grantee. Such notice shall be provided in the Subscriber's bill. 737846.1 31 (C) Regulation of Equipment for Hearing-Impaired. To the extent authorized by law, the City reserves the right to require and regulate the installation or rental of equipment which facilitates the reception of Cable Service by hearing impaired individuals. § 1909 BILLING PROCEDURES. Billing procedures shall be as follows: (A) Bills will be clear, concise, and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including: (1) A list of each service or package received for that billing period; (2) The rate or charge for each service or package received; (3) The period of time over which said services are billed; (4) The total charges due for the monthly period, separate from any previous balance due; (5) Credits posted during the month; i. Credits for service will be issued no later than the Subscriber's next billing cycle following the determination that a credit is warranted. (6) A specific date by which payment is required; and (7) The customer service telephone number to which billing inquiries or complaints can be directed. (B) A Grantee's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit. (C) A Grantee's billing statement must show a specific payment due date, and no late payment fee may be imposed on a Subscriber earlier than thirty (30) calendar days from the due date on the billing statement. Any balance not received within thirty (30) calendar days of the due date may be assessed a late fee consistent with this Chapter. Any late fee assessed must appear on the following month's billing statement. (D) A Grantee must notify the Subscriber that he or she can remit payment in Person at the Grantee's office located in or near the City and inform the Subscriber of the address of that office. (E) Every customer who pays his or her bill directly shall have at least fifteen (15) days from the date of the bill for services is mailed to pay the listed charges. 737846.1 32 Customer payments shall be posted promptly. The Grantee shall not terminate any residential service for nonpayment of a delinquent account without fifteen (15) days prior written notice. Such notice shall not be mailed until after the sixteenth (16th) day from the time the bill for services was mailed to the customer. The Grantee may not assess a late charge earlier than the twenty-second (22nd) day from the time the bill for services has been mailed. (F) In case of a billing dispute, the Grantee must respond to a written complaint from a Subscriber within thirty (30) days. (G) At the time of the initial complaint, Grantee shall provide written or verbal notice to customers that in the event of a billing dispute, the Grantee, upon resolution of the dispute when Grantee is at fault, shall waive a late fee. (H) Subscribers shall not be charged a late fee or otherwise penalized for any failure by the Grantee, its employees, or contractors, including failure to timely or correctly bill the Subscriber, or failure to properly credit the Subscribers for a payment made in a timely manner. (I) Every notice of termination of service shall include: name and address of Subscriber whose account is delinquent; the amount of the delinquency; the date by which payment is required in order to avoid termination of service; the telephone number of the Grantee for additional information and/or to handle complaints or initiate an investigation concerning service and charges in question. (J) Service may only be terminated on days and at times in which the Subscriber can reach a Customer Service Representative of the Grantee either in Person or by telephone. (K) The Grantee shall afford each Subscriber of the Cable System with a right to rescind the Subscriber's ordering of service within three (3) days after ordering, provided that such right of rescission shall end upon activation of the service ordered. (L) The Grantee will not pass-through Franchise fees to Subscribers which exceed 5.25% of the amount shown on the bill for Cable Services and equipment. (M) The Grantee shall assess any late fees in accordance with California law. In no event shall a late fee exceed the maximum amount permissible under California law. (N) Any Franchise Agreement entered into pursuant to this chapter may contain provisions for a discount on basic and Cable programming tiers or any other Cable Services for Persons with specific income and disability qualifications. (O) Grantee will set rates for equipment deposits no higher than the actual replacement value of the equipment for which the deposit is applied. Equipment deposits shall be promptly returned to Subscribers upon the return in good working condition to the Grantee of the equipment for which said deposit was required. 737846.1 33 § 1910 REFUNDS. (A) Refund checks will be issued promptly, but no later than either: (1) the Subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (2) in cases involving the return of the equipment supplied by the Grantee if service is terminated for any reason, by the Subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier. (B) If the Grantee does not mail a check for a refund to any Subscriber disconnecting service with an outstanding credit within the next billing cycle or thirty days, whichever is earlier, the Subscriber may request and is entitled to receive a ten dollar ($10.00) payment. § 1911 NOTICE OF RATE INCREASES. Grantee shall provide written notice to the City and Subscribers at least 30 days in advance of the implementation of changes in any of its rates and charges which are not subject to regulation by the City. § 1912 NON-DISCRIMINATION AND CUSTOMER PRIVACY. (A) Service Availability. No Person, firm or corporation in the existing service area of a Grantee shall be arbitrarily refused service; provided, however, that the Grantee shall not be required to provide service to any Subscriber who does not pay the applicable connection fee or monthly service charge hereby authorized. A Grantee shall not deny any Cable Service or otherwise discriminate against Subscribers or others on the basis of race, color, religion, national origin, sex, age or sexual preference. A Grantee shall strictly adhere to the equal emPloyment opportunity requirements of federal, state or local governments and shall comply with all applicable laws and executive and administrative orders relating to non-discrimination. A Grantee may not require the subscription to any tier other than the basic service tier as a condition of access to video programming offered on a per channel or per program basis. A Grantee may not discriminate between Subscribers to the basic service tier and other Subscribers with regard to the rates charged for video programming offered on a per channel or per program basis. A Grantee will abide by all customer privacy requirements of federal and State law. At least annually, a Grantee shall provide notice in the form of a separate, written statement to each Subscriber, which clearly and conspicuously informs the Subscriber of: 737846.1 34 (i) (ii) the nature of personally identifiable information collected or to be collected with respect to the Subscriber and the nature of the use of such information; -- the nature, frequency and purpose of any disclosure, which may be made of such information, including the identification of the types of Persons to whom the disclosure may be made; (iii) the period during which such information will be maintained by the Grantee; (iv) the times and place at which the Subscriber may have access to such information in accordance with federal and State law; and (v) the limitations provided in federal and State law with respect to the collection and disclosure of information by a Grantee and the right of the Subscriber under law. (B) Data Collection. A Grantee's data collection and dissemination practices regarding Subscribers shall be in compliance with the Cable Act (including Section 631) and this Chapter. (C) Revealing Subscriber Preferences. (i) A Grantee shall not reveal individual Subscriber preferences, viewing habits, beliefs, philosophy, creeds or religious beliefs to any third Person, firm, agency, governmental unit or investigating agency without court authority or prior written consent of the Subscriber. (ii) Such written consent, if given, shall be limited to aperiod of time not to exceed one (1) year or a term agreed upon by the Grantee and Subscriber. (iii) A Grantee shall not condition the delivery or receipt of Cable Services to any Subscriber on any such consent. (iv) Such a Subscriber may revoke without penalty or cost any consent previously made by delivering to the Grantee in writing a substantial indication of his intent to so revoke. (D) Revealing Subscriber Lists. A Grantee shall not reveal, or sell, or permit the release or sale of its Subscriber list without the prior affirmative written consent of each Subscriber, provided that the 737846.1 35 Grantee may use its Subscriber list as necessary for the construction, marketing, and maintenance of the Grantee's services and facilities authorized by its Franchise, and the related billing of Subscribers for Cable Services. Consistent with applicable law, City may use Grantee' s Subscribers list for the purpose of communication with Subscribers in connection with matters relating to operation, management, and maintenance of the Cable System. (E) Other Persons Affected. This Section shall apply to all of the fOllowing as well as to any Grantee: (i) Officers, directors, employees and agents of the Grantee; (ii) General and limited partners of the Grantee; (iii) Any Person or combination of Persons owning holding or Controlling five percent (5%) or more of any corporate stock or other ownership interest of the Grantee; (iv) Any affiliated or subsidiary entity owned or Controlled by the Grantee, or in which any officer, director, stockholder, general or limited partner or Person or group of Persons owning, holding or Controlling any ownership interest in the Grantee, shall own, hold or Control five percent (5%) or more of any corporate stock or other ownership interest; (v) Any Person, firm or corporation acting or serving in the capability of holding or Controlling company of the Grantee. § 1913 WRITTEN OR ORAL NOTICE TO ENTER PROPERTY. Under Normal Operating Conditions, Grantee shall provide written or oral notice, in light of circumstances, prior to entering any private property. § 1914 NOTICE REGARDING CHANNEL SCRAMBLING. Subscribers shall be given at least thirty (30) days written notice of any scrambling of a channel, and any de-scrambling of a channel(s) containing R-rated or stronger programming. Subscribers do not need to be notified of blackout periods required of the Grantee by programmers. § 1915 TENANT RIGHTS. It is the City's intent that tenants not be discriminated against in the ability to subscribe to Cable Services. Grantee shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the Franchise Area, so long as the owner of the facility consents in writing, if requested by Grantee, to the following: 737846.1 36 (A) Grantee's providing the service to units of the facility on such terms and conditions as are reasonable, provided that (i) the owner of the facility shall not seek to charge Grantee any fee or consideration for access to the facility or for the right of providing Cable Service to the dwelling units within the facility, (ii) Grantee shall not seek to charge the owner of the facility any fee or consideration for installing such service other than its actual costs as provided for herein, and (iii) such terms and conditions shall be in compliance with applicable law; (B) Reasonable access to the premises by Grantee for installation, maintenance, and inspection of the system on the premises; (C) Reasonable conditions promulgated by Grantee to protect Grantee's equipment and to encourage widespread use of the system; (D) The owner shall not discriminate in rental charges, or otherwise, between tenants who receive Cable Service and those who do not; and (E) The owner shall provide all easements, rights-of-way, and other rights of aCcess deemed reasonably necessary or appropriate by Grantee for purposes of providing Cable television service to the facility. § 1916 CONTINUITY OF SERVICE MANDATORY. (A) Subscribers shall have the right to continue to receive service so long as their financial and other obligations to Grantee are honored. Grantee shall at all times, and under all conditions, to the greatest extent economically and technically possible, maintain continuity of service. In the event of an assignment of the Cable System, the assignor shall cooperate with the City and the assignee in order to maintain continuity of service to all Subscribers. (B) In the event Grantee willfully fails to operate the Cable System for a period of five consecutive days without prior approval of the City, the City may, in its sole discretion, elect to operate the Cable System or designate an operator until Grantee restores service under conditions acceptable to the City, or until the City selects a permanent operator. During the entire period while the City operates the Cable System on behalf of Grantee, or causes another party to do so, the City shall be entitled to collect any and all revenues from the operation of the Cable System, and Grantee shall reimburse the City for all reasonable costs or damages in excess of the revenues collected by the City that are caused by Grantee's failure to perform. OPEN VIDEO SYSTEMS § 1917 APPLICABILITY. The provisions of this chapter apply to an Open Video System Operator that intends to deliver video programming to consumers in the City over an Open Video System. 737846.1 37 § 1918 APPLICATION REQUIRED. A. Before commencing the delivery of video programming services to consumers in the City over an Open Video System, the Open Video System Operator must file an application with the City. That application must include or be accompanied by the following, as applicable: o The identity of the appliCant, including all Affiliates of the Applicant. 2. Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR ~ 76.1503(b)(1), and the Order of the FCC, all of which relate to certification of the applicant to operate an Open Video System in accordance with Section 653(a)(1) of the Communications Act and the FCC's rules. 3. The area or areas of the City that the applicant desires to serve. 4. A description of the Open Video System services that will be offered by the applicant over its existing or proposed facilities. 5. A description of the transmission medium that will be used by the applicant to deliver the Open Video System services. 6. Information in sufficient detail to establish the applicant's technical qualifications, experience, and expertise regarding the ownership and operation of the Open Video System described in the application. 7. Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to: a. Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the City. b. Comply with the City's Public, Educational, and Government Access Channel requirements as specified below in Section 1920 B(4). c. Comply with the City's requirement that gross revenue fees be paid in the sum of 5 percent (5%), as specified below in Section 1920 (B)(2). 8. An accurate map showing the location of any existing telecommunications facilities in the City that the applicant intends to use, to purchase, or to lease. 9. If the applicant's operation of the Open Video System will require the construction of new physical plant in the City, the following additional information must be provided: 737846.1 38 a. A preliminary construction schedule and completion dates. b. Preliminary engineering plans, specifications, and a network map of any new facilities to be constructed in the City, in sufficient detail to identify: (i) The location and route requested for the applicant's proposed facilities. (ii) The locations, if any, for interconnection with the facilities of other telecommunications service providers. (iii) The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis. c. The applicant's statement that, in constructing any new physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of the City, including the payment of all required permit and processing fees. 10. The information and documentation that is required to be submitted to the City by a Video Provider, as specified below in paragraph (B) of Section 1922. Manager. 12. of the City Council. Such additional information as may be requested by the City A nonrefundable filing fee in an amount established by resolution B. If any item of information specified above in paragraph (A) is determined under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that such information be included in the application. § 1919 REVIEW OF APPLICATION. Within 30 days after receipt of an application filed under Section 1918 that is deemed to be complete, the City Manager will give written notice to the applicant of the City's intent to negotiate an agreement setting forth the terms and conditions under which the operation of the proposed Open Video System will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and to the applicant. § 1920 AGREEMENT REQUIRED. 737846.1 39 A. No video programming services may be provided in the City by an Open Video System operator unless the operator and the City have executed a written agreement, which may be designated as a Franchise, setting forth the terms and conditions under which the operation of the proposed Open Video System will be authorized by the City. B. The agreement between the City and the Open Video System operator may contain terms and conditions that relate to the following subject matters, to the extent that such terms, conditions, and subject matters are not preempted by federal statute or regulations: 1. The nature, scope, and duration of the agreement, including provisions for its renewal or extension. 2. The obligation of the Open Video System operator to pay to the City, at specified times, fees on the gross revenue received by the operator, as authorized by 47 CFR [] 76.1511, in accordance with the following standards and procedures: a. The amount of the fees on the gross revenue will be five percent (5%), and will be paid in lieu of the Franchise fees authorized under Section 622 of the Communications Act. b. The term "OVS Gross Revenue" means (i) all gross revenue received by an Open Video System operator or its Affiliates, including all revenue received from Subscribers and all carriage revenue received from unaffiliated video programming providers; and (ii) all advertising revenue received by the operator or its Affiliates in connection with the provision of video programming, where such revenue is included in the calculation of the cable Franchise fee paid to the City by the Franchised cable operator. The term "OVS Gross Revenue" does not include revenue, such as Subscriber or advertising revenue, collected by unaffiliated video programming providers. 3. The obligation of the Open Video System operator to comply with requirements relating to information collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the OVS Gross Revenue that are required to be paid as specified above in paragraph (B)(2). 4. The obligation of the Open Video System operator to meet the City's requirements with respect to Public, Educational, and Governmental Access Channel capacity, services, facilities, and equipment, as provided for in 47 CFR ~ 76.1505. In this regard, the following standards and procedures are applicable: a. The Open Video System operator is subject to the same Public, Educational, and Governmental Access Channel requirements that apply within the cable television Franchise service area with which its system overlaps. 737846.1 40 b. The Open Video System 'operator must ensure that all Subscribers receive all Public, Educational, and Government Access Channels within the Franchise service area in which the City's Subscribers are located. c. The Open Video System operator may negotiate with the City to establish the operator's obligations with respect to Public, Educational, and Government Access Channel capacity, services, facilities, and equipment. These negotiations may include the City's Franchised cable operator if the City, the Open Video System operator, and the Franchised cable operator so desire. d. If the Open Video System operator and the City are unable to reach an agreement regarding the operator's obligations with respect to Public, Educational, and Government Access channel capacity, services, facilities, and equipment within the City's jurisdiction, then the following obligations will be imposed: (i) The Open Video System operator must satisfy the same Public, Educational, and Government Access Channel obligations as the City's Franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the City's Franchised cable operator's annual financial contributions in support of Public, Educational, and Government Access services, facilities, and equipment that are actually used by the City. For in-kind contributions, such as cameras or production studios, the Open Video System operator may satisfy its statutory obligation by negotiating, mutually agreeable terms with the City's Franchised cable operator, so that public, educational, and governmental access services to the City are improved or increased. If such terms cannot be agreed upon, the Open Video System operator must pay to the City the monetary equivalent of the Franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the annual amortization value. Any matching contributions provided by the Open Video System operator must be used to fund activities arising under Section 611 of the Communications Act. (ii) The City will impose upon the Open Video System operator the same rules and procedures that it imposes upon the Franchised cable operator with regard to the Open Video System operator's use of channel capacity designated for Public, Educational, and Government Access Channel use when that capacity is not being used for such purposes. e. The City's Franchised cable operator is required under federal law to permit the Open Video System operator to connect with its Public, Educational, and Government Access Channel feeds. The Open Video System operator and the Franchised cable operator may decide how to accomplish this connection, taking into consideration the physical and technical characteristics of the cable and the Open Video Systems involved. If the Franchised cable operator and the. Open Video System operator cannot agree on how to accomplish the connection, the City has the right to 737846.1 41 decide. The City may require that the connection occur on City-owned property or on Public Rights-of-Way. f. All costs of connection to the Franchised cable operator's Public, Educational, and Government Access Channel feed must be borne by the Open Video System operator. These costs will be counted towards the Open Video System operator's matching financial contributions set forth above in subparagraph (d)(i). g. The City will not impose upon the Open Video System operator any Public, Educational, or Government Access Channel obligations that are greater than those imposed upon the Franchised cable operator. h. If there is no existing Franchised cable operator, the provisions of 47 CFR I'1 76.1505(d)(6) will be applicable in determining the obligations of the Open Video System operator. i. The Open Video System operator must adjust its system to comply with new Public, Education, and Access Channel obligations imposed on the City's Franchised cable operator following a renewal of the cable television Franchise; provided, however, that the Open Video System operator will not be required to displace other programmers using its Open Video System to accommodate Public, Educational, and Government Access Channels. The Open Video System operator must comply with such new Public, Educational, and Government Access Channel obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand'for channel capacity. 5. If the City and the Open Video System operator cannot agree on the application of the FCC's rules regarding the Open Video System operator's obligations to provide Public, Educational, and Government Access Channel under the provisions of subsection (4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR ~ 76.1514. No agreement will be executed bythe City until the dispute has been finally resolved. 6. If the Open Video System operator intends to maintain an institutional network, as defined in Section 611 (f) of the Communications Act, the City will require that Educational and Government Access Channels be designated on that institutional network to the same extent that those channels are designated on the institutional network of the City's Franchised cable operator. In addition, to the extent authorized by federal law, the Open Video System operator may be required by the City to satisfy the same financial obligations and other requirements that are imposed upon the Franchised cable operator to support data-transmission and related services that are provided by the institutional network. 737846.1 42 7. The authority of an Open Video System provider to exercise editorial control over any Public, Educational, or Government use of channel capacity will be restricted in accordance with the provisions of 47 CFR [] 76.1505(f). 8. The obligation of the Open Video System operator to comply with all applicable federal, state, and local statutes, ordinances, and regulations relating to customer service standards, including the Cable Television and Video Customer Service and Information Act (Govermnent Code Il[1 53054, et seq.), the Video Customer Service Act (Government Code DD 53088, et seq.), and Section 18.04.050 of Chapter 18.04 of this title. 9. If a new physical plant is proposed to be constructed within the City, the obligation of the Open Video System operator to comply with the following rights-of-way use and management responsibilities that are also imposed by the City upon other telecommunications service providers in a nondiscriminatory and competitively neutral manner: a. Compliance with all applicable City codes, including applications for excavation, encroachment, and construction permits and the payment of all required permit and inspection fees. b. The coordination of construction activities. c. Compliance with established standards and procedures for constructing lines across private property. d. Compliance with all applicable insurance and indemnification requirements. e. The repair and resurfacing of construction-damaged streets. f. Compliance with all public safety requirements that are applicable to telecommunications service providers using public property or Public Rights-of-Way. 10. Acts or omissions constituting breaches or defaults of the agreement, and the applicable penalties, liquidated damages, and other remedies, including fines or the suspension, revocation, or termination of the agreement. Requirements relating to the sale, assignment, or transfer of the Open Video System. 12. Requirements relating to tl~e Open Video System operator's compliance with. and implementation of state and federal laws, rules, and regulations pertaining to the operation of the Open Video System. 737846.1 43 13. Such additional requirements, conditions, terms, policies, and procedures as may be mutually agreed upon by the City and the Open Video System operator and that will, in the judgment of the City Council, best serve the public interest and protect the public health, welfare, and safety. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND SYSTEMS § 1921 OTHER MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTORS. A. The term "Cable System," does not include a facility that serves Subscribers without using any Public Rights-of-Way. Consequently, the categories of Multichannel Video Programming Distributors identified below are not deemed to be "Cable Systems" and are therefore exempt from the City's Franchise requirements and from certain other local regulatory provisions authorized by federal law, provided that their distribution or transmission facilities do not involve the use of the City's Public Rights-of-Way. B. Multichannel multipoint distribution service ("MMDS"), also known as "wireless cable," which typically involves the transmission by an FCC-licensed operator of numerous broadcast stations from a central location using line-of-sight technology. C. Local multipoint distribution service ("LMDS"), another form of over-the-air wireless video service for which licenses are auctioned by the FCC, and which offers video programming, telephone, and data networking services. D. Direct broadcast satellite ("DBS"), also referred to as "direct-to- home satellite services," which involves the distribution or broadcasting of programming or services by satellite directly to the Subscriber's premises without the use of ground receiving or distribution equipment, except at the Subscriber's premises or in the uplink process to the satellite. Local regulation of direct-to-home satellite services is further proscribed by the following federal statutory provisions: 1. 47 U.S.C. § 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services. 2. Section 602'of the Communications Act states that a provider of direct-to-home satellite service is exempt from the collection or remittance, or both, of any tax or fee imposed by any local taxing jurisdiction on direct-to-home satellite service. The terms "tax" and "fee" are defined by federal statute to mean any local sales tax, local use tax, local intangible tax, local income tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax, Franchise fees, local telecommunications tax, or any other tax, license, or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction. 737846.1 44 § 1922 VIDEO PROVIDERS - REGISTRATION; CUSTOMER SERVICE STANDARDS. A. Unless the custOmer protection and customer service obligations of a Video Provider are specified in a Franchise, with the City, a Video Provider must comply with all applicable provisions of the following state statutes: 1. The Cable Television and Video Customer Service and Information Act (Government Code §§ 53054, et seq.). §§ 53088, et seq.). . The Video Customer Service Act (Government Code B. All Video Providers that are operating in the City on the effective date of this title, or that intend to operate in the City after the effective date of this title, and are not required under applicable law to operate under a Franchise, license, lease, or similar written agreement with the City, must register with the City. The registration form must include or be accompanied by the following: numbers. . The Video Provider's name, address, and local telephone 2. The names of the officers of the Video Provider. 3. A copy of the Video Provider's written policies and procedures relating to customer service standards and the handling of customer complaints, as required by California Government Code §§ 53054, et seq. These customer service standards must include, without limitation, standards regarding the following: a. Installation, disconnection, service and repair obligations, employee identification, and service call response time and scheduling. b. Customer telephone and office hours. c. Procedures for billing, charges, refunds, and credits. d. Procedures for termination of service. e. Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates. dispute resolution. Complaint procedures and procedures for bill 737846.1 45 g. The Video Provider's written acknowledgement of its obligation under California Government Code {}53055.1 to provide to new customers a notice describing the customer service standards specified above in subparagraphs (a) through (f) at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in subparagraphs (a) through (f), all of the following: (i) A listing of the services offered by the Video Provider that clearly describes all levels of service and the rates for each level of service. (ii) The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information. (iii) A description of the rights and remedies that the Video Provider may make available to its customers if the Video Provider does not materially meet its customer service standards. h. The Video Provider's written commitment to distribute annually to its employees and customers, and to the City, a notice describing the customer service standards specified above in subparagraphs (a) through (f). This annual notice must include the report of the Video Provider on its performance in meeting its customer service standards, as required by California Government Code {} 53055.2. 4. Unless a Video Provider is exempt under federal law from its payment, a registration fee in an amount established by resolution of the City Council to cover the reasonable costs incurred by the City in reviewing and processing the registration form. 5. In addition to the registration fee specified above in subsection (4), the written commitment of the Video Provider to pay to the City, when due, all costs and expenses reasonably incurred by the City in resolving any disputes between the Video Provider and its Subscribers, which dispute resolution is mandated by California Government Code {} 53088.2(0). C. The customer service obligations imposed upon Video Providers by the Video Customer Service Act California Government Code {}{}53088 et seq.) consist of the following: 1. Every Video Provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary. 737846.1 46 2. All Video Provider personnel contacting Subscribers or potential Subscribers outside the office of the provider must be clearly identified as associated with the Video Provider. 3. At the time of installation, and annually thereafter, all Video Providers must provide to all customers a written notice of the programming offered, the prices for that programming, the provider's installation and customer service policies, and the name, address, and telephone number of the City's office that is designated for receiving complaints. 4. All Video Providers must have knowledgeable, qualified company representatives available to respond to customer telephone inquiries Monday through Friday, excluding holidays, during normal business hours. 5. All Video Providers must provide to customers a toll-free or local telephone number for installation~ service, and complaint calls. These calls must be answered promptly by the Video Providers. o All Video Providers must render bills that are accurate and understandable. 7. All Video Providers must respond promptly to a complete outage in a customer's service. The response must occur within 24 hours of the reporting of such outage to the provider, except in those situations beyond the reasonable control of the Video Provider. A Video Provider will be deemed to respond to a complete outage when a company representative arrives at the outage location within 24 hours and begins to resolve the problem. 8. All Video Providers must provide a minimum of 30 days' written notice before increasing rates or deleting channels. All Video Providers must make every reasonable effort to submit the notice to the City in advance of the distribution to customers. The 3 O-day notice is waived if the increases in rates or deletion of channels are outside the control of the Video Provider. In those cases, the Video Provider must make reasonable efforts to provide customers with as much notice as possible. 9. Every Video Provider must allow every residential customer who pays his or her bill directly to the Video Provider at least 15 days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy. Customer payments must be posted promptly. No Video Provider may terminate residential service for nonpayment of a delinqUent account unless the Video Provider furnishes notice of the delinquency and impending termination at least 15 days prior to the proposed termination. The notice must be mailed, postage prepaid, to the customer to whom the service is billed. Notice must not be mailed until the 16th day after the date the bill for services was mailed to the customer. The notice of delinquency and 737846.1 47 impending termination may be part of a billing statement. No Video Provider may assess a late fee any earlier than the 22nd day after the bill for service has been mailed. 10. Every notice of termination of service pursuant to the preceding subsection 9 must include all of the following information: ao The name and address of the customer whose account is delinquent. b. The amount of the delinquency. Co avoid termination of service. The date by which payment is required in order to d. The telephone number of a representative of the Video Provider who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question. Service may only be terminated on days in which the customer can reach a representative of the Video Provider either in Person or by telephone. Any service terminated without good cause must be restored without charge for the service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar Subscriber actions. 12. All Video Providers must issue requested refund checks promptly, but no later than 45 days following the resolution of any dispute, and following the return of the equipment supplied by the Video Provider, if service is terminated. 13. All Video Providers must issue security or customer deposit refund checks promptly, but no later than 45 days following the termination of service, less any deductions permitted by law. 14. Video providers must not disclose the name and address of a Subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the Video Providers or their Affiliates, unless the Video Providers have provided to the Subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the Subscriber's ability to prohibit the disclosure. Video providers must provide an address and telephone number for a local Subscriber to use without toll charge to prevent disclosure of the Subscriber's name and address. D. As authorized by California Government Code § 53088(q), the following schedule of penalties is adopted. These penalties may be imposed for the material breach by a Video Provider of the consumer protection and service standards 737846.1 48 that are set forth above in paragraph (C), provided that the breach is within the reasonable control of the Video Provider. These penalties are in addition to any other remedies authorized by this chapter or by any other law, and the City has discretion to elect the remedy that it will apply. The imposition of penalties authorized by this paragraph (D) will not prevent the City or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided below by subsection (2). 1. Schedule of Penalties. a. For a first material breach: the maximum penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 for each occurrence of material breach, irrespective of the number of customers affected. b. For a second material breach of the same nature for which a monetary penalty was previously assessed within the preceding 12-month period: the maximum penalty is $400 per day, not to exceed a cumulative total of $1,200 for each occurrence of the material breach, irrespective of the number of customers affected. c. For a third or further material breach of the same nature for which a monetary penalty was previously assessed within the preceding 12- month period: the maximum penalty is $1,000 per day, not to exceed a cumulative total of $3,000 for each occurrence of the material breach, irrespective of the number of customers affected. d. For the failure of a Video Provider to distribute the annual notice required by California Government Code 53055.1: the maximum penalty is $500 for each year in which the notice is not distributed as required by state statute. e. The maximum penalties referenced above may be increased by any additional amount authorized by state law. 2. Judicial Remedies Not Affected. The imposition of penalties in accordance with the provisions of subsection (1) above does not preclude any affected party from pursuing any judicial remedy that is available to that party. 3. Administration, Notice, and Appeal. a. The City Manager or the City Manager's designee is authorized to administer this paragraph (D). Decisions by the City Manager to assess penalties against a Video Provider must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed to the City Council. 737846.1 49 b. If the Video Provider or any interested Person is aggrieved by a decision of the City Manager, the aggrieved party may, within 10 days of the written decision, appeal that decision in writing to the City Council. The appeal letter must be accompanied by the fee established by the City Council for processing the appeal. The City Council may affirm, modify, or reverse the decision of the City Manager. c. The imposition of monetary penalties under subsection (1) above is subject to the following requirements and limitations: (i) The City must give the Video Provider written notice of any alleged material breach and must allow the Video Provider at least 30 days from receipt of that notice to remedy the breach. (ii) For the purpose of assessing monetary penalties, a material breach will be deemed to have occurred for each day, following the expiration of the period for cure specified in subparagraph (i) above, that the material breach has not been remedied by the Video Provider, irrespective of the number of customers affected. § 1923 TELECOMMUNICATIONS SERVICE PROVIDED BY TELEPHONE coRPORATIONS. A. The City Council finds and determines as follows: 1. The federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2. The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the Califomia Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and 737846.1 50 regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. B. In recognition of and in compliance with the statutory authorizations and requirements set forth above in paragraph A, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the City's Public Rights-of-Way: 1. The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, or a building permit ("Ministerial Permit.") 2. In addition to the information required by this Code in connection with an application for a Ministerial Permit, a telephone corporation must submit to the City the following supplemental information: a. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the City's Public Rights-of-Way. 737846.1 51 b. If the applicant has obtained from the CPUC a certificate of public convenience to operate as a "competitive local carrier," the following additional requirements are applicable: (i) As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has filed with the City in a timely manner a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the City during the calendar quarter in which the application is filed, which information is sufficient to enable the City to coordinate multiple projects, as may be necessary. (ii) If the applicant's proposed construction project will extend beyond the utility rights-of-way into undisturbed areas or other rights- of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC. (iii) The applicant must inform the City whether its proposed construction project will be subject to any of the mitigation measures specified in the Negative Declaration ["Competitive Local Carriers (CLCs) Projects for Local Exchange Communication Service throughout California"] or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC. The City's issuance of a Ministerial Permit will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as "competitive local carriers." C. In recognition of the fact that numerous excavations in the Public Rights-of-Way diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the City, the following policies and procedures are adopted: 1. The City Manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a Ministerial Permit that authorizes the construction of facilities within the Public Rights-of-Way. 2. The City Manager is directed to coordinate the construction and installation of facilities by public utilities, including telephone corporations, in order to minimize the number of excavations in the Public Rights-of-Way. In this regard, based upon projected plans for street construction or renovation projects, the City Manager is authorized to establish on a quarterly basis one or more construction time periods or "windows" for the installation of facilities within the Public Rights-of-Way. Telephone corporations and other public utilities that submit applications for Ministerial 737846.1 52 Permits to construct facilities after a predetermined date may be required to delay such construction until the next quarterly "window" that is established by the City. SECTION 2. The City Council hereby declares that the provisions of this Ordinance are severable and if for any reason a court of competent jurisdiction shall hold any sentence, paragraph or section of this Ordinance to be invalid, such decision shall not affect the validity of the remaining parts of this Ordinance. Introduced by title only on August 20, 2003, by the following roll call vote: AYES: NOES: ABSENT: Councilmembers Rodin, Andersen, Smith, Baldwin, and Mayor Larson None None Adopted on September 3, 2003 by the following roll call vote: AYES: NOES: ABSENT: CoUncilmembers Rodin, Andersen, Smith, Baldwin, and Mayor Larson None None ATTEST: Eric Larson, Mayor Marie Ulvila, City Clerk 737846.1 53 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 Cablevision Cablevision Cablevis~on Cablevislon Cablevislon Cablevislon Cablevislon Cablevision Cablevision Cablevision Cablevislon Cablevision Cablevision Cablevis~on Cablevision 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 Cablevision, 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 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. Adelphia Telecommunications, Inc. Adelphia 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 Calif0mia, 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 Grafton 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 Pamassos Communications, LP Pamassos Holdings, LLC Pamassos, 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 Cormnunications 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 is 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 Intemet 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 Commercial Justice Center (contiguous buildings) Existing Willits Community Television 85 East Commercial 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 New Grace Hudson 1600 South State responsible for Campus New additional costs. Mendocino County Office 2240 Eastside Road of Ed. Talmage Existing Mendocino Community 1000 Hensley Creek New D-1 College (Ukiah) Rd. County Supervisor 501 Low Gap Rd, Chambers Ukiah Existing County Administrative Center, Office of Emergency Services 175 S. School Existing 30400 Albion Ridge Albion School 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 College (Willits) 11 Main Street New *See note below *Note: If a location noted above 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 requires more tfian 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 and shall remain channel 3 throughout the term of this Agreement. 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. Grantee agrees that channels 3, 64 and 65 shall be reserved for use as the PEG access channels. 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-1 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 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. 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 E-2 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 * See 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 activation of additional College of the Redwoods EXisting 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 Cotton Auditorium 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. In order to accommodate the future needs of the City and upon Grantor's written request, Grantee shall agree to provide fiber and/or coaxial return capability for live origination of community programming from up to 5 additional public, educational and/or community administrative facilities identified by Grantor (the "Future Locations"). With respect to the Future Locations, 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 Future Location that will not agree to assume construction costs over and above the $2500 limit. 3. If not already provided, Grantee agrees, within six (6) months of receiving a request from the City, to connect the PEG studio identified by the City to the headend located within the designated PEG studio's service area via dedicated fiber. City 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. 4. 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 Mendocino County area. The County' s IS Department will serve as the central control center for all three Ukiah Valley PEG channels. 5. 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. 6. 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. 7. 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. E-5 8. 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 1 st and 2nd 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, Ukiah and Willits. Within sixty (60) days after the 5th and 7th anniversaries of the Effective Date of this Agreement, Grantee will pay additional capital grants to Grantor in the following amounts subject to the following conditions: a) $100,000 prorated on a per subscriber basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits subject to Grantor showing that Grantor or the PEG organization responsible for managing the PEG channels has cablecast an average of at least ten (10) hours of original community oriented programming per week during the prior six month period. b) $50,000 prorated on a per subscriber basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits subject to such four public agencies collectively collecting during the prior twelve (12) months the signatures of 400 cable subscribers who state that they find value in the programming shown on the PEG channels. c) $50,000 prorated on a per subscriber basis among the County of Mendocino and the Cities of Fort Bragg, Ukiah and Willits subject to such four public agencies collectively collecting in years 4, 5 and 6 and years 7, 8 and 9 respectively at least $25,000 in cash or verifiable in-kind contributions for the support of PEG programming from sponsorships, tape sales, or other fundraising methods. Any income derived from the lease or sublease of any PEG studios or facilities shall not be considered as cash or in-kind contributions for the support of PEG. .- 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, 2005 (12,638 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. E-6 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 of6am 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. In addition, Grantee will run 100 spot ads each month on all the cable channels it normally runs local advertisements. These spot ads will be to promote public awareness of PEG programming and services. Said monthly spot ads will run hourly and be spaced evenly between the hours of 6am and 1 Opm. 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-7 EXHIBIT F GRANTOR'S UNDERGROUND CONSTRUCTION REQUIREMENTS 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. o 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-j ob 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-j ob 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. Fo 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. 6h DATE: August 3, 2005 SUBJECT: AGENDA SUMMARY REPORT REPORT TO CITY COUNCIL REGARDING THE PURCHASE OF AUDIO AND VIDEO RECORDING EQUIPMENT FROM PATHWAY AV INTEGRATION IN THE AMOUNT OF $6,762.70. Pursuant to the requirements of Section 1522 of the Municipal Code, staff is filing with the City Council this report regarding the purchase of audio and video recording equipment from Pathway AV Integration in the amount of $6,762.70. As previously reported by the City Clerk, the audio recording machine used to record Council and various commission meetings is failing. In an effort to find a replacement machine, the City Clerk surveyed various Cities with regard to the type of recording equipment they are currently using and then researched the most used and liked equipment. By far, most Clerks preferred the equipment from FTR (For the Record). Continued on Page 2 RECOMMENDED ACTION: 1. Receive report regarding the purchase of audio and video recording equipment from Pathway AV Integration in the amount of $6,762.70. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: Requested by: Prepared by: Coordinated with' Attachments: N/A N/A Sage Sangiacomo, Community and General Services Director Marie Ulvila, City Clerk, Paulette Klingbeil, MIS Coordinator, and Candace Horsley, City Manager N/A APPROVED. Candace Horsley, City Mana~ Pathway AV Integration, the authorized sales agent for FTR, reviewed the Council Chamber's audio/video system and provided a bid for the equipment and software that will allow for both the audio and video to be recorded digitally onto hard drive and CDs. In addition, the bid includes the necessary equipment to record audio at various commission meetings. The product is compatible with our audio, video, and network infrastructure. The FTR product condenses the minute taking process into one easy step by combining everything the clerk needs to digitally record meetings while simultaneously taking notes in Microsoft Word. Furthermore, each note automatically generates a time-stamp with a dynamic hyperlink to the exact part of the related audio/video where the note was taken. Users can simply click on each link and listen/watch that portion of the proceedings. No need to fast forward or rewind through a stack of tapes. The use of digital technology is also a better medium for long term storage and will eliminate the need for audio and VHS tapes which degrade with time. The FTR audio/video recording product purchased from Pathway AV Integration in the amount of $6,762.70 was charged to the City Clerk's account (100.1101.690.000; $2,456; FY 04/05), Community Outreach/Televising City Council Meetings account (100.1945.651.002; $4,000; FY 05/06) and Miscellaneous General Government account (100.1990.250.000; $306.70; FY 05/06). The purchase also included installation and onsite training. AGENDA SUMMARY REPORT ITEM NO.: 8a DATE: Auqust 3, 2005 SUBJECT: ADOPTION OF RESOLUTION AMENDING THE GENERAL PLAN LAND USE CLASSIFICATION AND THE INTRODUCTION OF AN ORDINANCE TO CHANGE THE ZONING DISTRICT FOR THE LANDS DESIGNATED AS ASSESSOR PARCEL NO. 001-430-35 SUMMARY: The Housing Company applicants are proposing to develop a creative infill housing complex on an irregular-shaped lot located near the corner of Low Gap Road and Bush Street. In order to accommodate this development project with the unique planned development standards proposed, it is necessary to first amend the General Plan land use designation and rezone the property. Therefore, this agenda item is seeking the City Council's support of the recommendation to adopt the Resolution to amend the General Plan Land Use Map and introduce the Ordinance to rezone the property, as described below. Background: General Plan Amendment/Zone Change No. 05-12: Shimizu-Housing Company will allow the General Plan land use designation for the 1.04-acre subject property to be changed from HDR (High Density Residential) to R-1 PD (Low Density Residential-Planned Development Combining District). The approval of the PD designation will permit the implementation of unique development standards for the twelve-lot subdivision proposed in this application. (continued on Paqe 2) RECOMMENDED ACTION:1. Conduct a public hearing regarding General Plan Amendment/Zone Change #05-12; 2. Approve the Negative Declaration prepared for the project, 3. Adopt the Resolution approving the amendment of the General Plan Land Use Map from the HDR land use designation to the LDR land use designation; and 4. Introduce the Ordinance rezoning the affected lands from the R-3 Zoning District to the R-1 PD Zoning District. ALTERNATIVE COUNCIL POLICY OPTION: 1. Do not adopt the Resolution or introduce the Ordinance and provide direction to staff. Citizen Advised: Legal notice published in the Ukiah Daily Journal Requested by: Mr. Bruce Shimizu and Housing Company Prepared by: Dave Lohse, Associate Planner Coordinated with: Candace Horsley, City Manager and Charley Stump, Planning Director Attachments: 1. Location Map 2. Negative Declaration for GPA-RZ #05-12; MS #05-17, and SDP #05-13 3. Proposed Resolution for Amendment of General Plan Land Use Map 4. Proposed Rezone Ordinance 5. Exhibit Package with Development Plan; Tentative Map; Elevations/Floor Plans; and Landscape Plan 6. Staff Report to the Planning Commission for GPA-RZ #05-12; MS #05-17, and SDP #05-13 7. Planning Commission Minutes, dated June 22, 2005 APPROVED: Candace Horsley, C~y~Manager The final development of the proposed housing complex will also require that the City Council approve Major Subdivision Map No. 05-17 to allow the actual subdivision of the 1.04-acre property into twelve lots and Major Site Development Permit No. 05-13 to allow the development of these lots with the single-family style homes proposed. The Planning Commission has already recommended that the Council approve both of these projects in support of the project, but the Council cannot act on either until the General Plan Amendment and Zone Change portions of the project are completed. Therefore, Planning staff has attached information related to these applications to ensure a fuller understanding of the project, but their actual approval will require City Council action at a subsequent hearing. Background: The project site was originally developed with two single-family residences, but both of these buildings were removed in anticipation of the development of a high density apartment complex and have not been replaced. This 30-unit apartment complex was permitted by the approval of Major Site Development Permit #99-28 in 1999, but this structure was not constructed and the discretionary and ministerial permits required for its construction were allowed to expire by previous owners. The current owners purchased the project site with the intention of developing a less intense residential development with an emphasis on creating a single-family atmosphere. However, due to economic reasons and the constraints caused by the unique shape of the subject property, the applicants felt that full compliance with the development standards of the R-1 Zoning District would not be feasible. Therefore, they have submitted the applications discussed above with the intent of obtaining relief from standards for minimum lot size, lot width, public street frontages, and setbacks for front, rear and side yards. The proposed lots are shown on the Development Plan included with the attached Planning Commission Staff Report (Attachment 5). Proposed modifications are also shown in Table 1 below. Table 1: Proposed Lot Areas and Dimensions for Shimizu-Housing Company Planned Development Lot Area Width Ground Floor Area Front Yard* Rear Yard Side Yards Street Front 1 6,990 sq.ft. 35-45 ft. 654 sq.ft. 7 ft. 13 ft. 5 ft. & 5 ft. 20 ft. 2 4,180 sq.ft. 40 ft. 654 sq.ft. 10 ft. 10 ft. 5 ft. & 5 ft. none 3 2,510 sq.ft. 28-60 ft. 653 sq.ft. 10 ft. 9 ft. 0 ft. & 4 ft. none 4 2,370 sq.ft. 39 ft. 654 sq. ft. 15 ft. 8 ft. 0 ft. & 10 ft. none 5 2,550 sq.ft. 39 ft. 654 sq.ft. 20 ft. 7 ft. 0 ft. & 10 ft. none 6 2,150 sq.ft. 33-38 ft. 655 sq.ft. 0 ft. 13 ft. 0 ft. & 4 ft. none 7 3,260 sq.ft. 39 ff. 655 sq.ft. 7 ft. 18 ft. 5 ft. & 5 ft. none 8 3,130 sq.ft. 39 ft. 655 sq.ft. 7 ft. 15 ft. 5 ft. & 5 ft. none 9 2,990 sq.ft. 39 ft. 655 sq.ft. 7 ft. 13 ft. 5 ft. & 5 ft. none 10 2,920 sq.ft. 41 ft. 654.5 sq.ft. 0 ft. 12 ft. 5 ft. & 11 ft. none 11 2,400 sq.ft. 49 ft. 654 sq.ft. 0 ft. 9 ft. 5 ft. & 10 ft. none 12 9,750 sq.ft. 60 ft. 655 sq.ft. 5 ft. 20 ft. 5 ft. & 10 ft. 21 ft. The majority of lots proposed in this project will have approximately half of the 6,000 square foot lot size commonly found in existing single-family neighborhoods throughout Ukiah. However, this reduction in area will be addressed by reducing the building footprints of the proposed residences and using two- story construction to establish smaller than normal, but still very livable residential spaces. In fact, most of the residences will have ground floor areas of 654-655 square feet and second-stories floor plans of 426-582 square feet, so the total floor areas for each unit will be between 1,080 and 1,237 square feet. Despite the smaller building footprints, all of the structures effectively utilize traditional single-family residential designs and materials that include vertical concrete-board siding and pitched composition roofs. The designer has also added a variety of more unique features that are expected to make the individual buildings and the subdivision more attractive, including a wide variation in roof heights and pitches, offset walls on both stories, covered porches, decorative trusses, and gable roofing over windows, doorways, and porches. The yard areas for the proposed lots will also be smaller than normal, with a wide variety of building setbacks that include zero lot lines on several of the side yard setback areas. However, all of the lots have one or more yard area that provides space for yards, gardens, patios, porches, or other outdoor recreation areas. These yard areas will all be fenced to provide a degree of privacy. The conceptual landscaping plan for the site places the majority of new landscaping in the perimeter areas of the lot, including comprehensive plantings of drought-tolerant trees and shrubs along Low Gap Road and the boundary fronting the Bush Street corridor. Smaller trees will be planted in the front yard areas for each lot, with rear yard areas left unplanted to allow future property owners personal choices in the design of the landscaping and the types of plants used. Planning Commission Action: The Ukiah Planning Commission conducted a public hearing for the General Plan Amendment/Zone Change, the Major Subdivision Map, and the Site Development Permit on June 22® of this year, for the purpose of making recommendations to the City Council on each of the projects. The Commission took testimony from the applicants and members of the public and discussed a variety of issues that included the effective "down-zoning" of the site to a lower density, floor areas of individual residences, whether additional "overflow" parking should be required for the subdivision, and the need for maintenance agreements to allow work on buildings with closely situated walls. After a thorough discussion on each issue, the Commission then did the following: Voted 5-0 to recommend that the City Council adopt the Mitigated Negative Declaration prepared for GPA/ZC #05-12, Major Subdivision Map #05-17, and SDP #05-13; Voted 5-0 to recommend that the City Council approve GPA/ZC No. 05-12 to change the General Plan Land Use Map designation for the project site to LDR and the zoning to R-1 PD; Voted 5-0 to recommend that the City Council approve Major Subdivision Map No. 05-17 to allow the subdivision of the 1.04-acre parcel into twelve (12) lots; and Voted 5-0 to recommend that the City Council approve SDP #05-13, based on Findings and subject to the Conditions of Approval outlined in the Staff Report. CONCLUSIONS: Staff concludes that project comprised of General Plan Amendment/Zone Change is consistent with the Ukiah General Plan and the applicable standards of the Ukiah Municipal Code. Staff further concludes that, while the planned development/subdivision proposed in this project would utilize zero lot lines, reduced setback areas, and higher than normal land use densities, these same features have been utilized in similar projects in Ukiah. In staff's opinion, however, the proposed site layout and building designs combine these features in a much more interesting and usable fashion that will result in a denser, but still attractive and highly livable version of a more traditional single family neighborhood. In fact, it is staff's conclusion that the efficient layout of this compact neighborhood will foster a sense of community, and that it will be highly sought after by persons seeking to own a home or by persons looking for a more compact single family residence. LOCATION MAP !" SHIMIZUIHOUSING' COMPANY DEVELOPMENT. ZONE.-CHANGE No. 05-12; SITE. DEVELOPMENT PERMIT No. 05-13; and 'MAJOR SUBDIVISION MAP N°..05.17 506-510 Low Gap Road A~ssessor Parcel No. 001.430-35 .o UHIClPAL. Z~]< SCHOOL PARK . 500 1000 1500 2000. 'APPROXIMATE SCALE: 1 inch = 500 feet , i~RC Referral for ShimlzU/tto.using C~rp ZC/Major SO0' DATE: APPLICANTS: PROJECT NOS.: LOCATION: CITY OF UKIAH MITIGATED NEGATIVE DECLARATION June 1,2005 'Bruce Shimizu / The Housing Company General Plan Amendment/Zone Change 05-12; Major Subdivision 05-17; and Major Site Development Permit No. 05-13 506-510 Low Gap Road, City of Ukiah, County of Mendocin° (Assessor Parcel Number 001-430-35) PROJECT DESCRIPTION' The proposed project consists of three separate applications that woUld allow the development of twelve single-family residential homes on contiguous lots that would vary from prescribed single-family lot standards. The individual applications are described below: General Plan Amendment/Zone Change No. 05-12 will allow the land use designation for the project site to be changed from HDR (High Density Residential) to LDR (Low Density Residential) and allow the land to be rezoned from R-3 (High Density Residential) to R-1 (Low Density Residential) to R-1-PD (Low Density Residential-Planned Development). The proposed land use and zoning changes will allow the lot to be developed with 12 single family homes on lots that do not conform to General Plan and Ukiah Municipal Code requirements for lot size, street frontage, setbacks, and other standards. Major Subdivision.No. 05-17 will divide the 1.04-acre site into 12 parcels with areas measuring between 2,150 square feet to 9,750 square' feet. Major Site De'velopment Permit No. 05-13 will allow the development of 12 single-family homes on the lots described above. This housing project will also include the development. Of a common access driveway from Low Gap Road and a common-use pedestrian sidewalk.to Bush Street. DESCRIPTION OF ENVIRONMENTAL SETTING: The project site consists of a 1.04-acre lot that fronts Low Gap Road. Actually, this irregular-shaped lot is accessed via a 40-foot wide extension between-the Low Gap frontage and the wider portion of the site, which is vacant since two existing residential, buildings were recently demolished. The lot is relatively fiat, with a slight grade declination (3%) running from the northern half of the site towards the south, and vegetation is limited to lawn areas, small bushes along, the 'northern and eastern perimeters, and a single coniferous tree on the eastern portiOn of the site. The parcel is bounded on the north and west by Ukiah Unified School District property containing the Frank Zeek'Elementary school, adult school.buildings, and a continuation school campus. The area to the east is also owned by the school district and consists of a paved overflow parking lot lying between the site and Bush Street. The parcels on either side of the narrow part of the site contain four single family residences, and the , while the lands to the east contain a long overflow parking lot fronting Bush Street and Mendocino- County Administration Center is across Low Gap Road to the south. The grounds of the Russian River Cemetery lie approximately 60 feet to the west of the project site and the Ukiah High School campus is located approximately one-quarter mile to the west. Mitigated Negative Declaration/Initial Study for GPA/ZC No. 04-32; SDP 04-30; & SDP 04-33 Affr~hm~nf .Y~ 2. 'ENVIRONMENTAL ANALYSIS: citY oof Ukiah staff conducted a careful and comprehensive review of the project that included the preparation of an Environmental Checklist in which potentially significant adverse impacts to biological resources, geology and soils, and hydrology and water resources were identified. Based on this analysis, staff concluded the project will require the adoption of mitigation measures and a mitigation monitoring program to lessen these impacts to levels that are not significant. Staff further concluded that a Mitigated Negative Declaration for the project is appropriate and specific Findings in support of this determination are listed below. FINDINGS SUPPORTING A MITIGATED NEGATIVE DECLARATION' 1. Based upon the analysis, findings and conclusions contained in the Initial studyl the project does not have the potential to degrade the quality of'the local or regional environment; . Based upon the analysis, findings and conclusiOns contained in the Initial Study, the project will not result in short-term impacts that will create a disadvantage to long-term environmental goals; . The potentially significant impacts resulting, from this project would be mitigated to levels that are not considered to be significant if the recommended mitigation measures are adopted; 4. Based upon the analysis, findings and conclusions contained in the Initial Study, the project will not result in impacts that are individually limited, but cumulatively considerable; and . Based upon the analysis,, findings, 'and conclusions contained in the Initial Study, the project will not result in environmental impacts that will cause substantial adverse effects on human beings, either directly or indirectly. STATEMENT 'OF DECLARATION: After appraisal of the possible impacts of this project, the City of'Ukiah .has determined that the project will not have a significant effect on the environment, and further, that this Negative Declaration constitutes compliance with the requirements for environmental review and analysis required by the California Environmental Quality Act. This document may be reviewed at the 300 Serri~e~,~kiah~ ng D~rector/E~l~' ~'nental Coordinator of Ukiah Planning Department, Ukiah Civic Center, June 1,2005 Date 2..-2. Mitigated Negative Declaration/Initial Study for GPA/ZC No. 04-32; SDP 04-30; & SDP 04-33 INITIAL STUDY CITY. 'OF UKIAH I. BACKGROUND INFORMATION 1. Name of Project: General Plan Amendment/Zone Chanqe No. 05-12; Maior Subdivision No. 05-17; and Maior Site Development Permit No. 05-13 2. Name of Project Proponent: Bruce Shimizu and The Housinq Company 3. Address of Project Proponent: 9072 Brooks Road South, Windsor, CA 95492 4. Project Location: 506-510 Low Gap Road, Ukiah, CA 5. Assessors Parcel Number(s): 001-430-35 6. Date of Initial Study Preparation: June 1,2005 7. Name of Lead Agency: City of Ukiah 8. A-ddress and Phone Number of Lead Agency: 300 seminary Avenue, Ukiah, CA 95482 / (707) 463-6200 9. Environmental Setting / Project Description: Description on pa.qe 2 of this Initial Study) (See the detailed Proiect 10. Plans, Exhibits, and other Submitted Application Materials: All the pla.ns, exhibits, technical reports, and other submitted application materials are available for review at the City of Ukiah Planninq Department- 300 Seminary Ave., Ukiah. 11. Initial Study Prepared by: Ukiah Planninq Department Staff PROJECT DESCRIPTION: The proposed project consists of three separate applications that would allow Mitigated Negative Declaration/Initial Study for '1 GPA/ZC No. 04-32; SDP 04-30; & SDP 04-33 PROJECT DESCRIPTION: The proposed project consists of three separate applications that would allow the development of two multiple-family residential apartment complexes on the four contiguoUs lots described in the Environmental Setting portion of this document. The individual applications are described below: General Plan Amendment/Zone Change.No. '05-12 will allow the land use designation for the project site to be changed from HDR (High Density Residential) to LDR (Low Density Residential) and allow the land to be rezoned from R-3 (High Density Residential) to R-1 (Low Density Residential) to R-I-PD (Low Density Residential-Planned Development). The proposed land useand zoning changes will allow the lot to be developed with 12 single family homes.on lots that do not conform to General Plan and Ukiah Municipal Code requirements for lot size, street frontage, setbacks, and other standards. 'Major Subdivision No. 05-17will divide the 1.04-acre site into 12 parcels with areas measuring between 2,150 square feet to 9,750 square feet. Major Site Development Permit No. 05-13 will allow the development of 12 single-family homes on the lots described above. This housing project will also include the development of a common access driveway from Low Gap Road and a common-use pedestrian sidewalk to Bush Street. DESCRIPTION OF ENVIRONMENTAL SETTING: The project site consists of a 1.04-acre lot that fronts Low Gap Road. Actually, this irregular-shaped lot is accessed via a 40-foot wide extension between the Low Gap frontage and the wider portion of the site, which is vacant since two existing residential buildings were recently demolished. The lot is relatively fiat, with a slight grade declination (3%) running from the northern half of the site towards the south, and vegetation is limited to lawn areas, small bushes along the northern and eastern perimeters, and a single coniferous tree on the eastern portion of the site. The parcel is bounded on the north'and west by Ukiah Unified SchoOl District property containing the Frank Zeek Elementary school, adult school buildings, and a continuation school campus. The area to the east is .also owned by the school district and consists of a paved overflow parking lot lying between the site and Bush Street. The parcels on either side of the narrow part of the site contain four single familY residences, and the, while the lands to the east contain a long overflow parking lot fronting Bush Street and Mendocino County AdministratiOn Center is across Low Gap Road to the south. The grounds of the Russian River Cemetery lie aPproximately 60 feet to the west of the project site and the Ukiah High School campus is located approximately one,quarter mile to the west. SUMMARY OF FINDINGS After careful review and the preparation of an Environmental Checklist (Attachment 8), it has been determined that the proposed project could have a significant adverse impaCt on the environment. However, a detailed and comprehensive mitigation program and a monitoring program-has been developed that will successfully mitigate the impacts to levels of insignificance. There is substantial evidence in the administrative record that supports this determination, including the facts contained in the technical studies prepared by qualified professionals. Accordinqly, it has been determined that the proposed pr°iect, as mitigated, will not violate any of the ..significance criteria, and therefore a Mitiqated Negative Declaration is appropriate for the proiect. Mitigated Negative Declaration/Initial Study for GPA/ZC No. 04-32; SDP 04-30; & SDP 04-33 DISCUSSION AND ANALYSIS OF POTENTIAL ENVIRONMENTAL IMPACTS I. AESTHETICS A. Settinc~: The subject properties are located in a portion of the city where there is a relatively eclectic mix of Iow-density to high-density housing and institutional uses that include school structures, government office bUildings, and a cemetery, and as a result, no distinct aesthetic characteristics prevail. The site is also located in an area where the hills that make' up the western boundaries of Ukiah are visible, but there are no scenic views, vistas, or scenic resources designated for protection in the area. B. Si_~nificance Criteria: Aesthetic impactswould be significant if the project resulted in obstruction of any scenic view or vista open to the public, damage to significant scenic resources within a designated State scenic highway, creation of an aesthetically offensive site open to the public, substantial degradation to the existing visual character or quality of the site and its surroundings, or generation of new sources of light or glare that adversely affect day or n!ghttime views in the area, including any direct illumination or reflection upon adjacent property, or could be directly seen by motorists or persons residing, working or otherwise situated within sight of the project. C. Impacts' The construction of the proposed single-family homes will not cause obstructions to any scenic view or vista or damage to a significant scenic resource since there are none present on the site or in a location that would be inhibited by the structures. The construction of two-story structures on the subject property will substantially alter its appearance. However, staff notes that the building designs for the proposed buildings are generally more attra(~tive than those used on abutting residential properties to the east and west and are highly compatible with the institutional building designs that prevail on nearby school and government structures. Therefore, it is anticipated that the changes to the appearance of the subject property will not create an aesthetically offensive site or cause substantial degradation to the visual characteristics of the neighborhood. In fact, it is staff's opinion that the proposed building designs will provide contribute to the aesthetic values of the neighborhood. The landscaPing proposed for the apartment complexes is generally consistent with that found in other sihgle-family neighborhoods,'and it is the opinion of staff that the landscaping was chosen to blend in with and enhance the single-family visual characteristics designed for the project. Therefore, site landscaping is not considered to be an adverse aesthetic impact and no mitigation measures will be required. Outdoor lighting associated with the project could be a nuisance to neighboring properties if allowed to shine offsite towards neighboring properties or the night sky. There is no indication that adverse lighting sources will be present as part of the development, but subsequent development of obnoxious lighting sources such' as outdoor security lighting could cause significant adverse lighting impacts for neighboring properties. Therefore, Planning staff has included the mitigation measure listed below to ensure that future lighting impacts are not significant in nature. Mitigated Negative Declaration for GPAJZC No. 05-12; SUB 05-17; & SDP' 05-13 ) D. Mitiqation Measures to Off-Set Liqhtin_q Im~3acts' , Prior to the issuance of a Building Permit, a Final Lighting Plan shall be submitted to the Director of Planning and Community Development or his/her designee for review for compliance with Ukiah Municipal Code standards for on-site lighting and with "dark sky" guidelines for reducing nighttime lighting on the site. The Final Lighting Plan shall include details regarding exterior lighting for structures, garden areas, and walkways, with lighting sources that are full cut-off, hooded, and down-cast, or otherwise shielded to ensure that light does not adversely shine towards neighboring properties East Perkins Street, or toward the night sky. Additionally, all lighting shall be the minimum wattage necessary to provide adequate security, yet shall not result in excessively bright night glow. Sufficient details regarding the proposed wattage of all site lights shall be included in the Final Lighting Plan so that the Planning Staff can determine how bright the proposed site lights will be. The Director of Planning and Community Development shall have the authority to require the Final Lighting Plan to be modified (including the wattage) and/or additional information to be submitted so that the lighting meets the requirements listed above. E. Impact significance After Mitiqation' Limiting site lighting away from neighboring properties and the night sky will reduce the potentially significant adverse visual quality impacts to insignificant levels. II. AGRICULTURAL RESOURCES A. Settin(~: The City of Ukiah is a small, but urbanized area, and the subject properties are located in an area where a combination of Iow to medium housing and institutional land uses such as government offices, schools, and a cemetery prevail. There is a small vineyard on a portion of the cemetery property to the west, but this minor agricultural operation does not abut the project site and is being replaced by a cemetery expansion scheduled for completion in the next ten years. As a result, the nearest, lands actually zoned and used for agricultural purposes consist of pear orchards located approximately one mile to the east across the HighWay 101 corridor and outside City limits. B. Si_anificance Criteria: A significant impact to agricultural resources would occur if implementation of the project caused a conversion of prime agricultural lands to non-agricultural uses or conflicted with lands zoned for agricultUral uses or subject to the Williamson Act. C. Impacts: No adverse impacts to agricultural resources will be caused by the project since it will not require the conversion of existing agricultural lands and is not directly adjacent to agricultural operations. D. Mitigation Measures: None required, E. Impact Significance After Mitiqation' N/A III. AIR QUALITY A. Settina - Air Basin Characteristics: The concentration of a given pollutant in the atmosphere is determined by the amount of pollutant released and the atmosphere's abiiity to transport and dilute the pollutant. The major determinants of transport and dilution are wind, atmospheric stability, terrain, and sunshine. In Ukiah, the combined effects of moderate winds, clear skies, frequent atmospheric inversions that restrict vertical dilution, and terrain that restricts horizontal dilution, result in a relatively high potential for air pollution. Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP05-13 The City of Ukiah is situated ,~ the fiat and narrow Ukiah Valley and the 'presence of the mountains on both the west and east sides of the valley tends to restrict the horizontal east-west movement of pollutants. The dominant wind direction in the Ukiah Valley is from the northwest to the southeast. Wind speeds in the central portion of the community are moderate, with'wind speeds of 4 mph or less occurring over 60 percent of the time. While the potential for air pollution is high in the Ukiah Valley, measurements provided by the Mendocino County Air Quality Management District show that actual pollutant levels are relatively iow due to the lack of upwind sources and the relatively iow level of development in the local air basin. B. Si_~nificance Criteria: Air Quality Impacts would be significant if the project results in any conflicts with or obstructions to implementation of any applicable Air Quality Plan:, violation of any air quality standard or substantial contributions to an existing or project air quality violation, including a cumulatively considerable net increase of any criteria for which the region is in nonattainment as defined by Federal or State regulations; exposure to sensitive receptors to substantial pollutant concentrations; or creation of objectionable odors affecting a substantial number of pe°ple. C. Air Quality Standards: The Federal Clean Air Act Amendments of 1970 established National Ambient Air Quality Standards for six "criteria pollutants." These include photochemical ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide, particulate matter, and lead. California then adopted its own Clean Air Act in 1977, creating separate and stricter air quality standards. Each standard is measured as the duration of time for which a specific contaminant level bannot exceed. The standards are designed to protect the public from health hazards, visibility reduction, soiling, nuisance, impacts to crops, and other forms of air quality damage. D. Violation of a State Standard: If a county (or a portion of a county located within an air basin) exceeds the State standard for any of the criteria pollutants, the State Air Resources Board (ARB) can designate it as non-attainment for that substance. To evaluate the exceedance, the ARB uses standard criteria found in the S(ate Health and. Safety Code. It reviews air-sampling data to determine the nature and extent of the exceedance, and it makes a finding as to whether or not the .exCeedance was a highly irregular or infrequent event. If it is determined that the exceedance was an exceptional event caused by an act of nature or unusual human activity, it is deemed an exceedance and not a violation. Similarly, if the exceedance is an eXtreme concentration event (unusual meteorology) or an unusual concentration event (an anomalous exceedance which does not qualify as an exceptional' event or extreme concentration event), it is not regarded as a violation, and the designation for the area does not change. The ARB will .designate an area as'attainment for a 'pollutant if the data shows that the State standard for that pollutant was not violated during the previous three (3) years. Again, exceedances affected by highly irregular or infrequent events are not considered violations and, therefore, are not considered in the area designation process. As a result, an area may have measured concentrations that exceed a State standard and still be designated as attainment. A District that becomes designated as nonattainment for oZone, carbon monoxide, nitrogen dioxide, or sulfur dioxide is required to develop a plan for attaining the State standard for that particular pollutant. The plan must be submitted to the State Air Resources Board (ARB) for review and approval. The ARB has indicated that an attainment plan, particularly one for multiple pollutants can be very expensive (M. Nystrom, ARB, personal communication, 1997). Another possible consequence of a nonattainment designation is the ability to levy fees under certain conditions. Nonattainment Districts are authorized to levy a fee of up to $4.00 on motor vehicles registered in the District for the purposes of California Clean Air Act implementation. Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 2-7 E. Existinq Air Quality in Ukiah: The Mendocino County Air Quality I~anagement District (MCAQMD) operates a monitoring site in Ukiah measuring concentrations of PM-10. Prior to August of 1988 the District also monitored several gaseous pollutants in Ukiah. In August of 1992, the District again established a multi-pollutant monitoring site in Ukiah for gaseous pollutants, which measures ozone, carbon monoxide, nitrogen dioxide and sulfur dioxide. Air quality in Ukiah meets all Federal and State air quality standards, with the exception of the State 24- hour PM-10 standard. This standard was exceeded on 3 days in 1990, 2 days in 1991,0 days in 1992, 2 days in 1993, and 1 day in 1994. No exceedances have occurred since 1994. Sources of PM-10 include field burning, dust from unpaved roads and grading operations, combustion, and automobiles. 54 of the 58 counties in California are designated non-attainment for PM-10, which means that most of the California air basins exceed the permitted 24-hour concentration. The ARB does not require an Attainment plan for jurisdictions that violate the PM-10 standard. Ozone is one of th.e most serious pollutants affecting the State, and 30 of the 58 counties are designated non-attainment. While Mendocino County is attainment for ozone, the Ukiah (East Gobbi Street) sampling station has shown a'steady increase in the annual hours of ozone levels exceeding the 40, 50, and 60 parts per billion thresholds since 1993. Additionally, the 80 ppb (State standard = 90 ppb) threshold has been exceeded twice over' the past 4 years. However, based uPon 1993-1995 data, the ARB has' assigned.Ukiah an "Expected Peak Day Concentration" (EPDC) level of 74 ppb, which means that any values above 70 ppb would be excluded from the designation Process as extreme concentrations (Marcella Nystrom, ARB, personal communication, 4/24/97). Regardless of the attainment designation and the EPDC status, ozone remains as the pollutant of primary concern to the Mendocino County Air Quality Management District. The major sources of ozone precursors are combustion sources such as, factories, automobiles, and evaporation of solvents and fuels. Other State criteria pollutants measured in Mendocino. County have routinely had maximUm concentrations well below the applicable Federal or State standards. The only other pollutant of significant concern is Carbon Monoxide (CO). The local threshold for point source production of CO is 550 pounds per day. Carbon MonOxide (CO)is an odorless, colorless gas whose primary source is automobiles. Concentrations of CO measured in Mendocino County have never exceeded State or Federal standards, and current maximum Concentrations measured in Ukiah are well below the applicable standards. F. Proiect Characteristics in Relation to Air Quality: The proposed development of 12 single-family residences on the subject property is expected to generate typical short-term air quality impacts (PM- 10/dust) as a result of site preparation and grading activities during the construction phases. In addition, some vehicle emissions Will .be produced from heavy equipment,' and ultimately from vehicles_associated with the future residential use of the proposed parcel. G. Short-term construction Related Air Quality Impacts: Construction activities create a wide range of emissions, ranging from exhaust from heavy equipment to the air-bound organic gases from solvents, insulating materials, caulking materials, and "wet" pavement. However, while these emissions may contribute to the accumulation of substances that undergo the photochemical reaction that creates urban ozone, they are not regarded as significant short-term impacts. Dust generated by equipment and vehicles used in construction of the building pads, driveways, and the cul-de-sac entrance would cause the most substantial short-term construction-related air quality impacts. Fugitive dust is emitted both during site preparation, grading, and construction activity and as a result of Mitigated Negative Declaration for 6 GPAJZC No. 05-12; SUB 05-17; & SDP 05-13 wind erosion over exposed earth surfaces.. Construction dust impacts are extremely variable, being dependent upon wind speed, soil type, soil moisture, the type of construction activity and acreage affected by the construction activity. The highest potential for construction dust impacts typically occur during the late spring and summer, and early fall months when soils are dry. These small particulates are respirable particulates that can increase the risk of chronic respiratory disease, and can alter lung function in children and the elderly when distributed in large enough concentrations. It can also rise into the lower troposphere and contribute to ozone production. Based on the project plans submitted for the development projects, it is estimated that approximately one acre of earth will be exposed during the most intense site preparation activities for building pads, driveways, and landscaping. This is not considered a substantially large area, and no significant adverse levels of dust are anticipated since the relatively fiat site will require minimal preparation. Therefore, staff will not recommend the inclusion of dust suppression measures for environmental mitigation, although it will recommend that standard dust suppression measures are implemented as conditions of approval for the proposed Site Development Permit to address the nuisance impacts that such dust can create f°r neighboring properties. ~ H. Mitigation Measures for Dust (PM10) Control: None required. i. Impact Si.qnificance After Mitiqation: N/A IV. BIOLOGICAL RESOURCES - PLANT AND ANIMAL LIFE A. Settinq: The subject property is located in an urbanized area of the city that is largely developed with a variety of Iow to medium residential homes, government offices, and a large cemetery. The site itself was formerly develoPed with residential buildings and contains little mature vegetation, animal habitat, or other biological resources. B. Si.qnificance Criteria: Project impacts upon biological resources would be significant if any of the following resulted: Substantial direct or indirect effect on any species identified as a candidate, sensitive, or special status species in local/regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service or any species protected under provisions of the Migratory. Bird.treaty Act (e.g.burrowing owls); · Substantial effect upon sensitive natural communities identified in local/regional plans, policies, or regulations or by the agencies listed 'above; · Substantial effect (e.g., fill, removal, hydrologic interruption) upon Federally protected wetlands under Section 404 of the Clean Water Act; Substantially interfere with movement of native resident or migratory wildlife species, or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites; or · Conflict with any local policies/ordinances that protect bi°logical resources (e.g., tree preservation policy or ordinance). Mitigated Negative Declaration for GPAJZC No. 05-12; SUB 05-17; & SDP/05-13 Gl Impacts: ) t 1. Plant Life: The existing trees will be removed to accommodate the proposed single-family development, but none of these exotic trees are included on any listing for endangered, threatened or sensitive .plant species and there is no lOcal ordinance designed to require their protection or preservation..Therefore, no mitigation measures for tree preservation or protection are proposed. Staff also noted that the landscape plan for the subdivision shows that these trees will be replaced with an extensive planting of trees, shrubs, and groundcovers, with the majority of the proposed vegetation consisting of non-native vegetation. Planning staffwill recommend that more native trees are included as part of the landscape plan, but this recommendation is based on City policies for encouraging native vegetation as a water-conservation policy and not as a result of any direct or cumulative environmental effect associated with this project and no plant life mitigation is required. 2. Mammals: The construction of the proposed single family subdivision in this urbanized area will not hinder the movement of animals, nor significantly intrude on their habitat since no valuable mammal habitat exists on this site. Staff has observed deer and other mammals on the cemetery property to the north, but the proposed project would not have a significant impact on local deer population or other mammals using this property since it is effectively fenced off from the project site. 3. Birds: The removal of the few existing trees on the site will have a minor effect on birds that use them for food and shelter. However, these trees Support no known populations of any rare or threatened bird species and no substantial impacts 'to bird life are expected. Furthermore, the landscaping plan for the project includes a substantial number of trees to replace those taken down, and it is expected that bird habitat on the site will.ultimately improve. D. Mitigation Measure: None required. E. Impact Significance After Mitigation: N/A. V. CULTURAL RESOURCES A. Settin_~: The City of Ukiah is rich in historical resources, which includes an eclectic assortment Of historic homes and properties. Cultural resources are similarly abundant, and the City has provided for the preservation and enhancement of its cultural heritage: The subject property was formei'ly developed with two residential buildings, but both were recently demolished and removed from the site. B. Significance Criteria: A significant impact to historic and cultural resources would occur if implementation of the project Would: · Cause a substantial change in the significance ora historical or cultural resource; · Result in the removal or substantial exterior alteration of a building or structure or diStrict that may be eligible for listing in the National Register or California Register; · Result in the removal or substantial exterior alteration of a building or structure so that it results in the loss of a designated county landmark in the City of'Ukiah; or Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 ) I Result in the destruction of a unique paleontological resource, site, o~' unique geological feature, or disturb any human remains. C. Impacts: There are no residential buildings located on the subject property and no resources on the site are listed in any local or other resources for architectural or historic values. Additionally, Figure V.3- DD of the Historic and Archaeological Resources Element contained in the General Plan indicates that the subject property is not situated within an area of high cultural resource sensitivity. These areas are generally located along streams, springs, and mid-slope benches above watercourses. Accordingly, it is concluded that the likelihood of a prehistoric site being located on the subject property is remote, and that the probability of site preparation and construction activities disturbing and significantly impacting any prehistoric cultural resources is very Iow. However, to ensure that potential resources are not significantly impacted, a standard mitigation measure is recommended that would halt construction in the event of a discovery, and require the applicants to hire a qualified archaeologist to evaluate the resources and develop mitigation measures as appropriate. D. Miti_qation Measures , If, during site preparation or construction activities, any historic or prehistoric cultural resources are unearthed and discovered, all work shall immediately be halted and City .Planning Department staff shall be notified immediately of the discovery. The applicant shall also be required to fund the hiring of a qualified professional archaeologist to perform a field reconnaissance to determine whether the development of a precise mitigation program will be required prior to the continuation of any site work. E. Impact Significance After Mitiqation: This mitigation ensures that cultural resources discovered on the site will not be adversely affected and that potential impacts are reduced to insignificant levels. VI. GEOLOGY AND SOILS: A. Settin_~: The Ukiah Valley is part of an active seismic region that contains the Maacama Fault, which traverses the valley to the east and north of the City. According to resource materials maintained by the Ukiah Planning Department, the projected maximum credible earthquake along this fault would be approximately 7.4 magnitude on the Richter scale. According to the Soil Survey of Mendocino COunty, Eastern Part, and Trinity County Southwestern Part published by the U.S. Soil Conservation Service, the subject property is underlain by an "urban mix" that includes native soils mixed with non-native fill materials. Currently, the soils on the subject properties are partially covered with building foundations, with remaining areas containing, grasses and other vegetation. B. Siqnificance Criteria: A significant geologic impact would occur if a project exposed people or structures to major geologic features that pose a substantial hazard to property and/or human life, or hazards such as earthquake damage (rupture, groundshaking, ground failure, or landslides), slope and/or foundation instability, soil erosion, soil instability, or other geologic problems that cannot be.mitigated through the use of standard engineering design and seismic safety design techniques. C. Impacts: The subject property is not situated on or near an Alquist-Priolo fault zone and has no known slope and/or foundation instability, soil instability, or other geologic hazards. In fact, it is staff's opinion that the primary impacts to soils on the site will result from minor grading and site preparation and the eventual covering over of open lands by paving and building foundations. Such manmade structures currently cover roughly 25 percent of the existing lot, but the site plan for the project shows that Mitigated Negative Declaration for 9 GPA/ZC No. 05-12; SUB 05-17; & SDP/05-13 Z'II impervious soil coverings on the developed portions of the site will be increased to at least 50 percent of the site area for most of the 12 parcels proposed in the subdivision. However, these ratios are considered common to residential developments and will be minimized through the use of large and distinct areas for yards and landscaping. It is possible that soil erosion and/or loss of topsoil could increase on the site if soils are left exposed to winds or storm waters for any substantial period of time. Such impacts would generally be short-term in nature and would only be significant if normal grading and site preparation techniques are not utilized during the development phase of the project. Therefore, while this impact is not considered a significant adverse environmental effect, staff will recommend that standard dust suppression methods are required during the site preparation and construction phases of the project to reduce the potential for erosion to cause nuisance effects on neighboring lots. D. Miti_~ation Measures: None required. E. Impact Si.qnificance After Mitiqation' N/A VII. HAZARDS AND HAZARDOUS MATERIALS: A. Settinc~: Ukiah is generally regarded as a healthy City with relatively clean air and water. While there are some. known toxic "spots" resulting from the past storage of hazardous materials underground, the City is not regarded as having a highly contaminated environment. Based on field review, and the review of contaminated site listings maintained by the City, it has been determined that the project site is in a clean and healthy state and not contaminated with toxic or hazardous materials that would present a significant health hazard for occupants or other persons on the Site. B. Si_anificance Criteria: A significant impact to the environment and the public associated with hazards and hazardous materials would result from a project if any of the following occurred: · Creation of a significant hazard to the public or environment by routine transport, use or disposal of hazardous materials or from foreseeable upset and accident conditions; Emission and/or handling of hazardous, acutely hazardous materials, substances, or waste within ¼ mile of an existing or proposed school; · Location' of a project on a listed hazardou~ materials site compiled pursuant to Government Code Section-65962.5; or · Impairment/interference with adopted emergency response plan or emergency evacuation plan; C. Impacts: The project does not involve the transport, use, or disposal of hazardous materials, and would not meet any of the criteria listed above. Staff concludes, therefore, that the residential development will not have a significant adverse impaCt associate with hazardous materials exposure. The' unique location of the subject property will create a relatively secluded subdivision, and Planning staff noted that emergency vehicle access could be hampered if the proposed 20-foot wide access roadway was blocked during emergency conditions since it is the only way in and out by vehicle. However, the Ukiah Fire Marshal indicated the maintenance of a 20-foot wide corridor will provide suffiCient access for emergency vehicles and noted that residents could also exit to the Bush Street frontage through a pedestrian path proposed for the southeast corner of the proposed subdivision. Therefore, no significant adverse impacts to emergency evacuation or response plans are anticipated. Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 10¸ D. Miti_~ation Measures: None required.. E. Imr~act Si.qnificance After Miti.qation: N/A. VIII. HYDROLOGY AND WATER QUALITY: A. Settinc~: Three major creeks flow. through the City on their way to the Russian River, with some adjacent areas identified bythe Federal Emergency Management AgenCy (FEMA) as Potentially subject to flooding events. In this case, the subject property is not subject to large-scale or short-term flooding, with the majority of storm waters from the site running south into a storm drain along Low Gap Road. Domestic water quality, as well as the quality of creek waters in the City is rated as very good, and the project site is served by existing water supply mains located in the Low Gap Road frontage. Water for fire protection is also available from an existing hydrant near the .property entrance along Low Gap Road. B. Si_q.nificance Criteria: Significant impacts associated with hydrology and water quality would result from a project if water quality standards or waste discharge requirements were violated; groundwater and surface water quality and quantity were substantially altered; drainage patterns were substantially altered that would increase erosion/siltation and increase surface runoff; increase runoff that would exceed capacity of existing or planned drainage systems or add a substantial source of pollution; located on a 100-Year floodplain; or expose people to hydrological hazards such as flooding or inundation by seiche, tsunami, or mudflow. C. Impacts' Storm Drainage and Flood Hazards: The Flood Insurance Rate Maps prepared by the Federal Emergency Management Agency reveal that the subject property is situated in Flood Zone "C",which is outside the 100-year floodplain. Water Quality Standards: Domestic water is available for the proposed projects through the public city water system that runs under Bush Street and staff of the Water and Sewer Department indicated all of the proposed single-family residences could be served with only minor extensions of the existing water system and a public utility easement. Accordingly, it is not anticipated that the proposed project would 'cause a violation of any water quality standard, or have an adverse impact on the domestic water quality of future owners of the proposed parcels.. .. Groundwater Supply and Recharge: Due to the relativelY small size of the property and the fact that a · large percentage of the storm drainage on the site presently drains to the public storm sewer system described above, it is not anticipated the development.of the proposed single-family residences would have a significant adverse impact on groundwater supplies or the ability for the underlying water table to recharge. Furthermore, the site is located near the base of the hills that flank the western portion of the city and groundwater recharge is typically higher than lower lying areas. Wastewater: The proposed single-family residences will be connected to the City-maintained sewer main that runs beneath Bush Street. While the City's overall sewer system is nearing capacity, Public Utilities staff has anticipate that a sufficient number of hookups to the system will be available to servethe proposed residential units and that the development of the proposed apartment' complexes will not require extensive modifications to the existing sewer 'systems of the development of new sewer system resourCes. Mitigated Negative-Declaration for GPA/ZC No. 05-12; SUB 05-17;. & SDP 05-13 ) D. Mitiqation Measures: None required. E. Impact SiRnificance After Mitiqation' N/A IX. LAND USE AND PLANNING' A. Settinq: The City of Ukiah is a compact urban environment, and functions as the County seat for Mendocino County. Commercial, residential, and industrial land uses are planned for specific areas, as set forth in the 1995. Ukiah General Plan, with allowed and permitted land uses defined through distinct zoning districts that are outlined in the Ukiah Municipal Code. The subject property is designated in the General plan and zoned for high density residential and the proposed single-family residential development is an allowed use. In this case, however, the applicants are proposing the development of uniquely sized lots that will deviate substantially from the General Plan and Zoning Code standards for single-family uses, and the project will require the approval of the proposed, applications for a General Plan Amendment/Zone Change, major subdivision, and site development review. B. Significance Criteria: Significant land use impacts would occur if the project substantially cOnflict with established uses, disrupts or divides an established community, or results in a substantial alteration to present or planned land uses. Proposed project consistenCy with the Ukiah General Plan and zoning and any other applicable environmental plans and policies is also evaluated in making a determination about potential land use impacts. C. Impacts: Should the subject properties eventually be developed as shown, there will be 12 single- family dwellings on the 1.04-acre site, with a resultant density of one unit for every 3,775 square feet. The proposed subdivision will also have some units on lots with areas that are on average well short of the 6,000 square foot minimum lot size, with deviations to yard areas and setbaCksl General Plan Compatibility: The Ukiah General Plan designates the subject area for high density land uses, but the proposed single-family residential use is allowed in this land use designation. The development of only 12 units on the site doeS conflict with General Plan goals .and policies for maximum development of. high-density lands, and is substantially less than the 30 apartment units that could be developed on the site. However, the development of multiple-family housing is somewhat hindered by the unique shape of the lot, which has a narrow extension that does not lend itself to any effective uses other than access and limited parking, in fact, the buildable area on this lot is roughly 37,500 square feet and would allow~only 24 apartment units if designed well. Based'on these factors, it is the opinion of staffthe proposed General Plan Amendment to the LDR land'use designation and the subsequent use of the site for a denser than normal development of single-family residences does not represent a major conflict with the Land Use or Housing Elements of the General Plan. In fact, the proposed land use and development density provides a feasible compromise for the use of this uniquely-shaped parcel of land. - Zoning District Compatibility: The proposed single-family development will not be consistent with the lot area and yards/setback requirements of the R-I (Low Density Residential) Zoning District and the approval of a Planned Development to allow the development of this unique housing plan at the density. requested is required. In this case, no substantial effects to neighboring lots are anticipated since the project site is currently zoned to permit the development of a denser multiple-familY complex that would have a much greater effect on the abutting land uses. Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 3.2 Neighborhood Compatibility: The development of the site with the 1;, single-family units proposed in this project will conflict with the medium to high density land uses permitted on abutting lots. However, in this case, it is staffs opinion that the lower density development will be more compatible with the Iow density residential and school uses that abut the site than a larger, denser apartment complex. Therefore, no adverse conflicts with the established uses on the site and no disruptions or divisions to the surrounding land uses are anticipated. The proposed infill development will also cause incremental increases to existing traffic levels and the ambient noise levels for this neighborhood, but there is nothing in the design of the project that is expected to cause these adverse impacts to be significant. D. Mitiqation Measure: None required. E. Impact Significance After Mitigation' N/A X. NATURAL/MINERAL RESOURCES: A. Setting: The subject property contains soils that have been altered substantially by fills of non-native soils and inorganic materials, and are not recognized for any substantial valuable natural resources. Construction materials derived from natural resources off-site will be used to develop the proposed project. B. Significance Criteria: .Impacts to natural resources would be substantial if the proposed development project resulted in the loss of significant or locally important materials such as minerals, gravel, sand or wood. C. Impacts: The'proposed single-family development project will use sand, gravel, rock, wood, concrete, and other naturally occurring building materials that are readily available in the Ukiah Valley, so there will be no extraction of such materials from the project site. Furthermore, it is not anticipated the proposed residential development will demand excessive amounts of these materials or cause a direct increase in mining, activities, nor would it disrupt any substantial natural habitat or migration corridors. Accordingly, it is concluded that the proposed project would not have a significant adverse impact on natural resources. D. Mitiqation Measures: None required. E. !mpact.Si.qnificanceAfter Mitiqation: N/A. Xl. NOISE: A. Setting: The subject property is located in a densely developed area of the urban landscape that has the typical background noise sources expected in such an environment, including automobile and truck traffic, collections of human voices, street working crews and heavy equipment, etc. B. Significance Criteria: A project will typically have a significant noise impact if it exposes people to or generates noise levels in excess of standards established in the local General Plan or Noise Ordinance; causes a substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project; or causes a substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels without the project. Mitigated Negative Declaration for GPA/ZC No. 05-12; 'SUB 05-17; & SDP 05-13 3.3 ) C. !mpacts: The Ukiah General Plan identifies the significant noise sourCes in the City as transportation noise coming from major roadways, railroad operations, industrial plants, and airports. The focus of the Noise Element in the General Plan is to protect the noise-sensitive land uses from transportation, industrial, railroad, and airport noise through the establishment 'of noise contours around these noise sources in the community, where typical noise can exceed the defined threshold of 60 dB (decibels). The City Noise Ordinance limits the maximum level of noise that can emanate from residential units to 40 decibels during the hours of 10:00 p.m. to 7:00 a.m.; 50 decibels from 7:00 a.m. to 7:00 p.m.; and 45 decibels from 7:00 p.m. to 10:00 p.m. There is no evidence that the construction of the proposed single- family homes will cause these noise levels to be exceeded regularly or significantly, and no specific mitigation measures will be required. Short-term noise impacts from machinery and general construction activities will occur during the actual construction of the proposed single-family homes, but these impacts are not expected to reach hazardous levels since the Noise Ordinance prohibits work before 7:00 a.m., as described above. Therefore, no mitigation measures related to such noise generators will be required. D. Mitiqation Measure: N/A E. Impact Si.qnificance After Mitiqation: N/A VII. POPULATION AND HOUSING: A. Setting: The 2000 census indicates that the population of Ukiah is 15,597 persons, with a slow and stable growth rate. The population has not changed much in the past several years, and it has only been very recently that it appears to be noticeably increasing. The 1995 General Plan projeCted a population of 17,291 for the year 2000, which is 1.694 more than the current population. B. Siqnificance Criteria: Population and houSing impacts would, be significant if the project induced substantial direct or indirect (e.g., road extensions) population growth in an area and displaced substantial numbers of existing houses and/or substantial numbers of people, thus requiring replacement housing elsewhere. C. Impacts: The proposed single-family residential development project would provide a substantial increase in Ukiah Valley housing by providing a unique type of single-family housing that is expected to be more affordable, and therefore would not have an adverse impact on housing. D. Mitigation Measures: None required. E. Impact Significance After Mitiqation: N/A Xlll. PUBLIC SERVICES' A. Setting' The City of Ukiah isa small, but urbanized, area with a full complement of public services that include police and fire services, public schools, public works and utilities, and emergency services. Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 3.4 ) B. Siqnificance Criteria: ImPacts to public services would be significant if the residential development resulted in adverse physical impacts upon capacity that would require the construction of new public facilities or substantial alteration to existing governmental facilities to maintain acceptable service levels or performance levels. C. Impacts: Staff discussed the proposed residential development project with the City Police, Parks, Utilities, and Fire Departments, as well as with the Ukiah Unified School District. City Police Department: Discussions with the City Police Department reveal that the proposed single-family residential development will not result in the need for additional police officers, and will not have a substantial affect on'their ability to serve future residents of the subdivision. City Community Services Department: The project site is situated within walking distance of large park and recreation sites maintained by the County of Mendocino and the Ukiah Unified School District, and to City-operated Vinewood Park and Todd Grove Park. The developer will be required to pay in-lieu park fees for new park facilities, but discussions with the City Community Services Department indicated that this scaled-down residential development will not result in the need for additional staff or park facilities and will not have a substantial affect on their ability to maintain the City-owned park facilities. City Utilities Department: Discussions with the City Utilities Department reveal that the proposed residential development will not result in the need for new or expanded electrical generation sources, nor will it cause' the need for additional staff to maintain the current City-owned electric service facilities. The amount 'of electricity needed by the new residential development is not substantial, and is available from current generation capacity.. The City's sewage treatment plant is reaching capacity, but Utilities Department staff has'indicated that it anticipates hookups will be available for all of the additional apartments at the time of construction. City' Fire Department: The City Fire MarShal indicated that in-house sprinklers are recommended, not required, and additional hydrants may be needed to provide optimum fire protection of the subdivision. However, these standard measures will be implemented at the building stage Of the project and will have no adverse impacts on the Fire Department's ability to provide adequate fire protection to the buildings, and therefore,, no mitigation is required. Ukiah Unified School District: Staff from the Ukiah Unified sChOol District indicates that it has the basic capacity to house and educate the minimal' number of potential students generated by the proposed apartment complex developments. The applicants will be required to pay the adopted school district developer mitigation fee that is intended to offset the cumulative impact contribution to the district from all development projects. D. Miti.qation Measures' None required. E. Impact Si.qnificance After Mitiqation: N/A Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 Z'I7 15 ) XlV: TRANSPORTATION/TRAFFIC/CIRCULATION: A. Setting: Ukiah is a rural city that is not experiencing significant population growth. However, as the government and commercial center for Mendocino County, the City has been .growing in terms of commercial and other development. This has increased traffic and its corresponding delays at intersections, particularly during the a.m. and p.m. peak hours. While traffic impacts are somewhat subjective in nature, recent traffic studies show that the delays at some key intersections have substantially increased in the past'several years. The project site will be served by Low Gap Road, a minor collector street that is currently operating at a service level of LOS B. B. Si_~nificance Criteria: According to the Ukiah General Plan Circulation Element, the minimum acceptable level of service (LOS) is LOS "D." Other criteria include whether the project would have substantial effects upon air traffic patterns; whether the project would increase traffic hazards due to design features; whether the project has inadequate emergency access; whether the project has inadequate parking capacity; and whether the project would create conflicts with adopted policies, programs and plans for alternative transportation. C. Impacts: According to standard traffic generation sources, the proposed single-family development is expected to cause at least 120 new vehicle trips per day from the site, with all of the trips using the proposed 20-foot wide access driveway to Low Gap Road.' According to City Engineer/Public Works staff, this collector street is currently operating at LOS B, with minor delays at the nearby intersection of Low Gap Road and Bush Street, and site traffic will not cause substantial declines in this service level. City staff is concerned that the proximity of the proposed access road to the Low Gap Road-Bush Street intersection could cause adverse impacts for existing transportation systems and the present patterns of vehicle and pedestrian circulation and movements. This distance is considered adequate for safe ingress and egress at the site throughout most of the day, but it is anticipated that access to the eastbound lane of Low Gap Road may be blocked during the high-traffic periods when students and employees are going to or leaving the Ukiah High School campus, which abuts Low Gap Road approximately one-quarter of a mile to the west of the project site. Traffic tends to queue in front of the project site during periods around noon and mid-afternoon, and persons leaving the site or attempting to enter it from the eastbound lane could be delayed for varying periods of time. However, this impact is not considered to be a significant adverse impact on area traffic since the delays are typically short-lived and would occur primarily to site users that are expected to adjust to these minor and short-lived peak traffic periods. Residents of the proposed residences will also have the option of turning into the westbound lane of Low Gap Road, which accesses other City streets. Therefore, no traffic mitigation measures are required. D. Mitigation Measures: None required. E. Impact Significance After Mitiqation: N/A XV. UTILITIES AND SERVICE SYSTEMS A. Settinq: Energy resources are readily available to the citizens of Ukiah. These include electricity, natural gas, propane, and alternative sources such as solar, wind, and hydroelectric. B. Si.qnificance Criteria: A project will typically have a significant impact if it causes the use of fuel or energy in a wasteful manner, or encourages activities that use large amounts of fuel or energy. Mitigated Negative Declaration for 3.6; GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 C. Impacts: Fuels and energy will be consumed during the construction of the proposed single-family residential development, but the precise amounts cannot be determined because the length of time certain heavy equipment is used is unknown. HOwever, based on the sizes of the proposed residences, there is no evidence that the fuels and energy consumed during construction activities.or the future use of the newly constructed buildings will be significant. Moreover, it would be unreasonable to speculate that the construction crews and future residents will waste energy or fuels, and accordingly, staff is able to conclude that the proposed projects will not have significant adverse impacts on' energy resources. D. Mitiqation Measures: None required. E. ,Impact Significance After Mitiqation' N/A XVi. MITIGATION MONITORING AND REPORTING: AB 3180 requires all public agencies to adopt a monitoring and reporting program whenever they adopt an EIR or "Mitigated Negative Declaration." The Mitigation Monitoring and Reporting Program for this Mitigated Negative Declaration require the applicants to incorporate or comply with the. important Mitigation Measures listed in Table 1 below. ' Table 1: MITIGATION MEASURE MONITORING PROGRAM MITIGATION MONITORING FUNDING MEASURES RESPONSIBILITY HOW AND WHEN VERIFICATION RESPONSIBILITY Aesthetics Applicants with Inclusion of a Planning Dept. Applicants Staff oversight and lighting plan prior staff Approval to the submittal of a Building Permit Historical Applicants with During all site · Planning Applicants in the event and Cultural Staff oversight preparation and Department of a discovery Resources construction staff phases XVII. MANDATORY FINDINGS OF SIGNIFICANCE: A. Potential to Degrade: Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self sustaining levels, threaten to eliminate a plant Or animal community, reduce the number or restrict the range of a rare or endangered plant or animal species, or eliminate important examples of the major periods of California history or prehistory? YES NO X Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 B. Short Term: Does the project have the potential to achieve short-term, to the disadvantage of long-term, environmental goals? (A short-term impact on the environment is one that occurs in a relatively brief, definitive period. Long-term impacts will endure well into the futUre). YES NO X C. Cumulative: Does the project have impacts that a~e individually limited, but cumulatively considerable? (A project may impact on two or more separate resources where the impact on each resource is relatively small, but where the effect on the total of those impacts on the environment is significant). YES NO X D. Substantially Adverse: Does the project have environmental effects that will cause substantial adverse effects on human beings, either directly or indirectly? YES NO X XVIII. DETERMINATION: On the basis of this .Initial Stud~. Ifind that the proposed project COULD NOT have a significant effect on the ;~nvironment, and a NEGATIVE DECLARATION will be prepared. X I find that although the proposed project could have a significant adverse impact on the environment, there will not be a significant effect in this case because the.mitigation measures described within the Initial Study will be incorporated into the design of the project or required by the City.of Ukiah. A M!TIG~..~,D NEGATIVE DECLARATION will be prepared. ~nd t~a~"~e,.~3~ed project MAY have a significant adverse on the ~_. . " . Chades Stump / ~_~l~a~t. ure_~.-...c~...f ~//_ PrintName / ~.~..nni,r~! Director/Environq;~ntal Coordinator June 11 2005 //,ffitle - Date Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP'05-13 18 RESOURCES USED TO PREPARE THIS INITIAL STUDY . . o . . . o City of Ukiah General Plan, 1995 The Linka.qe Between Land Use, Transportation and Air Quality, State Air Resources Board, 1993. The Land Use - Air Quality Linkage: How Land Use and Transportation Affect Air Quality, State Air Resources Board, 1997. - Transportation-Related Land Use Strateqies to Minimize Mobile Source Emissions: An Indirect Source Research Proiect, State Air Resources'Board, 1995. A Source of Air Quality Conditions Includi. nq Emissions Inventory, Ozone Formation, PM10 Generation, and Mitigation MeaSures for Mendocino County, CA. Sonoma Technologies, Inc., November, 1998. Soil Survey of Mendocino County, Eastern Part, and Trinity County, Southwestern Part, CalifOrnia, U.S. Department of Agriculture - Soil Conservation Service, January, -1991. U.S.G.S. Topographical Map, Ukiah Quadrangle, 1958 (photo inspected 1975). 10. Correspondence received from the City Fire D.epartment regarding fire protection service Correspondence/discussions with the following City staff and Agency representatives: ' a. ChuckYates, Fire Marshal b. Thomas McArthur, SewerNVater Eng. Tech. c. Cindy Sauers, Electrical Distribution Engineer d. Diana Steele, Public Works DirectodCity Engineer e. Tim Eriksen, Civil Engineer f. RickSands, Engineering Associate g. John Williams, Police Chief Mitigated Negative Declaration for GPA/ZC No. 05-12; SUB 05-17; & SDP 05-13 DRAFT COPY ATTACHMENT RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF UKIAH AMENDING THE GENERAL PLAN WHEREAS, the City Council finds that the redesignation of the "HDR" Land Use Designation is consistent with the goals and policies of the Ukiah General Plan because it would establish a more feasible and effective density and development pattern for a parcel on which high density development is constrained by lot size, dimensions, and access to a public street; and WHEREAS, the amendment of the General Plan Land Use Classification is necessary to establish more flexible standards for lot size, lot width, and yard areas for the development of a creative planned development with twelve individually-owned homes; and WHEREAS, the City Planning Department conducted an Initial Study to ascertain if the proposed General Plan Amendment would have significant adverse impacts on the environment; and WHEREAS, based on the analysis contained in the Initial Study, staff is able to conclude that the proposed General Plan Amendment project would not have a significant adverse effect on the environment; and WHEREAS, based on the conclusions reached in the Initial Study, staff is recommending the adoption of a Negative Declaration for the Shimizu/Housing Company General Plan Amendment Project; NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Ukiah hereby amends the General Plan Land Use Map by redesignating Assessor Parcel Number 001-430-35 from "HDR" (High Density Residential) to "LDR" (Low Density Residential). PASSED AND ADOPTED on , by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: Mark Ashiku, Mayor ATTEST: Marie Ulvila, City Clerk General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and ].3 Major Subdivision Map No. 05-17 Attachment DRAFT COPY ORDINANCE NO. ATTACHMENT_~ ~ _ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH AMENDING THE OFFICIAL ZONING MAP FOR THE CITY OF UKIAH, CALIFORNIA The City Council of City of Ukiah does hereby ordain as follows: SECTION ONE Pursuant to the procedures set forth in Section 9009 of the Ukiah Municipal Code, the Official Zoning Map for the City of Ukiah is amended to change the zoning on a 1.04-acre property at 506-510 Low Gap Road (Assessor Parcel Number 001-430-35) in the City of Ukiah from the'R-3 (High Density Residential) Zoning District to the R-1 P-D (Low Density Residential-Planned Development) Combining Zoning District. SECTION TVVO This rezoning action and amendment to the Official Zoning Map of the City of Ukiah is necessary to establish more flexible development standards for lot size, lot width, and yard areas for the development of a creative planned development with twelve individually-owned homes. SECTION THREE The City of Ukiah conducted an Initial Study to ascertain if the proposed General Plan Amendment would have significant adverse impacts on the environment and concluded that the proposed General Plan Amendment project would not have a significant adverse effect on the environment and is recommending the adoption of a Negative Declaration for the Shimizu/Housing Company General Plan Amendment Project; SECTION FOUR This ordinance shall be published as required by law in a newspaper of general circulation published in the City of Ukiah. SECTION FIVE This Ordinance shall become effective thirty (30) days after adoption. Introduced by title only on ,2005 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Passed and adopted on AYES: NOES: ABSENT: ABSTAIN: ,2005, by the following vote: ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and ;t2_ Major Subdivision Map No. 05-17 Attachment ill" ATTACHMENT_ i _:~ ,, L. Attachment o., .o . ~ . ~/ · · .. J~ J~ . · ,, il.,. ~,,,._ J .~ ~'.,, ~ '. - ... ... . . ~~~' · ' · ' · "" ~] ~ml~~lm.~~ · - "- ..'. '" ~i [ t · ~l . .':~..'~"~.....::.~ ,' il. I' · I · · Jj ... ::.~.:.~:::~.¥,'.~.:,,...:." ~:.'.-....u ,,.,:...'~,. . ~ .'~, ... ,1~ · ....:.:'.:/:~ '.:~~:.~.:.~::'..:,~;~:.. :.L-.....?~:, -. ~ t · ....:... ...... :eL ' "i '"~'~:,, · ~':-",?~ '"-',' :'?.':. '" I '~ . . '"'.~" '" '.'1 ' "~?.. ~"~'". , ~':'~": ~ . · ", ".' ..-.I ' ,.~':""~ ~ ' · ~ -' · "~'?'":'.',.~'..'i' . · "": '":'.:t.. ;~; ..,....::; . . "' ' ' ']:.'.':..' "! ~~':: :;,.:...-Z "':"-.. ' ' · - ", ':'. - · -..--,,,,..,~..:- ...i.-. -i. · "] ..,:.,~:,.-....... .. - 'l..'J '>-: .' I ~ %'.~.~ ~ · ' ' · .' ..:1 ,. '"'~, i ~; ,' ":~.:':~',. '";: .' .... .....:~..::~i=;. :.?. ~':q: ?:~- . :.. .. -.. '*' . . i ! · o ., · · ~i ~ ~ ~ ~ " .- · '.-' i"'~'-'.'-' . "'"" 'JlJ ' ' ' lJ,J Ill !!li',i.J' . . I.-.Ii ~" Il .. ~1 ~[:' ~'~,li~' il,ii,~ iii ' ' · ~,,.. ,,,, ~.'~ ~ -. 'Ii~:~ ~,. · ~. ,.'~ ~~ '! / ': I / .' ,... · . . . . ~  i . ~ . ~'~'l'~-'.' ~.' ~-' . · 'I' ~ - ' Z . . , ! i . j,..~- , ,, . . .-..( __ .. -,_~,,,,- ..~ ATTACHMENT_ City of Ukiah STAFF REPORT TO THE PLANNING COMMISSION BRUCE SHIMIZU-HOUSING COMPANY General Plan Amendment/Zone Change No. 05-~2, Site Development Permit No. 05-'13, and Major Subdivision Map No. 05-17 ITEM NO. 9-6, Meeting Date: June 22, 2005 PROJECT SUMMARY: This project consists of multiple discretionary applications to allow the development of a unique housing complex on an irregularly-shaped piece of land located in a mixed- use neighborhood. These applications include a General Plan Amendment and Zone Change component to change the land use designation and zoning to allow Iow to medium density residential land uses, a major subdivision to allow the division of the 1.04-acre site into 12 lots, and a site development permit to allow the development of 12 single-family style homes on these parcels. The discretionary actions associated with this project are quasi-judicial in nature; therefore each decision-maker must physically and personally visit the site prior to participating in the vote to approve, disapprove, or modify the project. PROJECT LOCATION: The project site consists of a single parcel (APN 001-430-35) located at 506- 510 Low Gap Road, on the east side of Low Gap, approximately 125 feet west of Bush Street. The interior portion of the site is accessed via a driveway located between single family residences located on either side of the gravel drive. ENVIRONMENTAL DETERMINATION: The Environmental Coordinator determined that none of the applications that make up the proposed project are exempt from the provisions of the California Environmental Quality Act (CEQA) and an Initial Study was prepared to examine the potential adverse environmental effects of the entire project. This careful and comprehensive review of the project included the preparation of an Environmental Checklist in which potentially significant adverse impacts to aesthetics and cultural resources were identified and mitigation measures and a mitigation monitoring program designed to lessen these impacts to levels that are not significant were prepared. Based on these measures, the Environmental Coordinator determined a Mitigated Negative Declaration for the project is appropriate and specific Findings in support of this determination were included in the document. GENERAL PLAN DESIGNATION: HDR (High Density Residential) ZONING DESIGNATION: R-3 (High Density Residential) General Plan Amendment/Zone Change No. 05-12; Major Site Development Permit No. 05-13; and Major Subdivision. Map No. 05-17 Attachment # ~' I PROJECT DESCRIPTION Existinq Conditions: The project site consists of a 1.04-acre lot that fronts Low Gap Road. Actually, this irregular-shaped lot is accessed via a 40-foot wide extension between the Low Gap frontage and the wider portion of the site, which is vacant since two existing residential buildings were recently demolished. The lot is relatively flat, with a slight grade declination (3%) running from the northern half of the site towards the south, and vegetation is limited to lawn areas, small bushes along the northern and eastern perimeters, and a single coniferous tree on the eastern portion of the site. The parcel is bounded on the north and west by Ukiah Unified School District property c~ntaining the Frank Zeek Elementary school, adult school buildings, and a continuation school campus. The area to the east is also owned by the school district and consists of a paved overflow parking lot lying between the site and Bush Street. The parcels on either side of the narrow part of the subject property contain four single family residences, while the lands to the south are occupied by the Mendocino County Administration Center. The grounds of the Russian River Cemetery lie approximately 60 feet to the west of the project site and the Ukiah High School campus is located approximately one-quarter mile to the west. Proposed Land Use Conditions As noted in the Project Summary above, the project entails separate application to change the General Plan land use and zoning designation to a Iow density residential planned development with smaller than normal lot areas, diverse parcel dimensions, and reduced setbacks. It also includes a major subdivision to divide the project site into twelve separate parcels and a site development permit to allow the construction of twelve single family residences on these lots. More specific descriptions of each project component are included below. General Plan Amendment/Zone Change No. 05-12 will allow the land use designation for the project site to be changed from HDR (High Density Residential) to LDR (Low Density Residential) and allow the land to be rezoned from R-3 (High Density Residential) to R-1-PD (Low Density Residential- Planned Development). This designation will allow the development of the site with individual lots that do not fully conform to General Plan and Ukiah Municipal Code requirements for the allowed number of lots, lot size and width, minimum street frontage, and yard areas and setbacks. The deviations specific to each lot are shown on the site plans and tentative map exhibits submitted with this project and in Table 1 of this staff report. Major Subdivision No. 05-17 will divide the 1.04-acre site into 12 parcels with areas measuring between 2,150 square feet to 9,750 square feet, and an average lot size of approximately 3,767 square feet. The proposed subdivision also includes the development of a 20-foot wide access driveway that will run up the narrow portion of the lot, from the Low Gap Road frontage to a hammerhead turnaround from which individual driveways will extend. This access driveway will also provide ingress and egress to two abutting lots located southeast of the project site. Major Site Development Permit No. 05-13 will allow the development of 12 single-family homes on the lots described above. This housing project will also include the development of a common access driveway from Low Gap Road and a common-use pedestrian sidewalk to Bush Street. Essentially, the approval of the projects comprising this project will result in the establishment of a unique subdivision with 12 lots that deviate from one or more of the development standards that apply to traditional single-family housing lots in the City of Ukiah. The proposed residences will all be smaller than normal, with ground floor building footprints of 654-655 square feet and second-stories floor plans of 426-582 square feet providing additional living space. Despite the relatively small footprints, the buildings utilize traditional single-family residential designs General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and 2 Major Subdivision Map No. 05-17 and materials, including vertical wood or concrete-board siding, pitched roofs, and composition roofing. In addition to these relatively standard features, a variety of more unique features that will make the individual buildings and the subdivision more attractive, including variation in roof heights and pitches, offset walls, gable roofing, and covered porch areas. The conceptual landscaping plan proposes that new landscaping be planted in the perimeter areas of the lot, including comprehensive plantings of drought-tolerant trees and shrubs along Low Gap Road and the boundary fronting the Bush Street corridor. Smaller trees will be planted in the front Yard areas for each lot, with rear yard areas left unplanted to allow future property owners personal choices. Table 1: Proposed Lot Areas and Dimensions Lot Area Width Ground Floor Area Front Yard* Rear Yard Side Yards Street Front 1 6,990 sq.ft. 35-45 ft. 654 sq.ff. 7 ft. 13 ft. 5 ft. & 5 ft. 20 ft. 2 4,180 sq.ft. 40 ft. 654 sq.ft. 10 ft. 10 ft. 5 ft. & 5 ft. none 3 2,510 sq.ff. 28-60 ff. 653 sq.ft. 10 ft. 9 ft. 0 ft. & 4 ft. none 4 2,370 sq.ft. 39 ft. 654 sq. ft. 15 ft. 8 ft. 0 ft. & 10 ft. none 5 2,550 sq.ff. 39 ft. 654 sq.ft. 20 ft. 7 ft. 0 ft. & 10 ft. none 6 2,150 sq.ff. 33-38 ft. 655 sq.ft. 0 ft. 13 ft. 0 ft. & 4 ff. none 7 3,260 sq.ft. 39 ft. 655 sq.ft. 7 ft. 18 ft. 5 ft. & 5 ft. none 8 3,130 sq .ft. 39 ft. 655 sq.ft. 7 ft. 15 ft. 5 ft. & 5 ft. none 9 2,990 sq.ft. 39 ft. 655 sq.ft. 7 ft. 13 ft. 5 ft. & 5 ft. none 10 2,920 sq.ft. 41 ft. 654.5 sq.ft. 0 ft. 12 ft. 5 ft. & 11 ft. none 11 2,400 sq.ft. 49 ft. 654 sq.ft. 0 ft. 9 ft. 5 ff. & 10 ft. none 12 9,750 sq.ff. 60ft. 655 sq.ff. 5ft. 20ft. 5 ft. & 10 ft. 21 ft. STAFF ANALYSIS General Plan Consistency: The subject property is designated for High Density Residential land uses on the General Plan Land Use Map, but the proposed General Plan Amendment will change the designation to LDR (Low Density Residential) to support the applicant's ~desire to develop single-family style homes. Planning staff reviewed the Land Use Element goals and policies for LDR development and determined the proposed project is generally consistent with the Land Use Element intent of providing traditional single family homes and with requirements for new developments in the LDR land use classification. These include the recommended location of such homes, access, along public streets, access to and from the new structures, design reviews, and special development issues. General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and Major Subdivision Map No. 05-17 The proposed development does not conform to the LDR standard for a maximum density of six units per gross acre since the 1.04-acre project site would normally be limited to a maximum of 7units. The 12 units proposed in this project are closer to the unit density allowed in the Medium Density Residential land use designation, but the applicants chose to request a modified LDR density in order to impose the more stringent single family residential development requirements on their project. Planning Department staff concurs with this request since the development of traditional multiple-family development would be difficult on this lot due to its unique shape and limited access points. In fact, it is the opinion of staff that the proposed project is consistent with the intent of the LDR classification, and with the Land Use Element goals and policies that apply to this project. Additionally, staff found no major inconsistencies with any other General Plan goals and policies, including applicable provisions of the Circulation Element and the Community Design Element. Consistency with Ukiah Subdivision Ordinance: The proposed subdivision would be a Type I subdivision, as defined in the Ukiah Subdivision Ordinance, and Planning Department staff has determined the lots proposed would be consistent with most of the applicable requirements for this type of residential subdivision. These include standards for the development of street improvements, the provision of water supplies, fire protection, sewer hook-ups, storm drainage, utility easements, and street lighting facilities. As shown in Table 1 above, none of the individual lots proposed in this project are totally consistent with Type I subdivision requirements for the minimum lot area of 6,000 square feet, public street frontages of 60 feet, front and rear yard setbacks of 20 feet, and side yard setbacks of 10 feet. In fact, the proposed subdivision design is very unique in its use of smaller lots and reduced yard areas and none of the proposed parcels would fit the mold for the traditional single family residential lot defined by Type I subdivision standards. However, the proposed deviation from these standards is intended to provide individual ownership opportunities and establish a single-family atmosphere while increasing the overall residential density of the site. Therefore, it is staff's opinion that the proposed subdivision will be consistent with the Subdivision Ordinance so long as the City Council approves the proposed zone change to the PD Combining Zone and with the Development Plan exhibit submitted as part of this project. Consistency with R-1 Zoning District Standards: The Planned Development component of this project was included to allow the development of the 12-unit subdivision with sUbstantial deviation from the development standards of the R-1 Zoning District. The key modifications are described below, with specific modifications shown in detail on the Development Plan and Tentative 'Subdivision Map exhibits. Planning staff also described conformance with these standards in Table 1 above. · Ten of the proposed parcels will have lot areas of 2,150 to 4,180 square feet, or 35 to 70 percent of the 6, 000 square foot lot area prescribed for interior lots. Lots 1 and 12 will have approximately 20 feet of street frontage each, but the remaining lots will be aligned along a 20-foot wide private access driveway, with no public street frontages. · Only proposed Lot 5 will have the required 20-foot front yard, with the remaining lots having front yards of zero to 15 feet. · Only proposed Lot 5 will have the required 20-foot rear yard, with the remaining lots having rear yards of zero to 18 feet. · Side yards will vary in width from zero to 11 feet, with five of the lots containing at least one side yard that complies with the 10-foot width required. General Plan Amendment/Zone Change No. 05-12; Major Site Development Permit No. 05-13; and Major Subdivision Map No. 05-17 In general, building foundations for the twelve residential structures will cover between 30 to 35 percent of the parcel areas, with small yards reserved for lawns and garden areas. This ratio is consistent with the lot coverage areas found in most single family residential neighborhoods where the ground floor areas commonly exceed 1,000 square feet. Due to the lot design deviations described above, Planning staff does not anticipate that the resultant subdivision will provide the same levels of residential amenities or characteristics found in more traditional single family neighborhoods. However, these deviations do not result in a housing complex that is entirely inconsistent with the single-family use intended in the R-1 Zoning District, and it is staff's opinion that their use will ultimately result in a scaled-down, but highly livable subdivision that will be compatible with the amenities and characteristics found in nearby single family neighborhoods. Normally, staff would not encourage a subdivision with the number of deviations proposed in this project, but in this case the subject property has an unusual shape and lot dimensions that makes development with standard sized R-1 lots difficult, if not infeasible. Therefore, it is the opinion of staff that this project would provide a reasonable alternative to the higher density residential development for which the lot is currently designated. Staff also notes that the proposed subdivision will provide persons that wish to own homes but cannot afford standard-sized lots with a unique opportunity to move into housing that is consistent with the community-based goals of the R-1 Zoning District. PD Combining District Consistency: The Ukiah Municipal Code allows the application of the PD Combining District to any zoning district, but it spells out very specific requirements for its implementation. In this case, the application to apply it to the subject property has been done in full compliance with the procedures and process outlined in the Code, including the submittal of the materials required for the application. In fact, the applicants chose to forgo the option to submit a Concept Development Plan and prepared the more complex Precise Development Plan required for the ultimate approval of the project. Based on these plans, Planning staff determined the proposed subdivision and single family housing project will be consistent with the intent of the PD Combining Zone and the specific development requirements for precise development plans. Environmental Analysis: The proposed project is not exempt from the provisions of the California Environmental Quality Act, and an Initial Study was prepared to analyze potential adverse environmental impacts caused by the proposed General Plan Amendment/Zone Change, Major Subdivision, and Site Development Permit projects. In this study, staff reviewed potential environmental effects caused by the land use changes, such as growth inducement and impacts to housing, and determined that the General Plan Amendment and Zone Change component of the project is not expected to cause any direct significant adverse effects. However, it was also determined that the subdivision of the property and its subsequent development with the proposed housing units could create potentially significant adverse impacts to biological resources, geology and soils, and hydrology and water resources. As a result of these impacts, mitigation measures and a monitoring program were prepared to mitigate these impacts to levels that are not considered significant and a Mitigated Negative Declaration was prepared for all of the projects. CONCLUSIONS: The planned development/subdivision proposed in this project would utilize zero lot lines, reduced setback areas, and higher than normal land use densities that have been used in other projects in Ukiah. In staff's opinion, however, the proposed site layout and building designs combine these deviations from typical development standards in a much more interesting and usable fashion, resulting in a denser, but still attractive and highly livable version of the traditional single family neighborhood. In fact, it is staff's conclusion that the efficient layout of this compact neighborhood will foster a sense of community, and that it will be highly sought after by persons seeking to own a home or by persons looking for a smaller residence. General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and Major Subdivision Map No. 05-17 Staff further concludes that project comprised of General Plan Amendment/Zone Change No. 05-12, Major Site Development Permit No. 05-12, and Major Subdivision Map No. 05-17 is consistent with the Ukiah General Plan and the applicable standards of the Ukiah Municipal Code. FINDINGS: Planning staff has prepared Findings in support of each phase of the project and listed by project below. Recommended Findings for General Plan Amendment / Zone Change No. 05-12: The Planning Department's recommendation for approval of the General Plan Amendment / Zone Change to establish a Planned Development on the subject property is based, in part, on the following findings: . The general plan amendment/rezone of the subject property to LDR/R-1 PD and the eventual development of single family housing units will be consistent with the Ukiah General Plan since the housing complex will be developed in a manner that is generally consistent with Land Use Element criteria for the development of single-family residential homes and Housing Element implementation measures that encourage the development of unique housing opportunities; , The general plan amendment/rezone of the subject property to LDR/R-1 PD and the eventual development of single family homes will be consistent with the purpose and intent of the Planned Development established on the site; and . The unique single family housing project permitted by the establishment of the Planned Development will be compatible with surrounding land uses and will not be detrimental to the public's health, safety, and general welfare since the project entails a lower development density than permitted previously and is semi-secluded from the surrounding neighborhood. Recommended Findings for Major Site Development Permit No. 05-13: The Planning Department's recommendation for approval of the Major Site Development to allow the construction of twelve single family housing units on the subject property is based, in part, on the following findings: , The proposed single family units and surrounding grounds, as conditioned, are consistent with the Ukiah General Plan since they comply with the goals and policies for the siting of new development in the Land Use Element's LDR (Low Density Residential)land use classification and with Housing Element goals for infill development and the creative and flexible development of alternative housing types, and will cause no conflicts with the goals and policies listed in other General Plan Elements; . The proposed single family units and surrounding grounds, as conditioned, would be consistent with the R-1 PD Combining District established for the site, including the approved Development Plan for the property; . There is sufficient variety, creativity, and articulation in the architecture of the proposed single family residential structures and the design of the surrounding grounds to avoid monotony or any box-like external appearance and are generally consistent with, or more attractive than, the design and scale of similar residential structures in the surrounding neighborhood; . The location, size, and intensity of the housing complex would not create hazardous or inconvenient impacts to existing vehicular traffic patterns since its development will not cause substantial traffic volume increases or alter existing traffic patterns in a substantial manner; , The accessibility of off-street parking areas on each lot and the relation of these parking areas with respect to traffic on adjacent streets will not create a hazardous or inconvenient condition to adjacent surrounding uses since the proposed residential complex will have improved ingress and egress across a private access roadway between the residential units and Low Gap Road; General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and 6 Major Subdivision Map No. 05-17 . The location, size, and intensity of the project will not create hazardous or inconvenient impacts to pedestrian traffic since its development plan includes multiple pedestrian walkways between the residential units and the public sidewalks abutting Low Gap Road and Bush Street; 7. Sufficient landscaped areas and open spaces have been reserved for purposes of separating or screening the proposed structures from each other and from adjoining properties; o The proposed single family residential buildings will not cut out light or air on the property since the buildings would be constructed along the perimeter areas of the property and would be set back far enough from properties to the north to limit adverse shading patterns on abutting lots; 9. The proposed multiple-family residential development will not cause excessive damage to or destruction of natural features on the site since there are no such substantial resources present. 10. The development of the single family residential planned development will cause no significant adverse environmental effects that will not be mitigated by measures designed.to reduce their impact to levels of insignificance, as determined in the Negative Declaration and Initial Study prepared for the project; and 11. The development of this property with single family residences will not have a substantial detrimental impact on the character or value of an adjacent residential zoning district since the proposed planned development is a substantial improvement to existing conditions and will utilize attractive building and site designs that are compatible with surrounding development; Recommended Findings for Major Subdivision Map No. 05-17: The Planning Department's recommendation for approval of the Major Subdivision Map is based, in part, on the following findings: 1. The division of the property into twelve parcels is consistent with the requirements outlined for major subdivisions in the California Subdivision Map Act; . The division of the property into twelve parcels is consistent with the Ukiah General Plan since the single family housing complex will be consistent with Land Use Element criteria for Iow to medium density residential land uses and Housing Element implementation measures that encourage creativity and flexibility in establishing new housing situations; 3. The division of the property into twelve parcels, as conditioned, is consistent with the applicable Type I subdivision standards of the Ukiah Subdivision Ordinance; . The division of the existing property into twelve parcels is consistent with the modified use and development standards of the R-1 (Low Density Residential) Zoning District and with the purpose and intent of the PD Combining Zone criteria established for this parcel, which allows greater flexibility in determining lot areas, lot dimensions, yard/setback areas, and requirements for public street frontage; . The division of the existing property into twelve parcels will cause no significant adverse environmental effects, as determined in the Negative Declaration and Initial Study prepared for the project; and o The proposed single family residential housing complex is compatible with surrounding land uses and will not be detrimental to the public's health, safety, and general welfare since the project entails the a lower development density than currently permitted and is semi-secluded from the surrounding neighborhood. General Plan Amendment /Zone Change No. 05-12; Major Site Development Permit No. 05-13; and Major Subdivision Map No. 05-17 Recommended Conditions of Approval for General Plan Amendment/Rezone and Site Development Permit: The following Conditions of Approval shall be made a permanent part of General Plan Amendment/Zone Change No. 05-12 and Major Site Development Permit No. 05-13, shall remain in force regardless of property ownership, and implemented in order for this entitlement to remain valid: . No building permits shall be issued for any of the residential structures shown on the Development Plan/Site Development Permit until the Final Subdivision Map has been approved by the Ukiah City Council and signed by the Mayor of Ukiah. , All use, construction, or occupancy shall conform to the Development Plan approved by the City Councill and to any supporting documents submitted therewith, including maps, sketches, renderings, building elevations, landscape plans, and alike. , Any construction shall comply with the "Standard Specifications" for such type of construction now existing or which may hereafter be promulgated by the Engineering Department of the City of Ukiah; except where higher standards are imposed by law, rule, or regulation or by action of the City Council. , In addition to any particular condition, which might be imposed, any construction shall comply with all building, fire, electric, plumbing, occupancy, and structural laws, regulations and ordinances in effect at the time the Building Permit is approved and issued. 5. Applicant shall be required to obtain any permit or approval, which is required by law, regulation, or ordinance, be it required by Local, State, or Federal agency. . Building Permits shall be issued within two years after the effective date of the Development Plan/Site Development Permit, or it shall be subject to the City's permit revocation process and procedures. In the event the Building Permit cannot be issued within the stipulated period from the project approval date, a one year extension may be granted by the Director of Planning if no new circumstances affect the project which otherwise would render the original approval inappropriate or illegal. It is the applicant's responsibility in such cases to propose the one-year extension to the Planning Department prior to the two-year expiration date. . The approved Development Plan/Site Development Permit may be revoked through the City's revocation process if the approved project related to the Development Plan/Site Development Permit is not being conducted in compliance with the stipulations and conditions of approval; or if the project is not established within two years of the effective date of approval; or if the established land use for which the permit was granted has ceased or has been suspended for twenty four (24) consecutive months. . Except as otherwise specifically noted, the Development Plan/Site Development Permit shall be granted only for the specific purposes stated in the action approving the Development Plan/Site Development Permit and shall not be construed as eliminating or modifying any building, use, or zone requirements except as to such specific purposes. , The expansion of any residential structure or garage beyond the dimensions or building heights approved as part of the Development Plan shall require the approval of a Minor Site Development Permit by the Ukiah Zoning Administrator. 10. Improvement Plans for interior walkways or curb, gutters, sidewalks, driveways and street paving along the Low Gap Road frontage shall be prepared by a licensed civil engineer in accordance with City Standard Drawings and submitted to the Ukiah City Engineer for review. The improvements plans shall be approved by the City Engineer prior to the issuance of any General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and 8 Major Subdivision Map No. 05-17 ministerial permits for site preparation activities required for the construction of any residential unit on the subject property. 11. All improvements within the right-of-way for Low Gap Road shall be constructed ~n conformance with the approved improvement plans under an Encroachment Permit issued by the Public Works Department. The Encroachment Permit shall be submitted to the City Engineer for review and approval prior to the City Engineer prior to the issuance of a Building Permit for the project with a fee equal to three percent (3%) of the cost of the improvements. 12. All improvements shall be done by a properly licensed Contractor with a current City of Ukiah Business License who shall submit copies of proper insurance coverage (Public Liability: $1,000,000; Property Damage: $1,000,000) and current Workman's Compensation Certificate. 13. A Final Grading and Drainage Plan that includes an Erosion and Sediment Transport Control Plan shall be submitted to the City Engineer/Public Works Director for review and shall be approved prior to the commencement of any grading, site preparation activities, or construction of buildings and paving. A licensed civil engineer shall prepare all drainage calculations and other work done on this Plan. 14. Stockpiled soil shall be protected from erosion; drainage from all disturbed and stockpiled soils shall be directed on-site to a disposal location approved by the City Engineer. 15. All on-site paving shall be a minimum of 2" (inches) of asphalt concrete with a 6" (inch) aggregate base, or, alternatively, any option approved by the City Engineer 16. Sewer, water, and electric service shall conform to the specifications of the City Public Utilities and Public Works Departments. 17. A Final Landscaping Plan shall be submitted by the project applicant and approved by the Director of Planning prior to the issuance of a Certificate of Occupancy for the building. This plan shall include, but not be limited to the following: a) A planting legend that includes the names, location, coverage area, and canopy cover of proposed vegetation; b) A planting schedule for all vegetation installed on the site; and c) A maintenance schedule for existing or proposed vegetation, including a watering schedule and irrigation system design. 18. 19. All landscaping shall be maintained in a neat, weed-free manner, and may not be removed or substantially altered unless the Director of Planning reviews and approves the removal or replacement of vegetation determined to be diseased, unstable, hazardous, or poorly located on the site. Any vegetation removed from the site shall be replaced with similar vegetation approved by the Planning Director. Any roof-mounted air conditioning, heating, and/or ventilation equipment shall be aesthetically screened from view consistent with the architecture of the building upon which it is located. 20. Outdoor refuse/recycle containers shall be aesthetically screened from view; garbage shall not be visible outside the enclosures. 21. A recycling program that provides the opportunity for all residents of the single family residential subdivision to recycle shall be implemented prior to the occupancy of any of the buildings and shall remain in effect so long as the structures are occupied. This program shall be reviewed by the Planning Director and approved prior to implementation to ensure it provides efficient recycling methods consistency with Ukiah Municipal Code requirements. General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and 9 Major Subdivision Map No. 05-17 22. Hours of construction shall be limited to the hours between 7:00 a.m. to 7:00 p.m., Monday through Saturday unless additional hours of construction for special construction activities or projects are reviewed and approved by the Planning Director. 23. Prior to the issuance of a Building Permit, a Final Lighting Plan shall be submitted to the Director of Planning and Community Development. or his/her designee for review for compliance with Ukiah Municipal Code standards for on-site lighting and with "dark sky" guidelines for reducing nighttime lighting on the site. The Final Lighting Plan shall include details regarding exterior lighting for structures, garden areas, and walkways, with lighting . sources that are full cut-off, hooded, and down-cast, or otherwise shielded to ensure that light does not adversely shine towards neighboring properties, or toward the night sky. Additionally, all lighting shall be the minimum wattage necessary to provide adequate security, yet shall not result in excessively bright night glow. Sufficient details regarding the proposed wattage of all site lights shall be included in the Final Lighting Plan so that the Planning Staff can determine how bright the proposed site lights will be. The Director of Planning and Community Development shall have the authority to require the Final Lighting Plan to be modified (including the wattage) and/or additional information to be submitted so that the lighting meets the requirements listed above. 24. All activities involving site preparation, excavation, filling, grading, road construction, and building construction shall institute a practice of routinely watering exposed soil to control dust, particularly during windy days. 25. All inactive soil piles on the project site shall be completely covered at all times to control fugitive dust. 26. All activities involving site preparation, excavation, filling, grading, and actual construction shall include a program of washing off trucks leaving the construction site to control the transport of mud and dust onto public streets. 27. Low emission mobile construction equipment, such as tractors, scrapers, and bulldozers shall be used for earth moving operations. 28. All earth moving and grading activities shall be suspended if wind speeds (as instantaneous gusts) exceed 25 miles per hour. 29. If, during site preparation or construction activities, any historic or prehistoric cultural resources are unearthed and discovered, all work shall immediately be halted and City Planning Department staff shall be notified immediately of the discovery. The applicant shall also be required to fund the hiring of a qualified professional archaeologist to perform a field reconnaissance to determine whether the development of a precise mitigation program will be required prior to the continuation of any site work. 30. All conditions that do not contain a specific date or time period for completion shall be completed prior to the issuance of a Certificate of Occupancy. Recommended Conditions of Approval for Major Subdivision Map No. 05-17: 1. A Final Subdivision Map shall be prepared and submitted to the City Engineer for review and approval, and recorded in a manner consistent with Ukiah Municipal Code requirements. 2. Applicant shall be required to obtain any permit or approval, which is required by law, regulation, or ordinance, be it required by Local, State, or Federal agency. General Plan Amendment/Zone Change No. 05-12; Major Site Development Permit No. 05-13; and- ~t0 Major Subdivision Map No. 05-17 . Any construction shall comply with the "Standard Specifications" for such type of construction now existing or which may hereafter be promulgated by the Engineering Department of the City of Ukiah; except where higher standards are imposed by law, rule, or regulation or by action of the Zoning Administrator. . In addition to any particular condition imposed, any construction shall comply with all building, fire, electric, plumbing, occupancy, and structural laws, regulations and ordinances in effect at the time the Building Permit is approved and issued. . The subdivider of the subject property shall dedicate land, pay a fee in-lieu thereof, or both at the option of the City Council for park and recreation purposes prior to the filing of the Final Subdivision Map. . All use, construction, or occupancy shall conform to the application approved by the City Council, and to any supporting documents submitted therewith, including maps, sketches, renderings, building elevations, landscape plans, and alike. RECOMMENDED ACTIONS: Based on the Findings above, the Planning Department recommends that the Planning Commission recommend to the City Council that it: . Adopt the Negative Declaration prepared for the project consisting of General Plan Amendment/Zone Change No. 05-12, Major Site Development Permit No. 05-12, and Major Subdivision Map No. 05-17; 2. Adopt the Resolution amending the General Plan Land Use Map from HDR to LDR; 3. Adopt the Ordinance amending the official Zoning Map for the City of Ukiah from the R-3 Zoning District to the R-1 PD Zoning District; 4. Approve the Major Subdivision Map to allow the division of the 1.04-acre site into twelve lots; and 5. Approve Major Site Development Permit to allow the development of the twelve single family residences. ATTACHMENTS: 1. Location Map 2. Development Plan Exhibit 3. Tentative Map Exhibit 4. Street Elevations and Floor Plans 5. Preliminary Landscape Plan 6. Negative Declaration for General Plan Amendment/Zone Change Development Permit No. 05-12, and Major Subdivision Map No. 05-17 7. Draft Resolution-for General Plan Amendment to LDR 8. Draft Ordinance for Zone Change to R-1 PD 9. Letter of Concern from Ed & Rachel Peugh No. 05-12, Major Site General Plan Amendment / Zone Change No. 05-12; Major Site Development Permit No. 05-13; and ! ! Major Subdivision Map No. 05-17 ~-II ATTACHMENT .... MINUTES CITY OF UKIAH PLANNING COMMISSION June 22, 2005 MEMBERS PRESENT Ken Anderson Kevin Jennings James Mulheren, Chair Judy Pruden Mike Whetzel OTHERS PRESENT Listed below, Respectively STAFF PRESENT Dave Lohse, Associate Planner Sandra Liston, Associate Planner Cathy'Elawadly, Recording Secretary MEMBERS ABSENT None ..... The regular meeting of the City of Ukiah Planning Commission was called to order by Chair Mulheren at 6:30 p.m. in the Council Chambers of the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, California. Roll was taken with the results listed above. 3. PLEDGE OF ALLIGENCI~ Sandra Liston led the Pledge of Allegiance. 4. SITE vISIT VERIFICATIO'N Site visits for items 9A, and 9B were verified. 5. APPROVAL OF MINUTES - May25, 2005 ON A MOTION by Commissioner Pruden, seconded by Commissioner Jennings, it was carried by an all AYE voice vote of the Commissioners present to approve the May 25, 2005 minutes, as submitted. 6. COMMENTS FROM AUDIENCE ON NON-AGENDA ITEM~ No one from the audience came forward. 7. APPEAL PROCESS Chair Mulheren read the appeal process. For matters heard at this meeting, the final date for appeal is July 5, 2005. 8. VERIFICATION OF NOTICE General Plan Amendment/Zone Change No. 05-12; Major Site Development Permit No. 05- 13; Major Subdivision Map No. 05-17, Major Use Permit No. 05-21, and City Code Amendment- Revised Sign Regulations were legally noticed in accordance with the provisions of the Ukiah Municipal Code. PUBLIC HEARING 9A. General Plan Amendment/Zone Change No. 05-12; Major Site Development Permit No.' 05-13 and Major Subdivision Map No. 05-t7, as filed by Bruce Shimizu-The Housing Company to change the General Plan Land Use Designation and Zoning from HDR and R-3 (High Density Residential) to LDR and R1-PD to MINUTES OF THE PLANNING COMMISSION Page 1 Attachment # ?-I June 22, 2005 allow the subdivision of a 1.04 acre site into twelve (12) single family residential lots within a Planned Development, and the construction of the twelve (12) single family residences. The site is located at 506-510 Low Gap Road, Ukiah. A mitigated Negative Declaration is proposed to comply with CEQA. Associate Planner Lohse stated the aforementioned project involves the following: · A General Plan Amendment/Zone Change No. 05-12 that will allow the' land use designation for the project site to be changed from HDR (High Density Residential) to LDR (Low Density Residential) and allow the land to be rezoned from R-3 (High Density Residential) to R-1-PD (Low Density Residential-Planned Development). The land use and zoninq changes will allow the lot to be developed with 12 single Family homes on i'ots that do not conform to the Ukiah General Plan and Ukiah Municipal Code R-1 Zoning District requirements for lot size, street frontage, setbacks, and other standards. · A Major Subdivision No. 05-17 to divide the 1.04-acre site into 12 parcels with lot sizes ranging between 2,150 square feet to 9,750 square feet. · A Major Site Development Permit No. 05-13 to allow the development of 12 single-family homes on the lots described above. This housing project will also include the development of a common access driveway from Low Gap Road and a common-use pedestrian, sidewalk to Bush Street. Staff asked the Commission after considering the project to rec°mmend the Ukiah City Council take the following, actions: ;> Adopt the Negative Declaration prepared for the project consisting of General Plan Amendment/Zone Change No. 05-12, Major Site Development Permit No. 05-13, and Major Subdivision Map No. 05-17~ > Adopt the Resolution amending the General Plan Land Use Map from HDR to LDO,. :> Adopt the Ordinance amending the official Zoning Map for the City of Ukiah from the R-3 Zoning District to the R-1 PD Zoning District. ;> Approve the Major Subdivision Map to allow the division of the 1.04-acre into twelve lots. :> Approve Major Site Development Permit to allow the develoPment of the twelve single-family residences. Staff recommends approval of the above-referenced projects. Mr, Lohse indicated the proposed housing complex is a unique project on an irregularly- shaped piece of land located in a mixed-use neighborhood. The irregular-shaped lot is accessed via a narrow driveway on a 40-foot wide extensiOn between the Low Gap frontage and the wider portion of the site, which is vacant since two existinq residential buildings were recently demolished.. The parcel is bounded on the north by F~ank Zeek elementary school, adult school buildings, and a continuation school campus. The parcels on either side of the narrow part of the. property contain four single-family residences and the lands to the south are occupied by the Mendocino County Administration Center. The Russian River Cemetery grounds lie approximately 60 feet to the west of the site and Ukiah High School is located one-quarter mile to the west. . Page 3 of the staff report, Table 1, Proposed Lot Areas and Dimensions show the lot area and ground floor area, the lot width, and front, rear, side yards, and street front measurements for each of the twelve proposed lots. MINUTES OF THE PLANNING COMMISSION Page 2. June 22,2005 Staff's analysis indicates the following: Ukiah General Plan: ;> The property is designated for HDR land uses on the General Plan Land Use Map. However, the proposed .General Plan Amendment will change this designation to LDR to support the applicant's desire to develop single-family style homes and discourage duplexes or other multi-family development. The project is generally consistent with the Land Use Element intent of providing traditional single-family homes and with the requirements for new developments in the LDR land use classification. The applicant chose to request a modified LDR density in order to impose the more stringent single-family residential development requirements on their project and staff concurs with this request since the development of traditional multi-family develOpment would be difficult on this lot because of it'unique shape and access constraints. · Ukiah. Subdivision Ordinance: > The subdivision would be a Type I subdivision. As . referenced in Table I concerning the parcel dimensions, none of the individual lots proposed are totally consistent with the subdivision requirements, including the standards for public street frontages, lot area, and front, rear, and side yard setbacks. The proposed subdivision into 12 lots will be consistent with the Subdivision OrdinanCe so long as the City Council approves the proposed zone change to the PD Combining Zone and with the Development Plan exhibit submitted as part of the project. R-1 Zoninq District Standards > The 12-unit subdivision would not be allowed without the Planned Development component because of the substantial deviations from the development standards of the R-1 Zoning District. The following describe the deviations requested: 1. 10 of the proposed parcels will have lot areas of 2,150 to 4,180 square feet or 35 to 70 percent of the 6,000 square foot lot area required for interior lots. 2. Lots 1 and 12 will have approximately 20 feet of street frontage each, and the remaining 'lots will be aligned along a 20-foot wide 'private access driveway with no public street frontages. 3. Lot 5 will have the .required 20-foot' front yard with the remaining lots having front yards of zero to 15 feet. 4. Only lot 5 will have the required 20-foot rear yard, with the remaining'lots. having rear yards of zero to 18 feet. 5. Side yards will vary.in width from zero to 11 feet, with five of the lots containing at least one side yard that complies with the 10-foot width required. 6, The 12 structures will cover between 30 and 35 percent of the' parcel areas, with small yards 'reserved for lawns and garden areas. The ratio is consistent with the lot coverage typically found in most single-family residential neighborhoods where the ground floor areas commonly exceed 1,000 square feet. Staff does not anticipate that the new subdivision will provide the same levels of residential amenities/characteristics found in more traditional single-family neighborhoods, but the proposed development plan does not result in a houSing complex that is entirely inconsistent with the single-family use intended in the R-1 Zoning District. Staff typically does not encourage a subdivision with the number of deviations proposed, but the subject property has a highly unusual shape and lot dimensions that makes development with standard sized R-1 Lots problematic. Staff MINUTES OF THE PLANNING COMMISSION Page 3 ~.~ June 22,2005 does encourage this subdivision. Therefore, staff reasoned that potentially allowing for a higher density residential development than which the lot is currently designated to accommodate, would provide the opportunity for persons that wish to own homes but cannot afford standard-sized lots to move into housing consistent with the community-based goals of the R-1 Zoning District. PD Combininq. District )' The UMC allows the application of the PD Combining District to any zoning district. However, such application should be done in full compliance with the procedures and process outlined in the Code. The applicant chose to forego the option to submit a Concept Development Plan and prepared a more complex Precise Development Plan that is consistent with the intent of the PD Combining Zone. Environmental Analysis ~ An Initial Study was prepared to analyze potential .adverse environmental impacts caused all of. the applicatiOns that make up this project. It was determined that the subdivision 'of the site and its subsequent development could create potentially significant adverse impacts to the environment, and therefore, mitigation measures and a monitoring program were prepared to mitigate these impacts to levels that are not considered significant. A Mitigated Negative Declaration was prepared for all of the projects. Commissioner Pruden questioned Why the ground floor area figures shown on Table 1 were not consistent with those on the project footprint drawings. Mr, Lohse noted the error, and stated the applicant can make the clarification. Commissioner Whetzel stated the discrepancy may be that the square footage for the garage was included in the total square footage. Commissioner Pruden questioned the potential for overflow parking and how this would be handled. Mr. Lohse stated it was necessary for the former approved 30-unit project for this same property to make overflow parking arrangements because of the need to provide for-a sufficient amount of open space for on-site recreation.. There were other ingress/egress isSues that had to be resolved with the Fire Marshal because the project included a 30-unit apartment complex. The development issues .for the proposed housing development of overflow parking and ingress/egress for the 30-unit would not pertain to the proposed project because the two projects differ. The Ukiah Unified School District (UUSD) has expressed concern with parking and pedestrian access issues on their adjoining property, but staff indicated the plan is designed to allow school children to be able to use the sidewalks proposed for the project rather than having to go out onto the Low Gap Road frontage. The applicant indicated the access road from the project site to the School District property could be closed off if the District does not provide an easement. He would like to negotiate with the District to find a solution concerning the potential for overflow parking on District property via the access roadway and still allow school children to access the subject property to go to Frank Zeek school. Commissioner Pruden recommended the issue of overflow parking be further addressed. MINUTES OF THE PLANNING COMMISSION '7'-~ Page 4 June 22,2005 Commissioner Pruden inquired regarding the western side lot, and whether it woUld belong to a particular owner or considered to be part of the property management plan. She noted there are trees in this area. Mr. Lohse stated this lot would become part of the access driveway and the applicant is proposing to put several overflow parking stalls in this area. The applicant desires to landscape the western side for shade and aesthetic reasons. The single-family residential project will have tandem parking for each lot, including indoor parking.'The potential exists for a residence to have more than one vehicle, but it is less likely that a family would have multiple drivers, such as teenagers, given the floor plans.' Allowing for two parking stalls per family is a fair averaging rate and has proven to be a practical approach for most single- family neighborhoods. Staff did not favor the concept of .requiring overflow parking for this particular project. Such parking may be handy in certain circumstances when a family is entertaining. The project will definitely be a park and walk to the site scenario because there is no on-street parking. Commission. Pruden expressed concern "who" will be responsible for watering and maintaining the western side lot, as it appears it will be part of Lot 1. Chair Mulheren stated the"site plans indicate three parking stalls would be located on the western side lot. PUBLIC HEARING OPENED: 6:46 p.m. Bruce Shimizu, Housing Company, project developer, explained.the general philosophy of his business, and stated he was approached by a City Councilmember about the need for affordable housing projects for entry level/first-time homeowners targeting persons employed in health care, governmental agencies (City/County) employees, or the UUSD. His career began in non-profit affordable housing. Although his business is "for-profit," the primary focus is to provide architecturally pleasing affordable homes in communities. All projects are carefully planned and designed to ensure a quality*product allowing people to refrain from commuting long distances to their jobs because affordable housing was never an option. The project is proposed as a single-family detached development, with only a few of the homes having common garage walls. He stated as a small housing development company, the insurance liability *coSts are too high to build units that are attached and this cost would be passed on to the homeowner. He understands that communities, like Ukiah, have a real need for affordable housing to accommodate the various income-level groups, and this is one of the reasons he initiated his business. In a detached subdivision, each lot is privately owned. The owners of Lot 1 and Lot 12 would share ownership of the common driveway up to their parcels and rest of the owners would share a portion of the driveway. A joint use maintenance agreement is necessary so each of the homeowners would be responsible for contributing to maintenance of the landscaping and private access driveway. Kathy Austin, project architect, provided cOlor renderings and examples of other density projects she has designed that demonstrate her philosophy to utilize materials and design concepts to provide sustainable developments that are energy efficient with less pollution indoors and outdoors. She' addressed Commissioner Pruden's concern regarding a discrepancy in the floor plan dimensions for the various house sizes, and stated she would review this matter. The elements associated with maintaining safety standards and quality of life are a priority when consideration is given to the design features. The homes are designed with' garages having sufficient space for general storage purposes. Creative MINUTES OF THE PLANNING COMMISSION 7'~ Page5 June 22,2005 design techniques are applied because most of these developments are infill projects due to irregularly-shaped land and/or other development constraints. The applicant decided not to take advantage of the access easement to the school site via a road, and instead used the access as a sidewalk and/or utility easement. The applicant did not think it was appropriate to extend the driveway through to the school parking lot and chose to make a "pedestrian connection" as a more positive approach. She is hopeful the applicant can.work with the UUSD relevant to the potential for overflow parking on school property. Commissioner Pruden commented on the issue that some of the homes will have zero lot line garages, and inquired whether the CC&R's or homeowners association agreement would allow a homeowner to go on another homeowner's property to do maintenance. Ms. Austin replied a joint access maintenance easement would be required and maintained. The recorded easement in favor of the person who owns the garage to be able to access the adjoining neighbor's yard for painting and maintenance of the garage wall. She addressed the materials that will be used for the common wall garages and/or those garages with zero lot lines as a precautionary measure to prevent the spread of fire. She noted it has become common practice for these types of'developments to have a reCorded easement along with the deed title and final parcel map for the subdivision allowing a homeowner to access another homeowner's yard to do maintenance. Commissioner Pruden commented that a recorded easement would be necessary to allow for maintenance access. She addressed the issue of the zero lot line, and inquired about the dotted line on the site plans and whether it was a building setback. The applicant confirmed that this was not intended as a setback line. Commissioner Jennings inquired whether there would be any resale restrictions on the homes. Mr. Shimizu stated the Housing Company would be responsible for the initial sale and marketing strategies where the preference for ownership would target local persons living and working in Ukiah, such as those employers referenced-above. The intent is not to allow private investors to purchase the developments for the purpose of renting them and to allow individual ownership. Commissioner Pruden inquired whether'thought has been given to making the private driveway'a dedicated City street in the future. Mr. Shimizu met with the Public Works Department in this regard. The private driveway/street does not meet the City public street standards, even though it is presently a dead-end street. The City Fire Department determined that the driveway does meet City criteria as a turnabout for emergency vehicles. Mr. Lohse addressed the 30-unit apartment complex that was formerly approved by the Planning Commission, and stated negotiations were conducted with an adjacent apartment complex relevant to allowing for through access. The end result was that the private street would be a cul-de-sac for the 30-unit apartment complex development. A brief discussion followed regarding traffic flow on Low Gap Road during peak hours when Ukiah High School is in session and with the other educational and County facilities in the MINUTES OF THE PLANNING COMMISSION ~.~ Page 6 June 22, 2005 area in conjunction with potential problems for the residents of the development being able to ingress and egress from the access driveway during peak traffic hours. Mr.. Lohse addressed two comments concerning the project made by property owners in the area, and stated the primary concern is not whether the residents in the area would have problems accessing the driveway, but rather what the increased traffic from the site would do in terms of them being able to exit the access driveway during peak periods. There may some problems during peak periodS, but not significantly according to staff's review of a former traffic study conducted for the 30-unit complex. The peak periods documented are not the typical peak-hour type of activity and staff refers to them as "spike periods" rather than "peak periods." Diane Zucker works at the Adult School adjacent to the proposed project, and commented that traffic is not generally a significant problem. She favors the approval of the project. Joanne Henry is interested in doing a similar development. She commented her experience with tandem parking was not positive because tenants were coming and going at different times. She noted Ms. Austin favored the concept of tandem parking for her projects. She inquired whether the project plans include provisions for enforcement of such parking. Mr. Shimizu stated tandem Parking is a typical project component in urban environments. People living in such environments learn to live with the issue, and any associated problems basically resolve it themselves. The project will have CC&R's to monitor/address any associated problems with parking. Chair Muiheren stated the homes Will be privately oWned as opposed to being rental units, so people would tend to take pride in their investment and take care landscaping and other maintenance issues. Commissioner Pruden inquired whether the applicant would be amenable to changing two of the proposed tree species, and recommended review of the tree species native to Mendocino County. The applicant would be amenable to the above-referenced suggestion. PUBLIC HEARING CLOSED: 7:29 p.m. Commissioner Anderson thanked the Planning Department. for bringing the Housing Company to Ukiah. Commissioner Pruden inquired whether the other Commissioners support.the concept of the proposed General Plan Amendment/Zone Change relative to the most effective use at that location. Chair Mulheren expressed some concern about the proposed density change, but he approves of the project. Mr. Lohse explained how the General Plan Amendment/Zone. Change made the project workable, and in staff's opinion, the project is the most effective use of the land taking into consideration the property constraints and irregular shape. MINUTES OF THE PLANNING COMMISSION ~"7 Page 7 June 22,2005 It was the consensus of the Commission t° support approval of the project. ON A MOTION'by Commissioner Pruden, seconded by Commissioner Jennings, it was carried by an all AYE voice vote of the Commissioners present to recommend the Ukiah City Council.approve Negative Declaration for General Plan Amendment/Zone Change No. 05- 12; Major Site Development Permit No.. 05-13 and Major Subdivision .Map No. 05-17, as outlined in the staff report, and as discussed above. ON A MOTION by Commissioner Pruden, seconded by Commissioner'Jennings, it was carried by an all AYE voice vote of the Commissioners present to recommend the Ukiah City Council adopt the Resolution amending the General Plan Land Use Map fromm HDR to LDR No. 05-12, as outlined in the staff report, and as discussed above. ON A MOTION by Commissioner Pruden, seconded by Commissioner Whetzel, it was carried by an all AYE voice vote of the Commissioners present to. recommend the Ukiah City Council adopt the Ordinance amending the official Zoning Map for the City of Ukiah from the R-3 Zoning District t© theR-1 PD Zoning District, as outlined in the staff report, and as discussed above. ON A MOTION by Commissioner Pruden, seconded by Commissioner Whetzel, it was carried by an all AYE voice vote of the Commissioners present to recommend the Ukiah City Council approve the Major Subdivision Map No. 05-17 to allow the division of the 1.04-acre site into twelve lots defined on the TentatiVe Map, and as outlined in the staff report, and as discussed above. ON A MOTION by Commissioner Pruden, seconded by Commissioner Anderson, it was carried by an all AYE voice vote of the Commissioners present to recOmmend the Ukiah City Council approve Major Site Development Permit No. 05-13 to allow the development of 12 . single-family residences, as described in the Precise Development Plan and as outlined in .the staff report, and as discussed above. 9B. Major Use Permit 0,5-21, as submitted by Adam Zucker, for Diane Zucker and Kenneth Anderson, to allow the construction of an approximately 1,195.5 square foot second dwelling unit with a maximum height of 21' 8" on a parcel developed with a single family residence. The subject property is located at 725 Grove Avenue (APN 001-104-06); zoned R-I (Single-Family Residential). Commissioner Anderson recused himself for this project. Associate Planner Liston addressed the project as follows: The project consists of a Major Use Permit to allow the construction of a two-story second unit on a parcel that is developed with a single-family residence. The property is located in the R-1 (Single-Family Residential) zoning district where a Use Permit is necessary because the height of the proposed structure at 21'8" feet exceeds the maximum 18-foot building height for a second unit dwelling and because the area of the' structure at 1,195.5 square feet exceeds the maximum 750 square foot area allowed. The proposed second unit would be 24 feet wide by 26 feet long and some of the design features include a composition shingled hipped roof, horizontal eXterior siding, a covered entry porch, a concrete landing,' and. a total of 16 windows. MINUTES OF THE PLANNING COMMISSION Page8 '7~ June 22,2005 Katherine Austin, AIA, Architect www.austinaia.com Home HEARTHSTONE B~,o~,,,,, Avr-o~oAm. E Houe~re~ AFF~U~ 12 UNmm "SELF HELP CONTSRUCTIC)Nm (10 u~^ ) OOMPLETED 2004 Katherine Austin, AIA, Architect www.austinaia.com Home MAPLE VILLAGE S~ ~, TDG E~i~~ 11 LOT, 23 ~s (13 u/^ ) OOMPLETEO 2004 Katherine Austin, AIA, Architect www.austinaia.com Home MAPLE VILLAGE 8~,~.~ Roea. TDG E~-~,~No 11 LOT, 23 u~e~'8 (13 u/^ ) OOMPL~I'ED 2004 next Home Katherine Austin, AIA, Architect www.austinaia.com HIDDEN CREEK SUBDIVISION ~ to .It~ mm 45 UN~T~ O~,~C~D & ,,~U:~EO "OU~U~X' R3-15 (15 u/,,,) COU~'L=TED FALL 2001 next Katherine Austin, AIA, Architect Home bBc~ to $i~ ~ HICKORY VILLAGE I COBBLEST'ONE HOHES, 19 LOT DUPLEX SUBDIVISION (13 U/A ) COMPLLrl~D 2004/2005 Katherine Austin, AIA, Architect Hom~ BRANCOMBE WALK SAN'~ ROSA, SHOOK& WALLER CONSTRUCTION 13 LOT, 17 UNITS R-1-216 (8 U/A) COMPLETED 2004 next AGENDA ITEM NO: Urgency Item ~. MEETING DATE: August 3, 2005 SUMMARY REPORT SUBJECT: Adoption of Resolution Approving the Submittal of an Application to the California State Department of Housing and Community Development for Funding the Clara Court Apartments Under the HOME Investment Partnerships Program This item is brought to Council as an Urgency Item. The agenda was prepared before this item came forward and needs to be approved by August 15, 2005, before the next scheduled Council meeting. A 4/5th vote is needed to place it on the agenda. The Rural Communities Housing Development Corporation (RCHDC) is requesting that the City apply for a HOME Loan on behalf of RCHDC to complete the Clara Court Apartments, a 32-unit affordable housing development for lower income households at the intersection of Clara and Orchard Streets. This loan is essential to successfully completion of this project. City staff has negotiated with RCHDC to be the conduit for this application, however, RCHDC will contract for the application development and submittal, all reporting requirements during the life of the loan, and any follow-up reporting required after the loan is closed. The Community Development Commission (CDC) will act as program administrator until development is completed. RCHDC will contract for the reporting requirements from that point on. City staff participation will be minimal. RCHDC staff will be present to answer questions regarding their project and the HOME loan program. RECOMMENDED ACTION: Approve resolution. ALTERNATIVE COUNCIL POLICY OPTIONS: Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: RCHDC Candace Horsley, City Manager Mike McCann, Finance Director RCHDC documents and resolution Approved: ~-------'~/~~~.. ' Can-'h'~ce Horsiey, City MaWr RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH HEREBY AUTHORIZES SUBMI'I-rAL OF AN APPLICATION TO THE CALIFORNIA STATE DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT FOR FUNDING UNDER THE HOME INVESTMENT PARTNERSHIPS PROGRAM; AND IF SELECTED, THE EXECUTION OF A STANDARD AGREEMENT, ANY AMENDMENTS THERETO, AND OF ANY RELATED DOCUMENTS NECESSARY TO PARTICIPATE IN THE HOME INVESTMENT PARTNERSHIPS PROGRAM. A. WHEREAS, The California Department of Housing and Community Development (the "Department") is authorized to allocate HOME Investment Partnerships Program ("HOME") funds made available from the U.S. Department of Housing and Urban Development ("HUD"). HOME funds are to be used for the purposes set forth in Title II of the Cranston-Gonzalez National Affordable Housing Act of 1990, in federal implementing regulations set forth in Title 24 of the Code of Federal Regulations, part 92, and in Title 25 of the California Code of Regulations commencing with section 8200. B. On June 1, 2005 the Department issued a 2005 Notice of Funding Availability announcing the availability of funds under the HOME program (the "NOFA"). C. In response to the 2005 NOFA, The City of Ukiah, a municipal corporation (the "Applicant"), wishes to apply to the Department for, and receive an allocation of, HOME funds. WHEREAS, the City Council desires to authorize submittal of an application. NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Ukiah 1. In response to the 2005 NOFA, the Applicant shall submit an application to the Department to participate in the HOME program and for an allocation of funds not to exceed Four Million Dollars ($4,000,000) for the following activities and/or programs: Development of a 32-unit, new construction, multi-family rental project located at the intersection of Clam and Orchard Streets in the City of Ukiah. . If the application for funding is approved, then the Applicant hereby agrees to use the HOME funds for eligible activities in the manner presented in its application as approved by the Department in accordance with the statutes and regulations cited above. The Applicant may also execute a standard agreement, any amendments thereto, and any and all other documents or instruments necessary or required by the Department or HUD for participation in the HOME program (collectively, the required documents). Policy Resolution No. 32 Page 1 of 2 3. The applicant authorizes the City Manager or his/her designee(s) to execute, in the name of the applicant, the required documents. PASSED AND ADOPTED on this 3rd Day of August, 2005, by the following roll call vote: AYES: NOES: ABSENT: Mark Ashiku, Mayor The undersigned [title of officer] of the applicant does hereby attest and certify that the foregoing is a true and full copy of a resolution of the governing board of the applicant passed and adopted at a duly convened meeting on the date set forth above, and said resolution has not been altered, amended, or repealed. ATTEST: Marie Ulvila, City Clerk CLARA COURT APARTMENTS 32 UNITS- UKIAH, CA The Clara Court Apartments is a proposed 32-unit affordable housing development for lower income households and is proposed at the intersection of Clara and Orchard Streets in the City of This housing will be developed by Rural Communities Housing Development Corporation, Inc. (RCHDC) with financial assistance from various sources, including City of Ukiah Redevelopment set-aside funds (see Sources below). The initial design~ includes the following unit sizes and number of units: UNITS # Bedrooms # Units Unit Sizes Rents 1-BR 10 568 - 604 . $418 - $511 2-BR 14 800- 950 $498 - $610 3-BR 8 1,042- 1,158 $573 - $702 There is a great need and demand for affordable housing in Ukiah and the location of the Clara Court Apartments provides the future residents not only with quality housing, but also with great proximity to shopping, services, and transportation. Financing for the. development will come from the following sources: SOURCES Source Amount Type of Assistance Status of Assistance City of Ukiah Redevelopment $50,000 Grant Committed City of Ukiah Redevelopment $300,000 Loan Committed County of Mendocino $100,000 Loan Committed County of Mendocino $149,000 Grant Committed Low Income Housing Tax $2,400,000 Equity Not Committed Credit Equity Tax-exempt Bond Funds $750,000 Mortgage Not Committed HOME Loan $3,500,000 Loan Not Committed TOTAL DEVELOPMENT COST As you can see, HOME funds are an integral part for the development's successful completion. HOME funds would be accessed through an application by the City on behalf of the developer, RCHDC, and RCHDC completing all elements of the application on behalf of the City. Applications to the California Department of Housing and Community Development are due in Sacramento by August 15, 2005 and the application must be accompanied by an authorizing resolution from the applying entity, in this case the City of Ukiah. ~ Funding sources, overall construction costs and market conditions can change this unit configuration. Any changes will be provided when confu'med. II II AGENDA ITEM NO: 9.A. MEETING DATE: August 3, 2005 SUMMARY REPORT SUB.1ECT: ZNTERZM URGENCY ORDZNANCE ZMPOSZNG A MORATORZUM ON FORMULA BUS]:NESSES WITH]:N THE DOWNTOWN BUS1'NESS D]:STRICT AND ON PERKINS AND GOBB]: STREETS This item was continued from the July 20, 2005 City Council meeting due to potential conflict of interest by various Council members. As of Thursday, July 28th, the conflict issues have yet to be resolved. It is estimated by the City attorney that it will be at least 21 days or longer before resolution is achieved. Staff is recommending continuing this item to the first meeting in September. RECOMMENDED ACTION: Continue to September 7, 2005 City Council meeting ALTERNATIVE COUNCIL POLICY OPTIONS: Citizens Advised' Requested by: Prepared by' Attachments: City Council Candace Horsley, City Manager Approved' '~~ty Ma ger AGENDA SUMMARY ITEM NO. DATE: Au.qust 3, 2005 REPORT SUBJECT: ADOPTION OF RESOLUTION MAKING APPOINTMENTS TO THE AIRPORT COMMISSION AND THE PATHS, OPEN SPACE, AND CREEKS COMMISSION A News Releases were issued on June 6, 2005 and June 29, 2005 (extending the deadline) soliciting applicants to fill expired terms on the Airport Commission (2) and the Paths, Open Space, and Creeks Commission (2). As of the July 12, 2005 deadline, applications were received from the following individuals: Airport Commission: Bill Beard and Benjamin Winter Paths, Open Space, and Creeks Commission: James Connerton, Dan Holbrook, and Ms Lindsay Leland. (Continued on Page 2) RECOMMENDED ACTION: Adopt Resolution making appointments to the Airport Commission and to the Paths, Open Space, and Creeks Commission. ALTERNATIVE COUNCIL POLICY OPTIONS: Direct staff to re-advertise for the vacancies and/or reschedule appointments accordingly. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Applicants notified of interview Ukiah City Council Marie Ulvila, City Clerk .'~Z.z'[-~....~d'_..... ~_L-~L. z~..'~,,~._.: Candace Horsley, City Manager 1. Resolution making appointments to the Airport Commission and the Paths, Open Space, and Creeks Commission 2. Resolution 2003-35 establishing the Paths, Open Space, and Creeks Commission 3. News Releases announcing vacancies 4. Terms of City of Ukiah Boards and Commissions 5. Applications for appointment Candace Horsley, City M~ager ASR: Commission Appointments August 2005 Page 1 of 2 Currently the Airport Commission has two vacancies; one for a resident within the Sphere of Influence and one a City of Ukiah resident. Likewise, the Paths, Open Space, and Creeks Commission also has two vacancies; one for a resident within the Sphere of Influence and one a City of Ukiah resident. Interviews are scheduled to begin at 5:15 p.m. on August 3, 2005 for the current vacancies on the commissions. It is Council's policy that the nominations for Commission vacancies are rotated among Councilmembers. The responsibilities for the initial nominations are: Airport Commission - Mayor Ashiku Paths, Open Space, and Creeks Commission - Councilmember Crane Please be advised that Mr. Dan Holbrook, candidate for reappointment to the Paths, Open Space, and Creeks Commission has notified staff that he will be unable to participate in an interview on August 3rd as he will be out of town on vacation that week. He sends his apologies and hopes that Council will consider his application for reappointment to that Commission. Page2 o~ 2 RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH MAKING APPOINTMENTS TO THE AIRPORT COMMISSION AND THE PATHS, OPEN SPACE, AND CREEKS COMMISSION WHEREAS, the annual expiration of terms for City Commissions occurred on June 30, 2005; and WHEREAS, the vacancies were duly advertised until the close of applications on June 6 and June 29, 2005, with submitted applications timely received and submitted to Council for consideration; and WHEREAS, the City Council previously requested Airport Commission and Paths, Open Space, and Creeks Commission applicants who were interviewed on August 3, 2005, to be forwarded for consideration at this time. NOW, THEREFORE, BE IT RESOLVED, that the Ukiah City Council approved the nominations submitted per procedures outlined in Resolution No. 2001-61, and do hereby appoint the following persons to terms on the following Commissions: AIRPORT COMMISSION to fill a term to June 30, 2008; to fill a term to June 30, 2008; PATHS, OPEN SPACE, AND CREEKS COMMISSION to fill a term to June 30, 2008; to fill a term to June 30, 2008; PASSED AND ADOPTED this 3rd day of August, 2005, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: Marie Ulvila, City Clerk Mark Ashiku, Mayor Resolution 2006- Page 1 of 1 .~TTACHMENT~ RESOLUTION NO. 2003-35 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH ESTABLISHING THE PATHS, OPEN SPACE, AND CREEKS COMMISSION WHEREAS, The City Council of the City of Ukiah wishes to insure the successful implementation of the Open Space, Transportation, and Conservation elements of its General Plan; and, WHEREAS, In response to community input the City Council has expressed interest in seeking and securing properties for the preservation of open space, and development of trails and pathways; and, WHEREAS, the City Council has also expressed interest in restoring, rehabilitating and enhancing the City's creeks; and, WHEREAS, in order to ensure the successful implementation of these goals and objectives the City Council adopted Ordinance No. 1045 on April 2, 2003 creating the Paths, Open Space, and Creeks Commission; and, WHEREAS, in order to implement Ordinance No. 1045, it is necessary to adopt of policies and procedures for appointing members and establishing terms of service. NOW THEREFORE BE IT RESOLVED, that the city Council of the city of Ukiah determines: 1. The Paths, Open Space, and Creeks Commission shall consist of five members. vote: . The members of the Paths, Open Space, and Creeks Commission shall be appointed as follows: Except as provided herein, three (3) of the members shall be residents of the City and two (2) may reside outside the City but within the City's Sphere of Influence as established by the Local Agency Formation Commission. Members shall be appointed according to procedures established by resolution of the City Council. Members shall be appointed for a term of three (3) years which terms shall be staggered. PASSED AND ADOPTED on this 16th day of April 2003, by the following roll call AYES: NOES: ABSENT: Councilmembers Andersen and Baldwin. Mayor Larson. Councilmembers Rodin and Smith. ATTEST: Marie Ulvila, City Clerk E'~iC Lars~)n, Mayor ATT~NT._....~_.~ NEWS RELEASE OPPORTUNITY TO SERVE YOUR COMMUNITY DATE: FOR RELEASE: SUBJECT: CONTACT: June 29, 2005 Immediately Vacancies on City of Ukiah Commissions Marie Ulvila, City Clerk, 463-6217 UKIAH, CA. - The City of Ukiah announces there will be vacancies occurring on the Airport Commission, Design Review Board, Parks, Recreation, and Golf Commission, and the Paths, Open Space and Creeks Commission effective June 30, 2005. Any qualified individual, who would like to make a difference in their community and is interested in serving as a volunteer for the terms as outlined below, may apply for these upcoming vacancies. Current Commissioners may be eligible to reapply. · . COMMISSION NUMBER OF LENGTH OF RESIDENCY REQUIREMENT VACANCIES TERM Airport Commission 2 3 Years 1-*Resident within the Sphere of Influence 1-City of Ukiah resident Design Review Board 5 4 Years 4-Reside or own real property or business within the City Limits of Ukiah 1 -Represent the community at large with no ownership or residence requirement Parks, Recreation, and Golf 4 3 Years 2 -*Reside within the Sphere of Commission Influence 1- Women's Golf Club representative 1- Men's Golf Club representative Paths, Open Space, & 2 2 Years 1- Reside within the City Limits Creeks Commission of Ukiah 1-*Resident within the Sphere of Influence *(Sphere of Influence boundaries are ridge top to ridge top, Highway 20 to Burke Hill Road) Applications are located at the reception counter in the administration wing of the Ukiah Civic Center, 300 Seminary Avenue, Ukiah~ or call 463-6217 for an application to be mailed, faxed, or emailed to you. The submittal deadline has been extended to Tuesday, July 12, 2005, at noon. Interviews for selected commissions will be held and appointments considered at a regular City Council meeting in July( 2~9.5. . , Marie Ulvila, City Clerk 300 SEMINARY AVENUE UKIAH, CA 95482-5400 Phone# 707/463-6200 Fax# 707/463-6204 Web Address: www. cityofukiah.com OPPORTUNITY TO SERVE YOUR COMMUNITY DATE: FOR RELEASE: SUBJECT: CONTACT: June 6, 2005 Immediately Vacancies on City of Ukiah Commissions Marie Ulvila, City Clerk, 463-6217 UKIAH, CA. - The City of Ukiah announces there will be vacancies occurring on the Airport Commission, Design Review Board, Parks, Recreation, and Golf Commission, and the Paths, Open Space and Creeks Commission effective June 30, 2005. Any qualified individual, who would like to make a difference in their community and is interested in serving as a volunteer for the terms as outlined below, may apply for these upcoming vacancies. Current Commissioners may be eligible to real)ply. · . COMMISSION NUMBER OF LENGTH OF RESIDENCY REQUIREMENT VACANCI ES TERM Airport Commission 2 3 Years 1-*Resident within the Sphere of Influence 1-City of Ukiah resident Design Review Board 5 4 Years 4-Reside or own real property or business within the City Limits of Ukiah 1 -Represent the community at large with no ownership or residence requirement Parks, Recreation, and Golf 4 3 Years 2 -*Reside within the Sphere of Commission Influence 1- Women's Golf Club representative 1-Men's Golf Club Paths, Open Space, & 2 2 Years 1- Reside within the City Limits Creeks Commission of Ukiah 1-*Resident within the Sphere of Influence *(Sphere of Influence boundaries are ridge top to ridge top, Highway 20 to Burke Hill Road) Applications are located at the reception counter in the administration wing of the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, or call 463-6217 for an application to be mailed, faxed, or emailed to you. The submittal deadline is Tuesday, June 28, 2005, at noon. Interviews for selected commissions will be held and appointments considered at the first regular City Council meeting in July 20..~q_.. . Marie Ulvila, City Clerk If you have any questions regarding the election process, please contact City Clerk Marie Ulvila at 463-6217. 300 SEMINARY AVENUE UKIAH, CA 95482-5400 Phone# 707/463-6200 Fax'# 707/463-6204 Web Address: www. cityofukiah.com TERMS OF CITY OF UKIAH BOARDS AND COMMISSION MEMBERS As of February 5, 2005 *Next City Councilmember to nominate for appointment to this Commission/Board. Airport Commission - 3 year term ** - (Mayor Ashiku) **Ken Fowler - Chairman Dottle Deerwester Eric Crane **Michael Whetzel 6/30/01 & Bill Beard Date Present Term Appointed Expires 7/7/04 6/30/07 7/7/04 6/30/07 2/5/05 6/30/06 5/19/04 6/30/05 7/17/02 6/30/05 ** Two Commissioners may reside within the Sphere of Influence Civil Service Board Albert Beltrami (reappointed by Council 9/6/95) Bob Warner (appointed 2003) Ron Caudillo (appointed 2003) Demolition Permit Review Committee - 2 year term (McCowen) Director of Community Development Director of Public Works/City Engineer Building Official Chair of Design Review Committee Mendocino County Historical Society rep, - Judy Pruden (Chairperson) City of Ukiah Resident- William D. French, Jr. 7/7/04 6/30/06 7/7/04 6/30/06 Design Review Board - (Ukiah Redevelopment Agency - 3-year term - Commissioner Baldwin) *Donna Berry, Chairperson 7/18/01 6/30/04-05 *William P. French, Jr. 7/18/01 6/30/04-05 *Estok Menton 7/18/01 6/30/04-05 *Richard Moser 7/18/01 6/30/04-05 **Marge Boynton Monahan 7/18/01 6/30/04-05 Five persons with design experience: four shall reside, or own real property or a business within the City of Ukiah City Limits;*one shall represent the community at large with no ownership or residence requirement, Disaster Council - City of Ukiah Councilmember- Mari Rodin City Manager - Candace Horsley Police Captain - Chris Dewey Fire Chief- Kurt Latipow City Attorney - David Rapport (no vote) Federal, State and Local Organizations: American Red Cross California Dept. of Forestry Mendocino Emergency Services Authority Mendocino Transit Authority Pacific Bell Pacific Gas and Electric 12/02/98 Second Vice Chair 2000 11/05/97 Ukiah Chamber of Commerce Ukiah Unified School District Ukiah Valley Medical Center Emergency Services Coordinator Radio Amateur Civic Emergency Services (R.A.C.E.S.) Terms: February 5, 2005 Page 1 of 2 TERMS OF CITY OF UKIAH BOARDS AND COMMISSION MEMBERS As of February 5, 2005 Date Appointed Investment Oversight Committee - Public Member 2-year term - (Crane) Mark Ashiku - Mayor Marl Rodin - City Councilmember Candace Horsley - City Manager Mike McCann - Finance Director Allen Carter- City Treasurer, Chair Monte Hill- Public Member 6/30/04 Present Term Expires 6/30/06 Library Advisory Commission - City Representative Councilmember Philip Baldwin Parks~ Recreation~ and Golf Commission - 3-year term** - (McCowen) Shirley Ann Dietrich - Women's Golf Club **Melody Ann Valles - Public Member **Fredrick Koeppel- Public Member Chamise Cubbison Robert Beltrami, Interim Chairman Joe Chiles - Men's Golf Club -- Jonah Freedman 7/17/02 7/17/02 7/17/02 7/7/04 7/7/04 7/7/04 9/1/04 ** Two Commissioners may reside within the Sphere of Influence 6~30~05 6/30/05 6/30/05 6/30/07 6~30~07 6~30~07 6~30~07 Paths~ Open Space~ & Creeks Commission (POSCC): (Crane) Date Appointed James Connerton 5/21/03 Howell Hawkes 5/21/03 *Dan Holbrook 5/21/03 *Fred Koeppel 5/21/03 William Randolph 5/21/03 ** Two Commissioners may reside within the Sphere of Influence Term Expires 6/30/05 6/30/06 6/30/05 6/30/06 6/30/06 *Planning Commission-3 year term - (Mayor Ashiku) Mike Whetzel Ken Anderson Judy Pruden Kevin Jennings, Vice-Chairman James Mulheren, Chairman Date Appointed 1/O5/O5 1/05/05 1/05/05 1/05/05 1/05/05 Term Expires 11/7/06 11/7/06 11/2008 11/7/06 11/2008 Traffic Engineering Committee - (McCowen) Benjamin Kageyama (Public Rep.), Chairman *Steve Turner (Public Rep.) *Bruce Richard (MTA Rep.) Risk Manger- Patsy Archibald City Engineer- Diana Steele Deputy Public Works Director - Rick Seanor Police Captain - Dan Walker Associate Planner- Dave Lohse Superintendent of Public Works - Jerry Whitaker Appointment 10/06/99 2/4/04 Term Expires Terms: February 5, 2005 Page 2 of 2 RESOLUTION NO. 2003-40 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH MAKING APPOINTMENT TO THE PATHS, OPEN SPACE, AND CREEKS COMMISSION WHEREAS, on April 16, 2003, the City Council created the Paths, Open Space, and Creeks Commission; and WHEREAS, the vacancies were duly advertised until the close of applications on May 15, 2003, with submitted applications timely received and submitted to Council for consideration; and WHEREAS, the City Council interviewed Paths, Open Space, and Creeks Commission applicants on May 21,2003. NOW, THEREFORE, BE IT RESOLVED, that the Ukiah City Council approves the nominations submitted per procedures outlined in Resolution No. 2001-61, and does hereby appoint: Howell Hawkes filling the term of office for a City resident expiring on June 30, 2006. William Randolph filling the term of office for a City resident expiring on June 30, 2006. James Connerton filling the term of office for a City resident expiring on June 30, 2005. Fred Koeppel filling the term of office for a resident who may reside within the City's Sphere of Influence expiring on June 30, 2006. Dan Holbrook filling the term of office for a resident who may reside within the City's Sphere of Influence expiring on June 30, 2005; thereafter, all terms shall be for three years. PASSED AND ADOPTED this 21 st day of May, 2003, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: Councilmembers Rodin, Andersen, and Baldwin. Mayor Larson. None. Councilmember Smith. .ATTEST: Marie Ulvila, City Clerk Eric-Larson, Mayor APPLICANT INTERVIEW TIME SCHEDULE FOR UKIAH AIRPORT COMMISSION AND UKIAH PATHS, OPEN SPACE, AND CREEKS COMMISSION ATTAGH~,~ENT~ INTERVIEW DATE: AUGUST 37 2005 AIRPORT COMMISSION 5:15-5:25 Bill Beard 461 Vichy Hills Drive 5:25-5:35 Benjamin Winter 304 Cooper Lane PATHS, OPEN SPACE & CREEKS COMMISSION 5:35-5:45 Ms Lindsay Leland 3041 Guidiville 5:45-5:55 James (Jamie) Connerton 906 North Oak Street Dan Holbrook (on vacation) Commsn: Application Interview Time Schedule- August 2005 DATE: CITY OF UKIAH APPLICATION FOR APPOINTMENT AIRPORT COMMISSION J UN 2 ~' 2005 ,, CITY OF UKIAH CITY CLERK'S DEPARTMENT I am applying for an appointment to the City of Ukiah's Airport Commission 1. Name 2. Residence Address 3. Business Address 4. Employer .~_.,/~c. c~ 5. How long have you resided in Ukiah? Bus. Phone _Job title ~';j/~'~?,~¢~,, _Employed since '~'.-Z years; Mendocino County? Z. '7 California? ~__,~ Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to serve on the City of Ukiah's Airport Commission?-- 8. What is your understanding of the purpose, role and responsibility of the.Airport Commission? 9. How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Airport Commission? .._ 10. What do you believe is the single most important Airport related issue facing our community? and why? 11. In your opinion, what type of Airport programs or Airport development should the City encourage? 12. In your opinion, what type of Airport prOgramming or Airport development should the City discourage? 13. What kind of ideal community do you envision for Ukiah? 14. Do you have any known projects or conflict of interest related to this Commission? ----- Please return this application and attachments to the City Clerk by Noon on June 28, 2005. Thank you for your interest in serving the City of Ukiah. - - - Signature ~ Date ' ~ --- ~: ~'.-- o ~ ,City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Phone: 463-6217 .Email: ~marieu~.citvofukiah.com Fax: 463-6204 Forms: Airport Commission Application Revised: 6~6~05 DATE: CITY OF UKIAH APPLICATION FOR APPOINTMENT AIRPORT COMMISSION I am applying for an appointment to the City of Ukiah's Airport Commission 1. Name - . 2. Residence Address_ 3. Business Address .. '~-3-~-\ ~o. Res. Phone_ Bus. Phone 4. Employer h~,r ~,, A~,:~ b 13,'~. Job title ~' ' - Employed since 5. How long have you resided in Ukiah? \//2, years; Mendocino County?..,¢~ C~' California? 6 Please list com,munity groups or organi,zations you are affiliated with Indicate-office held'~'--"- · Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to serve on the City of Ukiah's Airport Commission? 8. What is your understanding of the purpose, role and resPonsibility of the Airport Commission? · i 9. How do you believe your own skills, experience, expertise and perspectives Will be beneficial to the work of the Airport Commission? , 10. What do you believe is the single most important Airport related issue facing our community'~ and why? _ . 11. In your opinion, what type of Airport programs or Airport development should the City .encourage? . . 12. In your opinion, what type of Airport programming or Airport development should the City discourage? 13. What kind of ideal community do you envision for Ukiah? 14. Do you have any known projects or conflict of interest related to this Commission'~ Please return this application and attachments to the City Clerk' by Noon on June 28~ 2005. Thank you for your interest in serving the City of Ukiah. - - ~ - · Signature ~~..._ Date ___..~- \ ~-' 0 .~_ / City of Ukiah, 300 Seminary. Avenue, Ukiah, CA 95482-5400 Phone: 463-6217 Fax: 463-6204 Email: marieu~.cit¥ofukiah.com Forms: Airport Commission Application Revised: 6/6/05 Benjamin Winter 7-11-05 CITY OF UKIAH APPLICATION FOR APPOINTME~ AIRPORT COMMISSION Why are you applying to serve on the city of Ukiah's Airport Commission? I am applying for the vacancy on the Ukiah Airport Commission because it provides an opportunity to learn and to be involved, both with the political process and with aviation. As a student pilot and potential future air traffic controller, I see this as a doorway to "behind the scenes" experience, which will be invaluable to my career goals. 8. What is your understanding of the purpose, role and responsibility of the Airport Commission? . Ukiah is a quickly growing community, and the seat of Mendocino County. Commerce and tourism are growing, and the Ukiah Municipal Airport is the ideal site for bringing in further development. The Airport Commission's role, as I see it, is to ensure and maintain the safety (and enjoyment) of all pilots who come here. A safe and efficient airport is ot~en the center of trade for growing cities, be it the courier flights from San Francisco or the student's VFR solo. 9. How do you believe your own skills, experience, expertise, and perspectives will be beneficial to the work of the Airport Commission? I will only be 21 this year, and am often considered too young to be part of many projects and offices. Ail who know me, however, consider me to be almost too mature for my age. While I don't have any experience in City politics or governance, I look forward to the oppommity to learn. I am a quick study, and am eager to become involved with the operation of the Ukiah ort. 10. What do you believe is the single most important Airport related issue facing our communitye And Why? . As I am not yet a pilot, and have so far been training out of the Sonoma County Airport, I do not know of many airport-related issues facing our community. The one issue that I am familiar with that will affect all airports, however, is the proposed airport usage tax which will be added to the already existing fuel surcharge. I believe it to be the most important issue simply because it raises operating costs of every pilot and company that uses any airport above and beyond the fees and taxes already levied. 11. In your opinion, what type of Airportprograms or Airport development shouM the city encourage? As there is only space for the one runway already established, there is not much room for structural development. As always, however, there is a need for personnel...even more so when air traffic begins to increase and a tower becomes necessary. I believe that at the moment, however, the city should simply continue to encourage commercial traffic and FBOs, especially flight schools that will increase the number of local pilots. If this development plan succeeds, there will also be a need for office space for these new businesses, further increasing the revenue of the airport. 12. In your opinion, what type of Airportprogramming or Airport development should the City discourage? Flight is an expensive hobby. Anyone and everyone who becomes involved with flight learns this as soon as they get a quote for what their training will cost. In an ideal world, I would say that flight should be for everyone, that the skies should not be owned by those with equally lofty pocketbooks. I realize that this is not a realistic goal, especially with fuel costs, but towards this ideal the only programming I would discourage would be the raising of usage, parking, or associated fees, with the exception of strict necessity. 13. What kind of ideal community do you envision for Ukiah? Ukiah is actually very close to reaching its potential. The two improvements I would offer are an increase in inter- and intradepartmental communication within all branches of the City government, and an increase in recreational opportunities. I am often considered biased when I try to promote youth recreation, but I encourage it for the simple fact that more oppommity for constructive activity reduces the amount of crime, drinking, and violent behavior among youth. As a Ukiah Daily Journal reader said, we don't need to discourage gang activity...we need to provide it. 14. Do you have any known projects or conflict of interest related to this Commission? There is no conflict of interest and as of yet I have no involvement with the Ukiah Airport or the Commission. ~" CITY OF UKIAH APPLICATION FOR APPOINTMENT PATHS, OPEN SPACE, AND CREEKS COMMISSION DATE: I am applying for an appointment to the City of Ukiah's Paths, Open Space, and Creeks Commission ~5, 1. Name_ L',. 2. Residence Address :~o~ [ G-u ~ ~'~ v \ ~ ~. Res. Phone -7 o'7 L~/o ~- ~ ~ '7 3. Business Address Bus. Phone -7 o -7- ~ 4o-7 - ~ ! c~ O . 4. EmployerTri~\ ~ ~-~o~/o-~e~Jo~l[~./~ob title ~)fS~cy I~o, vto.~e~mployed since ~-l--~ ~' 5. How long have you resided in Ukiah? ~ O years; Mendocino County?.~O California? ~ 6. Please list community, groups Or organizations you are affiliated with. Indicate office held'~ Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to serve on the City of Ukiah's Paths, Open Space, and Creeks Commission? 8. What is your understanding of the purpose, role and responsibility of the Paths, Open Space, and Creeks Commission? , How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Paths, Open Space, and Creeks Commission? 10. In your opinion, what type of programs or development should the City encourage? 11. What kind of ideal community do you envision for Ukiah? 12. Do you have any known projects or conflict of interest related to this Commission? Please return this application and attachments to the City Clerk by Noon on June 28~ 2005. Thank you for your interest in serving the City of Ukiah, . Date City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Forms: Paths, Open Space, and Creeks Commission Application Revised: 4/22/03 Phone: 463-6217 UN 28 2005 Fax: 463-6204 CITY OF UKIAI-I APPLICATION FOR APPOINTMENT PATHS, OPEN SPACE, AND CREEKS COMMISION QUESTIONS: 7-12 7. Why are you applying to serve on the City of Ukiah's Paths, Open Space, and Creeks Commission? I am interested in serving on the commission because, I have a genuine interest in the future of Ukiah's open spaces, paths, and creeks. I grew up in Ukiah and after a 8-year absence I have returned. I moved back to Ukiah with the intention of becoming involved in the betterment of my hometown and the surrounding areas. I believe that places and spaces improve when people care for them. I want to be involved in that process and I believe serving on the board of Paths, Open Space, and Creeks is a great place to start. 8. What is your understanding of the purpose, role and responsibility of the Paths, Open Space, and Creeks Commission? I have not been able to speak with anyone as to the exact responsibilities of an acting member of the commission. My assumption is that as a member I would be responsible for continuing the work of the past members of the commission as well as initiating new projects proposals to the City Council. I assume I would be responsible for a meeting or two a month, and certain amount of research and work between meetings. In addition, I would continue to educate myself on projects that would benefit Ukiah's streams, paths and open spaces. 9. How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Paths, Open Spaces, and Creeks Commission? In 2000 1 graduated from CSU Monterey Bay, with a degree in Visual and Public Art. This program taught me the importance of public space for a healthy community. My classes focused on the logistics of working in the public sphere, integrating the community into the process, creating work that was relevant to the area, and representative of local history. My focus within this major was environmental public art. This experience has given me the tools necessary to work as a representative of the ~ community. I have worked extensively in the field of wild land restOration. I have worked under this heading in many respects. I have experience in invasive plant removal, creek restoration, native plant propagation, rare plant identification and protection, and bioengineering. This work has given me the technical knowledge necessary to work with our beloved creeks, paths,and open spaces. 10. In your opinion, what type of programs or development should the city encourage? I would love to see Ukiah with healthy riparian corridors for all of our urban creeks. I encourage the continuation of all efforts to clean the creeks. Creeks and the water they carry are an integral part of our watershed. If we work to restore them and keep them clean, so many other species will benefit. I also feel that the City should strongly support the creation of a pedestrian and bicycle greenway throughout Ukiah. There are many areas of Ukiah that are pleasant and safe to walk or bike through, however there are some areas that are difficult and dangerous to traverse without a vehicle. I would encourage any efforts to connect all parts of Ukiah with a safe network of paths. I also believe that it would be in Ukiah's best interest to work with landowners and the neighboring towns of Redwood Valley and Hopland to create a bike path along the raikoad tracks that would connect the communities. This path could be used for recreation as well as alternative transportation. I fully support any project that would keep Ukiah's open spaces, open. I also believe that these spaces shouldn't be neglected. Any effort to restore them to their historic native plant communities would be great. The removal of invasive non-native species allows space for natives to return, bringing with them habitat for birds, animals, insects, and a chance for the neighbor kid to see a Gardner snake or possible a Pileated woodpecker. 11. What kind of ideal community do you envision for Ukiah? I envision Ukiah as a place where you can walk. You can walk to the store down a shad. y...__,... street, or up to the park, maybe even past the park up the hill onto a network of pathways. You can walk for recreation, exercise, or simply because it is an easy way to get around. Walking encourages chance encounters with others, which leads to recognition, which leads to a sense of community, which gives a sense of belonging, which promotes pride, which encourages an individual to throw trash in a can and not on the street. That is my ideal vision of Ukiah a clean well-loved town where people know each other. 12. Do you have any known projects or conflict of interest related to this commission? I am currently working for the Coyote Valley Band of Pomo Indians. I am in the early stages of creating an organic vegetable garden and Native Plant Nursery for them. The plants that are grown in the nursery will be used for location specific restoration projects. I don't really see this as a conflict, unless there was a project that the commission was undertaking that involved the use of native plants. Thank you for your time and consideration DATE: CITY OF UKIAH APPLICATION FOR APPOINTMENT PATHS, OPEN SPACE, AND CREEKS COMMISSION I am applying for an appointment to the City of Ukiah's Paths, Open Space, and Creeks Commission 1. Name.~_~._~~ ~ CO ~ I, ql2 I""' "~-Ot,'l ~'""Y'" 2. Residence Address. c~O~ ~/~/', O4:~K ~"'~, Res. Phone ~/~ ~'~"--~:~ fCf~' 4. Employer ~, ~, O, ~, Job title _. ~~~_~ Employed since_ /~~ 5. How long have you resided in Ukiah? Z~ ~, years; Mend°cino County~ ~~ California~ ~ V Y 6 Please list communit-'-ro'u-s or or i ' ' -- '- -- · ~ _ _ y ~ p g~ zationE you 8re affiliated with Indicate offi ? ' O~C ~ ~ · ce held_ Please answer the following questions on separate sheets of paper and attach. 7. Why are you applying to se~e on the City of Ukiah's Paths, Open Space, and Creeks Commission? 8. What is yoUr understanding of the purpose role and responsibility of the Paths, Open Space, and Creeks Commission? ' 9. How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Paths, Open Space, and Creeks Commission? 10. In your opinion, what type of programs or development should the City encourage?. 1 1. What kind of ideal community do you envision for Ukiah? 12. Do you have any known projects or conflict of interest related to this Commission? Please return this application and attachments to the City Clerk by Noon on _ you for your interest in serving the City of Ukiah. - ~ 2005. Thank Date City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Forms: Paths, Open Space, and Creeks Commission Application Revised: 4/22/03 Phone: 463-6217 Fax: 463-6204 (-,'~ clerk -~r~ ¢ '/.t ~ ye~r¢~ ~ x~ ~'t CITY OF'UKIAH APPLICATION FOR APPOINTMENT PARKS, RECREATION & GOLF COMMISSION I am applying for an appointment to the City of Ukiah's Parks, Recreation & Golf Commission. 2. Residence Address //~.x~'~ ~~~ ~~ / - 3. Business Address '. EmplOyer h~P~._.,r C, ~//.~.b Job Title~~ 5. How long have you res~ed in Ukiah?_~__years; Mendocino County... Res. Phone _~ 7 f/J/~ Bus. Phone Employed Since/~ .,, years; Calif.?~,years 6. Please list community groups or organizations you are affiliated with and indicate any offices held Please answer the following questions on separate sheets of paper and attach to application. 7. Why are you applying to serve on the City of Ukiah's Parks, Recreation and Golf Commission? 8. What is your understanding of the purpose, role and responsibility of the Parks, Recreation and Golf Commission? , How do you believe your own skills, experience, expertise and perspectives will be beneficial to the work of the Parks, Recreation and Golf Commission? 10. 11. 12. 13. 14. What do you believe is the single most important parks, recreation, and golf issue facing our community? And why?' In your opinion what type or types of parks development or recreational and golf programs should the City encourage? In your opinion what type or types of parks development or recreational and golf programs should the City discourage? What kind of ideal community do you envision for Ukiah? Are there any other City of Ukiah Committees/Commissions in which you are interested and on which you would be willing to serve? ~lease return this application and attachments to the City Clerk by Noon on 72005. you for your inte.rest in ser. v~ing/~p~City of Ukiah. ' - Signature. Date ~ City of Ukiah, 300 Seminary Avenue, Ukiah, CA 95482-5400 Phone' 463-6217 Thank Fax: 463-6204 Forms: Parks, Recreation & Golf Commission Application Revised: 6/6/05 ban Holbrook 1158 Maple Avenue Ukiah, CA 95482 Home: 707 467 9116 Email' yodalou~pacbell.net Work: 707 743 1142 ext 234 Fax: 707743 2878 14 July 05 To: /~orie Ulvilo, City Clerk Members of City Council Subject: Reoppointment to PO$C Commission Recently I returned from summer travel and found o letter stating that my appointment on PO5C¢ expired on ,Tune 30th. ~ interpreted this os o mistake because of the May ;>3, 2003 letter appointing me to the commission until 2006. However, ~ recent conversation confirmed that the original three year appointment was o clerical error ond that ~ must reopply if interested. Therefor, ]: formally apply for reoppointment to the Paths, Open Space and Creeks Commission. While it took some time for our commission to become fully engaged, we ore now informed, engaged, ond making distinct progress. Completion of the proposed "City Hills. Trail" linking Low ~op Pork to Todd ~rove Pork and securing open space in Ukioh volley ore my key interests. During on additional term, ]2 would like to see both these pro~ects to fruition and respond to other quolity of life issues. Since the application form ~ received was for o different commission, please review my original application/letter in regards to my interest and qualification for serving on POSCC. Sincerely, May 23, 2003 Dan Holbrook 1158 Maple Avenue 'Ukiah, CA 95482 Dear Mr. Holbrook: Thank you for your interest in serving on the City of Ukiah's Paths', Open Space, and Creeks Commission. At their meeting of May 21,2003, the Ukiah City Council appointed you to this Commission to a term that expires June 30, 2006. Members appointed to this Commission are James Connerton, Howie Hawkes, Dan Holbrook, Fred Koeppel, and William Randolph. We sincerely appreciate your willingness to serve in this regard and congratulate you on your recent appointment. Our staff will contact you about the meeting dates, etc. If you should have any questions concerning this matter, please do not hesitate to contact me at 463-6217. Sincerely, Marie Ulvila City Clerk Commsn~ppointments letter 300 SEMINARY AVENUE UKIAH, CA 95482-5400 Phone# 707/463-6200 Fax# 707/463-6204 Web Address: www. citvofukiah.com AGENDA SUMMARY ITEM NO. tot, DATE:August 3, 2005 REPORT SUBJECT: REVIEW OF FIRE DEPARTMENT'S CAPITAL EQUIPMENT REPLACEMENT NEEDS SUMMARY: During the 2005/2006 Budget Review and Approval process the City Council approved the Fire Department's Budget Requests that, among other items, includes the replacement of some of the Department's fire apparatus. At the time of approval, the Council expressed a desire to review the Department's Capital Equipment Needs prior to purchase. Staff has prepared the following for your consideration. 2005-2006: A. Replace/Surplus Engine 6581, a 1988 Beck 17 year old Engine that is high maintenance and does not comply with current NFPA Standards. The replacement engine will become our new First Out Engine. B. Replace/Surplus Truck 6551, a 1983 American La France, this 22 year old Truck was originally purchased used from the City of Piedmont. This unit has become extremely high maintenance and does not comply with current NFPA Standards. C. Eliminate Engine 6582, a 1971 Van Pelt. As a result of the proposed specifications for the truck company replacement, the Department will no longer be in need of this Engine. Continued on Page 2 RECOMMENDED ACTION: Authorize staff to proceed with the bid process. ALTERNATIVE COUNCIL POLICY OPTION: 1. Provide additional direction 2. Take no action. Citizen Advised' N/A Requested by: City Council Prepared by: Kurt Latipow, Fire Chief Coordinated with' Candace Horsley, City Manager Attachments' Attachment 1 APPROVED: Candace Horsley, Cit~anager D. Replace/Remove from Emergency Service Patrol 6560, a 1989 GMC Type IV Brush Engine. Staff is proposing to replace this limited capacity unit with a Type III Wildland Interface Engine that has increased pump and water capacity. Upgrading to this type of Fire Engine will significantly improve our capability to protect our western hills. E. Place Engine 6584, a 1994 Pierce Fire Engine into 2nd Out status. Upon placing the new 6581 into service, 6584 will be assigned 2'a Out Reserve status. This is consistent with the current industry standard for fire engines of 10 years front line and 5 years reserve. F. Replace Medic Ambulance 6524, a 1996 Ford 9 year old Ambulance. This Ambulance is not the oldest in our fleet, however, due to two accidents (one a result of being stolen), this unit has become high maintenance and it's reliability is questionable. G. Replace/Remove from emergency service Battalion 6503, a 1994 ½ ton pick-up. This 11 year old vehicle is used as a Command/Response unit and due to its limited capability is unable to pull any of our Emergency Support units. Projected Replacements/U p.qades 2006-2007 - Replace Medic Ambulance 6521, a 1993 Ford Ambulance 2007-2008 - Replace Medic Unit 6520, a 2000 Ford Ambulance 2008-2009 - Replace 1999 S-Blazer 2009-2010 - Replace Engine 6584, a 1994 PierCe Fire Engine Staff continues to work with the Finance Director to establish replacement schedules well into the future and we anticipate inclusion of these schedules in the Fire Department Master Plan that will be developed later this year. At this time staff is requesting authorization to move ahead with the bid process for the vehicles contained within the 2005-2006 Budget. Additionally we would like to point out that we would return to Council for final approval prior to the bids being awarded and from that point it could be up to one year before we would receive the new Engines and Truck. Attachment 1 Replacement Replacement Date in Useful date of current cost in 2005 2005-2006 Future Item name/description Service life Reserve Life item dollars Purchases Purchases Inflation rate projected Engine 6584 - 1994 Pierce Type 1 Pumper 1994 10 5 2009 375,000.00 375,000.00 Engine 6581 - 1988 Beck Type 1 Pumper 1988 10 5 2005 375,000.00 375,000.00 Engine 6582 - 1971 Van Pelt Type 1 Pumper 1971 10 5 Being removed from service Truck 6551 - 1983 American La France Truck Company 1983 15 5 2005 650,000.00 650,000.00 Patrol 6547 - 1999 Ford Type IV Brush Engine 1999 10 5 2014 150,000.00 150,000.00 IV Brush Engine - Replace w/Type III 1989 10 5 2005 275,000.00 275,000.00 Medic 6520 - 2000 Ford Ambulance 2000 5 3 2008 150,000.00 150,000.00 Medic 6524 - 1996 Ford Ambulance 1996 5 3 2005 150,000.00 150,000.00 Medic 6521 - 1993 Ford Ambulance 1993 5 3 2006 150,000.00 150,000.00 Battalion 6503 - 1994 ¼ Ton GMC pickup 1994 5 5 2005 50,000.00 50,000.00 Chief 6500 - 1999 Chevy Blazer 1999 5 5 2009 50,000.00 50,000.00 2003 pickup truck 2004 5 5 2014 50,000.00 50,000.00 $ 2,425,000 $1,500,000 $925,000 Attachment to "Review of Fire Department's Capital Equipment Replacement Needs" Agenda Summary AGENDA ITEM NO: tOc MEETING DATE: August 3, 2005 SUMMARY REPORT SUB3ECT: DESIGNA'I'[ON OF VOTING DELEGATE FOR THE 2005 ANNUAL LEAGUE OF CA CTI'[ES CONFERENCE The League's 2005 Annual Conference is scheduled for October 6 through October 8th in San Francisco this year. Each city is asked to designate a voting representative and alternate, who will be in attendance at the conference. Staff is requesting Council's discussion and selection of two Council members who plan on attending the League meeting and who can be available to vote at the conference business meeting scheduled for Saturday, October 8th at 10:30. The attached documents describe the voting procedures and conference details. RECOMMENDED ACTION: Designate two Council members ALTERNATIVE COUNCIL POLICY OPTIONS: Citizens Advised: Requested by: Prepared by: Attachments: California League of Cities Candace Horsley, City Manager Conference Information Approved: Candace Horsley, City ager 1400 K SFREET SACRAMENTO, CA 95814 pH: (916) 658-8200 Fx: (916) 658-8240 602 East Huntington Dr., Ste. C Monrovia, CA 91016 I,~t: (626) 305-1315 EX: (626) 305-1345 LEAGUE OF CALIFORNIA ,CITIES July 6, 2005 To: From: Re: The Honorable Mayor and City Council Pat Eklund, League President, Council Member, Novato Designation of Voting Delegate for 2005 League Annual Conference The League's 2005 Annual Conference is scheduled for Thursday, October 6 through Saturday, October 8 in San Francisco. One very important aspect of the Annual Conference is the Annual Business Meeting where the membership takes action on conference resolutions. Annual conference resolutions guide cities and the League in our efforts to improve the quality, responsiveness and vitality of local government in California. It is important that all cities be represented at the Annual Business Meeting on Saturday, October 8th, at '10:30 a.m. at the San Francisco Moscone Convention Center West. To expedite the conduct of business at this important policy-making meeting, each city council should designate a voting representative and an alternate who will be registered at the conference and present at the Annual Business Meeting. A voting card will be given to the city official that is designated and indicated on the enclosed "Voting Delegate Form." Please complete and return the enclosed form to the League's Sacramento office at the earliest possible time (not later than Monday, September 6, 2005), so that proper records may be established for the conference. The city's designated voting delegate may pick up the city's voting card at the Voting Card desk located in the League registration area. The Desk will be open on October 6, 7, and 8. Voting cards should be picked up before the Annual Business Meeting on October 8th. The voting procedures to be followed at this conference are printed on the reverse side of this memo. Your help in returning the attached "Voting Delegate Form" as soon as possible is appreciated. If you have any questions, please call Lorraine Okabe at (916) 658-8236. LEAGUE OF CALIFORNIA CITIES Annual Conference Voting Procedures . . . , o , . . Each member city has a right to cast one vote on matters pertaining to League policy. To cast the city's vote, a city official must have in his or her possession the city's voting card and be registered with the Credentials Committee. Prior to the Annual Conference, each city should designate a voting delegate and an alternate and return the Voting Delegate Form to the League Credentials Committee. The voting delegate, or alternate, may pick up the city's voting card at the voting card desk in the conference registration area. Free exchange of the voting card between the voting delegate and alternate is permitted. If neither the voting delegate nor alternate is able to attend the Business Meeting, the voting delegate or alternate may pass the voting card to another official from the same city by appearing in person before a representative of the Credentials Committee to make the exchange. Prior to the Business Meeting, exchanges may be made at the "Voting Card" table in the League Registration Area. At the Business Meeting, exchanges may be made at the "Voting Card" table in the front of the meeting room. Exchanges may not be made while a roll call vote is in progress because the Credentials Committee will be conducting the roll call. Qualification of an initiative resolution is judged in part by the validity of signatures. Only the signatures of city officials who are authorized to use the city's voting card, and who have left a sample of their signature on file for the Credentials Committee, will be approved. In case of dispute, the Credentials Committee will determine the right of a city official to vote at the Business Meeting. AGENDA ITEM NO: Urgency Item ,/'~ MEETING DATE: August 3, 2005 SUMMARY REPORT SUBJECT: Adoption of Resolution Approving the Submittal of an Application to the California State Department of Housing and Community Development for Funding the Clara Court Apartments Under the HOME Investment Partnerships Program This item is brought to Council as an Urgency Item. The agenda was prepared before this item came forward and needs to be approved by August 15, 2005, before the next scheduled Council meeting. A 4/5th vote is needed to place it on the agenda. The Rural Communities Housing Development Corporation (RCHDC) is requesting that the City apply for a HOME Loan on behalf of RCHDC to complete the Clara Court Apartments, a 32-unit affordable housing development for lower income households at the intersection of Clara and Orchard Streets. This loan is essential to successfully completion of this project. City staff has negotiated with RCHDC to be the conduit for this application, however, RCHDC will contract for the application development and submittal, all reporting requirements during the life of the loan, and any follow-up reporting required after the loan is closed. The Community Development Commission (CDC) will act as program administrator until development is completed. RCHDC will contract for the reporting requirements from that point on. City staff participation will be minimal. RCHDC staff will be present to ,~nswer questions regarding their project and the HOME loan Rrogram. RECOMMENDED ACTION: Approve resolution. ALTERNATIVE COUNCIL POLICY OPTIONS: Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: RCHDC Candace Horsley, City Manager Mike McCann, Finance Director RCHDC documents and resolution Candace r ATTACHMENT~____ RESOLUTION NO. 2006 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH HEREBY AUTHORIZES SUBMITTAL OF AN APPLICATION TO THE CALIFORNIA STATE DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT FOR FUNDING UNDER THE HOME INVESTMENT PARTNERSHIPS PROGRAM; AND IF SELECTED, THE EXECUTION OF A STANDARD AGREEMENT, ANY AMENDMENTS THERETO, AND OF ANY RELATED DOCUMENTS NECESSARY TO PARTICIPATE IN THE HOME INVESTMENT PARTNERSHIPS PROGRAM. A, WHEREAS, The California Department of Housing and Community Development (the "Department") is authorized to allocate HOME Investment Partnerships Program ("HOME") funds made available from the U.S. Department of Housing and Urban Development ("HUD"). HOME funds are to be used for the purposes set forth in Title II of the Cranston-Gonzalez National Affordable Housing Act of 1990, in federal implementing regulations set forth in Title 24 of the Code of Federal Regulations, part 92, and in Title 25 of the California Code of Regulations commencing with section 8200. B. On June 1, 2005 the Department issued a 2005 Notice of Funding Availability announcing the availability of funds under the HOME program (the "NOFA"). Co In response to the 2005 NOFA, The City of Ukiah, a municipal corporation (the "Applicant"), wishes to apply to the Department for, and receive an allocation of, HOME funds. WHEREAS, the City Council desires to authorize submittal of an application. NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Ukiah 1. In response to the 2005 NOFA, the Applicant shall submit an application to the Department to participate in the HOME program and for an allocation of funds not to exceed Four Million Dollars ($4,000,000) for the following activities and/or programs: Development of a 32-unit, new construction, multi-family rental project located at the intersection of Clara and Orchard Streets in the City of Ukiah. . If the application for funding is approved, then the Applicant hereby agrees to use the HOME funds for eligible activities in the manner presented in its application as approved by the Department in accordance with the statutes and regulations cited above. The Applicant may also execute a standard agreement, any amendments thereto, and any and all other documents or instruments necessary or required by the Department or HUD for participation in the HOME program (collectively, the required documents). Resolution No. 2006- Page 1 of 2 vote: 3. The applicant authorizes the City Manager or his/her designee(s) to execute, in the name of the applicant, the required documents. PASSED AND ADOPTED on this 3rd Day of August, 2005, by the following roll call AYES: NOES: ABSENT: Mark Ashiku, Mayor The undersigned City Clerk [title of officer] of the applicant does hereby attest and certify that the foregoing is a true and full copy of a resolution of the governing board of the applicant passed and adopted at a duly convened meeting on the date set forth above, and said resolution has not been altered, amended, or repealed. ATTEST: Marie Ulvila, City Clerk