Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2005-11-02 Packet
CITY OF UKIAH CITY COUNCIL AGENDA Regular Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 November 2, 2005 6:00 p.m. 1. ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. PROCLAMATION a. American Lung Association: "Shine a Little Light on Lung Cancer" 4. APPROVAL OF MINUTES a. Regular Meeting Minutes of September 21,2005 b. Special Meeting/Workshop Minutes of October 12, 2005 c. Special Meeting Minutes of October 17, 2005 1 RIGHT TO APPEAL DECISION Persons who are dissatisfied with a deciSion of the City Council may have the right to a review of that decision by a court. The City has adopted Section 1094.6 of the California Code of Civil Procedure, which generally limits to ninety days (90) the time within which the decision of the City Boards and Agencies may be judicially challenged. 6. CONSENT CALENDAR The following items listed are considered routine and will be enacted by a single motion and roll call vote by the City Council. Items may be removed from the Consent Calendar upon request of a Councilmember or a citizen in which event the item will be considered at the completion of all other items on the agenda. The motion by the City Council on the Consent Calendar will approve and make findings in accordance with Administrative Staff and/or Planning Commission recommendations a. Rejection of Claim for Damages Received from Charles and Kerri and Referral to Joint Powers Authority, Redwood Empire Municipal Insurance Fund b. Rejection of Claim for Damages Received from Mona Falgout and Referral to Joint Powers Authority, Redwood Empire Municipal Insurance Fund c. Emergency Purchase from Groiniger and Company of Additional Materials Needed for the Brush Street Water Main Replacement Project in the Amount of $11,148.07 d. Authorization fro Sue G°odrick, Risk Manager, to be designated as an Alternate Director on the Redwood Empire Municipal Insurance Fund's Board of Directors e. Adoption of Resolution Establishing City Fees for the Issuance and Renewal of a Tobacco License Effective January 1,2006 f. Adoption of Ordinance of the City Council of the City of Ukiah Adding a New Article Seven (7) Entitled "Tobacco Retailer's" to the Ukiah City Code Adoption of Resolution Establishing a Fee for Tobacco Retailers g. Notification to the City Council on Expenditure in the Amount of $9,990 to Mendocino Roofing Inc. for the Repair and Replacement of Roof and Gutters on Buildings at the Ukiah Regional Airport h. Adoption Of Resolution Authorizing City Manager To Designate City Officers or Employees to Represent the City with Authority to Examine Transactions and Use Tax Records of the State Board of Equalization Pertaining to Transactions and Use Taxes Collected for the City 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 (6:15 P.M.) These projects are quasi-judicial in nature and require City Council members to visit the project sites prior to taking action on the matter. a. Continuance of Minor Subdivision Map- Subdivision Requirement Exception Variance No. 05-19 aw PUBLIC HEARING (6:15 P.M.)-JOINT HEARING OF CITY COUNCIL AND THE UKIAH VALLEY SANITATION DISTRICT b. Adoption of Resolution of the City Council of the City of Ukiah Revising and Modifying Rates for the Sewer Service for the Fiscal Years 2005-2006 (Commencing December 1,2005) Through 2009-2010 c. Introduction of an Ordinance of the City Council of the City of Ukiah Amending Section 3707.1, of the Ukiah City Code Requiring Sewer Services to be Charged to the Customer Receiving Water Services 9. UNFINISHED BUSINESS a. Discussion of Conflict of Interest in Formula Business and Form Based Zoning Matters 10. NEW BUSINESS a. Award of Contract to Argonaut Constructors in the Amount of $709,697 for the Construction of Airport Infrastructure Improvements as Outlined in Specification PW 03-10 b. Review, Discuss, and Formulate Comments Concerning the Hop Kiln (Ryder Homes) Development Project on 154 Acres in the Unincorporated Area Northeast of the City. 11. COUNCIL REPORTS 12. CITY MANAGER/CITY CLERK REPORTS 13. CLOSED SESSION a. Conference with Labor Negotiator~ Government Code 54957.6 Employee Negotiations: Electric Unit & Miscellaneous Unit Negotiator: 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 October, 2005. By: Marie Ulvila, City Clerk The City of Ukiah complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. PROC TIOP_4 XVHEREAS, lung cancer is the leading cause of Cancer deaths in both men and women in in the United States, this year ta'lling more Americans than the next six cancers combined including breast, prostate, colon, liver; ka'dney and melanoma; and WHEREAS, approMmately 172,570 Americans 'will be diagnosed with lung cancer, and 163,510 Americans will be lost to lung cancer in 2005, including an estimated, 1%350 Californians; and WHEREAS, most persons are diagnosed with lung cancer at an advanced stage due to the failure to recognize early symptoms, such as chronic cough, hoarseness, coughing up blood, weight loss andloss of appetite, shortness of breath, fever ~thout a known reason, wheezing~ repeated bouts of bronchitis or pneumonia and chest pain; and WHEREAS, the sur,Tval rate for a diagnosis of endstage lung cancer is only 5percent, and there is current[y no standard screening for early detection of lung cancer which greaHy improves the survival rate; and WHEREAS, the majority o£new cases o£lung cancer each year are in former smokers or persons who have never smoke& and WHEREAS, lung cancer research has been chronically under ~snded in proportion to its public heMth impact resulting in a five-year survival rate which has remained reIatively unchanged over the last 30 years, while the survival rate [or most other cancers has improved significantly,, and WHEREAS, a large portion of tobacco-related funding is used for purposes other than that of lung cancer research; and WHEREAS, in order to build awareness and save lives, the Lung Cancer Alliance, a nationM patient advocacy group for Iung cancer dedicated to heIping build awareness of this disease, has proclaimed November as' Lung Cancer Awareness Month; and WHEREAS, the American Lung Association supports the Lung Cancer AJliance~s initiative tO declare November as L~ng Cancer Awareness Month; and WHEREAS, the American Lung Association of Cali[ornia-Redwood Empire Branch and Lung Cancer Aware, a local advocacy group, will sponsor "Shine a LittIe Light On Lung Cancer" on Friday, No~. 4 at Cancer Survivors Plaza (Fremont Park) in Santa Rosa; NOW, THEREFORE, BE IT RESOL FED that the City of Ukiah urges its citizens to observe the month and to attend the ''Shine a LitHe Light on Lung Cancer" event on Friday, Nov. 4 in Santa Rosa to raise awareness for lung cancer so that lung cancer patients can have hope and the death rate ~om lung cancer can be reduced. NOW, THEREFORE, I, Mark Ashiku, Mayor of the City of Ukiah, on behalf of my fellow Councilmembers, Phil Bald~dn, Mari Rodin, John McCowen and Doug Crane, do hereby proclaim the month o£November 2005 as LUNG CANCER AWARENESS MONTH Date: November 2, 2005 Mark Ashiku, Mayor MEMO Agenda Item: 4a TO: FROM: Honorable Mayor and City Councilmembers City Clerk Marie Ulvila ,~~~ SUBJECT: City Council Minutes of September 21,2005 DATE: October 28, 2005' Every effort will be made to provide Council with a copy of the Draft minutes for the September 21,2005 no later than Tuesday, November 1,2005. Memos: CC Late Minutes MEMO Agenda Item: 4b TO: FROM: Honorable Mayor and City Councilmembers City Clerk Marie Ulvila ,~~ ~ SUBJECT: City Council Minutes of October 12, 2005 DATE: October 28, 2005 Every effort will be made to provide Council with a copy of the Draft minutes for the October 12, 2005 no later than Tuesday, November 1,2005. Memos: CC Late Minutes CITY OF UKIAH CITY COUNCIL JOINT MEETING WITH THE UKIAH VALLEY SANITATION DISTRICT MEETING MINUTES CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 October 17, 2005 1. ROLL CALL- CITY COUNCIL 4:33:50 PM ,~:~',i;:,ii','~i?~i:~i~,~ii:~,~ ..... Present: Councilmembers Crane, UcCowen, Rodin, Baldwi~i~' Mayor ^shiku. City Staff Present: Project Engineer/Manager Burck, Ci~~,ger Horsley, City Attorney Rapport, Public Utilities Director Ziemianek, and City ~; ~,, Ukiah Valley Sanitation District (UVSD)::,~d Memb~i?~iii?~!i~,present: Crane, W attenburger, and District Chairman Delbar..~:~,,,~iii~iiiii?~' ......... ~'~i'~iiiii~i!i i!i'~?~:?::: Others Present: Clerk of the Board/Distric~,~ii~:etary Fu[man and M:'~pino County 2. CURSORY REVIEW BY DAVID EWlNG~ ~"~ ENGINEERING OPPORTUNITIES DESIGN 4'34:30 PM; Mayor Ashiku advised that this 3. DISCUSSION FOR THE FACILITY Public Utilities Joint Meeting of the was disc~ 1 PM OF 'HE WAS~ATER TREATMENT PLANT ~iii~he agenda, PACIFIC COMPANY WASTEWATER TREATMENT at the September 14, 2005 Special y Sanitation District (UVSD), there for the Wastewater Treatment Plant Im '::~"~it Pacific Company. Since that last meeting, Ewing )n V~ii,¢ngineering review with an electrical engineer, system engi'~[, and himself Ohe "~ruction point of view to review the plans and formulate ideas f~ii"~tential cost S~g m~:=~:~res. He explain'~b8t staff h~ili~quested and received approval from Kiewit Construction to keep this bid ~'~,,.,ii~gr l..,~!~ys and that time period will close at the end of October. Since the bids were o¢~iii~iii~;~une 2005, Kiewit have seen an escalation in the engineering costs and constru i;;i':~':" There has been an effort by Staff and the contractor to look at various areas where savings can be made. He drew attention to hurricanes Katrina and Rita that have resulted in high inflationary costs in the construction industry; noting the increased cost of plastic pipe and steel. Discussion ensued with regard to the risk of a catastrophic incident at the plant and the issue of regulatory agencies instructing the City that upgrades and repairs need to be made to the plant. Safety concerns at the plant for operators and the fact that the plant is at or near capacity were duly noted. There was a brief discussion that the capacity increase would be paid by new connections and that the rehabilitation of the plant would be paid by the current rate payers. Page 1 of 3 Matt Froneberger, City employee at the Wastewater Treatment Plant, voiced his support for construction of an expanded wastewater treatment plant. M/S Rodin/Baldwin awarding bid to Kiewit Pacific Companyfor the construction of the City of Ukiah Wastewater Treatment Plant Improvement Project in the amount of $56,538,000 and authorize the City Manager to execute the agreement. Brad Kauffman, of Kiewit Pacific Company, discussed Kiewit's review of cost savings and potential change orders due to increased costs for materials, such as various types of pipe. Motion carried by the following roll call vote: AYES: Council ~ers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku. NOES: None. ABSTAI,~i~ne. ABSENT: None. Ukiah Valley Sanitation District: M/S Wattenburger/Crane awarding bid to Kiewit Pa~:if~i~ii~OmP~::~i:f,~r~'~::~:~' ':~:~'~':~':'~' the construction of the City of Ukiah VVastewater Treatment Plant I~evement P~Si~,:~. in the amount of $56,538,000 and authorize the City Manager t~i~::~ute the agre~:'~t; carried by the following roll call vote: AYES: UVSD Board m ~::~s Crane, Wattenbu~,~?,a.nd Chairman Delbar. NOES: None. ABSTAIN: None. AB 4. PRESENTATION BY DAVID EWING O GINEERING DETAILED OPPORTUNITIES THE W~~WATER TREATMENT PLANT DESIGN 5:01' 15 PM ...... ,:~:i~,,ii?:iiiiiii!ii!!i?:i:,i:,:~ ..... David Ewing, Ewing Construction regard to Ewing Construction ided presentation with treatment plant's plan specifications. They fo~D~ii~',~al there are ways to reduce costs. Some topics ~!i~'~'~ tion Cost Redbction Idea Evaluation; Primary Causes of Cost R J'~n Proc~ Failu st Reduction Process Goals; and Methods ::::::::::::::::::::::::::::::::::: Tom Frisc~[[[~ch ":~~~[i~ ~"~ that his firm has been consulting with Distribution Control System, as Ewing ::,:. H ,~ussed the"r:":'~$'wer and displ ~[~ the P~: oin:{iii!~8entation. Davi::~ili~:pg conclude~iii~ a ~!ii::~Ssion of the Post-Award Cost Reduction Process. He respond~i~,::,inquiries co~ning value engineering and cost saving measures that would not compr8~ . the funct~ii of the facility. District Chair~ii~:.~?'inquired about the reclaimed water portion of the project and how that would be':~¥ed into the project. Mr. Ewing responded by noting that he has not had an opportunity to discuss the matter with Brown and Caldwell, however, it is an idea that can be taken to the workshop for consideration. In response to an inquiry by District Chairman Delbar, Director Ziemianek discussed working with Brown and Caldwell regarding groundwater recovery. 5. PUBLIC EXPRESSION a. Announcements/Other Business Councilmember Rodin inquired if Council would receive a report on the 218 process. Director Ziemianek advised that as of last Friday, the City has received letters opposing the proposed sewer rate increase. 6. ADJOURNMENT There being no further business, the meeting was adjourned at 5:4! :50 PM Marie Ulvila, City Clerk Page 3 of 3 ITEM NO. 6a MEETING DATE: November 2, 2005 AGENDA SUMMARY REPORT SUBJECT: REJECTION OF CLAIM FOR DAMAGES RECEIVED FROM CHARLES AND KERRI VAU AND REFERRAL TO JOINT POWERS AUTHORITY, REDWOOD EMPIRE MUNICIPAL INSURANCE FUND A claim from Charles and Kerri Vau was received by the City of Ukiah on September 30, 2005 alleging damage to their tenant's oven, microwave and telephone jack due to an electrical transformer blowing a fuse. Pursuant to City policy, it is recommended the City Council reject the claim as stated and refer it to the Redwood Empire Municipal Insurance Fund (REMIF). RECOMMENDED ACTION: Reject Claim For Damages Received From Charles and Kerri Vau and Refer Them To The Joint Powers Authority, Redwood Empire Municipal Insurance Fund. ALTERNATIVE COUNCIL POLICY OPTIONS: Alternative action not advised by the City's Risk Manager. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Yes Claimant Sue Goodrick, Risk Manager/Budget Officer Candace Horsley, City Manager 1. Claim of Charles and Kerri Vau, pages 1-4. ~, ', APPROVED: ~i~-¥ Candace Horsley, City er City Ol~rk's o(fic~ City of Ukiah 300 Se. min~ry Ave U k~;th, 'CA 95482' .o · ATT^GHME. NT . · P, 02 CLAIM 'FOR MONEY OR DAMAGES AGAINST THE CITY OF UKIAH'. A cl;.~im nlu-:t bo presented, as. prescribed by the Government Code ol' the State of California, by the claimanl or a person· ~cting on h~/her behalf and shall sl~ow .the following: · · ' IR'F-SERVE FOR FILING STAMP ~/' ' K'IAH ] Il atlditionai space is needed .to provide your information, pleas~ attach sheets, identifying the paragraph(s) ' h ~-iC.9 answ.qred. · . ' · I. N,~t no at~(J Rcldress o~ th~, Claimant: .. ........ .... · :. ... ..... ... - .... Addrc~s.~o which the person pres~nEng ~ho claim dosiros nolicas to.be son[: · ' N~lno oF Addms~oe: ,,.~~__~ ~~ Telephone:· ·" . . '1 I~a date, piece and oilier circun~stancos of the occurrence or transaction which ~ave rise to ~c Claim '~'.;~[i8;; ' _~' ~ ;Tz .... ~;~'"_, -, ,,. ;.., ' - ........ · .F: .... ;:~.,. ~ ...... ~~L<~r_ cvcum.,~r, ce~ ~ivin~ dso to this ~laim: ......... . ~ .~ ~l · · z , , ~. ~ .~ ................ ~ ........ _/. ~ ..... ~ ~~ ~~ ~/~ ~~ ~~. ~~ ~.-~, .... . -~;~ . ~ . · y. ~.- .~. _ · ~2..-~ ~, . .... ~ ~~-~.--/~//~~'~ .~ ~ (~narnl .de~nriOi;on or Ilia indobtadness, obligation, injury, damago or toss incurred sa far ~s il may be known · ~lm Um.o ol ~la~ pre~ontalion o[ fha claim. . · 11~o namo or names of tho publia cmpl.oyc~ or employees ·causing the inju~,, damage, or loss, if known. · ., .... ~.. ., o .. .,, ,. · Page 1 0[3 SEP-26-05 liON 10:40 Ali CITY OF UKIAH FA× NQ, YUY4~4 P. '6, . 10. 11. If amount claimed totals loss than $101000: 'The amount claimed, if it totals less .than ton tt~ou'sOnd dollars ($10,000) as of [1~o dale o1' presentatien el= [l~e claim, including the estimated amount of any .prospective injury,. dame(lo, or toss, insofar as it may be known at tim time of the presentation et' the claim, together with .th~ basls of computation of tile ;.tnlount claimed. Amount Claimed ~nrl h~mis for computation: ' . If ~rnount ctaimed exceeds $I0,000: I[ the amount claimed exceeds ten thousand dollacS [$10,000), n0 dollar ~mount ~hnil be included in [l~o claim.' Llowever, it shall indicate wi~ether tine claim would bo e .limited. civil case, A I~m}led cml case is one where the recovery sought, exclusive of etLorne~ fees, interest, and court costs does not .excoc:d $25,000, An unli~iLod civil c~se is one in which tho rocovo~ sought is more than $25,000' (Soo COP ~ . [~; are requirod'~~¢l~' the Information requested above In order t~ ¢o~ply with Government Oodel /~91o. .._ Claimant(s) ,Soclal ,,,ecunty Number(s): (optional) (;laimanl(s) Oat(;(s)of Bi(th: ,. .............. · ..,: .... /~¢/ ¢s../~.¢ . ~ I',la~u, address end tetcpl~one number of any Witnesses to the occurrence or transaction which gave rise Io the. ' ' '~C4. pA ..... · .... . .~~,jFH~ ..... ..,], ....... . . , !1 tl,~ d8im involves medical .lreatment for a claimed injury, plcase provide the name. address aqd telephone ~ufl~bor of [x~y do~[ors or hospi[als providing treatment:. ' :::':':::-..:::.-::,.: ...... .: ............ . ..... ...... : If ~¥)plicable, pIc aso aide, ch a~ ~y medicml bill~ 'or ~porls or similer documents suppoRing your claim. If t'i~o cl~ff~ r%~t'es [o ~n autom~bilo Dbcidont: Ckdr~lunt(s) Au[,) Ins. Co.: Adr, h 'i.Z-..;;;o~co u~ox'o,^9~,t: .................. ' ........... ' ................... Telepl~one: ' Insurance Policy No.: . Telepl~one: Cl:tiniant's VLll, l_ic. No.: Vehicle MakefYear: C;lain'/.~nt'$ Drivr,,r~; Lic. No.' Expiration: · il f~ppti¢ebk;,, p!,;ose attach any rc, poh' bills, esthnates or sin)ilar documents supporting your claim. rage 2 °t'3 ~EP-2i~-l]b YION 1U: 4U fill G ITY Ul~ UKJ fiji 1~ fl;( Mu, Iu ~qu~'zuq Y, U4. : · .. READ' CAREFULLY . >r ~11 ~;coid~;nt d~.~ims, pl;~co on l,l~e following dbOram tile n~'~me City of Uki'ah vehicle; location of City et Ukiah vehicle at !,i~.~e et : .,,.heels, inr, lVdh)9 North, ['!s,~t, South, cV~d West; l~dicatc pb3Ce ' r~t cJd,~nt by "X" and by ~t~owlng house nurnhor~; or distances :rcut'com(:rs. If'C[~ of Ukinh v:h~clo w~s invoNod, y I< It~r "A" location of City el Ukial~ vel~!clc when you firs[ saw nd hy '['1" loon[ion el yoursotr or your veldcle when you first , accident by "A-I" and location of yourself or your vchic[o at the time of the accident by "B-l" m~d the point of impact by ~'X." NOTEi I[ diaorams 'below do not fit tl~e situa!.i.on, at!.nch hereto proper diagr~'m~ signed by claimant, SIDEWALK . ., ; PARKWAY S[DEWAI. K CURB '"3. W:,rning: 'Prcso[~tation of ~t fulso clah'n is 'a felony (Penal Code §72), Pursuant to California Civil Proclecures §107,8, tho City/Agency may seek io ~'ecover all costs 6f.dcfor~se i.n tl~e event an action is filed wl~ict~ is later deton'nfned not to have been b~ o.uyht in. (it)od faith and with reasonable cause, Date: Paoo 3 of 3 IS BOME CEItTRAL ~TE REG #i428~ ' Ot~N' CALI FOP~IIA {1 B~ISE MSLL 'HEISTS, C~ 9561i ~88 ) 4MY-HO~E BB ~ S~p 22, 2885 8585323 Nu~gr: 95522828 · ICIAT. ES . 12 1 R~nge?lyr;O388/U48~ 9849422384 UF49t19993 .. mments: orm~r bleu up an~ sent .o oven, bloulngup the mad - Collact: R/R (Major) ach (CC only) kal LINES ESTIMATE all Cho~ge $' 153.88 $ 34.99 $ ~87.99 89 B'9.88. 8.88 89 $ 69.88 :al: $ 69.88 mat: -$ 8.88 ~unt Due: $ 69.88 ~LII~S ESTIMAT~ t Co.llect~d To~y: $ 89.88 598! SLIN~ISE M~LL cmos H -I HTS. CA 95S1 (888) 4MY-HOME Seers #: 8888388 Technician ID: 8585323 Service Order'Humber4 JACK C OX ASSOCIAT ES 2 BETTY ST OKI{IH, CA 95482 (787) 482-7573 22, 2885 95522828 MDSE: Range,lgp, O388/U4~ Brand Hame: TAPPAH Model Humber: 3849422384 Serial Humber: UF431i3993 Service Requested~' OVEN DOES HOT HEAT, COOKTOP ELEMENTS OKaY (ELEC~IC] L~bor Performed - Collect:' Clock/Timer, R/R (M~Jor) $ i53,88 .PM Add On; Tach (CConly) $ '34.99 . Lubor Sub-Total $ i87.99 Net L~bor $ 187,99 Tax on L~bor . $ 8.88' Tot~! L~bor' $ 187,99 Ports Required - Collect: 'i SUB CLOCK/TI $ 234.88 Ports SUb-Total $ 234.88 Net-Purls $ 234.88 'T~x on Ports $ 17.83 Tot=l Ports ' $ 251.9i Estimated G~and Total: $ 439,98 Estimated Customer Total: $ 439.98 Pre-P~ld Amount: ~$ 8.88 Customer Amount Due: $ 439,98 · · 'Curb Payment ~' 89'.88' · '~ Customer Sign~tur. e: mcks ore subject toga service ~~p~d~L~ ' . ~- ~28 or the m~xlmu$ al'toued by :lion costs ~nd ~ll ~en~lties ~y l~u viii ~Iso be ~s{ssed~ utronidally collect returned I Thank you ~or calling trice Uhorgas, ~nd other ' · SEP~S HOME CEI;ITRAL cMrge~. i ignatur'g: TMnk you fo~ c~lling SEARS HOME CEHTRAL ?. · y Claims/Port History Statement' ~: 8~883B8 Tach #: 8585323 522828 Call Code: 38.. :85 Deport: 89:32 3849422384 i~. UF43i13993 iC ClockzTlmer, R/R (Major) $ 153.88 :C PM Add On, 'Tach (CC only) · ' $ 34,99 · ITEM NO. 6t~ MEETING DATE: November 2, 2005 AGENDA SUMMARY REPORT SUBJECT: REJECTION OF CLAIM FOR DAMAGES RECEIVED FROM MONA FALGOUT AND REFERRAL TO JOINT POWERS AUTHORITY, REDWOOD EMPIRE MUNICIPAL INSURANCE FUND A claim from Mona Falgout was received by the City of Ukiah on October 6, 2005 alleging bodily injury resulting from a fall due to a raise in the sidewalk surrounding a water meter on Laurel Street, Ukiah. The date of occurrence was July 27,2005. Pursuant to City policy, it is recommended the City Council reject the claim as stated and refer it to the Redwood Empire Municipal Insurance Fund (REMIF). RECOMMENDED ACTION: Reject Claim For Damages Received From Mona Falgout and Refer to the Joint Powers Authority, Redwood Empire Municipal Insurance Fund. ALTERNATIVE COUNCIL POLICY OPTIONS: Alternative action not advised by the City's Risk Manager. Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: Claimant Sue Goodrick, Risk Manager/Budget Officer Candace Horsley, City Manager 1. Claim of Mona Falgout, pages 1-3. Candace Horsley, City r File With: City Clerk's Office City of Ukiah 300 Seminary Ave Ukiah, CA 95482 CLAIM FOR. MONEY OR DAMAGES AGAINST THE CITY OF UKIAH RESERVE FOR FILING STAMP A claim must be presented, as prescribed by the Government Code of the State of California, by'the claimant or a person acting on his/her behalf and shall show the following: If additional space is needed to provide your information, please attach sheets, identifying the paragraph(s) being answered. · . 1. Name and address of the Claimant: Name of Claimant: Address: '~0~0 ~tV~'A w',~_~O, ~ i >r__- ~1"' · ? Address to which the person presenting the claim desires notices to be sent: Name of Addressee: ~"'~>O.~ c.\ ~ OL~V~ Telephone: Address: The date, place and other circumstances of the occurrence or transaction whiCh gave rise to the claim asserted. Date of Occurrence:` "'-7 A"7 / O .~"-- Location' ~-~_'~(~-~L,,Ct\\r._' 'ir,, ~TO¢',~ OFF Circumstances giving rise to this claim: Time of Occurrence: ct . ' 'll~/ --_ General description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of the presentation of the claim. .... - f 0 ' ~' ' ~ The n-ame or names of the public employee or emplo, gy.c, es causing the injury, damage, or loss, if known. ..../ · 'Page 1 of 3 If amount claimed totals less than $10,000: The amount claimed, if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. · Amount Claimed and basis for computationi """..~ ~'MAk,~---_ ~"'~.0'~ ~'--~/\\~' ~':"~.~:g; ~~~~~ If amount claimed exceeds $10,000: If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. A limited, civil case is one where the recovery sought, exclusive of attorney fees, interest and court costs does not exceed $25,000. An unlimited civil case is one in which the recovery sought is more than $25,000. (See CCP ~ 86.) ~ Limited Civil Case ~ Unlimited Civil Case ~910.~Y°u are required to provide the information requested above in order to comply with Government Code 7. Claimant(s) Social Security Number(s): (optional) , Claimant(s).Date(s) of Birth: Name, address and telephone number of any witnesses to the occurrence or transaction which gave rise to the claim asserted: 10. If the claim involves medical treatment for a claimed injury, please provide the name, address and telephone number of any doctors or hospitals providing treatment: - /~ "~ ~- 3~i~ilar documents(~)o~.~~''-0~ 7/. If applicable, please a~ach any medica~bill~or repo~s or p~( g your cza¢m. 11. If the claim relates to an automobile accident: Claimant(s) Auto Ins. Co · ...T. elephone: Address' I~surance Policy No.' Insurance Broker/Agent: ....--' Telephone: Address' ...... ' Claimant's Veb.,'Eic. No.' Vehicle Make/Year: Claima,n~s"Drivers Lic. No.: Expiration' ,/' , If applicable, please attach any repair bills, estimates or similar documents supporting your claim. Page 2 of 3 READ CAREFULLY For all accident claims, place on the following diagram the name City of Ukiah vehicle; location of City of Ukiah vehicle at time of of streets, including North, East, South, and West; indicate place accident by "A-I" and location of yourself or your vehicle at the of accident by "X" and by showing house numbers or distances to time of the accident by "B-I" and the point of impact by "X." street corners. If City of Ukiah vehicle was involved, designate by letter "A" location of City of Ukiah vehicle when yOu first saw it, NOTE: If diagrams below do not fit the situation, attach hereto a and by "B" location of yourself or your vehicle when you first saw proper diagram signed by claimant. CURB SIDEWALK PARKWAY SIDEWALK CURB Warning' Presentation of a false claim is a felony (Penal Code §72). Pursuant to California Civil Prodecures §1038, the City/Agency may seek to recover all costs of defense in the event an action is filed which' is later determined not to have been brought in good faith and with reasonable cause. Signature: Date: Page 3 of 3 AGENDA SUMMARY Item No 6c Date: November 2, 2005 REPORT SUBJECT: EMERGENCY PURCHASE FROM GROINIGER AND COMPANY OF ADDITIONAL MATERIALS NEEDED FOR THE BRUSH STREET WATER MAIN REPLACEMENT PROJECT IN THE AMOUNT OF $11,148.07 Because of the proximity of existing utilities discovered upon excavation, plans for the new water main construction had to be revised. Additional materials were required for this revision. With the best interest of the City of Ukiah and the Contractor in mind, the City Manager authorized the emergency purchase from Groeniger and Company in the amount of $11,148.07 to keep the job on schedule. This purchase is funded from Account Number 840.3850.690.001. RECOMMENDED ACTION: Receive and file report regarding the emergency purchase to Groeniger and Company in the amount of $11,148.07 ALTERNATIVE COUNCIL POLICY OPTIONS: None Citizen Advised: N/A Requested by: Bernie Ziemainek, Director of Public Utilities Prepared by: Judy Jenney, Purchasing & Warehouse Assistant Coordinated with: Candace Horsley, City Manager AP P ROVE D' ~'~~ ¥-'~'~ ~-" ~ Candace Horsley, City Manager AGENDA ITEM NO: _. 6a MEETING DATE: November 2, 2005 SUMMARY REPORT SUB3ECT: AUTHORIZATION FOR SUE GOODRICK, RISK MANAGER, TO BE DESIGNATED AS AN ALTERNATE DIRECTOR ON THE REDWOOD EMPIRE MUNICIPAL INSURANCE FUND'S BOARD OF DIRECTORS The City Manager is designated as the Director, representing the City of Ukiah, on the Redwood Empire Municipal Insurance Fund's (REMIF) Board of Directors. An alternate director is standard protocol, acting as the alternate during the Director's absence or as requested by the Director. Staff is recommending that Risk Manager, Sue Goodrick, be designated as the alternate to the REMIF Board. RECOMMENDED ACTION' Alternate Director on the Directors Authorize the Designation of Sue Goodrick as the Redwood Empire Municipal Insurance Fund's Board of ALTERNATIVE COUNCIL POLICY OPTIONS: Citizens Advised' Requested by: Prepared by: Coordinated with: Attachments: Candace Horsley, City Manager Redwood Empire Municipal Insurance Fund Approved: Candace H6rsl~y, Cil~ Manager AGENDA ITEM NO: 6e MEETING DATE: November 2, 2005 SUMMARY REPORT SUBJECT: ADOPTION OF RESOLUTION ESTABLISHING CITY FEES FOR THE ISSUANCE AND RENEWAL OF A TOBACCO LICENSE EFFECTIVE JANUARY 1,2006 BACKGROUND The City Council, at their September 21, 2005 meeting, directed staff to prepare an ordinance for adoption regarding the licensure of tobacco retailers in the City limits. On October 19, 2005, the City Council introduced the ordinance adding a new Article 7, entitled "Tobacco Retailers" to the Ukiah City Code. Adoption of this ordinance is scheduled to be considered on November 2, 2005. As directed, staff has prepared a draft resolution establishing the fee for the license and is requesting City Council approval of same upon adoption of the ordinance. A copy of the proposed resolution is attached. RECOMMENDED ACTION: Adoption of resolution approving City fee for the issuance and renewal of tobacco licenses. ALTERNATIVE COUNCIL POLICY OPTIONS: 1) Determine not to introduce Ordinance; 2) Direct staff to make revisions to the resolution. Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: American Cancer Society Candace Horsley, City Manager Mike McCann, Finance Director 1. Resolution establishing fee for tobacco licenses Approved: Candace Horsley,~City Manager ATTACHMENT # 1 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH ESTABLISHING A FEE FOR ISSUANCE AND RENEWAL OF A TOBACCO LICENSE EFFECTIVE JANUARY 1, 2006 WHEREAS, the City Council for the City of Ukiah ("City") hereby finds that notice of the time and place of this meeting to consider the adoption of this resolution to increase City fees was given as required by Government Code Section 6062(a); and WHEREAS, the City finds that a Public Hearing is being held to meet the public hearing requirements of Government Code Section 66018(a); and WHEREAS, the City finds that the amount of the fee set forth below does not exceed the estimated amount required to provide the service for which the fee or Service charge is being levied; and WHEREAS, the City finds that unless the recommended fee is approved, the City will not have sufficient funds to provide the service for which the fee is being levied. NOW, THEREFORE, BE IT RESOLVED that based upon the information provided to the City Council at the Public Hearing held on the adoption of this Resolution and upon the above findings of fact, the City Council of the City of Ukiah hereby approves and adopts the following Fee Schedule for the issuance and renewal of a Tobacco License to become effective January 1, 2006: ANNUAL FEE $35.50 PASSED AND ADOPTED this AYES: NOES: ABSENT: ABSTAIN: day of November, 2005 by the following roll call vote: Mark Ashiku, Mayor ATTEST: Marie Ulvila, City Clerk AGENDA ITEM NO: ¢ '~ MEETING DATE: November 2, 2005 SUMMARY REPORT SUB.~ECT: ADOPTTON OF ORDTNANCE OF THE CTTY COUNCTL OF THE CTTY OF UKTAH ADDTNG A NEW ARTTCLE 7 ENTTTLED "TOBACCO RETATLERS TO THE UKTAH CTTY CODE" At the October 19, 2005 meeting, the City Council introduced the Ordinance for the licensure of tobacco retailers within the City limits. This Ordinance was introduced to monitor and enforce the provisions against selling tobacco to minors. Once the Ordinance becomes effective, the City will begin the tobacco licensing in the same time frame as the business licenses which are annual renewals from January to December of each year. Tt is recommended that Council adopt the attached Ordinance. RECOMMENDED ACTION: Adoption of Ordinance Regarding Licensing of Tobacco Retailers within the City Limits. ALTERNATIVE COUNCIL POLICY OPTIONS: Ordinance. Make Revisions to the Current Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: American Cancer Society Candace Horsley, City IVlanager Dave Rapport,' City Attorney #1 -Ordinance Regarding Licensure of Tobacco Retailers within the City Limits Approved: Candace Horsley~ City'~anager ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH ADDING A NEW ARTICLE 7, ENTITLED "TOBACCO RETAILERS" TO DIVISION 1, ARTICLE 2 OF THE UKIAH CITY CODE The City Council of the City of Ukiah ordains as follows: SECTION ONE. FINDINGS AND DECLARATION OF INTENT: The City Council of the City of Ukiah hereby finds and declares as follows: 1. Penal Code Section 308 prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors. 2. Business & Professions Code Sections 22952 and 22956 require that tobacco retailers check the identification of tobacco purchasers who reasonably appear to be under 18 years of age and provide procedures for using persons under 18 years of age to conduct onsite compliance checks of tobacco retailers. 3. Business & Professions Code Section 22952 and Penal Code Section 308 require that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 18 years of age is illegal. 4. Business & Professions Code Section 22962 prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk. 5. Penal Code Section 308.1 prohibits the sale of "bidis" (hand-rolled filterless cigarettes imported primarily from India and Southeast Asian countries) except in adult- only establishments. 6. Penal Code Section 308.3 prohibits the manufacture, distribution, or sale of cigarettes in packages of less than 20 and prohibits the manufacture, distribution, or sale of "roll-your-own" tobacco in packages containing less than 0.60 ounces of tobacco. 7. Education Code Section 48901(a) prohibits public school students from smoking or using tobacco products while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees. 8. Despite these restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. ORDINANCE NO. 1 9. A survey in 2004 of the ability of minors to buy tobacco products in the City of Ukiah showed that 41% of City retailers unlawfully sold tobacco products to minors. 10. 88% of adults who have ever smoked tried their first cigarette by the age of 18 and the average age at which smokers try their first cigarette is 14½. 11. The City of Ukiah has a substantial interest in promoting compliance with federal, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and in protecting children from being lured into illegal activity through the misconduct of adults. 12. The California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power of the cities and counties to regulate business activity in order to discourage violations of law. 13. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the City of Ukiah to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws. 14. It is the intent of the City Council of the City of Ukiah, in enacting this ordinance, to monitor progress in preventing minors from purchasing tobacco products, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties imposed for the violation of such laws. SECTION TWO. A new Article 7, entitled "Tobacco Retailers" is hereby added to Article 2, Division 1 of the Ukiah City Code to read as follows. ARTICLE 2 SPECIAL BUSINESS REGUALTIONS ARTICLE 7. TOBACCO RETAILERS §2350: §2351: §2352: §2353: §2354: §2355: Definitions License Requirements Application Procedure Issuance of License Display of License License Fee ORDINANCE NO. §2356: §2357: §2358: §2359: §2360: §2361: License Not Transferable License Violation Suspension, Termination or Revocation Administrative Fine Grievance Committee hearing Enforcement {}2350: DEFINITIONS: The following words and phrases, whenever used in this Article, shall have the meaning provided in this section unless the context clearly requires otherwise: (a) "Appellant" means a Person who appeals a Department decision to the Grievance Committee. (b) "Department" means the City Manager and/or the duly authorized designee of the City Manager. (c) "Grievance Committee" means a Committee of two (2) persons, one City Council member, selected by the City Council, and one City employee selected by the City Manager. No member of the Committee shall have participated in a decision appealed to the Committee. (d) "Person" shall mean any natural person, firm, partnership, trust, estate, association, corporation, or organization of any kind. Where a principal acts through an agent, the word "person" shall include both such principal and agent. (e) "Tobacco Product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. (f) "Tobacco Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco or Tobacco Products. "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco or Tobacco Products sold, offered for sale, exchanged, or offered for exchange. §2351: REQUIREMENT FOR TOBACCO RETAILER LICENSE: (a) It shall be unlawful for any Person to act as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer's license pursuant to this Article for each location at which that activity is to occur. No license may issue to authorize Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot and Tobacco Retailing from vehicles are prohibited. (b) The term of a license is one year from January 1st through December 31st unless earlier suspended, terminated or revoked pursuant to Section 2358. Each ORDINANCE NO. 3 Tobacco Retailer shall apply for the renewal of his or her Tobacco Retailer's license no later than thirty (30) days prior to its expiration. (c) Nothing in this Article shall be construed to grant any Person obtaining and maintaining a Tobacco Retailer's license any status or right other than the right to act as a Tobacco Retailer at the location in the City of Ukiah identified on the face of the license. For example, nothing in this Article shall be construed to render inapplicable, supercede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by Labor Code [}6404.5. {}2353: APPLICATION PROCEDURE: Application for a Tobacco Retailer's license shall be submitted in the name of each Person proposing to conduct retail tobacco sales and shall be signed by each Person or an authorized agent thereof. It is the responsibility of each Person to be informed of the taws affecting the issuance of a Tobacco Retailer's license. A license that is issued in error or on the basis of false or misleading information supplied by a Person may be revoked pursuant to Section 2358. All applications shall be submitted on a form supplied by the Department and shall contain the following information: 1. The name, address, and telephone number of each Person. 2. The business name, address, and telephone number of each location for which a Tobacco Retailer's License is sought. 3. The name and mailing address authorized by each Person to receive all license-related communications and notices (the "Authorized Address"). If an Authorized Address is not supplied, each Person shall be understood to consent to the provision of notice at the business address specified pursuant to subparagraph 2 above. 4. Whether or not any Person has previously been issued a license pursuant to this Article that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation. 5. Such other information as the Department deems necessary for the administration or enforcement of this Article. {}2353: ISSUANCE OF LICENSE: Upon the receipt of an application for a Tobacco Retailer's license and the license fee, the Department shall issue a license, unless: (a) the application is incomplete or inaccurate; or ORDINANCE NO. 4 (b) the application seeks authorization for Tobacco Retailing by a Person for which or whom a suspension is in effect pursuant to Section 2358, or by a Person which or who has had a license revoked pursuant to Section 2358. §2354: DISPLAY OF LICENSE: Each license shall be prominently displayed in a publicly visible location at the licensed premises. §2355: LICENSE FEE: The fee to issue or to renew a Tobacco Retailer's license shall be established by resolution of City Council. {}2356: LICENSES NOT TRANSFERABLE: A Tobacco Retailer's license is not transferable. If the information required in the license application pursuant to 2353, items 1,2, or 3 changes, the Tobacco Retailer must notify the Department within 14 days, and update all information on the license application form in order to continue to act as a Tobacco Retailer. For example, if a Tobacco Retailer to whom a license has been issued changes business location, that Tobacco Retailer must supply updated license information within 14 days of acting as a Tobacco Retailer at the new location. If a business is sold, the new owner must apply for a license for that location before acting as a Tobacco Retailer. The current licensee shall notify the Department of the sale of the Tobacco Retailing business. §2357: LICENSE VIOLATION: (a) VIOLATION OF TOBACCO-RELATED LAWS. It shall be a violation of a Tobacco Retailer's license for a Person or his or her agent or employee to violate any local, state, or federal tobacco-related law. (b) LICENSE COMPLIANCE MONITORING. The City of Ukiah anticipates that compliance checks of each Tobacco Retailer will be conducted at least two times during each twelve-month period by the Mendocino County Public Health Department. The City shall not enforce any tobacco-related minimum-age law against a person who otherwise would be in violation of such law because of the person's age (hereinafter "youth decoy")if the violation occurs when: 1. the youth decoy is participating in a compliance check supervised by a law enforcement official, a code enforcement official, or any peace officer; or 2. the youth decoy is participating in a compliance check funded or supervised in part by the County of Mendocino or, funded or supervised in any part by the California Department of Health Services. §2358: SUSPENSION, TERMINATION OR REVOCATION OF LICENSE: (a) SUSPENSION, TERMINATION OR REVOCATION OF LICENSE FOR VIOLATION. In addition to any other penalty authorized by law, a Tobacco Retailer's license may be suspended or revoked, if the Department determines that the ORDINANCE NO. Person or his or her agents or employees have violated the requirements of this Article or other conditions of the license imposed pursuant to Section 2357. A Person who loses his license for one location does not lose it for all locations, if those locations are in compliance with this Article, and may renew licenses for other conforming locations. A Person cannot obtain a new license for a new location so long as there is a suspension in effect for any location. (1) NOTICE REQUIRED. The licensee shall be served with written notice of all determinations or decisions under this Section affecting his or her license. Notice shall be served by personal service, overnight courier, certified mail return receipt requested, or U.S. Mail with First Class postage affixed. The notice shall be sent to the Authorized Address. All notices shall be deemed served, when received, except for notices sent by first class mail which shall be deemed served two days after deposit in the U.S. Mail if addressed to a location within Mendocino County and five days if addressed to a location outside Mendocino County. The notice shall describe the legal and factual basis for the decision. A decision imposing a fine shall specify the amount of the fine. A decision to suspend or revoke a license shall specify the beginning and ending dates of the suspension or the effective date of the revocation. No decision shall become effective in less than 10 days from the date of service. (2) DURATION OF SUSPENSIONS. i. Upon a finding by the Department of a first license violation within any thirty-six (36) month period, the license shall be suspended for fourteen (14) days. However, prior to imposing the suspension, the Department shall by letter (an "Advice Letter") advise the Person that if Person trains all sales employees at the location of the sale in the laws pertaining to the sale of tobacco products to minors and techniques to ensure future compliance with said laws, the suspension will not go into effect. Within 30 days of the issuance of the Advice Letter, the Person must file with the Department an affidavit signed by the Person and the sales employees that said training has been completed. If the Person fails to timely submit the affidavit, the Department shall notify the Person that the permit is suspended for 14 days. ii. Upon a finding by the Department of a second license violation within any thirty-six (36) month period, the license shall be suspended for twenty-one (21 ) days. iii. Upon a finding by the Department of a third license violation within any thirty-six month (36) period, the license shall be suspended for thirty (30) days. ORDINANCE NO. 6 iv. Upon a finding by the Department of a fourth license violation within any thirty-six (36) month period, the license shall be revoked and the Person or Persons who had been issued the license shall not be issued a Tobacco Retailer's license pursuant to this Article for a period of three (3) years from the date of revocation. (b) FAILURE TO PAY RENEWAL FEES. A Tobacco Retailer's license which is not timely renewed pursuant to Section 2352(b) is an expired license. The Tobacco Retailer shall not engage in Tobacco Retailing at the licensed location until a new license has been issued for that location. (c) REVOCATION OF LICENSE ISSUED IN ERROR. A Tobacco Retailer's license shall be revoked if the Department determines that one or more of the bases for denial of a license under Section 2353 existed at the time application was made or at anytime before the license issued. The revocation shall be without prejudice to the filing of a new application for a license. (d) LICENSE SUSPENSION REQUIRES THE REMOVAL OF ALL TOBACCO PRODUCTS FROM PUBLIC VIEW. A Tobacco Retailer whose license is suspended must remove from public view all Tobacco Products and tobacco advertising for the duration of the suspension. Failure to remove such items from view will be regarded as a violation of this ordinance equivalent to that of selling to minors. (e) REVOCATION OF LICENSE OBTAINED UNDER FALSE PRETENSES. Tobacco Retailers whose license is obtained under false pretenses shall have that license revoked. A licensee whose license is revoked pursuant to this subsection may not apply for a new license for a period of one year from the date the license is revoked. §2359: ADMINISTRATIVE FINE. (a) GROUNDS FOR FINE. If the Department determines that any unlicensed person, including a person named on a revoked or suspended license, has engaged in Tobacco Retailing in violation of this Article, the Department shall fine that Person as follows: 1. a fine not exceeding one hundred dollars ($100) for a first violation in any thirty-six (36) month period; or 2. a fine not exceeding two hundred dollars ($200) for a second violation in any thirty-six (36) month period; or 3. a fine not exceeding five hundred dollars ($500) for a third or subsequent violation in any thirty-six'(36) month period. Each day that such a Person engages in Tobacco Retailing shall constitute a ORDINANCE NO. 7 separate violation. (b) IMPOSITION OF FINE. If no request for a hearing is timely received in accordance with Section 2360, the Department's determination on the violation and the imposition of a fine shall be final and payment shall be made within thirty (30) days after notice of the fine was served in accordance with Subsection 2358(a)(1 ). If the fine is not paid within that time, the fine may be collected, along with interest at the legal rate, in any manner provided by law. In the event that a judicial action is necessary to compel payment of the fine and accumulated interest, the Person or Persons subject to the fine shall also be liable for the costs of the suit and attorney's fees incurred by the City in collecting the fine. §2360: GRIEVANCE COMMITTEE APPEALS: (a) APPEAL OF FINE, SUSPENSION OR REVOCATION. A decision of the Department to impose a fine or to revoke or suspend a license may be appealed to the Grievance Committee. The Appellant must file a written notice of appeal with the Department within ten (10) days after service of the notice of the decision. Failure to file a timely notice of appeal waives any right to further challenge the Department's decision. "File" means delivered to the City Manager's office in the Ukiah Civic Center at 300 Seminary Ave., Ukiah, CA. The filing of a notice of appeal automatically stays the Department's decision, until the Grievance Committee has served its final decision on the appeal. The Committee may reverse, modify or uphold the Department's decision. (b) NOTICE OF HEARING. If a notice of appeal is timely filed, the Department shall provide written notice to the Appellant of the date, time, and place of the hearing in the manner specified in Subsection 2358(a)(1). A hearing may not be conducted less than twenty (20) days after notice is given to the Appellant. (c) HEARING. The Grievance Committee may adopt rules governing the conduct of its hearings. Those rules shall include, at least, the following: 1. The Department shall submit evidence at the hearing substantiating its decision. Such evidence may include testimony, police or other reports of the incident, witness statements and other documents. Not less than 10 days prior to the scheduled hearing, the Department must notify the Appellant of the name, address and phone number of any witness to the violation, and furnish Appellant with a copy of any document it intends to submit at the hearing. Not less than seven (7) days prior to the hearing, the Appellant may request the Department to produce at the hearing any witness the Department intends to rely upon to substantiate the violation. The written request must name the witness or witnesses who are requested to attend the hearing. The Department may not rely on the testimony of any witness (including such testimony contained in reports or written witness statements) whose appearance at the hearing is required by this subsection, if that witness fails to appear. ORDINANCE NO. 8 2. Not less than 10 days prior to the hearing, the Appellant must notify the Department in writing of the name, address and phone number of any witness the Appellant intends to call as a witness at the hearing, provide a brief description of the proposed testimony, and furnish the Department with a copy of any document the Appellant intends to offer as evidence at the hearing. The Appellant may not call any witness to testify at the hearing who was not identified as required by this subsection or offer any document as evidence at the hearing that was not provided to the Department as required by this subsection. 3. At the hearing, the Appellant may be represented by an attorney, at Appellant's expense. Both the Department and the Appellant shall have the right to examine and cross-examine any witness produced at the hearing. The rules of evidence that normally apply in court shall not apply in a hearing before the Committee, but the Grievance Committee shall only consider evidence which would be relied upon by reasonable people making an important decision, and shall disregard evidence which by its nature is unreliable or not credible. 4. The entire hearing shall be electronically or stenographically recorded. The Grievance Committee shall base its decision exclusively on the evidence presented at the hearing and shall issue a written decision, which includes a statement of the relevant facts which the Committee finds to be true and explains how the facts support its decision. For example, if the Department finds that the Appellant sold cigarettes to a minor, but this was the first violation committed by the Appellant within 36 months, the decision would explain that Section 2358(a)(2)i requires a 14 day suspension of the Appellant's license to sell Tobacco Products at the licensed location, and on that basis the facts support a 14 day suspension of the license for that location. The record of the hearing shall be preserved for not less than six months after the decision is served on the Appellant. (d) HEARING DECISION. The chairperson of the Grievance Committee shall issue the written decision required by subsection 4, above. Copies of the decision shall be served in accordance with Subsection 2358(a)(1). The hearing decision shall include notice of the Appellant's right to seek review of the decision pursuant to California Code of Civil Procedure Section 1094.5 and 1094.6, including the statute of limitations for seeking review pursuant to Section 1094.6. (e) FINALITY OF THE GRIEVANCE COMMITTEE'S DECISION. The decision of the Grievance Committee shall be the final decision for the City of Ukiah. (g) APPEAL TO SUPERIOR COURT. Judicial review of the Grievance Committee's decision shall be governed by the Code of Civil Procedure Sections 1094.5 and 1094.6. (h) ENFORCEMENT OF DECISION. Unless stayed by a court, any final decision of the Grievance Committee is effective immediately and may be implemented and enforced by the Department. ORDINANCE NO. 9 2361: ENFORCEMENT. The remedies provided by this Article are cumulative and in addition to any other remedies available at law or in equity. (a) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this ordinance shall constitute a violation. (b) Violations of this Article are hereby declared to be public nuisances. (c) Violations of this Article are hereby declared to be unfair business practices and are presumed to at least nominally damage each and every resident of the community in which the business operates, (d) A violation of this Article constitutes a misdemeanor punishable by a fine of $1,000 or by imprisonment in the County jail for six months, or both. (e) In addition to other remedies provided by this Article or by other law, any violation of this Article may be remedied by a civil action brought by the City Attorney or the District Attorney, including, for example, administrative or judicial nuisance abatement proceedings, other legally authorized enforcement proceedings, and suits for injunctive relief. SECTION THREE. 1. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Ukiah hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. 2. 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 October 19, 2005, by the following roll call vote: ORDINANCE NO. 10 AYES: NOES: ABSENT: ABSTAIN: Councilmembers Crane, McCowen, Rodin, Baldwin, and Mayor Ashiku None None None Adopted on ,2005 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Mark Ashiku, Mayor ATTEST: Marie Ulvila, City Clerk ORDINANCE NO. 11 AGENDA ITEM NO: 6§ MEETING DATE: November 2, 2005 SUMMARY REPORT SUBJECT: NOTIFICATION TO THE CITY COUNCIL ON EXPENDITURE IN THE AMOUNT OF $9,990 TO MENDOCINO ROOFING INC. FOR THE REPAIR AND REPLACEMENT OF ROOF AND GUTTERS ON BUILDINGS AT THE UKIAH REGIONAL AIRPORT In compliance with Section 1522 of the Ukiah City Code, this report is being submitted to the City Council for the purpose of reporting the acquisition of services costing $5,000 or more but less than $10,000. Staff is respectfully submitting notification to the City Council of an expenditure made in the amount of $ 9,990.00 for roofing and gutter replacement/repairs at the Ukiah Airport. In the FY 2005-2006 airport budget, the City Council approved a Building Maintenance program. Airport Staff coordinated with the Ukiah Airport Commission to prioritize the maintenance projects to be accomplished this fiscal year as follows: 1) Repair the Administration building roof. 2) Replace roof on the Old Duster hangar. 3) Add gutters to the Ace Aerial building. The Purchasing Department conducted an informal bid and received two bids of which Mendocino roofing was the lowest for performing these tasks. This replacement/repair work will be funded from the Airport Building & Grounds Maintenance Fund # 600-5001-305 RECOMMENDED ACTION: Receive notification on expenditure in the amount of $9,990 to Mendocino Roofing inc. for the repair and replacement of roof and gutters on buildings at the Ukiah Regional Airport.. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Paul Richey, Airport Manager Paul Richey, Airport Manager Mary Horger, Purchasing Agent none Approved: Candace Horsley, Cit~anager AGENDA ITEM NO: ~ ,/1 MEETING DATE: November 2, 2005 SUMMARY REPORT SUBJECT: ADOPTION OF RESOLUTION AUTHORIZING CITY MANAGER TO DESIGNATE CITY OFFICERS OR EMPLOYEES TO REPRESENT THE CITY WITH AUTHORITY TO EXAMINE TRANSACTIONS AND USE TAX RECORDS OF THE STATE BOARD OF EQUALIZATION PERTAINING TO TRANSACTIONS AND USE TAXES COLLECTED FOR THE CITY. The State Board of Equalization requires a specific resolution of the City Council to allow them to release information to the designated City officials on the collection of the local sales tax approved by the voters in June. Section 7056 of the State Revenue and Taxation Code sets forth certain requirements and conditions for the disclosure of Board of Equalization records and establishes criminal penalties for the unlawful disclosure of information contained in or derived from, the transactions and use tax records of the Board and the officers or employees designated by the City Manager would be subject to these restraints. RECOMMENDED ACTION: Approve Resolution to allow State Board of Equalization to supply local sales tax information to officers or employees designated by the City Manager. ALTERNATIVE COUNCIL POLICY OPTIONS: Disapprove Resolution and provide alternative direction to staff Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: 1) Resolution of the City Council of the City of Ukiah authorizing the examination of transactions (sales) and use tax records Mike McCann, Finance Director Candace Horsley, City Manager Approved''` ~.'/~'~"~~"~ Candace Horsley, City ~anager ATTACHMENT___~ RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH AUTHORIZING THE EXAMINATION OF TRANSACTIONS (SALES) AND USE TAX RECORDS WHEREAS: Pursuant to Ordinance No. 511 of the City of Ukiah hereinafter called City and Section 7270 of the Revenue and Taxation Code, the City entered into a contract with the State Board of Equalization to perform all functions incident to the administration and operation of the Transactions and Use Tax Ordinance; and WHEREAS, the City deems it desirable and necessary for authorized representatives of the City to examine confidential transactions and use tax records of the State Board of Equalization pertaining to transactions and use taxes collected by the Board for the City pursuant to that contract; and WHEREAS, NOW, THEREFORE IT IS RESOLVED AND ORDERED AS FOLLOWS: Section 1. That the Finance Director, City Manager or other officer or employee of the City designated in writing by the City Manager to the State Board of Equalization (hereafter referred to as Board) is hereby appointed to represent the City with authority to examine transactions and use tax records of the Board pertaining to transactions and use taxes collected for the City by the Board pursuant to the contract between the City and the Board. The information obtained by examination of Board records shall be used only for purposes related to the collection of the City's transactions and use taxes by the Board pursuant to the contract. Section 2. That MBIA Muniservices Company is hereby designated to examine the transactions and use tax records of the Board of Equalization pertaining to transactions and use taxes collected for the City by the Board. The person or entity designated by this section meets all of the following conditions: a) has an existing contract with the City to examine those transactions and use tax records; b) is required by that contract to disclose information contained in, or derived from those transactions and use tax records only to the officer or employee authorized under Section 1 (or Section 2) of this resolution to examine the information; c) is prohibited by that contract from performing consulting services for a retailer during the term of that contract; d) is prohibited by that contract from retaining the information contained in, or derived from those transactions and use tax records after that contract has expired. -1- BE IT FURTHER RESOLVED that the information obtained by examination of Board records shall be used only for the purposes related to the collection of City's transactions and use taxes by the Board pursuant to the contracts between the City and Board. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Ukiah on the 2nd day of November, 2005, by the following roll call vote: AYES: NOES: ABSENT ABSTAIN ATTEST: Mark Ashiku, Mayor Marie Ulvila, City Clerk -2- ITEM NOS.: 8a DATE: November 2, 2005 AGENDA SUMMARY REPORT SUBJECT: CONTINUANCE OF MINOR SUBDIVISION MAP-SUBDIVISION REQUIREMENT EXCEPTION-VARIANCE NO. 05-19 SUMMARY: On October 19th, the City Council conducted a public hearing on the Meaux Minor Subdivision Map-Subdivision Requirement Exception project, and received considerable public testimony from the applicants and members of the public. The Council then continued the project after being informed that the Planning Commission's decision to approve an associated Variance application had been appealed to the Council. The Council desired to consider and take action on all components of the project at the same meeting. It was intended that the projects would be heard by the Council at its November 2nd meeting, but staff is now requesting that these items be continued to the November 16, 2005 meeting. Staff is working with the City Attorney to address the concerns and issues raised at the October 19th meeting, and additional time is needed to complete this work. Staff has advised the applicant and interested parties of our request for continuance. RECOMMENDED ACTION: Continue the items to the November 16, 2005 City Council meeting. ALTERNATIVE COUNCIL POLICY OPTION: N/A Citizen Advised: Courtesy Notice to Neighboring Property Owners Requested by: N/^ Prepared by: Dave Lohse, Associate Planner Coordinated with: Candace Horsley, City Manager and Diana Steele, City Engineer Attachments: None APPROVED: Ca~d~e Horsley, City Ma'i~ager AGENDA ITEM NO: 8b MEETING DATE: November 02, 2005 SUMMARY REPORT SUBJECT: ADOPTION OF RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH REVISING AND MODIFYING RATES FOR THE SEWER SERVICE FOR THE FISCAL YEARS 2005-2006 (COMMENCING DECEMBER 1, 2005) THROUGH 2009-2010. A joint meeting was held on September 14, 2005 with the City Council and Ukiah Valley Sanitation District Board of Directors to present a plan to update the City and District sewer Rate Schedule. The plan will generate the revenue necessary to support bond financing for the wastewater treatment plant Rehabilitation and Capacity Addition Project and other capital expenses. The plan established pricing based on volume and content of wastewater discharges. Annual rate increases included in the new Rate Schedule provide funding for operation and maintenance of the wastewater system as well as repayments of the construction bonds. On September 16, 2005 notices were mailed to affected parties, announcing a public hearing on these proposed rate changes, in accordance with Proposition 218. Representative from Bartle Wells Associates ("BWA") a public finance advisory firm specializing in wastewater system financing and rate setting issues will be available to answer questions from the Council and public. RECOMMENDED ACTION: Conduct a public hearing and then adopt Resolution revising and modifying rates for the sewer service for the fiscal years 2005-2006 (commencing December 1,2005) through 2009-2010. ALTERNATIVE COUNCIL POLICY OPTIONS: Provide alternative direction to staff Citizens Advised: Published in Ukiah Daily Journal October 23, 2005, direct mail to property owners and rate payers on September 16, 2005 Prepared by: Mike McCann, Finance Director Coordinated with: Candace Horsley, City Manager Attachments: 1. Proposed Resolution revising and modifying rates for the sewer service 2. BWA PowerPoint presentation presented September 14, 2005 Approved: Candace Horsley, City Manager ATTACHMENT._/=._ RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH REVISING AND MODIFYING RATES FOR THE SEWER SERVICE WHEREAS, 1. The City of Ukiah operates and maintains a wastewater collection and treatment system and; 2. A report City of Ukiah Sewer Utility Rate Study (October 2005) (hereinafter referred to as "Rate Study") has been available for public inspection in advance of the hearing on the proposed rate changes and presents a comprehensive analysis of the sewer utility's rate structure; and 3. The City Council considered the proposed changes on September 14, 2005; and 4. The City Council provided written notice by mail to sewer utility customers and owners of parcels of real property potentially affected by the proposed changes of a hearing on the proposed changes at least 45 days in advance of the hearing; and 5. The City Council conducted a public hearing concerning the proposed rates on November 2, 2005, and heard and considered public comment on the proposed rates at said public hearing; and 6. The City Council did not receive written protests prior to or during the hearing from a majority of the property owners potentially affected by the proposed changes; and 7. The City Council has determined that the changes are required to cover the costs of providing sewer service and to fairly apportion those costs based on cost of serving the customer; NOW, THEREFORE, BE IT RESOLVED that: 1. This Resolution supercedes and replaces any prior resolutions establishing sewer rates in the City of Ukiah. 2. Pursuant to Ukiah City Code ("UCC") Section 3707.-1, this resolution modifies and changes the following sections contained in Chapter 2, Article 8, Division 4 of the UCC: Sections 3707.4, 3707.5, 3707.7, 3707.8, and 3707.9. If there is any conflict or inconsistency between those sections or any other provisions of Article 8 and this Resolution, the provisions of this Resolution shall prevail over the inconsistent or conflicting provisions in those sections. Section 3707.1 provides, in pertinent part: The rates set forth in Article 8, entitled: Sewer Service Charges, "... shall be subject to modification and change which may be made by resolution of the City Council." 3. The City Council of the City of Ukiah sets the following sewer rates: ARTICLE I, GENERAL Section 1.1 PURPOSE. (A) Revenue. The purpose of the sewer rates is to raise revenue for the cost of providing sewer service. Cost of service includes the cost of operation and maintenance of the City of Ukiah sewer utility used for the collection, treatment and disposal of sewer effluent and payment of principle and interest on debt used to finance capital projects. (B) Resolution. The purpose of this resolution is to establish a method of sharing the cost of service among the users of the sewer system. (C) Territory. All areas served by the City of Ukiah Sewer Utility, not including territory served by the Ukiah Valley Sanitation District. ARTICLE II, RATES Sewer Rates (1) Sewer bills are based on consumption. (2) "Consumption" means the amount of water used in the month of January as measured by the water meter at the location of the sewer service. (3) Water use is measured in units of one hundred cubic feet ("hcf"). One hcf equals 748 gallons. (4) Each unit of consumption is billed at the consumption rate for the customer category/group. (5) Customer categories/groups - Sewer customers are classified as Residential, Commercial or Industrial based on the content/strength of their discharge as established by industry standards and Regional Water Resources Control Board guidelines. a. Determination of customer classification: The Public Utilities Director shall determine the classification of sewer customers following industry standards and Regional Water Resources Control Board guidelines. b. Monitoring of discharge: The Public Utilities Director may monitor the discharge of customers to determine the appropriate classification and/or to establish a Special rate for commercial and industrial users. (6) Unit rate established by category - Unit sewer rates for each customer category/group are based on the cost of treating each unit of effluent for that category. (7) Monthly fixed/minimum service charge - all customers pay no less than the fixed/minimum service charge. Customers, regardless of classification, whose consumption times the unit rate for their customer group falls below the fixed/minimum service charge pay the published fixed/minimum service charge. (8) Sewer unit rates and fixed/minimum service charges are presented in Table 1. Table 1 City of Ukiah Sewer Utility - Sewer Unit Rates & Fixed/Minimum Service Charge Sewer Rates FY 2005/06 to 2009/10 Sewer Rates Effective: Dec 1~ 2005 July 1~ 2006 July 1~ 2007 July 1~ 2008 July 1~ 2009 2005/06 2006/07 2007/08 2008/09 2009/10 Typical SFR (1) $28.00 $38.00 $43.00 $55.00 $62.90 Residential Rates Fixed/minimum (per month per dweling) $20.97 $28.43 $32.26 $41.31 $47.18 Consumption unit rate ($/hcf) 0.82 1.12 1.27 1.62 1.85 Commemial Rates (2) Low strength unit rate ($/hcf) Moderate strength unit rate ($/hcf) Medium strength unit rate ($/hcf) High strength unit rate ($/hcf) Special (3) 3.29 4.46 5.06 6.48 7.40 3.51 4.77 5.41 6.92 7.91 6.22 8.44 9.57 12.24 13.99 8.01 10.87 12,32 15.77 18.02 I - Projected monthly bill for a typical single family residence with January water use of 8.5 hcf 2 - Commercial customers are charged for consumption times the unit rate but no less than the residential fixed/minimum monthly rate 3 - Determined on a case-by-case basis PASSED AND ADOPTED at a regular meeting of the City Council of the City of Ukiah on the 2nd day of November, 2005, by the following vote: AYES: NOES: ABSENT ABSTAIN APPROVED: ATTEST: Mark Ashiku, Mayor of the City of Ukiah Marie Ulvila, City Clerk C:~ CZ) C~l 0 >., 0 '- 0 > o c: E c~ '~. ~ ~ 0 - Z~ / c~ C~ '0 0 m m '~- 0 (D ~ 0 (Da. (D C 0 (D 0 C 0 (D 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0'~ -~ C C C 0 c (D C C i I c~ 0 0 0 0 0 0 0 0 0 0 0 E LIJ c~ I i 0 0 0 0 0 0 0 0 c 0 OIJ.. 0 ii 0 0 0 0 0 0 AGENDA ITEM NO: ,~'~ MEETING DATE: November 02, 2005 SUMMARY REPORT SUBJECT: INTRODUCTION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH AMENDING SECTION 3707.1 OF THE UKIAH CITY CODE REQUIRING SEWER SERVICES TO BE CHARGED TO THE CUSTOMER RECEIVING WATER SERVICES A joint meeting was held on September 14, 2005 with the City Council and Ukiah Valley Sanitation District Board of Directors to present a plan to update the City and District sewer Rate Schedule. The plan established rates based on volume and the character of wastewater discharges for residential as well as commercial accounts. Under the plan sewer services charges are based on water consumption in the month of January as measured by the water meter serving that sewer service location. The plan includes additional changes to the rate structure, including the requirement that the customer liable for water service as measured by a water meter will be liable for the sewer service charges based on water consumption as measured by the same meter. In most cases, this will make the property owner liable for sewer service charges for sewer service to multiple units served through a master water meter. This same approach was recently incorporated by the City Council into the rate structure for water service. The City Code sections governing sewer service do not currently specify who is required to apply and assume financial responsibility for the monthly charges for sewer RECOMMENDED ACTION: Conduct the public hearing and introduce by title only the ordinance of the City Council of the City of Ukiah amending section 3707.1 of the Ukiah City Code ALTERNATIVE COUNCIL POLICY OPTIONS: Provide alternative direction to staff Citizens Advised: Published in Ukiah Daily Journal October 23, 2005, direct mail to property owners and rate payers on September 16, 2005 Prepared by: Mike McCann, Finance Director Coordinated with: Candace Horsley, City Manager Attachments: 1. Proposed ordinance of the City Council of the City of Ukiah amending section 3707.1 of the Ukiah City Code Approved: ~~"-~Ce H~~o rsl e'~y, i Canda ty Manager service. This proposed ordinance adds language to section 3707.1 of the Code to address this issue and provide the legal authority to impose this requirement. The consultants to the City on these sewer rates and City staff are recommending this change to the rate structure for sewer service charges for the following reasons: 1. The City already changed its water ordinance and water rate structure to make the property owner pay the water bill for a master meter serving multiple units. The City Council has already approved this approach, and the water and sewer bills should work the same in this regard, since sewer fees are based on water use. 2. Landlords are already paying the water bill for master meters. 3. The City and the Ukiah Valley Sanitation District have had a high default rate (10%) by customers of the sewer service. This high default rate will lower the City's credit rating and increase its borrowing costs, when it issues bonds to pay for the W astewater Treatment Plant Upgrade Project. Making the landlord pay for sewer service will lower that default rate, thereby improving the credit rating for this financing and lowering the borrowing cost. This will benefit all ratepayers. With the higher than expected bid for the upgrade and expansion project, there is little room to absorb higher financing costs, if the default rate does not come down. It makes sense from a policy standpoint to impose the cost of the default rate on the landlord rather than on all ratepayers. The landlords can pass that cost through to their tenants through the rents they charge. In this way, all ratepayers do not end up assuming this cost. 4. Proposition 218 requires that the fee for a property-related service shall not exceed the proportional cost of providing that service to ratepayer. (Cal. Const., Art. 13D, §6(b)(3). ) The most accurate way to do that is to charge based on the actual water meter reading for water consumed on that parcel. Any method of allocating water consumption to multiple units on a parcel served through a master water meter is inherently less accurate, because the allocation must be based on an assumption that will not be true in every case. For example, if the water consumption is allocated by dividing the meter reading by the total number of units, the assumption is that each unit uses the same amount of water. That is obviously not always true. If the allocation were based on the number of bedrooms, the assumption would be that more people live in units with more bedrooms. The problems associated with allocating water consumption in non-residential property are even more complex. A landlord can pass on the costs for sewer service in any way he wants. Proposition 218 does not apply to the landlord. 5. The Proposition 218 notice mailed to sewer customers included an explanation of the proposed change, regarding master water meters. If billing tenants receiving water through a master water meter is retained (rather than changed as stated in the notice), those tenants could complain about being mislead by the notice. The City is going to issue bonds based on the rates set at this hearing. It doesn't want any defect in the process that might adversely affect the bond issuance. Attachment ~ll / ----- IIIII · I ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH AMENDING SECTION 3707.1 OF THE UKIAH CITY CODE The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE Section 3707.1 of the Ukiah City Code is hereby amended to read as follows: §3707.1: RATES: The rates set forth hereafter shall be the rates for all premises connected to public sewers within or under the jurisdiction and control of the City. These rates shall be subject to modification and change which may be made by resolution of the Council. These rates, although stated on a monthly basis, may be billed monthly, bi-monthly, or quarterly as determined from time to time by the Council. Charges for sewer services to any premises connected with the City Water and/or Electric Systems shall be collected together with, and not separately from, the charges for services to said premises, and shall be billed upon one bill and collected as one item. The Customer who applied for and assumed the obligation to pay for water service to the property is the person liable for sewer charges to the property served by that water service. In the case of multiple units served by a master water meter, one person or entity, such as the property owner, shall pay for and assume liability for sewer service to that property. This requirement shall not prevent tenants in a multi-unit residential property from exercisinq their rights under Public Utilities Code Section 10009.1, including their option to become utility customers in accordance with the requirements of that section, to whom the service will then be billed, without being required to pay the amount due on the delinquent account. Each premises or user connected to the public sewage system shall be classified under one of the following user categories and shall be subject to the rates specified for such category. Premises or users which are susceptible to classification under two (2)-or more of such user categories shall be specially classified by City and shall be subject to rates established by City which shall allow for a reasonable usage allocation. [Underlined text added.] SECTION TWO ORDINANCE NO. 1 1. SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. The City Council hereby declares that it would have adopted this Ordinance and any section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional or otherwise invalid. 2. 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 ,2005, by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Adopted on ,2005 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Mark Ashiku, Mayor ATTEST: Marie Ulvila, City Clerk ORDINANCE NO. 2 ~EM NO. 9.a DATE: November 2, 2005 AGENDA SUMMARY REPORT SUBJECT: DISCUSSION OF CONFLICT OF INTEREST IN FORMULA BUSINESS AND FORM BASED ZONING MATTERS SUMMARY: The Fair Political Practices Commission has issued a written opinion responding to conflict of interest questions submitted by Council member John McCowen. His questions arise out of his ownership of several parcels of property in or within 500 feet of the downtown business improvement district, Perkins Street or Gobbi Street. These are the areas that could be affected by a moratorium on "formula businesses," which the City Council has discussed and by "form-based zoning" which the City Council plans to consider. Because other City Council members also own interests in real property in or within 500 feet of these areas, I was asked to review that opinion and discuss the impact of the opinion on the ability of City Council members to participate in the discussion or adoption of a moratorium on formula businesses in these areas or the adoption of form-based zoning for these areas. I read the FPPC opinion and I have discussed the opinion with its author, Emelyn Rodriguez, Counsel, FPPC Legal Division. CONCLUSION Council members who own property in the downtown or on the "Gateway Streets" (Perkins and Gobbi) or within 500 feet of those areas will have a conflict of interest with respect to the interim moratorium on formula businesses or the adoption of form-based zoning for those areas. If the existence of the conflict prevents the City Council from having enough council members to make a decision, then the City Council may select randomly enough Council members with a conflict to make up the minimum number required to make a decision. Continued on Page 2 RECOMMENDED ACTION: Discuss and provide direction to staff ALTERNATIVE COUNCIL POLICY OPTIONS: N/a Citizen Advised: Requested by: Prepared by: Coordinated with: Attachments: APPROVED: N/a City Council David ]. Rapport, City Attorney N/a October 5, 2005, Open No. A-05-179 Candace Horsley, City Man~er Page 2 of 4 Since the interim moratorium must be approved by a 4/5 vote of the City Council, a total of four council members can participate in the decision on imposing an interim moratorium on formula businesses. The formed based zoning can be approved by three council members as can permanent regulations for formula businesses. Those selected will have to announce at the public meeting that they have a conflict, describe the nature of the conflict and provide the address for each property that is directly affected or within 500 feet of the area affected. :If the property is the council member's residence, the address need not be disclosed. As to future decisions, this same conflict will exist, unless the "zoning code amendment" exception (discussed below) applies. The zoning amendment exception will only apply if the measure being considered by the City Council amends a specific zoning rule already part of the zoning ordinance and the amendment affects all properties within a particular zoning category in the same way. ]:f the amendment effects only a specific location or area of the City or a particular group of properties within a particular zoning category, it will not come under the exception. DtSCUSStON The FPPC opinion reports that Council member McCowen owns eight properties in different areas either within the downtown or within 500 feet of downtown or the Gateway Streets (Perkins and Gobbi Streets). All of these are rental properties. As a result, the Commission concludes that he has several economic interests which could be materially affected by the decision: interests in real property; interests in sources of income; and interests in rental businesses. As a result, his potential conflict of interest is not only analyzed based on the material financial effect of the decision on his real property interests but also on these other interests, although the Opinion focuses on his real property interests and only notes the other interests in passing, because it concluded that he would have a conflict based on his interests in real property alone. The analysis is also affected by the number of properties. The Commission opinion concludes that the Council member may never qualify for the "public generally" exception, even if the decision affected the whole City. According to Commission Legal Counsel Rodriguez, to qualify for the public generally exception, the Council member must satisfy two requirements: (1) the decision must affect a substantial number of the general public and (2) the decision must affect the Council member's interest in the same way as it affects a substantial number of the general public. The 10% rule addresses the first requirement, but if a Council member owns multiple properties, it would be much more difficult to establish that the Council member is affected in the same way as other members of the general public, even where the decision could affect more than 10% of the parcels in the City. Consequently, the conflict analysis for Mayor Ashiku and the other Council members may be somewhat different, depending on what specific properties they own, what those properties are used for and where they are located. For example, IVlayor Ashiku Page 3 of 4 reportedly owns his professional office. That means he has a real property interest, but also the property is a source of income and it is a business interest. Like councilmember IvlcCowen, he may have three different economic interests that could be affected by the decision. If the financial effect of the decision is considered "direct," a presumption exists that the effect is material. The official would have to prove that the decision could not affect the value of his property, even by one penny. This standard makes a finding of direct effect tantamount to a finding of a conflict of interest. If the financial effect of the decision is indirect, the presumption is that the effect is NOT material. If a property is located within an area the decision is about or within 500 feet of that area, the effect of that decision is considered direct, unless the decision "solely concerns the amendment of an existinq zonin_q ordinance or other land use regulation (such as changes in the uses permitted, or development standards applicable, within a particular zoning category)." The amendment of existing zoning ordinances is considered an exception to the direct effect rule. As an exception, the Commission says it should be "construed narrowly." According to Commission Counsel Rodriquez, this narrow construction rule has been the basis for numerous Commission opinions over a period of many years. The Commission concludes that in this case the exception does NOT apply to the form based zoning issue, because there is no existing form based zoning ordinance to amend, even though adoption of rules providing for form-based zoning would necessarily amend the existing zoning rules. Construing the exception narrowly again, the Opinion says that the exception does not apply to the formula business moratorium, because it would only apply in the downtown and on the Gateway streets; not to all properties "within a particular zoning category," such as all C-1 property in the City. Commission Counsel Rodriquez says that this application of the zoning amendment exception is dictated by the Commission's long-standing interpretation of its regulation as reflected again in numerous Commission opinion letters. As long-standing interpretations of the regulations the Commission is empowered by law to adopt and administer, its interpretation will be accorded "great weight" by the courts and would only be overturned, if clearly in conflict with the statutes the Commission is required to administer. As a result, if any Council member owns real property (and especially income producing or rental property) that is directly affected by a zoning decision or within 500 feet of an area affected by the decision, and the zoning amendment exception (as narrowly construed by the Commission) does not apply, the presumption of a material financial effect (and, therefore, of the existence of a conflict of interest)applies. The zoning amendment exception will only apply if the measure being considered by the City Council amends a specific zoning rule already part of the zoning ordinance and the amendment affects all properties within a particular zoning category in the same way. If the amendment effects only a specific location or area of the City, it will not come under the exception. Page 4 of 4 Based on all of this, my conclusion is that the minimum number of council members needed to make a decision can participate. Among those conflicted council members enough to make up that number must be selected at random. For the interim moratorium decision, the minimum number is 4. For the other decisions, the minimum number is 3. Once those members have been randomly selected, the following applies: 1. Each council member with a conflict must disclose on the record of the meeting when he or she first participates in the consideration of the issue the nature of the conflict, and the location of each property creating the conflict (except for his or her residence); 2. Once selected the Council member may participate in all discussions and decisions concerning that issue. This result appears to be required by the Commission's existing regulations. :If the City Council wants to change these rules, it could explore ways to get the Commission to create a special rule for small cities. As an example, the Commission has in the past considered reducing the 500 foot rule for small jurisdictions. The Council could do this directly or possibly through the League of California Cities. Attachment # FAIl[ POLITICAL PRACTICES COMMISSION 4It I tTKI[I~T, iUITI~ SACRAMENTO, CA 95814 PHONE; (716) 322-5660 FACSIMILE(LEGAL DIVISION): (916) 327-2026 FACSIMILE TRANSMITTAL SHEET To: John McCowen & Doug Rene Dennis Uldah City Council Member Senior Legal Typ~ COMPANY: DATE: 10/05/05 FAX NUMB'ER: TO fAL NO. OF PAGES INCLUDING COVER: (707) 462-3013 51 PHONE NUMB£1L SENDER'S ILE~:ERENCE NUMBER: (707) 462-3210 RE: YOUR ILEFF..ILENCE NLFMBER~ Advice Letter A-05-179 ri URGENT [] FOR REVIEW r'] PLEASE coMMENT [] PLEASE REPLY [] PLEASE RECYCLE NOTES/COMMEN'rS: Hard coW to follow in the mail. IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL (916) 322.5660. F^IR P OLIT~C^L ,PR^c~,~c£s~.C OMM~SS~ON 428 J Street · Suite b20 · Sacramento, CA" 9581,1-2329 (916) 322-5660 · Fan' (916) 322-0886 October 5, 2005 John McCowen Ukiah City Council Member 300 Seminary Avenue Ukiah, CA 95482-5400 Re: Your Request for Advice Our File No. A-05-179 Dear Mr, McCowen: : This letter is in response to your request for advice regarding the conflict-of- interest provisions of the Political Reform Act (the "Act").~ Please note, the Commission will not advise with respect to past conduct, (Regulation 18329Co)(8)(A), Copy enclosed.) Therefore, nothing in this letter should be construed to evaluate any conduc~ that may have already taken place, and any conclusions contained herein apply only to prospective actions. Our advice is based on the facts presented in your request; the Conunission does not act as a finder of fact when it provides advice, (In re Oglesby (1975) I FPPC Ops. 71.) QUESTIONS 1. May you, as an owner of properties within the Downtown Parking and Business District and Benefit Zone, and the "Gateway" streets (Perkins and Gobbi streets), participate in decisions involving an urgency ordinance,imposing a moratorium on "formula businesses" in that area of the city? 2. May you, as owner ofpropertics in the affected area, participate in Ukiah Redevelopment Agency decisions regarding the development of a "form-based" approach to zoning for the Perkins Street "Gateway" and downtown area? o May you, as owner of properties within the redevelopment area, participate in Ukiah Redevelopment Agency decisions regarding an implementation plan that identifies agency activities and projects the agency may be considering during the next five years? ~ Government Code sections 81000 - 91014, Commission regulations appear at Title 2, sections 09-18997, of the California (;ode of R~gulations. · · OCT 05 20¢5 i__ . 15:24 FR FAIR POL PRAC COMM 9iS 327 2026 TO 017074G23013 P.03 FiIe No. A-05-179 Page No. 2 CONCLUSIONS It is presumed that the financial effect of the governmental decision on your properties is material. Therefore, unless this presumption is rebutted or an exception applies, you are disqualified from participating in decisions regarding the decision to place a moratorium on formula businesses if it is reasonably foreseeable that the governmental decision will have any financial effect - even a penny's worth - on your real property. 2. You may not participate in decisions regarding the development of a "form-based" approach to.zoning in the Perkins Street "Gateway" and downtown area because it is presumed that the financial effect of the governmental decision on your properties is material. Therefore, unless this presumption is rebutted or an exception applies, you are disqualified from participating in this decision. 3. You may not participate in decisions regarding the five-year implementation plan identifying future agency activities and projects because the financial effect of the govemmenlal decisions on your properties is presumed to be material. FACTS You are a member of the Ukiah City council, and as such, you also serve as a member of the Ukiah Redevelopment Agency. You have an ownership inlerest in several properties within the city limits including: areas within the downtown Parking and Business District and Benefit Zone; along one of the "Gateway" streets leading into the downtown; and within the city's redevelopment district. You stated in a September 15, 2005 phone call that these districts have areas of overlap. For instance, the entire downtown Parking and Business District and Benefit Zone is within the city's redevelopment district. Every portion of Perkins and Gobbi Skeets - the "Gateway" streets leading to downtown - are also within the city's redevelopment district. However, only part of Perkins Street and none of Gobbi Street is within the city's downtown Parking and Business District and Benefit Zone. In a letter dated September 9, 2005, you included additional information regarding your property interesTM. These interests include: (1) Property #1 on Standley Street, an 800 square foot commercial building located within thc downtown Parking and Business District Benefit Zone, and 250 feet from Perkins Street. This property is currently used as an office/radio station; (2) Property #2, #3 and #4 on Waugh Lane; and Property #5 East Gobbi Street; Two commercial parcels fully developed with a mix of residential and commercial uses, including a 900 square foot office/retail space which is currently used as an office. These OCT ~5 ~05 I__ 15:24 FR FAIR POL PRAC COMM 916 32? 2026 TO 917074623013 P.04 File No. A-05-179 Page No. 3 properties are located within the redevelopment district and are contiguous to Gobbi Street. (3) Property//6 on S. State Street, a commercial parcel developed w/th legal non- conforming residential parcels located outside the city limits. This property is more than 500 feet from any of the areas in the city subject to a governmental decision. (4) Property//7 on W. Clay Street, a residential rental unit that is within 200 feet from the redevelopment district, and more than 500 feet from the downtown area and gateway streets. (5) Property #$ on W. Clay Street, a personal residence that is 200 feet from the redevelopment district, and more than 500 feet fi.om the downtown area and gateway streets. Cit~ Council and Ukiah Redevelo_pment Agency Decisions: Moratorium on Formula Businesses: The city council is considering regulating "formula businesses," which are generally understood to include businesses with multiple stores, each of which is required to use and uses standardized logos, signage, store design, business processes, merchandise or a combination of these things, The city council discussion regarding issuing an urgency ordinance imposing a moratorium on formula businesses within the downtown business district and on "Gateway" streets, Perkins and Gobbi Streets, was placed on the agenda for discussion on July 20, 2005. You and another city council member recused yourselves fi'om any discussion of the proposed moratorium on formula businesses. Further discussion regarding this item was postponed pending a determination regarding your possible conflict of interest in such a decision. Prior to the July meeting, the issue was raised that you may have possible conflicts of interest based on your ownership of property in the affected area. In response, thc city attorney prepared a memorandum dated July 19, 2005, which you included in your request for advice. Thc city attorney's memorandum stated that less than 10% of the parcels in thc city are located in the mca of thc proposed moratorium. Furthermore, the city attomcy's memorandum states that the decision to impose a moratohum requires a 4/5 vote of the city council and if two or more city council members are disqualified from voting on this measure, the city may not have a quorum. Form-based Zoning: It was also brought to your attention that you may also have a possible conflict of interest with regard to decisions before the Ukiah Redevelopment Agency involving the development of a "form-based" approach to zoning for the Perkins Street "Gateway" and Downtown area, which may include revisions to the 1992 Downtown Revitalization .~©CT 05 ~005 15:25 FR FAIR POL PPAC COMM 915 327 2026 TO 917074623013 P.05 File No. A-05-179 Page No, 4 Master Plan. You may have a conflict of interest because members of the city council also serve as members of the Ukiah Redevelopment Agency, and as the owner of property near the Redevelopment District and "Gateway" Streets, you own properties within areas that axe the subject of a governmental decision. This item regarding "form- based" zoning, which was placed on the agenda for July 20, 2005, was continued without discussion. Ukiah currently uses conventional zoning, which involves traditional concerns such as land use and density. Form-based zoning seeks to regulate the form and appearance of buildings. It establishes standards for the aspects of development that a community may seek to emphasize - such as building height, size and shape, the building facades, the location of buildings, its proximity to the sidewalk and street, etc. Under such a plan, "emphasis is on creating a livable physical setting," while the use of buildings is a secondary consideration. On September 21, 2005, you left a message stating that the city council was going to discuss form-based zoning at that evening's city council meeting. You stated you would not participate in the discussions since the issue was the subject of one the questions in your request for advice. You stated in your September 21, 2005 phone call that day, that you "owned property in the area that would be subject to form-based zoning, or would likely be subject to it so should the concept be approved." Thus, these were tentative boundaries that could change. Five- Year Implementation Plan: The city's Redevelopment Agency is also in the process of considering changes to its five-year implementation plan and future redevelopment projects. This plan outlines the history of agency activities and identifies all projects the agency may be considering during the next five-year period. The plan also must state how the proposed projects and expenditures eliminate blight. The purpose of the plan is to communicate to the public the goals and objectives of the agency and outline activities, obligations and potential expenditures of the redevelopment agency. During the plan's life the agency may periodically identify necessary revisions to include projects which have not been previously considered or eliminate projects that the agency no longer wishes to pursue. There are several new and on-going projects which the agency will be considering for inclusion in the updated implementation plan. They are as follows: Circulation and Parking Studies: These studies are not yet complete and projects which will be recommended have not yet been identified in their final form. Parking lot and streetscape improvements are included in the current plan. However, a more detailed description should be included once the specific projects are identified. Downtown Revitalization: Thc downtown revitalization has been a high priority tbr the agency since its inception. These projects include the Faqade improvement program, strut tree plantings, streetscape improvements, and design review. There will be more emphasis on projects in Main and State sweets. OCT ~5 Z~05 15:E5 FR FAIR POL PRAC COMM 9]6 32? 2026 TO 917074623013 P File No. A-05-179 Page No. 5 Ukiah Railroad Depot/MTA Transit Center: Agency members have expressed their interest in working with the Northern California Rail Authority (NCRA) and Mendocino Transit Authority (MTA) toward development of the NCRA depot property, which has been a significant blighted area. Housing Programs: The implementation plan will also identify all potential housing projects or programs. The agency may identify specific infill or currently underdeveloped project sites for a major housing project. Thc five-year implementation plan, which was on the agenda at the city council's June 15, 2005 meeting, was discussed briefly but also continued because it posed similar possible conflict-of-interest concerns. ANALYSIS Conflict-of-Interest Prohibition Your questions implicate thc Act's conflict-of-interest provisions which ensure that public officials "perform their duties in an impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them." (Section 81001(b).) Specifically, section 87100 prohibits any public official from making, participating in making, or otherwise using his or her official position to influence a governmental decision in which the official has a financial interest. A public official has a "financial interest" in a governmental decision within the meaning of the Act, if it is reasonably foreseeable that the governmental decision will have a material financial effect on one or more of the public official's economic interests. (Section 87103; regulation 18700(a).) The Commission has adopted a standard eight-step analysis for deciding whether an individual has a disqualifying conflict of interest in a given governmental decision. (Regulation 18700(b)(1)-(8).) l. Are you a "public official"? As a council member in the city of Ukiah, you are a "member, officer, empIoyee or consultant of a state or local government agency" and are, therefore, a publi'e official subject to the conflict-of-interest provisions of the Act. (Section 82048; regulation 18701(a).) 2. Will you be making, participating In making, or influencing a governmental decision? The conflict-of-interest prohibition covers specific conduct: making, participating in making, or attempting to use one's official position to influence a governmental decision. (Section 87100; regulations 18702-18702.4.) File No, A-05~179 Page No. 6 A public official "makes a governmental decision" when the official, acting within the authorily of his or her office or position, votes on a matter, obligates or commits his or her agency to any course of action, determines not to act because of a conflict, or enters into any contractual agreement on behalf of his or her agency. (Regulation 18702.1.) A public official "participates in making" a governmental decision when he or she, without significant substantive review, negotiates, advises, or makes recommendations regarding a decision. (Regulation 18702.2.) A public official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the decision, the official contacts, or appears before any member, officer, employee, or consultant of his or her agency, (Regulation 18702.3.) By deliberating, voting, committing your agency to a course of act/on, entering into any contractual agreement on behalf of the city- with regard to the proposed ordinance imposing a moratorium on "formula businesses," the development cfa plan for the Perkins Street "Gateway" and downtown area, or the five year implementation plan and future redevelopment agency projects - you will be engaging in activity regulated by the Act, unless an exception applies. (See regulation 18702.4.)2 3. What are your economic interests -- the possible sources of a conflict of interest? Section 87103 p~'ovides that a public official has a "financial interest" in a governmental decision if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable fi.om its effect on the public generally, on the official, a member of his or her immediate family, or on any of the official's economic interests, described as follows: An economic interest in a business entity in which he or she has a direct or indirect investment of $2,000 or more (Section 87103(a); regulation 18703.1 (a)); or in which he or she is a director, officer, partner, trustee, employee, or holds any position of management (Section 87103(d); regulation 18703.1 (la)); 2 Ifa public official is enumerated in section 87200 (including city council members) and he or she has a conflict ofimerest in a decision notie,d at a public meeting, then he or she must: (1) immediately prior to the discussion of the item, orally identify e,~¢h type of economic interest involved in the decision as well as details of the economic interest, as discussed in regulation 18702.5, subdivision (b)(I XB), on the record of the meeting; (2) rccusc himself or herself; and (3) leave the room for the duration of the discussion and/or vote on the item. For closed sessions, consent calendars, absences and speaking as a member of the public regarding personal interests, special rules found in regulation 18702.5, subdivisions (e) and(d) apply. (§ 87105). Since you are a city council member, ~ position enumerated in Section 87200, these requirements apply to you. Pt~;;qC COrIM 916 3~? ;~1~,?..6 TO 9170746230]3 P.OB File No. A-05-179 Page No. 7 An economic interest in realproperty in which he or she has a direct or indirect interest of $2,000 or more (Section 87103(b); regulation 18703,2); An economic interest in any source of income, including promised income, which aggregates to $500 or more within 12 months prior to the decision (Section 87103(c); regulation 18703.3); An economic interest in any source of gifts to him or her if the gifts aggregate to $360 or more within 12 months prior to the decision (Section 87103(e); regulation 18703.4). In addition, a public official always has an economic interest in his or her personal finances, including those of his or her immediate family -- this is the "personal financial effects" rule (Section 87103; regulation 18703.5). Economic interests disclosed in your request for assistan_ce: Real Pmpert3(. Interests: You have disclosed the following realproperty interests: Property # I on W · Standley Street; Property #2, #3, g4 on Waugh Lane; Property #5 on East Gobbi Street; Property #6 on S. State Street,. Property #7 on W. Clay Street,. and Property #8 on W. Clay Street. You have an economic interest in the above real properties provided that you have a direct or indirect interest of $2,000 or more in each. Investment Interests: You have an economic interest in a business entity assuming you have an investment of $2,000 or more in your commercial or other real property rental business. Sources of Income: Based on your facts, you have a number of different sources of income. Your commercial or red property rental business is a source of income if you received income in excess of $500 per year flora thc business and/or if you are employed by the business. In addition, tenants of your real properties and clients fi.om your business interests from whom you have received $500 or more within 12 months of thc governmental decision are considered sources of income under the Act. Personal Finances: You also have an economic interest in your personal finances and those of your immediate family. (Section 87103; regulation 18703.5.) A governmental decision will have an effect on this economic interest if the decision will result in the personal expenses, income, assets or liabilities of the official or his or her OCT ~5 7FJ05 15:~5 FR FAIR POL PRAC COMM TO 9i70746230i3 P.09 File No. A-05-179 Page No. 8 immediate family increasing or decreasing. This economic interest is implicated by virtue of effects on the stream of income you receive fi.om the sources described above. 4. Are your economic interests directly or indirectly involved in the governmental decision? Real Prope~ Interests: Regulation 18704.2(a) states that real pxoperty in which a public official has an economic interest is directly involved in a governmental decision if any of the following apply: "(1) The real property in which thc official has an interest, or any part of that real property, is located within 500 feet of the boundaries (or the proposed boundaries) of the property which is the subject of the governmental decision .... (2) The governmental decision involves the zoning or rczoning, annexation or deannexation, sale, purchase, or lease, or inclusion in or exclusion from any city, county, district or other local governmental subdivision, of the real pxoperty in which the official has an interest or a similar decision affecting the real property .... (3) The governmental decision involves the issuance, denial or revocation of a license, permit or other land use entitlement authorizing a specific use or uses of the real property in which the official has an interest. (4) The governmental decision involves the imposition, repeal, or modification of any taxes or fees assessed or imposed on the real property in which the official has an interest. (5) The governmental decision is to designate thc survey area, to select the project area, to adopt the preliminary plan, to form a project area committee, to certify the environmental document, to adopt the redevelopment plan, to add territory to the redevelopment area, or to rescind or amend any of the above decisions; and real property in which the official has an interest, or any part of it is located with/n the boundaries (or the proposed boundaries) or the redevelopment area. (6) The decision involves construction of, or improvements to, streets, water, sewer, storm drainage or similar facilities, and the real property in which the official has an interest will receive new or improved services." Subdivision Co) provides a number of exceptions to the provisions of subdivision (a). It states that real property in which the official has an interest is indirectly involved in a governmental decision if: ~CT 0~ 2005 15:26 FR FAIR POL PRAC COMM SI6 327 2026 TO 917074623013 P.10 File No. A-05-179 Page No. 9 "(1) The decision' solely concerns the amendment of an existing zoning ordinance or other land use regulation (such as changes in the uses permitted, or development standards applicable, within a particular zoning category) which is applicable to all other properties designated in that category, which shall be analyzed under 2 Cal. Code Rega. Section 18705.2Co)." Decision #1' Moratorium on 'formula businesses" Directly Involved Properties_2.. One of your properties - Property #1 on W. Standley Street - is located within the boundaries (or proposed boundaries) of the Parking and Business District Benefit Zone, the area subject to the governmental decision. Properties #2, #3, and #4 on Waugh Lane; Property//5 on East Gobbi Street are within 500 feet of the "Gateway" streets, areas subject to the governmental decision. Thus, all are considercd "directly involved" absent an exception. Subdivision (b) prov/des exceptions to the provisions of subdivision (a). Regulation 18704.2(b)(1) states that property is deemed indirectly involved if the decision "solely concerns the amendment of an existing zoning ordinance or other land use regulation (such as changes in the uses permitted, or development standard5 applicable, w/thin a particular zoning category) .... " "It is fundamental cannon of statutory construction that exceptions are to be construed strictly and narrowly." (Ascarate Advice Letter, No. A- 04-012; citing Deitsch Advice Letter, No. A-02-129 quoting Ticket Track California, Inc. v. Department of Motor Fehicles (2002) 97 Cal.App.4th 1251; 119 Cal. Rptr. 2d 176.) The zoning and land use decision you presented regarding the adoption of a moratorium on formula businesses do not appear to be "applicable to all other properties designated in that category," but instead, are only applicable to the properties with that zoning designation within the downtown business district and "Gateway" streets. Thus, the exception under regulation 18704.2(b)(1) does not apply, and the above properties are deemed directly involved. Decision #2: Form-based zoning for the Per/a'ns Street "Gateway" and Downtown area: Directly Involved Properties: One of your properties- Property #1 on W. Standley Street - is located in the downtown area, within the boundaries (or proposed boundaries) of the area subject to the governmental decision. (Regulation 18704.2(a)(1).) Properties #2, #3, and #4 on Waugh Lane; and Property #5 on East Gobbi Street are within 500 feet of Gobbi Street, a "Gateway" street subject to the governmental decision. .,?CT 15:26 FR FAIR POL PRAC COMM 916 327 2026 TO 9170746230i3 P.11 File No. A-05-179 Page No. 10 The exception set forth tn subdivision Co)(l) does not apply because there is no existing ordinance or land use regulation subject to amendment. Thus the above properties are deemed directly involved. Decision #3: Five-year implementation Plan: Directly Involved Properties: You listed five properties within the redevelopment district, the area subject to the governmental decisions: Property #1 on W. Standley Street; Property #2, #3, and//4 on Waugh Lane; and Property #5 on East Gobbi Street. Two of your properties - Property #7 and #8 on W. Clay Street - axe within 200 feet from the redevelopment district. Because of their location in, or proximity to, properties or areas that are the subject to the governmental decision, these properties are deemed di~'ectly involved. (Regulation 18702.4(a)(1).) Source. s o/Incomet Investment Interestst and ]:'erxonal Financial E~ects: The facts you provided indicate that your various real property interests are directly involved in the above govcrnmentai decisions, and thexefore would be subject to the "one-penny" rule with respect to disqualification. Because, absent an exception, the real property you own will result in a disqualifying conflict of interest, it is not necessary to discuss whether or not these economic interests form additional bases for your disqualification. 5, Applicable Materiality Standard A conflict of interest may arise only when the reasonably foreseeable impact of a governmental decision on a public official's economic interests is material. (Regulation 18700(a).) Different standards apply to determine whether reasonably foreseeable financial effect on an economic interest will be mater/al, depending on the nature of the economic interest and whether that interest is directly or indirectly involved in the agency's decision. Regulation 18705.2 (a)(1), provides that the financial effect of a governmental decision on real property which is directly involved in the governmental decision is presumed to be material. This presumption may be rebutted only by proof that it is not reasonably tbreseeable that the governmental decision will have any financial effect on the real property -even a penny's worth. 6. Is it reasonably foreseeable that the financial effect of the governmental decision you economic interests will meet the applicable materiality standard? (Does a conflict of interest result?) An effect upon economic interests is considered "reasonably foreseeable" if there is a substantial likelihood that it will occur. (Regulation 18706(a).) A financial effect File No. A-05-179 Page No, 11 need not be certain to be considered reasonably foreseeable, but it must be more than a mere possibility. (In re Thorr, er (1975) I FPPC Ops. 198.) Any financial effect of a governmental decision on real property that is directly involved in the governmental decision is presumed to be material. The Commission does not act as a finder of fact when providing assistance; this assistance is based solely on the facts you provide. (In re Oglesby (1975) 1 FPPC Ops. 71.) Decision #1' Moratorium on 'formula businesses" It is presumed that the financial effect of the governmental decision on your properties is material. You have provided no facts that would suggest the preSumption can be rebutted. Therefore, unless this presumption is rebutted or an exception applies, you are disqualified from participating in decisions regarding the decision to place a moratorium on formula businesses if it is reasonably foreseeable that the governmental decision will have any financial effect - even a penny's worth - on Property #1 on W. Standley Street; Property #2, #3, and #4 on Waugh Lane; and Property #5 on East Gobbi Street. Decision//2: Form-based zoning for the Perth'ns Street "gateway" and Downtown area: It would appear that the purpose of this decision to select an alternative methodology for zoning is to e.a'thance the va/ue, appearance and livability of property in the project area, thus it is reasonably foreseeable that the governmental decision will have a material financial effect on your properties. However, this is a fact-based determination. Therefore, the determination of whether or not it is reasonably foreseeable that the applicable materiality standard will be met is necessarily a factual question that is ultimately for you to decide. Decision #3: Five-year implementation Plan' Directly. Involved Properties' You listed five properties within the redevelopment district, the area subject to the governmental decisions: Property #1 on W. Standley Sweet; Property #2, #3, and #4 on Waugh Lane; and Property #5 on East Gobbi Street. Two of your properties - Property #7 and #8 on W. Clay Slxeet - are within 200 feet from the redevelopment district. Because they are deemed directly involved, it is presumed the effect will be material. Regulation 18709 (copy enclosed) deals with segmentation of decisions, which is a process to separate a decision in which an official has a disqualifying financial interest from another interlinked decision in which he or she may participate. You have not provided any facts to indicate that this provision applies therefore we do not further analyze it. OCT O_s 2505 15:26 FR FAIR POL PRAC COMM 916 327 2026 TO 917074623013 P. 13 File No. A-05-179 Page No. 12 7. The "Public Generally" Exception Even ifa public official determines that his or her economic interest will experience a material financial effect as a result of a decision before the official, he or she may still participate if the "public generally" exception applies to the economic interest triggering the conflict of interest. (Regulation 18707(b)(4).) Regulation 18707.1 (copy enclosed) provides the requirements for the general exception. RegulatiOn 18707.1, subdivision (a) establishes a two-part test for making this determination. Under this test, the mater/al financial effect of a governmental decision on a public official's economic interests is indistinguishable from its efti~ct on the public generally if the decision affects a significant segment of the public generally and the governmental decision will financially affect the public official's interest in substantially the same manner as it will affect the significant segment identified. You have not provided any facts indicating that a significant segment of the public will be affected by the decisions. In addition, you own seven properties within the city of Ukiah. Therefore, you would not be affected in substantially the same manner as other property owners. 8. Legally Required Participation Exception The "legally required participation" role applies when the official's participation in a governmental decision is legally required. (Section 87101; regulation 18708, copy enclosed.) You may wish to contact us for further advice if more than one city council member is disqualified from the above decisions, and the city is prevented from having a quorum. If you have any other questions regarding this matter, please contact me at (916) 322-5660. Enclosures ER:rd I :\AdviceLtrs\05-179 Sincerely, Luisa Menchaca General Counsel Counsel, Legal Division Political Practices Commission -. Regulations of'the Fair PoJitical Practice.,. Page ] 0f4 ~ii~FPPC Home Page I~Commission ~¢,Agendas ~;~i. lnlerested Persons' Meetings l;;I. Candidates and Committees l~LoDbyists ~il~Restrictions on Government Offi¢ial8 and Employees j~,Ethics Orientation for State Officials I~l~Conflicts of Interest / Form 700 / COl Codes ~Enforcement ~m~,udit Program ~Workshops & Seminars il~,Legislation ~,Lltigation I~l,Mailing Lists ~Links ~I~FPPC Media Center {~LIl~rary and Publ~Callor~s AThe Pollllcal Reform lil ~ReguJatlona et' the F air PoIIIleal Comml~slor~ ~l~Newty AdolTted or Reguletlone Proposed Regulmtlon~ ~iFPPC Opinions ~iFPPC Publications dvlce Summaries ~IiFPPC Re~lutlons ~l~Proposltlon 34 krchlwe t~jldnternal Political Practices ~l~Phase 2 ~.¢'orms & Menuats .~Priveey Regulations of the Fair Political Practices Commission TITLE 2, DIVISION 6, CALIFORNIA CODE OF REGULATIONS (Back to Regulations of the Fair Political Practices Commission) 18329. Formal Written Advice and Informal Assistance (a) The Commission will assist persons in complying with the Political Reform Act. The Commission will make every reasonable effort to provide formal written advice pursuant to Government Code Section 83114(b) or informal assistance without unnecessary delay and in sufficient time to facilitate compliance with the Act. (b) Formal Written Advice (1) Formal written advice may be requested in writing pursuant to Government Code Section 83114(b) by any person whose duties under the Act are in question or by that persons's authorized representative. (2) Requests for formal written advice will not be acted upon unless the following requirements are met: (A) The name, title or position, and mailing address of the person whose duties are In question are provided. In addition, if the request is submitled by an authorized representative, it shall contain a specific statement that such authorization has been made. (B) All the facts material lo the consideration of the quos/ion or questions presented have been provided in a clear and concise manner. (3) The time period specified in Government Code Section 83114(b) does not commence until the requirements of subsection (2) have been satisfied. (4) If a formal written advice requesl does not meet the requirements in subsection (2) the requester shall promptly be notified of that fact In writing and shall be provided with a copy of this regulation. (5) When a request for formal written advice is received which complies with the requirements in subsection (2) the request shall promptly be acknowledged in writing. In addition, the acknowledgment shall provide the requester with the name of the staff person to whom the request has been assigned, the staff person's office phone number, and the date on which the period specified in Government Code Section 83114(b) expires. If the request is from an authorized representative, a copy of the foregoing acknowledgment shall also be sent to the person on whose behalf the advice is being requested. If the request is received directly from a member of an agency a copy of tr~e request and the acknowledgment may also be sent to the agency's counsel and/or the head or clerk of the agency. http :Wwww. ~pc.ca.gov/index.html ?lD=52&r id~llet~al/reas/18329.btm E)5 ZOO)5 15:Z7 FiR F'a[R POL pRI21C COMM 916 1327 ZOZ~ TO 917074tS2'3E) 1;3 P. 15 Ca/ifomia Fair Political Practices Commission -- Regulations of the Fair Political Practice... Page 3 of 4 assistance to Ihe explanation, in general terms, of the requirements of the Act in any of the following circumstances: (A) Assistance or advice is being sought regarding past conduct, unless the advice or assistance sought is related Ia possible amendment of previous reports filed by [he person requesting the advice. (19) The requester is seeking advice anonymously. (C) Assistance or advice is being sought regarding the duties of another person and the requester does not appear to be authorized to make the request as the person's representative, or does not provide the identity of the person on whose behalf the assistance is being sought. (O) The question 0resented is purely hypothetical. (E) The question presented is too complex or is otherwise inappropriate for resolution by' informal assistance and should be resolved by formal written advice or an Opinion. (F') The facts presented are insufficient or too vague to render specific informal assistance or do not appear to present a question under the Act. (G) Rendering informal assistance would be inappropriate or otherwise not in Ihe public Interest, Note: Authority; Section 83112, Gev. Code Reference: Section 83114(b), Gev. Code History (1) New section filed 5-10-76 as an emergency; effective upon filing. (2) Certificate of Compliance filed 7-28-76. (3) Repealer and new section filed 3-31-77; effective thirtieth day thereafter., (4) Amendment of subsections (c)-.(g) filed 11-2-78; effective thirtieth day thereafter. (5) Amendment of section heading filed 10-29-81' effective thirtieth day thereafter, ' (6) Amendment of subsection (g) filed %14-83; effective thirtieth day thereafter. (7) Repealer and new section filed 7-16-85; effective thirtieth day thereafter, Copyrlgh~ 2005 S tm Ie o~' Cnllforn;a FPPC. All r~ght3 reserved http://www, fppc. ca. gov/index.html?ID=52&r id=/legal/regs/l $329.htm O/R/?of3~ ,OCT . CaJifomia Fair Political Practices Commission -- Regulations of the Fair Political Practice... Page 1 of 2 ~FPPC Home Page ~Commission ~Agendas ~lnterested Persons' Meetings ~Candidates and Committees i;bl. obbyists ~Restrictions on Government Officials and Employees ~Ethics Orientation for State Officials I~,Conflicts of Interest / Form 700 / COl Codes ~Enforcement ~.udit Program ~Workshops & Seminars I~,Legislation ~Litigation ~Mailing Lists J~Llnks ~i~FPPC M~dla Center ~l~Lil::)rary and Publicallon~ {~jl~AThe Pollltr,4d Reform [~Regulatlons of the Fair Political Pracl. lces Commls.~lon ~lNewly Adopted or Amended RagulJtlon$ [?ropoeed Regulations ~JlFPPC Opinions [~iiFPPC Publlcallone J~kdvlce Summaries ~)FPPC Reaolutlons lPropo~ltlon 34 Archiv~ ~lllnternel Political Practices [~l, Pha~e 2 ~l~FOrrns & Manuals ~Ptlvacy Regulations of the Fair Political Practices Commission TITLE 2, DIVISION 6, CALIFORNIA CODE OF REGULATIONS (Back to Regulations of the Fair Political Practices Commission) (Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations.) § 18709. Governmental Decision; Segmentation. (al An agency may segment a decision in which a public official has a financial interest, to allow participation by the official, provided all of the following conditions apply: (1) The decision in which the official has a financial interest can be broken down into separate decisions that are not inextricably interrelated to the decision in which the official has a disqualifying financial interest; (2) The decision in which the offidal has a financial interest is segmented from the other decisions; (3) The decision in which the official has a financial interest is considered first and a final decision is reached by the agency without the disqualified officiars partidpation in any way; and (4) Once the decision in which the official has a financial interest has been made, the disqualified public official's participation does not result in a reopening of, or otherwise financially affect, the decision from which the official was disqualified. (b) For purposes of this regulation, decisions are "inextricably interrelated" when the result of one decision will effectively determine, affirm, nullify, or alter the result of another decision. (c) Budget Decisions and General Plan Adoption or Amendment Decisions Affecting an Entire Jurisdiction: Once all the separate decisions related to a budget or general plan affecting the entire jurisdiction have been finalized, the public official may participate in the final vote to adopt or reject the agency's budget or to adopt, reject, or amend the general plan. COMMENT: This regulation implements the segmentation principle outlined in the Commission's opinion In re Owen (1976) 2 FPPC eps. 77. NOTE: Authority cited: Section 83112, Government Code. Reference: Sections 87100 and 87103, Government Code. History 1. New section filed and effective 10-2-2003. http://www.fppc.ca.gov/indcx.html?ID=52&r id=/leeal/rees/18709.htm OCT 0'5 ~005 15:~? FR FAIR POL PRAC COMH 916 32? 2026 TO 9170746~3013 _ California Fair Political Practices Commission -- Regulations of the Fair Political Practice... Page 2 of 2 Copyrlgh120(35 State of California FPPC All r~gnls reserved. http://www, fppc. ca. gov/index.html ? ID= 52 &r id--/le~al/re}ts/18709 .htm 10/4/?. Ot~ ~ OCT 05 8005 15:2'7 FR FAIR POL PRAC COMM 916 387 2'085; TO 91"70-74E;£3013 P. le -,, . CMifor~ia Fair Political Practices Commission -- Regulations of thc Fair Political Practice... Page I of 2 [~FPPC Home Page ~Commission ~Agendas ~lnterested Persons' Meetings I~,Candidates and Commitlees ~l. obbyists ~Restrictions on Government Officials and Employees ~,Ethics Orientation for State Officials ~l~Confllc[s of Interest/ Form 700 / COl Codes I~Enforcement ~l~Audit Program ~Workshops & Seminars ~Legislation ~itigation ~Mailing Lists ~Lin~ ~FPPC Med~a Cen~er ~L~ra~ an~ Publi~[~on~ ~lc~ Political Reform ~lr Poli~ Practl~e~ ~Newl~ Adop~d or Amandld Regulationa Pro~ed ~FPPC Opinions ~FPPC Publication& ~lcl Summaries ~FPPC Relolutlons ~P~oposltion 34 Archive ~ln~rnet ~Phas~ 2 ~Forms & Manuals ~Privacy Regulations of the Fair Political Practices Commission TITLE 2, DIVISION 6, CALIFORNIA CODE OF REGULATIONS (Back to Regulations of the Fair Political Practices Commission) (Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations.) § 18707,1, Public Generally. General Rule. (a)Except as provided in Government Code sections 87102.6 and 87103.5, the material financial effect of a governmental decision on a public official's economic interests is indistinguishable from its effect on the public generally if both subdivisions (b)(1) and (bX2) of this regulation apply. (b) Significant Segments and Indistinguishable Effects, (1) Significant Segment. The governmental decision will affect a "significant segment" of the public generally if any of the following are affected as set forth below: (A) Individuals. For decisions that affect the personal expenses, income, assets, or liabilities of a public official or a member of his or her immediate family, or that affect an individual who is ia source of income or a source of gifts to a public official, the decision also affects: (i) Ten percent or more of the population in the jurisdiction of the official's agency or the district the official represents; or (ii) 5,000 individuals who are residents of the jurisdiction. (B) Real Properly. For decisions that affect a public official's interest in real property, the decision also affects: (i) 'Ten percent or more of all property owners or all homeowners in the jurisdiction of the official's agency or the clistrict the official represents; or (ii) 5,000 property owners or homeowners in the juris<:liction of the official's agency. (C) Business Entities. For decisions that affect a business entity in which a public official has an economic interest, the decision also affects either 2,000 or twenty- five percent of all business entities in the jurisdiction or the district the official represents, so long as the effect is on persons composecl of more than a single industry, trade, or profession. For purposes of this subdivision, a not for profit entity other than a governmental entity is treated as a business entity. (D) Governmental Entities. For decisions that affect a federal, state or local government entity in which the public official has an economic interest, the decision will affect all members of the public under the jurisdiction of that http:llwww.fppc.ca.gov/index.htmi?ID=52&r id=/leeal/rces/18707- ] .htm 1 n/~/gnn~ ~?CT 05 2005 15:27 FR FAIR POL PRAC COMM 916 327 2026 TO 917074~£3013 P.19 ' Calif-ornia Fair Political Practices Commission -- Regulations of the Fair Political Practice... Page 2 of 2 governmental entity. (E) Exceptional Circumstances. The decision will affect a segment of the population which does not meet any of the standards in subdivisions (bX1)(A) through (b)(1)(D), however, due to exceptional circumstances regarding the decision, it is determined such segment constitutes a significant segment of tl3e public generally. (2) Substantially the Same Manner: The governmental decision will financially affect a public official's economic interest in substantially the same manner as it will affect the significant segment identified in subdivision (b)(1) of this regulation, Tt3e financial effect need not be identical for the official's economic interest to be considered "financially affected" in "substantially the same manner." COMMENT: The term "affect all members of the public" is intended to cover decisions affecting the public in general but to exclude decisions which uniquely benefit a public official. NOTE: Authority cited: Section 83112, Government Code. Reference: Section 87103, Gover. nment Code, Hi8tory 1. New section filed and effective 11.23-98, 2, Renumbering of former section 18707.1 to section 18707.2 and new section 18707.1 filed 1-16~2001; effective 2-1-2001. 3. Amendment of subdivisions (bX1)(B), (b)(1)(C) and (bX2) filed and effective 6- 15-04, Copyrigh[ 2005 Stata ot' CalifornIa FPPC. All rlghls reserved. http://www.~pc, ca,f~ov/index.html?ID=52&~ id=/leeal/reg.~/18707-1 .btm l A/a/?nc~q OCT 05 2_~05 15:27 FR FAIR POL PRAC COMM 916 32? 2026 TO 917074623013 General Counsel Luisa Mcnchaca Fair Political Practices Commission 428 J Street, Suite 620 Sacramento, California 95814 RE: Request for formal written advice Dear General Counscl Menchaca, I am a member of thc Ukiah City Council. I have an ownership interest in several properties within the city limits, including within the downtown Parking and Business District and Bencfit Zone; along one of the "gateway" streets leading into thc downtown; and within thc city's redevelopment district. The City Council is considering regulating "formula businesses". Thc item was agendized for discussion 7/20/05 as per Attachment "A" (incorrectly dated 6/20/05). Prior to 7/20/05 the issue of possible conflict of interest based on property ownership in thc affected area arose. In response, the City Attorney prepared a memorandum dated 7/19/05 (Attachment "B"). On 7/3-0/05 Council mcmbcrs Crane and McCowen recused themselves from any discussion of the item referenced in Attachment "A" and also stated they had similar possible conflict of interest concerns with the item referenced in Attachment "C", which was then continued without discussion. The item referenced in Attachment "D", which was also continued without discussion poses similar possible conflict of interest concerns. My ownership interest in real property within and near the local jurisdiction is detailed in Attachment "E". Please provide me with formal written advice regarding thc following questions. Do you agree with the City Attorney's conclusion that "thc decision to impose a moratorium on formula businesses in the downtown would have an indirect effect on the council members' financial interests in property they own in the downtown" and therefore such decision "is presumed not to have a material financial effect"? I understand that the presumption of no material financial effect can be rebuttcd by proof of specific circumstances which make it "reasonably foreseeable" that the decision will have a material financial effect on real property in which the public official, has an interest. Do I understand correctly that the effect need not be certain, but must be more than a mere possibility? P.20 15:28 FR FAIR POL PRAC COMM 91G 327 2026 TO 917074B23013 P.21 Do I understand correctly that it must be substantially likely that one or more of the materiality standards will be met as a result of the governmental decision7 Do I understand correctly that, if at the time a decision is made, the public official neither knows nor has reason to know facts that rebut the presumption ofnon-materiality, then the official may presume that the financial effects on indirectly affected property will not be material? Do I understand correctly that I only need to consider the reasonably foreseeable effect that is substantially likely to occur in the twelve month period following the date of the decision? The City Attorney states that the "public generally" rule does not apply because the action contemplated in Attachment "A' affects less than 10% of the property or business owners in the local jurisdiction. If the actions proposed in Attachments "A" and "C" are broadened to apply to all commercially zoned property and more than 10% of all property owners in the local jurisdiction are affected, would the public generally rule then apply? Do I understand correctly that if a local public official owns property within a specified distance from a property that is subject to a decision, then the local public official must recuse him or herself from acting on the project? What is the specified distance? Am I correct in thinking that ownership of property within an affected zoning district, (i.e. downtown Business District) does not automatically preclude the public official from acting on issues that apply to the district generally? Please provide examples of situations that would require recusal. Please notify me at your earliest convenience if you require additional information in order to make a determination regarding the questions I have posed. Given that a number of local issues are now in limbo, I respectfully request that you expedite your request, if it is at all possible. Thank you for your attention to and assistance in this matter. Sincerely, John McCowen Council member Ukiah City Council P.O. Box 454 Ukiah, CA 95482 707-462-3210 9CT D5 7005 15:28 FR FAIR POL PRAC COMM 016 3~? P026 TO 91-7874623813 P.27 ~ Cali£o~ia Fair Political Practices Commission -- Regulations of the Fair Political Practice... Page 1 of 3 · ~I,,FPPC Home Page ~Commission ~,Agendas I~lnterested Persons' Meetings I~,Candidates and Committees ~Lobbyists ~Restrictions on Government O~cials and Employees ~Elhics Orien~tion fo~ ,.State O~c}als ~Con~Icts of Interest / Form 700 / COl Codes ~Enfor~ment ~ud~t Pr~ram ~Workshops & Seminars ~Legislation ~Litigation ~Mailing Lists ~Lin~ ~Libra~ ane Publi~$1ons ~l; Polllleal Reform ~Regubtlons ~ the Fair ~N~y Ad=~d or Amended Regulallons ~Pr~ed Rlgul~lon~ ~FPPC O~nloni ~FPPC Publl~llons ~dvlca ~ummiHes ~FPPC ~Prop~itJon ~ Archive ~lnternet Political Practlc~ ~Ph~e 2 ~Forms & Manuals ~Prlvacy Regulatio.ns of the Fair Political Practices Commission TITLE 2, DIVISION 6, CALIFORNIA CODE OF REGULATIONS (Back to Regulations of the Fair Political Practices Commission) 18706. Legally Required Participation. (a) A public official is not legally required to make or to participate in the making of a governmental decision within the meaning of Government Code section 87101 unless there exists no alternative source of decision consistent with the purposes and terms of the statute authorizing the decision. (b) Whenever a public official who has a financial'interest in a decision is legally require<: to make or to participate in making such a decision, he or she shall state the existence of the potential conflict as follows: (1) The public official shall disclose the existence of the conflict and describe with particularity the nature of the economic interest. "Particularity" as used in this regulation shall be satisfied if the official discloses: (A) whether the conflict involves an investment, business position, interest in real property, or the receipt of income, loans or gifts' (B) if the interest is an investment, the name of the business entity in which each investment is held; if the interest is a business position, a general description of the business activity in which the business entity is engaged; if the interest is real property, the address or another indication of the location of the property, unless the property is the official's principal or personal residence, in which case the official shall disclose tt3is fact. For income, loans or gifts, the official shall disclose the person or entity that is the source. (2) The public official or another officer or employee of the agency shall give a summary description of the circumstances under which he or she believes the conflict may arise. (3) Either the public official or another officer or employee of tl~e agency shall disclose the legal basis for concluding that there is no alternative source of decision. (4) The disclosures required by this regulation shall be made in the following manner: http://www,fppc.ca.gov/index,html?ID=52&r id=/le~al/regs/18708.htm 10/4/2005 ...... ,_ ,. ()i _ lA) If the governmental decision is made Curing open session of a public meeting, the disclosures shall be made orally before the decision is made, by either the public off:cial or by another officer or employee of the agency. The information contained in the disc!osures shall be made part of the official public record either as a part of the minutes of the meeting ar as a writing filed with the agency. The writing shall be prepared by the public official and/or any officer or employee and shall be placed in a public file of the agency within 30 days after the meeting; or lB) If the governmental decision is made during a closed session of a public meeting, the disclosures shall be made orally during the open session either before the body goes into closed session or immediately after the closed session. The information contained in the disclosures shall be made part of the official public record either as a part of the minutes of the meeting or as a writing filed with the agency. The writing shall be prepared by the public official and/or any officer or employee and shall be placed in a public file of the agency within 30 days after the meeting; or lC) If the government decision is made or participated in other than during the open or closed session of a public meeting, the disclosures shall be made in writing and made part of the official public record, either by the public official and/or by another officer or employee of the agency. The writing shall be filed with the public official's appointing authority or supervisor and shall be placed in a public file within 30 days after the public official makes or participates in the decision. Where the public official has no appointing authority or supervisor, the disclosure(s) shall be made in writing and filed with the agency official who maintains the records of the agency's statements of economic interests, or other designated office for the maintenance of such disclosures, within 30 days of the making of or participating in the decision. lc) This regulation shall be construed narrowly, and shall: (1) Not be construed to permit an official, who is otherwise disqualified under Government Code section 87100, to vote to break a tie. (2) Not be construed to allow a member of any public agency, who is otherwise disqualified under Government Code section 87100, to vote if a quorum can be convened of other members of the agency who are not disqualified under Governmi~nt Code section 87100, whether or not such other members are actually present at the time of the disqualification. (3) Require participation by the smallest number of officials with a conflict that are "legally required" in order for the decision to be made. A random means of selection may be used to select only tt~e number of officials needed. When an official is selected, he or she is selected for the duration of the proceedings in all related matters http://www.fl:>l~c.ca.~ov/index.html?ID=52&r id=-/leeal/re~,s/1 gTOR.h~'n 1 c~/a/3r~c~¢ DCT 05 21DID5 !5:28 FR FAIR POL PRRC COMM EIl6 327 2026 TO Et!70746230!3 P.24 "California Fair Political Practices Commission -- Regulations of the Fair Political Practice... Page 3 of 3 until his or her participation is no longer legally required, or the need for invoking the exception no longer exists. (d) For purposes of this section, a "quorum" shall constitute the minimum number of members required to conduct business and when the vote of a supermajority is required to adopt an item, the "quorum" shall be that minimum number of members needed for that adoption. COMMENT: Nothing in the provisions of subdivision (bX4)(B) is intended to cause an agency or public official to reveal the confidences of e closed session contemplated by law. For example, under the Brown Act (Government Code sections 54950 et. seq.) a city council may enter a closed session to discuss personnel matters and need not publicly disclose the name of the employee who is the subject of the meeting. (Government Code section 54957.) This regulation does not require a city council person who is legally required to participate in that closed session to disclose that employee's name when the council member makes the record required by this regulation. NOTE: Authority cited: Section 83112, Government Code. Reference: Sections 81002, 81003 and 87101, Government Code. History 1. New section filed 11-23.98; operative 11-23-98. 2. Amendment of section and NOTE filed 1-10-01; operative 2-1-01. 3. Amendment of subsections (b)(4XA)-(B) filed 1-16-0;); operative 2-15-02. Copyright 2005 State ot' Cal,~'orme FPPC All rights reserved. http:llwww.fppc.ca.gov/index.html?ID=52&r id=/leeal/re~,s/l g70g.htm 1 c~/a/~nac OCT ~5 2©05 15:E8 FR FAIR POL PRAC COMM 916 3E? ~0~6 TO 917074023013 -, California Fair Political PractiCes Commission P.25 November 20, 1989 Honorable Jameg R. Sweeney Supervisor County of E1 Dorado 330 Fair Lane Placerville, CA 95667 Dear Mr. Sweeney: Re: Your Request for Advice Our File No. A-89-639 This is in response to your letter re~esting advice concern- ing your responsibilities under the conflict-of-interest provi- sions of the Political Reform Act (the "Act-).i/ 1. May you participate in decisions concerning the alloca- tion of the funds to finance various projects in your district, including the construction of a community development building which is 1,000 feet away from real property in which you possess a 5/12 ownership interest? 2. May you participate in a decision concerning the sale and leasing back of the county jail to raise revenue for county projects situated at various locations around real property in which you possess a 5/12 ownership interest? 3. May you participate in decisions concerning a proposed assessment district where you own a 5/12 interest in real property within the proposed boundaries of the district? CONCLUSIONS 1. Each decision concerning the financing of the various projects around the county may be analyzed separately if none of the decisions affects the decisions on the other projects. Where 1/ Government code Sections 81000-91015. All statutory refer- ences are to the Government Code unless otherwise indicated. Com- mission regulations appear at 2 California Code of Regulations Section 18000, et seq. All references to regulations are to Title 2, Division 6 of the California Code of Regulations. 428 J Street, Suite 800 · P.O. Box 807 · Sacramento CA 95804-0807 · (916/ OCT 05 2005 15:28 FR FAIR POL PRAC COMM 916 327 2026 TO 917074623013 File No. A-89-639 Page 2 P.26 projects are within 2,500 feet of your property, you may not participate if the decisions could foreseeably increase or decrease the fair market value of your property by $10,000 or more, or the rental value of your property by at least $1,000 in a 12-month period. For projects that are more than 2,500 feet away from your property, you may participate unless (1) =here are specific circumstances regarding the decision~, their effect, and the nature of your real property which make it reasonably foreseeable that the deci~ions will affect the fair market value of your real property by $10,000 or more or the rental value of your property by $1,000 or more per 12-month period, and (2) the effect of the decision will not be substantially the same as the effect upon at least 25 percent of all the properties which are within a 2,500 foot radius of the.boundaries of your property, or there are not at least 10 properties under separate ownership within a 2 500 - foot radius of your property. ' 2. If the county jail is within 2,500 feet of your property, you may participate in the decision concerning the sale and leas- ing back of the county Jail, unless the decision could foreseeably increase or decrease the fair market value of your property by $10,000 or more, or the rental value of your property by at least $1,000 in a 12-month period. If the distance is greater that 2,500 feet you may participate unless (1) there are specific circumstances regarding the decision and the nature of your property that make it reason- ably foreseeable that the decisions will affect the fair market value of your real property by $10,000 or more or the rental value of your property by $1,000 or more per 12-month period, and (2) the effect of the decision will not be substantially the same as the effect upon at least 2§ percent of all the properties which are within a 2,500 foot radius of the boundaries of your property, or there are not at least 10 properties under separate o~nership within a 2,500~oot radius of your property. 3. BecaUSe the assessment district decisions involve the imposition, repeal or modification of taxes or fees assessed on your property, or whether your property should be included in the district, the effect of the decisions on your property is deemed to be material and you may not participate in the decisions. FACTS_ You are the Supervisor for District ] of E1 Dorado County. The board of supervi~-'- s is currently considering several county projects, including the construction of a new court and court support building, the construction of a freeway overpass at Ray Lawyer Drive, construction of a community development building, expansion of the existing administration building, construction of a new office building at the South Lake Tahoe campus, construction of additional jail facilities at South Lake Tahoe, the ' ~ ': : . ,E9 ;:R F;i[R POL PRAC COMM 916 3B? ~0B6 TO 9170746~3013 p,~? File No. A-89-639 Page 3 construction of a new library and the creation of an assessment district to finance road improvements. One way ~he county is considering financing the various projects is through a sale and leasing back of the county jail facility. You currently have a 1/4 beneficial interest in property that is partly owned by a family trust and partly owned by your mother. You anticipate that you will ultimately own a 5/12 beneficial interest in the property. The property is located near the properties subject to decisions that wall b~ coming before the board of supervisors. You stated in our telephone conversation of November 9 that the closest project involved in the upcoming deci- sion¢ is 1,000 feet away from your property interest. You also stated that your property is within the proDosed boundaries of the proposed assessment district. ~nterests in Real Property Section 87100 prohibits any publ'ic official from making, particlDating-in making, or otherwise using his official position to influence a governmental decision in which the official has a financial interest. Section 87103 specifies that an official has a financial interest within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from the effect on the public generally, on the official or a member of his or her immediate family or on: (b) Any. real property in which the public of- ficial has a direct or indirect interest worth one thousand dollars ($1,000) or more. Section 87103(b). As a member of the E1 Dorado Board of SUpervisors, you are a public official as defined in the Act. (Section 82048.) However, you stated that you do not believe you have a financial interest in any of the decisions described in your letter. Section 82033 provides that an "interest in real property,, includes any leasehold, beneficial or ownership interest or an option to acquire such an interest in real property located in the jurisdic- tion owned directly, indirectly or beneficially by .the public of- ficial, or other filer, or his or her ii,mediate family if the fair market value of the interest is $1,000 or more. Interests in real property of an individual ' clu s a o-r s e o iht ests in re 1 o e t of bu ines ent or us in ic the beneficially, a. 10-DerceDt tD~eres~ or areate~ (Sections 82033 and 87103.) - ' - You stated in your letter that you currently own a 1/4 inter- est and anticipate owning in the future a §/12 interest in QCT 05 2005 15:29 FR FAIR POL PRAC COMM 91G 327 ~026 TO 917074623013 P.28 File No. A-89-639 Page 4 property owned by the family trust that is near the properties ~ubJect to decisions that will be coming before the board of supervisors. Since your interest in the trust exceeds 10 percent, you will be considered to have an interest in the real property for purposes of the Act if your pro-rata share of the property is valued at $1,000 or more. If it is reasonab%y forese~abln that a decision will have a'material financial effec~ on the pr~erty, you may not participate in the-decision.2/ Whether the financial consequences of a decision are reason- ably foreseeable at the time a governmental decision is made depends on the. facts of'each particular case. An effect is considered reasonably foreseeable if there is a substantial likelihood that it will occur. Certainty is not required. However, if an effect is only a mere poesibility, it is not reasonably foreseeable. (In r9 .Thorner (1975) 1 FPPC Cps. 198, copy enclosed.) Clearly, decisions concerning an assessment district in which you have a property interest will. foreseeably affect that property interest. Further., decisions concerning projects near your property interests could foreseeably increase or decrease the fair market value of your property interest. The C~unt¥ Pr~ject~ Generally, every governmental decision mu~t be analyzed independently with respect to the foreseeabiltty and the material- ity of a financial effect on your property. (In re_owen (1976) 2 FPPC Ops. 77, copy enclosed.) However, under some circumstances a series of decisions may be too interrelated to be considered separately. (~ Advice Letter, No. A-82-119, copy enclosed.) For example, if it is determined that you have a conflict of interest as to decisions concerning the construction of a specific project because of the project,s proximity to the property.in which you have an ownership interest, you may be similarly disqualified as to decisions concerning the financing of that project because the decisions concerning the financing of the project could in fact alter the previous decision for which you would have been disqualified. (No_px_~ Advice Letter No A-82-038 copy enclosed.) , · , According the facts you have provided, the current decision involves the financing of various county projects. In our telephone conversation of November 9, 1989 you stated that neither decision will affect the location of the county projects or their 2/ Although you have not asked about Your disclosure responsibilities under the Act, please be aw~", that Regulation 18234 (copy enclosed) require~ disclosure of the pro-rata share of property and investments of a trust, and income to a trust, where a public official owns a 10-percent or greater ~nterest. If you have q~estions concerning your disclosure responsibilities under the A¢~, please contact our Technical A~sistance Division at (916) 322-5662. 'OCT 05 2005 15:29 FR FAIR POL PRAC COMM 916 327 2026 TO 917074623013 File No. A-89-639 Page 5 ultimate completion. You'stated that these decisions had already been made. However, absent information to the contrary, it would appear that the availability of financing for a project is intimately related to the actual completion of the project. Consequently, the decisions to allocate funds to finance theme projects must be analyzed in conjunction with the actual decisions to construct the projects, and if you are required to disqualify a~ to either decision, you must disqualify as to both the deci- sions. ($cheF Advice Letter, No. A-88-479, copy enclosed.) You stated in our telephone conversation that the closest site involved in the upcoming decision is 1,000 feet away from your property interest. Regulation 18702.3 {copy enclosed) provides guidelines as to whether the effect of a decision on the real property interest of a public official is material. The ef- fect of the decision as to real property located within a radius of 300 to 2,500 feet of the boundaries of the property which is the subject of the decision is material if the decision will have a reasonably foreseeable effect of: (A) Ten thousand dollars ($i0,000) or more on the fair market value of the real property in which the official has an interest;Or (B) Will affect the rental value of the property by $1,000 or more per 12 month period. Regulation 18702.3(a) (3). Consequently, you must disqualify ~ourself from participating in decisions concerning any project within 2,500 feet of your property that could foreseeably increase or decrease the fair market value of your property by $10,000 or more, or the rental value of your property by at least $1,000 in a 12-month period. We must leave to you the factual determination of the magnitude of the financial effect on your property caused by the ~ and whether the effect falls within the guidelines provided by Regulation 18702.3. However, Regulation 18702.3(4) sets forth factors that must be considered in determining whether a decision will have. a material financial effect, on the fair market value of your real property. S/ These factors are: 1. The proximity of the property which is the subject of the decision and the magnitude of the proposed project or change in use in relationship to the property in which the official has an inter- est;. The factors to be considered are not limited to the factors s~ecified in Regulation 18702.3(d). · OCT ~5 2~)~]5 15:3~) FR FAIR POL PRAC COMM 916 32? aoa6 TO 917074623013 P.3~] File No. A-89-639 Page 6 2. Whether it is reasonably foreseeable that the decision will affect the development potential or income producing potential of the property; ] .... whether it is reasonably foreseeable that the decision will result in a change to the character of the neighborhood including, but not limited to, the effect on traffic, view, privacy, intensity of use, noise levels, air emissions, or similar traits of the neighborhood. In addition, where the financing decisions are separable, aa where each allocation of the funds is considered separately and none affects the decisions on the other projects, each project may be analyzed separately to determine if you have a conflict of interest. For projects that are over 2,500 feet away from your property, Regulation 18701.3(b) provides that the effect on your real property will ~ be considered material unless: (1) There are specific circumstances regarding the decision, its affect, and the nature of the real property in which the of- ficial has an interest, which make it reason- ably foreseeable that the fair market value or the rental value of the real property in which the official has an interest will be affected by =he amounts set forth in subdivisions (a) (3) (A) or (a) (3)(B)~ and (2) Either of the following apply: (A) The effect will not be substantially the same as the effect upon at least 25 percent of all the properties which are within a 2,500 foot radius of the boundaries of the real property in which the official has an interest; or (B) There are not at least 10 properties under separate ownership within a 2,500 foot radius of the property in which the official has an interest. According to this test, you may participate in decisions concerning projects over 2,500 feet away from your property unless (1) there are specific ctrcumatances regarding the decision, its effect, and the nature of your real property which make it reason- ably foreseeable that the decision will affect the fair market value of your real property by $10,000 or more or the rental value of your property by $1,000 or more per 12-month period, and (2) the effect of the decision will not be substantially the same as the effect upon at least 25 percent of all the properties which are within a 2,500 foot radius of the boundaries of your property, 327 2026 TO EtI70746231D!3 P.3i ?lie No. A-$9-639 Page 7 or there are oct at least 10 properties under separate ownership within a 2,500 Toot radius of your property. One final note concerning the decisions to allocate funds to the variou~ county projects, if indeed the decisions are separable and you determine you have a conflict of interest with respect to some, but not all the decisions, the following procedure should be followed to permit you to participate: (1) The decisions for which you have a disqualifying financial interest should be segregated from the other decisions. (2) The decisions from which you are disqualified should be considered first, and a final decision reached by the board of supervisors without you participating in any way. (3) Once a decision has been made on the projects for which you have a disqualifying financial interest, you may participate in the deliberations regarding the other projects, so long as those deliberations do not r~s~lt in a reopening or in any way affect the decisions from wh~c~ they were disqualified. (~L~1~9_~ Advice Letter, No. A-86-343, copy enclosed.) The Jail Decision The county jail decision, like the project decisionm, may be analyzed separately to determine if you have a conflict of inter- est with rempect'to it, provided the decision does not include decisions as to where the money will be spent. As stated above, if a decision will affect another decision in which you have a conflict of interest, you may not participate in either decision. For the purposes of this letter, we will assume the jail decision is separable from the decisions concerning the uGe of the funds. We do not have exact distances with respect to the Jail and your property. According to a Placerville map we consulted, it would appear that the Jail is within 2,500 feet of your real property interest. If this is the case, you may participate in the decision concerning the male and leasing back of the county Jail Provided the decision will not foreseeably increase or decrease the fair market value of your property by $10,000 or more, or the,rental value of your property by at least $1 000 in a 12-month period. , If the distance between the Jail and your proper~y is groater that 2,500 feet, you may participate unless (1) there are specific circumstances regarding the decision and'the nature of your property that make it reasonably foremeeable that the decisions will affect the fair market value of your real property by $10,000 or more or the rental value of your property by $1,000 or more per 12-month period, .and (2) the effect of the decision will not be substantially the ~ame as the effect upon at least 25 percent of all the properties which are within a 2,500 foot radius of the boundaries of your property, or there are noG at least 10 · 9CT 05 2005 15:30 FR FAIR POL PRAC COMM 916 327 2026 TO 917074623013 P.32 File No. A-89-639 Page 8 properties under separate ownership within a 2,500 foot radius of your property, you may not participate in these decisions. Assessment District Dec/sions. You stated that your property is within the proposed assess- ment district. Regulation 18702.1(a)(3)(C) (copy enclosed) provide~ that where a decision involves the imposition, repeal or modification of taxes or fees assessed or imposed on an official's own property, the effect of the decision is deemed to be material. In addition, Regulation 18702.1(a)(3)(A) provides that where a decision involves ~he in¢.lus%on in or excluskon ~rom any city. ~o~nt¥, district or other, local qovern~ental subdi~is%on, of real property in which the official has a direct or indirect interest of $1,000 or more, the effect on the property is deemed to be material and the official may not participate in decisions that effect the property. Consequently, you may not participate in any decisions concerning the a~sessment district. Publi~c Gener.a! 1¥ In our telephone conversation you also asked about the ap- plicability of the public generally exception. For the public generally exception to apply, a decision must affect your interests in substantially the same manner as it would affect a significant segment.of the resident~ and persons doing business in E1 Dorado County. (Regulation 18703, copy enclosed; In re Owen, su_~p/~l.) Although we have not been provided with information on the population distribution of E1 Dorado County, it would appear from the map you provided that the segment of the population of the county in and around the varioum project areas i~ not significantly large to invoke the exception. If any further questions regarding this matter, please feel free to contact me at (916) 322-5901. Sincerely, KED:JWW:plh Kathryn £. Donovan General Counsel _o~eel, Legal Division P.33 California Fair Political Practices Commission September 22, 1989 Charles T. Kilian City Attorney City of Cupertino 852 N. First Street, Third Floor San Jose, CA 95112 Re: Your Request for Advice Our File No. A-89-522 Dear Mr. Kilian: This is in response to your letter requesting advice on" behalf of Cupertino City Councilmembers John Plungy and John Gatto concerning their duties under the conflict-of-interest provisions of the Political Reform Act (the "Act").// 1. May councilmembers Plungy and Gatto participate in deci- sions concerning the proposed Sunnyvale-Saratoga overpass which will impact a portion of proposed freeway within 300 feet of condominiums owned by the councilmembers? 2. If Councilmembers Plungy and Gatto are disqualified as to decisions that affect portions of the freeway within 300 feet of their properties, may they participate in the city council,s consideration of other aspects of the freeway plan? 3. Where Councilmembers Plungy and Gatto are disqualified with respect to certain freeway decisions, may they still be present at the hearings, take testimony, ask questions and debate issues regarding those decisions. C_ONCLUSIONS 1. The councilmembers may not participate in the decisions concerning the Sunnyvale-Saratoga overpasm ~ there will be no financial effect on their real property interests. 1/ Government Code Sections 81000-91015. All statutory refer- ences are to the Government Code unless otherwise indicated. Com- mission regulations appear at 2 California Code of Regulations Section 18000, e__t ~q. All references to regulations are to Title 2, Division 6 of the California Code of Regulations. 428 J Street, Suite 800 · P.O. Box 807 · Sacramento CA 95804-0807 · (916)322-5660 ::~ ;:::::,iir-~ =:il ~-~f:P~iC COMM 916 32? ~0~6 TO 917074623013 P.34 Page 2 2. Councilmembers Plungy and Gatto may participate in considering other components of the freeway plan provided they have no disqualifying interest with respect to those other components and the other components will not affect the results of the decisions for which the councilmembers are disqualified. 3. The Act does not prohibit the councilmembers, presence at the public hearing concerning issues for which they are disqualified. However, the councilmembers may not take testimony, ask questions, debate the issues or say or do anything to influ- ence the decisions. The councilmembers may, however, appear in the same manner as any other member of the general public before the city council solely to represent themselves concerninq their interests in real property, provided the property is wholly owned by councilmembers or members of their mmedlate family. i ' the The Cupertino City Council and the' California Department of Transportation have agreed to construct a freeway through cupertino. The Department of Transportation has proposed to build the freeway through the center of the city with elevated portions over certain streets and some portions depressed below grade. Councilmembers Plungy and Gatto own and reside in condominiums adjacent to the right-of-way of the Proposed freeway. Each councilmember$, interest in his respective condominium is greater than $1,000. At the nearest point, the proposed freeway is within 300 feet of the councilmembers, condominiums. You have been asked to request advice on behalf of Councilmembers Plungy and Gatto with respect to the various deci- sions concerning the new freeway. Specifical whether the councilmembers may participate inly' you have asked ' a decision concern- lng a proposed elevated portion of freeway over Sunnyvale-Saratoga Street. .The street is 1,200 feet from the councilmembers, property, however, if the overpass is constructed as proposed, the freeway will taper down for 2,500 feet in both directions which will still result ~n a 10-foot elevation of the freeway at the point 300 feet from the councilmembers, property. Th Sun va -Sa to Ovr as Section 87100 provides: No public official at any level of state or local government shall make, participate in making or ~ a governmental decision in which .he ,?CT ~5 S005 15:3! FR FA!R POL PRAC COMM 916 327 2E~26 TO 917074623013 P.35 File No. A-89-522 Page ] knows or has reason to know he has a financial interest. Section 87103 specifies that an official has a financial interest within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial ef- fect, distinguishable from the effect on the public generally, on the official or a member of his or her immediate family or on: (b) Any real property in which the public of- ficial has a direct or indirect interest worth one thousand dollars ($1000) or more. Section 87103(b). Councilmembers Plung¥ and Gatto as members of the Cupertino City Council are public officials under the Act. (Section 82048.) ownership of a condominium is an in~erest in real property. (Sec- tion 82033; Height Advice Letter, No. A-84-209, copy enclosed.) You have informed us that the councilmembers, respective property interests are greater than $1,000. Consequently, the councilmembers are prohibited from making or in any way participating in decisions which would have a reasonably foresee- able material financial effect on their property that is distinguishable from the effect on the public generally. Whether the financial consequences of a decision are reason- ably foreseeable at the time a governmental decision is made depends on the facts of each particular case. An effect is considered reasonably foreseeable if there is a substantial likelihood that it.will occur. Certainty is not required.- However, if an effect is only a mere possibility, it is not reasonably foreseeable. (~n re Thorner (1975) 1 FPPC Ops. 198, copy enclosed.) Clearly, the construction and characteristics of a freeway within 300 feet of the councilmembers, real property is likely to have a financial effect on their property. Whether the effec~ will be an increa=e or a decrease in the value of the property is not relevant. In addition, the foreseeable effect on the councilmembers, financial interests must also be material to require disqualifica- tion. The Commission has adopted differing guidelines to determine whether an effect is material, depending on the specific circumstances of each decision. The effect of a decision on real property in which an official has a direct, indirect or beneficial ownership interest, is material if: (1) The real property in which the official has an interest, or any part of that real Property, is located within a 300 foot radius of the boundaries (or proposed boundaries) of the property which is the subject of the decision, unless the ,OCT 05 7005 15:31 FR FAIR POL PRAC COMM 916 32? 2026 TO 917074623013 File No. A-89-522 Page 4 P.36 decision will have no financial effect upon the official's real property interes:s. Regulation 18702.3(a)(1) (copy enclosed). The councilmembers, real property is within 300 feet of the proposed freeway right-of-way. And, although.the location of the overpass is more than 300 feet away, the descending portion of the overpass will be within 300 fee~ of the councilme~bers, condominiums. With property in such close proximity to the property which is the s~bject of the decision, the councilmembers may participate in the decision only if the. re will be no .financial e_~ on their real property. Thus, if the decisions will have any financial effect on the condominiums of the councilmembers, thev must dis~ualif¥ ~hemselve% from participating iR the dec~ However, even if the councilmembers have a financial interest that will be financially affected by the overpass decision, they may still participate if the effect on their interests is not distinguishable from the effect on the public generally. (Regula- tion 18703, copy enclosed.) For ~he "public generally,, exception to apply, the decision must affect the official's interests in substantially the same manner as it will affect a significant seg- ment of the public in Cupertino. (In re ~e~an, (1985) 9 FPPC Cps. 1, copy enclosed.) Although we have not been provided with suf- ficient information on the characteristics of Cupertino, it would appear from the map you provided that the segment of the popula- tion of Cupertino within 300 feet of the proposed overpass is not significantly large to invoke the exception. Other Freeway Decis~on~ You have also asked if, due to their property interests, the councilmembers are disqualified as to all the decisions concerning the freeway. Generally, decisions are analyzed independently to determine if there will be a foreseeable material financial effect on an official's financial interest. (In..re Owen (1976) 2 FPPC Cps. 77, copy enclosed.) Consequently, many times, large and complex decisions may be divided into separate decisions ~o that where a public official has a disqualifying financial interest as to one component of the decision, he may still participate in considering the other components provided the decisions are not 2/ YoU have not asked about decisions concerning portions of the freeway that are more than 300 feet away and within 2,500 feet of the councilme~bers, property. Under such circumstances, the councilmembers may participate provided the decision will not af- fect the fair market value of their real property by $10,000 or more, or the rental value of ~he property by $1,000 or more per 12 month period. (Regulation 18702.3(a)(3).) ,OCT 05 2005 15:31FR FAIR POL PRAC COMM 916 3~7 2026 TO 917074623013 , zii$ No. A-89-522 Page 5 P.37 interrelated and the official has no disqualifying interest with respect to the other components. (~!~_~ Advice Letter, No. A-86-343, copy enclosed.) Mowever, under some circumstances a series of decisions may be too interrelated to be considered separately. (Mi~ Advice Letter, No. A-82-119, copy enclosed.) For example, if other decisions concerning the freewa~ are presented to the city council as alternatives to the decisions for which the Councilmembers are disqualified, the councilmembers would not be able to participate in any of the decisions. (~_9_~ Advice Letter, No. A-82-038, copy enclosed.) This is because the determination of .the other decisions would effectively determine the results of the decisions for which the councilmembers are disqualified. Thus, where the decisions are too interrelated to be decided separately, the councilmembers must disqualify themselves as to all the decisions under consideration. (Scher Advice Letter, No. A-88-479, copy enclosed.) Where other decisions concerning the freeway are not inter- related to the decisions from which the councilmembers are disqualifi~d, the following procedure ~hould be followed to permit them to participate: (1) The decisions from which the councilmembers have a disqualifying financial interest should be segregated from the other decisions. (2) The decisions from which the councilmembers are disqualified should be considered first, and a final decision reached by the city council without Councilmembers Plungy and Gatto participating in any way. (3) Once a decision has been made on the portions of the freeway for which the councilmembers have a disqualifying inter- est, Councilmembers Plungy and Gatto may participate in the deliberations regarding other portions of the proposed freeway, so long as those deliberations do not result in a reopening or in any way affect the decisions from which they were disqualified. (~ Advice Letter, s_~.) tic' atio in Gov nme tal Decis Section 87100 prohibits any public official from making, participating in making, or in any way att~mDtin~ to uss. his of. ficial Dosition to influ~nco a governmental decision in which hZ knows or has reason to know-he has a financial interest. This prohibition is broadly interpreted in order to fulfill the purposes of the Act which are best served by a rule which minimi2es participation in government decisions by officials with a conflict of interest. (Iq re NRdson (1978) 4 FPPC Cps 13, copy enclosed.) -- · An official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the OCT 65 2005 15:32 FR FAIR POL PRAC COMM 916 32? 2026 TO 917074623013 P.38 File No. A-89-522 Page 6 decision, the official contacts, appears before, or otherwise at- tempts to influence, any member, officer, employee or consultant of the agency. (Regulation 18700.1, copy enclosed.) However, the Act does. not prohibit ~he of~icial,s presence at the_public hearing concerning issues for which he is disqualified.3/ Consequently, the councilmembers may be present while issues in which they have a financial interest are determined, but they maF not take testimony, ask questions, debate the issues or say or do anything to influence the decisions. There is an exception to this general ruie, which may apply here. Regulation 18700.1 provides that an otherwise disqualified official may appear in the same manner as any other member of the general public before his or her agency in the course of its prescribed governmental function to represent his or her personal interests in real property if the property is wholly owned by the official or members of his or her immediate family. From the facts you have'provided it appears that the councilmembers are the sole owners of their respective Properties. If this is the case, they may appear before the Cupertino CiTy Council, in the same manner as any other member of the public, to advocate on behalf of their property interests with respect to the decision from which they are disqualified. ~owever, their comments must be limited to ~leir Personal interests, and they should take care to clarify that they are not acting in any official capacity. (Larsen Advice Letter, No. A-87-151, copy enclosed.) The councilmembers still would be prohibited from privately discussing these matters with other members of the city council or with other city officials. I trust that this answers your questions. If you have any further questions regarding this matter, please feel free to contact me at (916) 322-5901. Sincerely, KED:JWW:plh Enclosures Kathryn E. Donovan General Counsel John W. Wallace Counsel, Legal Division 3/ Please note, however, that the disqualified members may not attend nor obtain a recording or transcript of closed meetings of the city council relating to the disqualified councilmembers, area of conflict. (HamiltQn v. Town of Los Gatos, (1989) cal. App. 3d ____, 89 Daily Journal D.A.R. 11125.) T ,~ !.,T2~2 1~:33 FR FAI~ POL PRAC COMM 9IG 3~? 20~6 TO 91707~23~13 P.35 rate of California Fair Political Practices Commissio P.O. BOX 807 . SACRAMENTO, 95804 ... 1100 K STREET BUILDING, SACRAMENTO, 95Ei14 (PI6) 323.56~ 322~660 322.J~1 322~I 32~.6~ August 5, 1982 Michael H. Miller Office of the City Attorney City Hall 3300 Newport Blvd. Newport Beach, CA 92663 Re: Your Request fOr Written Advice, Our No. A-82-119 Dear Mr. Miller: Thank you for your letter reguestiug oUr written advice as to possiDle conflicts of interest involving five members of the Newport Beach City Council. You have stated the facts as set forth below. FACTS The City of Newport Beach is considering certain amendments to its Municipal Code with regard to residential condominium projects. The specific amendments and a description are reflected in a report to the City Council from the Planning Department. You have furnished us with a copy of this report and the Newport Beach Mousing Element, which we have reviewed. The City Council is the final decision-maker with regard to adoption of these amendments and their final wording. The proposed ordinance amendments which are now set for hearing on July 12, 1982, permit the conversion of rental units in projects of four units or less. Currently, such conversions are not permissible. Conversion is subject to certain substantial conditions such as conformity with current code requirements. It is possible that these requirements could De modified during the legislative process. If the proposed amendments are adopted, conversion would DOt be automatic. An application for a Use Permit add tentative or parcel map would be necessary, followed by processing through the Planning i~' <i'= :~?~:1~ i 5:32 ~ FA!R POL PRAC COMM ~3!6 327 2026 TO 9!7074623013 P.4E) Michael H. Miller August 5, 1982 Page 2 Commission with possible review by the City Council. These bodies would exercise discretionary approval or disapproval and apply the ordinance conditions, unless such comditions are waived as spelled out in the proposed ordinance. Generally, it is the opinion of City Planners and Professional appraisers that the ability to convert rental property to condominiums is of substantial value to the property owner because it enhances property values add marketability. This is particularly true with regard to newer buildings which are more amenable to home ownership. Further, you have been advised that even though conversion does not tare place, the ability to convert enhances the value. Based upon a review of the materials which you have submitted, we would fully concur.~/ The Councilmembers As to the various City Councilmembers, you have provided the following informatioo: 1. Councilmember John Cox owns a duplex from which rental income is derived that was reconstructed in 1974 and is in good condition. 2. Councilmember Evelyn Hart owns a duplex from which rental income is derived. It is older than 10 years' and in average condition for its age. 3. The husband of Mayor Jackie Heather includes a duplex in his personal retirement plan (Keogh) from which income is derived. Subject property is approximately 10 years old add is in average condition for its age. 4. Councilmember Paul Hummel owns and lives on property that is zoned R-2 add upon which another unit exists. One unit is approximately 30 years old and the other unit is about 10 years old. Both are in average condition for their age. Currently, the entire property is treated by the owner as a single f~mily dwelling. 1_/ The material facts contained in these materials are summarized in the at~acbed Exhibit "A". OCT 05 PO©5 1~;32 FR FAIR POL PRAC COMM ~-lB 3P_? 202B TO 917074B23013 P.41 Michael H. Miller August 5, 1982 Page 3 5. CouDcilmember Phillip Maurer owns and lives on property that is zoned R-2. It consists of a house that is approximately 40 years old and a separate garage apartment complex that is about 20 years old. The latter is usually rented out. Both properties are iD average condition for their age. All of the above properties exceed $1,000 in value and are in Newport Beach. Que{tions You have asked whether, pursuant to Government Code Section 87100, any of the above councilmembers should be disgualified from the process of considering the condominium Conversion amendments. You have also asked that, if necessary, we address the following guestions: a) b) As a 7-person City Council what happens if more than a guorum are disgualified? What happens if disgualificatioD evolves into a tie vote? The Condominimum Conversion Ordinance The essence ~/ of the existing ordinance has previoualy been described. The fundamental changes being proposed have been set out iD the following chart prepared by the Newport Beach Planning Departmept.~/ PROVISION Use Permit requirement for new condominiums and conversions. Priority for newer, more conforming structures. Existing Ordinance Proposed Ordinance yes yes no ~/ Because of the 5% vacancy rate restriction iD the existing ordinance, conversions have been prohibited, as a practical matter. 3/ For more detailed discussion, see Exhibit "B", consisting of excerpts from the Planning Department memo (dated 6/14/82). DCT 05 ~05 15:3~ ~R ~AIR POL PRAC COMM 9IS 3~? 202G TO P,4~ Michael H. Miller August 5, 19 82 Page 4 Physical Elements Report requirement. Do yes Special Inspection report reguired prior to acceptance of application. no yes Minimum 5,000, square feet lot limitation for conversions. Modification of waiver of Development Standards. },es revised 30% tenant purchase requirements. yes Relocation assistance reguirement for conversion. no yes Vacancy rate restriction for four or less units. no Vacancy rate restriction for five or more units. yes yes Reguirement to provide replacement housing in Coastal Zone. no yes Phasing requirement. no yes ANALYSIS The Political Reform Act ("Act")_4/ provides that no public official may ma~e or participate in the making of any governmental decision in which he or she knows or has reason to know that ne or she has a financial interest. Section 87100. A financial interest is defined to include a direct or indirect interest iD real property of $1,000 or more in value. Section 87103(b) . _4/ Government Code Sections 81000 - 910i4. All statutory references are to the Government Code unless otherwise specified. P.43 Michael H. Miller August 5, 1982 ?ag e 5 The five Newport Beach Couocilmembers here in question are public officials within the meaning of the Act and it is stipulated that their interests in their respective pieces of real property exceed S1,000. Section 87103 also provides certain other criteria to be met before an official has a financial interest within the meaning of Section 87100. The reasonably foreseeable effect of the governmental decision in question must be material and must be distinguishable from its effect upon the public generally. Your letter indicates that materiality is very much foreseeable. Our review of the materials which you submitted causes us to concur.5_/ We turn, then, to the question of whether the effect of the proposed changes upon each of the councilmember~, real property interests is disti~guishable from the effect upon a significant segment6/ of the public. In its Ferraro Opinion,7/ the Commission held that owners of three or fewer rental un,ts would not be affected by rent control decisions in a manner distinguishable from the effect upon a significant segment of the public generally. The Commission felt that owners of three or fewer rental units, as 5/ See Exhibits "A" and "B" su~. In the case of a $300,000 duplex, an increase (or decreas) iD market value of $1,500 would be significant (and hence material). 2 Cal. Adm. Code Section 18702(b) (2). It would appear that increases in value resulting from conversions could easily exceed $100,000. ~/ 2 Cal. Adm. Code Section 18703 states that a material financial effect of a governmental decision on an official's interests is distinguishable from its effect on the public generally unless the decision will affect the official's interest in substantially the same manner as it will affect all members of the public or a sign'ificapt segment of the public. 7/ Opinion requested by John Ferraro, 4 FPPC Opinions 62, No. 78-009, November 7, 1978, (copy enclosed). OCT 05 2085 I 5: 33 FR FA I R POL PRAC COMM Ell 6 327 2026 TO 9 170746230 ! 3 P.44 Michael H. Miller August 5, 1982 Page 6 a group, were both large in numbers and heterogenerous in guality and were not part of the real property "industry."_8/ In Ferraro, the Commission found that the proposed rent control---o~dinance would affect al! owners of three or fewer rental units in much tbs same manner. Hence, the Commission concluded that the effect upon the interests of the three couDcilmembers was not distinguishable from its effect upon all owners of three or fewer units._9/ ID Newport Beach, it would appear that owners of three or fewer units of rental property would also constitute a significant segment of the public generally. However, one subsegment (owners of only ode unit of rental property in a single-family detached dwelling) of this segment is not affected by tbs current ordinance and will not be affected by the proposed changes. It is unclear how much smaller the deletion of this subgroup makes the overall class in guestion; however, we shall assume that it continues to constitute a significant segment of the public generally. }]owever, a Dumber of the provisions of the proposed changes to the ordinance raise serious questions as to whether the decision will affect the councilmembers' interests in substantially the same mannerl__0/ a~ others iD the class. As your letter indicates, the age add condition of the potentially convertible units varies. One of the proposed changes would give priority to certain units over others. Discussions on this issue could have a more ~ignificaDt impact on one of tbs councilmember's units as opposed to others in the class. Based upon the ~ousing Element and my conversation with Mr. Burnham, your assistant, it is clear also that --8/ _Id.., at 62 and 67. 9/ Id., at 68. 1_~0/ The effect need not be identical on all members of tbs class. For instance, iD Ferraro, ~upra, the across-the-board rent roll-back and-freeze being considered would affect landlords differently if they had recently raised rents as opposed to landlords who had not raised rents for several years. However, there the Commission held that there was no distinguishable effect. Ferraro, supra, at 63 and 68. FAIR POL PRAC COMM 916 3~_? ~026 TO 9i70.74~3013 P.45 Michael H. Miller August 5, 1982 Page 7 location within Newport Beach may well affect values differently as to convertibility, particularly with respect to the Coastal Zone. Another aspect of the proposal which could easily lmad to a differential effect is that of lot size. If any of the properties in question have a lot size of less than 5,000 square feet, this could create a conflict. The same could be true if their lot size exceeds 5,000 square feet, in which case the value of their respective properties may also be materially affected by a decision which excludes or includes lots under 5,000 square feet for conversion. The foregoing aspects of the proposed change were the subject of considerable debate at the Plannip'g Commission meetings (as shown in the minutes supplied). Presumably they will be open for discussion, modification, rejection or adoption by the City Council when it hears the proposal. Without more detailed information on the property holdings of each councilmember, it is difficult to ascertain the impact of some of the other proposed changes. The vacancy rate requirement amendment clearly cuts across-the-board and, if it were being considered alone, we would see no reason for disqualification. I have been advised ~y Mr. Burnham that the 5% (phasing) limitation will not likely be a factor since it is anticipated that applications for conversion under the proposed amended ordinance would not reach this level annually. In conclusion, it is our advice that, based upon the information provided, there will exist a conflict of interest requiring disqualification of each of the councilmem~ers in question on certain aspects of the proposed amendment. This would DOt De true of the vacancy rate modification, standing alone. In our advice letter to Steven F. Nord (A-82-038), we considered a similar situation. There we stated as follows: The officials must disgualify themselves as to both decisions if the result on one decision will effectively determine the result of the other decision. This would be true, fo~ example, if the same policies add interests are at stake in both decisions. They must also disqualify themselves on both decisions if the decision is of the type that cannot be legally divided. For example, if OCT 05 2005 15:33 FR FAIR POL PRAC COMM 916 327 2026 TO 9]7074623013 P.46 Michael H. Miller August 5, 1982 Page 8 there were different results in the two ordinances, a legal challenge could successfully compel the city council to arrive at a consistent result. On the other hand, if the policies and equities involved iD the two decisions differ significantly, dividing the decision into two separate ordinances would be an appropriate manner to deal with the conflicts of interest. If the issues presented by the various proposed amendments can be separated and dealt with independently, then disqualification could occur on an issue-by-issue basis. However, if the amendments are considered to be interrelated (i.e., the vacancy rate change won't be adopted unless the prio£ity package is also adopted, or the 5,000 square foot. limitation is lifted, then such a separation would not be possible.) It should be kept in mind that councilmembers who must disqualify themselves as to any particular issue may not participate in any way in the decision on that issue. Participation would include lobbying other councilmembers as well as discussion and debate; it is not limited to voting. 2 Cal. Ads. Code Section 18700(e). (Copy of 2 Cal. Ads. Code Section 18700 enclosed.) However, pursuant to 2 Cal. Ads. Code Section 18700(f), a councilmember may address the council from the audience, .on his or her own behalf. we turn now to your second two-part question which addressed the problem of multiple disqualifications. Where, as is the case here, a quorum is unattainable because a majority of the city council is disqualified under the Act, Section 87101 will permit participation where it is "legally required." .The method for selecting the members to participate is delineated iD the Commission's Hudson . Opinion.il/ If the decisions are separated, t~eD-'as to each issue a d-~termination will have to be made as to which couocilmembers are disqualified, and then, if a majority must disqualify, selection of the participants would occur. In recent telephone conversations, you have posed an additional related question. You have asked whether disqualifications would be required if the council was to take 1_~1/ Opinion requested Dy Matthew L. Hudson, 4 FPPC Opinions 13, No. 77-007, Feb. 7, 1978 (copy enclosed). P.47 Michael H. Miller A.agust 5, 1982 Page 9 up only the question of whether to consider the proposed amendments at all or merely whether to refer the entire matter back for further study and reconsideration. So long as the issue is dealt with as "amendment" or "no amendment," without consideration Of any specifics, then all owners of two units to four units would be affected in the same manner and the "public generally" exception would apply and disqualification would not be required. However, in referring the matter back for study,, the coumcilmem~ers could not try to focus the review on such matters as the 5,000 square foot limit, etc., as discussed aOove. You have indicated that the referral might be tied to a ~Iousipg Element amendment to foster preservation of rental housing. Such an amendment would, again, be across-the-board, affecting all owners of two units to four units and would not trigger disqualification. As to the tie vote question which you bare posed, that is addressed by the Hudson Opinion, su__~_~_, and Section 87101. Participation is not "i~egally reguzred" when necessary to break a tie. I trust that this letter has given you and the councilmembers the guidance you seek. If you have any questions please contact me at (916) 322-5901. REL:plh Attachments Sincerely, Robert f. L~igh Counsel Legal Division S17074623013 P.48 Page 1 of 4 Soak,ce Legal > State~.L. egcL-..U..~., > California > A.,q.~n¢~ .~ A~rl]D. stralive Matcri01~ > CA Fair Political Practices Commission ...,~ ...................... crms. 93-484 (F-dl~ ~eamh I $_u~gest TermsJ~LMy..Seaz~h) '&'Select for FOCUSTM cr Delivery 1994 Cal. Fair-Proc& LEXIS 5, * CALIFORNIA FA]R POLITICAL PRACTICES COMHISSION ADVICE LETTERS No. A-93-484 1994 Cal. Fair-Pract. LEXIS 5 ['1] David L. Zaltsman Deputy County Counsel County of Napa 1195 Third Street Room 301 Napa, CA 94,559-3001 February 16, 1994 Re: Your Request for Advice Dear Mr. Zaltsman' This is In response to your letter requesting advice on behalf of Napa County Supervisor Mike Rippey regarding his responsibilities under the conflict-of-interest provisions of the Political Reform Act (the "Act"). This letter aisc shall serve to confirm the telephonic advice that was provided to you on January 11, 1994, the day of the county supervlsor's meeting. QUESTION The minimum parcel size for property designated as Agricultural Watershed in the General Plan and zoned Agricultural Watershed is 40 - 160 acres, depending on "physical constraints." The pending county board of supervisor's decision would change the minimum parcel size to mandate ],60 acres in all cases. Does the "public generally" exception apply to permit a county supervisor who owns i60 acres of land within the affected area to participate in a decision to change the minimum parcel size referenced above? CONCLUSION The "public generally" exception does not apply to permit Supervisor Rlppey to participate in the decision, since a significant segment of the public generally [*2] would not be financially affected by the decision in substantially the same manner as the supervisor's real property interest. FACTS The Napa County General Plan designates the vast majority of land outside of the small valley floors as Agricultural Watershed and Open Space ("AWOS"); the land is zoned Agricultural Watershed ("AW"). At the current time the minimum parcel size for this General http://www.lexis.com/research/retrieve? m=4c9b52fc4al 4f3914heAhflefu'~hq0?aCR, rl~rm, 1A/zt/OAr~ -,, m' Cili 2~C:0~,5 15::34 F-R F-Ai R PC~.. P[~::~_' j:OMr4 91 _~ 3~.7 F~0~.6 TO 9!7i8746~3C) 13 Sc&-cln - 3 Rc:mlts -93-484 p . 4c:2 Page 2 of 4 Plan designation and zoning district is 40 - ]60 acres, depending on "physical constraints." The actual size allowable, therefore, involves a case-by-case analysis by planning department staff and, subsequently, the planning commissic, n and the board of supervisors. The proposal which the board of supervisors heard on January 11, 1994, would change the minimum parcel size to 160 acres in all cases. Thus, all property owners with 80 - 320 acres potentially would be affected by the decision since they no longer could subdivide their property. One of the members of the board of supervisors who would like to consider this amendment to the General Plan and Zoning District, Mike Rippey, falls within this category. He owns 160 acres of land within the AWOS/AW area. The property located within the [*3] AWOS/AW area comprises nearly eighty (80) percent geographically of Napa County and nearly half of the parcels in the unincorporated area. There are approximately 40,000 property owners in both the cities and unincorporated areas of the county. Approximately 7,000 of the~e property owners own land in the AWOS/AW area, and of these, 1,129 own 80 acres and above. Based on public debate and testimony received at preliminary hearings in this matter, the vast majority of the landowners in the area who have testified against the proposed amendment believe the increase in the minimum size requirement will substantially diminish their property values by taking away their right to subdivide their land into smaller parcels. On the other hand, the county assessor testified that one effect of passing the amendment might be to Increase the value of the land in question because the long-term number of' homesites available would De significantly diminished while demand for those homesites would not. All agree, however, there will be some financial effect on the property owners. For purposes of your letter, you asked that we assume the financial effect of the decision on Supervisor Rlppey's property ['4] would be "material." Under the current zoning scheme, Supervisor Rippey would potentially be able to subdivide his land into four parcels. Under the proposed new scheme, he would not be able to subdivide his property. ANALYSIS Conflicts ot Interest Section 87100 of the Act prohibits any public official from making, participating In making, or otherwise using his or her official position to influence a governmental decision in which the official has a financial interest. Section 87103 provides that an official has a financial interest in any decision which will have a reasonably foreseeable material financial effect on any real property, in which the official has a direct or indirect interest worth $1,000 or more. According to your facts, Supervisor Rippey owns 160 acres of land within the AWOS/AW area. Thus, for purposes of the conflict-of-interest provisions of the Act, the supervisor's interest in real property is a potentially disqualifying economic interest. Supervisor Rippey's property is located within the geographical area that will be affected by the decision in question. Thus, the supervisor will be required to disqualify If the reasonably foreseeable financial effect [*5] of the decision on his property Is material. You stated in your letter that the decision in question is an amendment of an existing zoning ordinance or other land use regulation which is applicable to all property designated in that category. Therefore, we apply Regulation 18702.3(c) tO determine materiality. Pursuant to Regulation 18702.3(c), the financial effect of the decision is considered material if the http://www.lexis.com/research/rctrievc? m--4c9b52fc4a14f3914be4b0efa3h~;g?4f&clnem~ 1 OCT 05 20©5 1._$:34 FR FAIR POL F'RAC COMM 916 32T 2026 Search - 3 Results - 93-484 TO 917874623013 P.50 Pagc 3 of 4 decision will affect the fair market value cf Supervisor Rippey's property in the amount of ten thousand dollars ($10,000) or mom or will affect the rental value of his property by $1,000 or mon~ per 12 month period. "Public Generally" Exception Regulation 18703 provides an exception to the conflict-of-interest provisions if the effect on the official's interest is not distinguishable from the effect on the public generally. For the "public generally" exception to apply, a decision must affect the official's interests In substantially the same manner as it would affect a significant segment of the public. Regulation 18703 provides that the "public generally" exception applies where both subdivisions (1) and (2) apply. (1) Significant Segment: The governmental decision [*6] will affect a "significant segment" of the public generally as set fortf~ below' (A) The decision will affect: (i) Ten percent or more of the population in the jurisdiction of the official's agency or the district the official represents, or {ii) Ten percent or more of all property owners, all home owners, or all households tn the jurisdiction of the official's agency or the district the official represents, or (iii) Fifty percent of all businesses in the jurisdiction or the district the official represents, so long as the segment is composed of persons other than a single industry, trade, or profession; or, (B) The decision will affect 5,000 individuals who are residents of the jurisdiction; or, (2) Substantially the Same Manner' The governmental decision will affect the official's economic interest in substantially the same manner as it will affect the economic interests of the segment Identified in subdivision (a)(1) of this regulation. You stated that there are 40,000 property owners in the county and that approximately 7,000 of these property owners own land In the AWOS/AW area. However, of these 7,000 property owners, only 1,129 own 80 acres and above. At the time we [*7] spoke on January 11, 1994, you did not know how many of the 1,:129 property owners owned between 80 - 320 acres, in other words, how many property owners would actually be financially affected by the pending decision. However, it was apparent that neither the ten percent I:hreshold nor the 5,000 person criteria would be satisfied in any event. Thus, it did not appear that the "public generally" exception would apply to permit Supervisor Rippey to participate in the decision. If you have any further questions regarding this matter, please feel fr~e to contact me at (916) 322-5901. Sincerely, Steven G. Churchwell General Counsel By' Deanne Stone http://www.lexis.com/research/retrieve? m=4c9b52fc4al 4f3914be4bOet'h'IbqO24f&dc, enn ] n/a/?nnq :_'ic,~:sk - 3 P. csults - 93-484 POL PRAC COMM 916 3E? 2026 Senior Commission Counsel TO 9170746a3013 P.51 Page 4 of 4 SoL:me: .Leg.P! > $.tate~,..,~gal.-..U,.S. > .C.a.ifor. n.a > Agency. & Admini~;[,..~lLy.~ Malerials > CA Fair PoliIicf~I Practices Commission [,;,J: ............................ Term,s. 93-484 (F~lj.t~..ear_ch I Sugg~LTerms for My Search) View: Full Date/Time: Tuesday, October 4, 2005 - 11:38 AM EDT Abput .Le..x!AN_e__x'f~ I Tecrnl; anO CondiIJons 2005 LexisNexis a division of Reed Elsevier Inc. All rJghl~ reserved. http ://www.lexis. com/research/retrieve ? m=4cgb52fc4al 4f'3914be4bOefa3b5924f&docnu... 10/4/2005 *~ TOTAL PAGE.51 ~* AGENDA SUMMARY ITEM NO: 10a. DATE: November 2, 2005 REPORT SUBJECT: AWARD OF CONTRACT TO ARGONAUT CONSTRUCTORS IN THE AMOUNT OF $709,697 FOR THE CONSTRUCTION OF AIRPORT INFRASTRUCTURE IMPROVEMENTS AS OUTLINED IN SPECIFICATION PW 03-10. SUMMARY: Submitted for the City Council's consideration and action is staff's recommendation that a construction contract be awarded to Argonaut Constructors in the amount of $709,697 for the installation of additional perimeter fencing and gates at the airport, enclosing an open drainage ditch parallel to north taxiway, constructing an apron adjacent to the north taxiway to clear congestion on the ramp, improving and replacing portions of the storm drain system under ramp areas, replacing pavement in portions of ramp that have deteriorated, and constructing an all weather perimeter service road around the north end and the east side of the runway for safety equipment access. Compensation for the performance of the work will be based on unit prices bid for contract items at quantities actually constructed. The contractor's bid proposal and the City of Ukiah's bid tabulation are included as Attachments 1 and 2, respectively. Two years ago, the City of Ukiah received two Airport Improvement Program (ALP) grants totaling $1,001,500. Due to the time required to complete the environmental document and design, the City did not solicit bids until September 2005. Since receipt of the initial grant funding, the cost of various construction items has increased substantially, the City has incurred extra expenses in revising the environmental document, and the City has had additional design expenses to delete certain items per FAA's request. As a result, the City now expects to have an overage of $150,075 which is not covered under the existing FAA grants. Please refer to Attachment 3 which identifies the funding and projected expenditures. The City is eligible to apply for its entitlement grant funding in the amount of $186,000 which is held in trust for the City at the FAA and should be more than adequate to cover the overage of $150,075. RECOMMENDED ACTION: Authorize award of contract to Argonaut Constructors in the amount of $709,697 for the construction of Airport Infrastructure Improvements as outlined in Specification PW 03-10. ALTERNATIVE ACTION: Choose not to approve the recommended action and provide direction to Staff. Citizens Advised: Requested by: Prepared by: Coordinated with: Attachments: N/A Diana Steele, Director of Public Works/City Engineer Diana Steele, Director of Public Works/City Engineer Candace Horsley, City Manager & Paul Richey, Airport Manager 1. Bid Proposal, Argonaut Constructors 2. Tabulation of Bids 3. Current Status of Funding and Expenditures 4. FAA Award Authorization Letter dated October 24, 2005 5. Budget Sheet Approved: Card'ce Horsley, Cii~/~Manager Page 2 AWARD OF CONTRACT TO ARGONAUT CONSTRUCTORS IN THE AMOUNT OF $709,697 FOR THE CONSTRUCTION OF AIRPORT INFRASTRUCTURE IMPROVEMENTS AS OUTLINED IN SPECIFICATION PW 03-10 November 2, 2005 BACKGROUND: The City of Ukiah recently solicited and received competitive bid proposals for the above mentioned work being funded by the two AlP grants. Notices were faxed to more than 50 general contractors who had expressed an interest in performing work for the City and to approximately 15 Builders Exchanges and publications serving the construction industry. The work was also advertised twice in the Ukiah Daily Journal. Three general contractors submitted bids. All required bid documents from the three bidders were received in a complete and timely manner. The apparent Iow bidder was Argonaut Constructors of Santa Rosa, California. Argonaut's bid totaled $709,697 and is shown on Attachment 1. The second Iow bid was approximately 0.5% higher and the third bid exceeded Argonaut's by 10.8%, which are within limits generally accepted as indicative of a fair and competitive bid process. FAA's letter granting authorization to proceed with award of the contract is included as Attachment 4. Grant funding and expenditures are identified in Account 315.7863.250.000. The fiscal year 2005/2006 budget sheet is included as Attachment 5 to this report. RECOMMENDATION: Staff recommends award of a contract to Argonaut Constructors for construction of the Airport Improvement Project. 'CITY OF UKIAH .. Aflachrnent .. . - MENDOClNO cOUNTY, CALIFORNIA . '" " · '.' ':'"' ' '" FOR '.'." ":,'.. ' '. "" Ukiah Regional Airport/rnprovement Project (A!P]~ ~_.,~/~ """ ":': .: FAA..Grant-4/3-06~02~-6 and #3-06'0268-7' ':: '. -- . .' : .- '..PW'No. 03:10' . . '.' ..: '~'':'''~' "." _ . '. , , . ~ ~ . ... '-' The undersigned, as bidder, declares that he or she has examined thorOughly all 'of the contract documents herein contained, .that this pr..opo,s_ al .is maq[e withQu,tco[lUsi0.~,wi.tb .a.~.~j .otb'er p.e'.'mon, ·firm or corporation and thatall .laws and ordinances r~la~ir~]"to.:the ir~terest' of publi~ offi(~er~' i"'~. this,C;.o, ntract have-been complied with in every.respect...' .'- .." ' .... '... ....... ...' .... : ' . i.i '. · . ' .-. .- ' . ,~ -~, ~, ~-,. ,! .. AND he or She proposes .and .agree..s., ~if th'i~ 15roposal is acc~epl~ed'.', . . . . · . . ~.) :: that he or she will'Contract v~i'th'the City. oi Ukiah., Vendbcino County, California, in the form of ':' '" th~ cdpy of the agreement herein,. (;ontain. ed~ .' · " . - a) to provide' all necessary machinery,'tools, apparatus and other means of construction;. b)" iSh' 't~ s;¥1 ' ' ..... " ' '" tofUrn 'ali'~a rial '"":"'~'""';':'"'~;"~:':';" ::'"'"'~". . .· '. c),". ~o provide all superintendenc~., ·overhead 'exp, e, ns~s~.!.,a, nd:ail labor'.and ·expenses .of . · 'whatever nature nece'ssarY-t° C~hpi~te thb j6b"ir~ ~on.~r, mit~ with'the specifications and " drawings -and other contract provisions herein 'o'r' r'~a~)nably.implied ·hereby or as' necessa[y to :cOmplete the work in the manner.and within the'time named herein and · · ~" .'" :, ' ",. aCcOrding to the re. quirem~nts and !~ the reasona-I:Jle, sa~tisfaction of the' City Engineer;. .- ,.'.'~., · ,- .,,., .,'.-'.....(, ;.., ~..' .. , ,,..-.: .. . d).. t.o.'?ay all chargeS of .fre!ght. transportation and hauiing';,' .. . .2)"' 'tha~t he or She indemnifies the City agains~;'any';'10~s 'hr ~;a~n~'~e ariSing from any act of thi~ undersign.ed as contractor; and ' ' -" ~ .... -.. , . · 3i" t~h'~t" I~e or she wilt acoept as'f'utl'~.y~erlt the,efor~the fo'llow~n~J §urns: " .' -03-2502-01210 51. September 2005 BIDDING SCHEDULE· · in case of discrepancy between.words and. figures,'the.words shall prevail. '~ .-' ITEM - DEscRIPTION AND UN!T.P, RICE'Bi'D ,- EXTENDED AMOUNT ..... ' ' ' ...... FOR ITEM NO. QUANTITY. (in words and in figures) .... .. ...... ~- ... .' (in figures) Mobilization for.the LU?.p SUm pd'~e '0f/~..i '." ,.' ~?0~30 _ ($'~.,/~'o0o,~ · ) ...... .. Construction Su~eys fo.[ the.' lump sum price of · · · ($ (S~oo.~;,...~.. . ) . '"' · ': Permah'entErosion Control for the L~.~p Sum priCe.'of ' ' ' · 3 ~ ~e~ ~~.~& ...S.~vs~ .N~~., ... ,. , $. ,, .'G.7o~ Clear.& GrUb.fOr the Lump Sum priC~ of ..... " " ' . ($ ~.~o,~. ). .. '.' .. 2-inch and Drain Pipe for Remove (Ex) 1 8-inCh Storm ~v~ · '~~" ' , ($,' .'s, oo I , ~mo (~) Concrete Headwall.for'.the Each price of Remove (Ex) D'I for the Each price of' ' " 7 ....' 6 . ~~u~~d" ~O~~ $ ~~'~' .. ($ ffoo.'oo. ). ... Remove (Ex).ASphalt Concrete for the sqUare Yard 3ri. ce of · .. '. ($ ¢,~o , Demo Fence for the Linear Foot price of ' '. · .. :'9 . 2a~ . ~~. b~ ~ ~ $'... ~.z~,~ ($ v;oo.. . . ,)' .. Relocate Fire Hydra~ f~ the Each. ~rice of ' , Relooat9 'Bollard for the Each~rice °f · , ($,z6o, , ". ). , ' Sawcut for the Linear Foot Pri~e of ' 12 , 700 ~$, .'1'5o . .. ) . Roadway. ExcavatiOn for the ~ubic.Yard price of 13 (F) '2,440 ~~~ ~~ ~~ . $ Imp°cl. B~rrow~ Compacte~ for the Cubic Yard price of 14 (F) 514' ...: ~/~ T7 '~ ~ '$ / 7 Asphalt Concrete for the ~on Price of "' 15 1,862. .. ~V~ty ~//~ ~~~ · ~ , .'. ($,, '7~.oo, ...- ) Class II Aggregate Base for the Cubic Yard price of 16 2,150 3 (~Ty'~o ~'bu~ $ 03-2502-01210 52 "' September 2005 "iTEM" QUANTITY DESCRIPTION AND UNIT PRlCE BID EXTENDED ~AMOUNT '-' "- FOR :ITEM NO. -' ....., ,.., .,, ~. . . . (in words.. ., and in figures) . ~'(in fi~lures) .. ~'.-..~ ~ ,--. Scarify and Recompact Subbase four the Square Yard, "' " '17 342 ~rice of .-" :" :, .... "'- ,,..~'..'..' :! ': '. '~ ' ' ":~': '" .... .~ ' ~'~..e~' ~ ~u~~'' ' ..... ' , ,., ,'" $...l'~°z ., .... ($ 5,00 ,. , ) . .. ' Storm D[ain 12-inCh' R'OP .f6hthe"'Eine'a;r'F0°l~' I~iiC.~b,'0f' "' 18'-.' 227'. .. ,E:l~H..r:.Y .~.Lv~'l~. ~Ot,~,,~¢.,~,..,'.,.',.~.. $ /?~".~O. ' ' · - ($.. ~,~o ).. .... .... " " Storm Drain 15-inah RCPfOr'the Lin, ear Fo?tPri~ce of ~$; '.G.'?:G ~'~'O'"': ' ' .. ($ ~'t,o~ . ) '...... ...., ,. ; : .. ~,..;:, '.'' "' ~ ;~;" ':'"", Storm.Drain i8~in6h'~CP for thb'Linear Foot price'of ' ' '" 20' 416.. -)~//~,J~-r'y. · ~ UU~ "' $ ~7 ~/'¥/-0,~O .. · . .., , '($ ?~,~z~ ") · .. Storm Drain 24:inch RCP.for the Linear FoOt price of. $.-~ f¢ "¢ ~, ~, 'cO' '. 21 391 A//~J ~ ~,' F¢.~ ~ "~)Q'CC -:22 ' 1.1 ' Foot price of .. .. $ .~'7'0 ,~.~ .- ($, qo.o~ , ) .. · .. Storm. Drain-24 inch Corrugated HDPE fo'r the:'Linear... -. ' $ - Foot-price of. -.. - · ($. 'r_~,o~- ,,. ) ..' .' Storm Drain-i.8.inch Corrugated Metal Pipe'for the ... Linear Foot price of $ / 24 24 ,,¢'f~ ~ Fl ~'~. J~ t"'L,,~, i". "'" · ($ 5.~ ,oo ) ' ' Storm Drain 'Inlets-24x24 for the E~ch pric. e of-' ~ .... ($ ! ~, oo, crc ) . Storm Drain Inlet 30x30 for the Each priceof , ($ zooo,oo )' . - ~ , Storm Drain Inlet 36x36 for thc'Each price of .... '27 1 '7"a¢~) 'M'Cu'$~¢ ~'~~ /)I~.Cl. ~ $ '''~' ~/,OO .DO '. , ($ z~o~.oo ). ,. ... I'rrigatign System for the Lump Sum price of~. · -~. ($. · f'~ ~o, ¢,i3 .-:... ).: .-', "' .,-. · , ', : .... · Concrete Valley GUtter for the'Linea, r Foot p, rice of ' " "' · 29 200 ...... . ~,¢~ ~,,~v/~.:.~,~(..,C~..,' . ". $.1' '. ~0o0',00.. ($ ,, ~.oo ,,,) .' · Install Chain.Link Fence - HT 6foot for the Linear Foot price of- /'~,n ' $ / ~ '7 ~:~2, o O 30 689 -~'E/,J -'t"Yf,~, · ($ &oO.~.'O ,. .)..~, ' ;...,. " Gate 12'-0" for theEaCh Orice :of .... · '.' ...... ' "' "~. ' . ., 03-2502-01210 .53 .. September 2005 ITEM QUANTITY, DESCRIPTION AND'UNiT PRICE.BID · EXTENDED' AMOUNT' '. NO.' '" '(in-words and in figures)"': - . . ' ..'FOR.ITEM'"..'. " ' ' ..... "'. .: (in'figures)' ': .' Gate'16'-0" for the' Eagh °rice of, :" ' .: '- .,: . . 33 - . . 2 , ~4~ 'T~'~'~/l~:~_~l~e"¥i..~;A.... $ "-Z ~ ~0 ,00" .....: ($.. :1~.o0,o0., ,.. ~:.),... .> ~.., . . Automatic Gate for the Eac~ price of " .. -,' ' '34 1 _' W/We'T~~~"~~'~ -' '" $.. '~O:O'O'O. 0'''''' ':~ .... ' ($ oo~ '" ) ' .' '"" ..... ~oo0 .... "". ~:': 'v - . ~:~ ~ .'~'..'. ~' ~ -, ,.,.. -., .~' . . . "-- TOTAL BID BASE AM. OUN.~ ~ . ... ~/J' ~,~" ;~ '.~//1'" "'. Total base bid 'amount in wo'rds' ' .... ' , ~ ' ~ ;~. .. . . . - · ~ : ~,. ,' . , ',~ , ~ *..A '. :A, Weather Se~ice R°ad ~ ..... ' ' '.'..']'~" ,.. " · (Drawings. C06, .C07~and · '. ~C08) for~he LumP Sum price of · .' '" '.. ' ...... ': . lA ... D, eduotioh (inOiudes. PoAions'qf Bid Items 3.,.'~,, J.3;' 15,'-,1~f,.1'7;,30,~. and 33)' . , ~~~¢- '" ' · , ... :.,. ($i~~,'oo - ) . . ~ r , ' We, the undersigned, further agree, if this 'pi°l~oSal stOa'ii' be'a~cC'~i~t;~j,.i~O.sjgn the agreement and to furnish the required bonds with satisfacto~ sUrety, or sureties, within fifteen (15) calendar days after' written. notice that the contract is ready for signature;and,, if the. undersigned shall fail to Contract, as aforesaid, it.shall be understood that he'or she has abandoned the contract and that, there.f~.re., th.is proposal shall be null and'void · and the proposal guaranty accompanXying'thiS' 15¢bPoBall be ~li6.ar~O't~'~i? ~ti~J g:Uaranty, shall be forfeit~l to and become the property 0fthe City. Otherwise, the propoSaj guaranty'ac'ciJmpanying this propOsal Shall be returned to the undersigned. ' ' " - ' ~ .,, , ~ ,,. ~.;~ ; Witness our hands this day.of "~'d~'~¢~'~: ~,,' ",'2.00.~. ' .' 't . ':'.,'; :'.. . , Licensed jrt accOrdance with an ac{ pr°vidin for the re' istration' f CalifOrnia COntraCtors License No. 1'1'1~'~2,~ ': ' "- ' g''~' .... ~ g, ' '~'''°'' . ",'expiration date-, ~ .~'/~t,/O~ .. ..... ".' . ' '.," .... ':"'. '"":" - .. THE CONTR/kOTOR'S LICENSE NUMBER AND EXPIRATION, DATE 'STATED HEREIN ARE MADE UNDER. PENALT'~OF PERJURY. ." ." '.. ? '~' .'." .;.¥.'' '".":... '.": :. , · . - ,.~ .%' ., .' ,~ ' signature of bidder..or bidders, with " '" , ~~'s: ' ..' '~ i ; ~ ; '.'. .... ., :,., ? .,',:". '~,~'_, .. ~,'~/ T-h' - 77.~', ..... ' : . .. : · Notice: tn the case of a corporation, give below the.addresSes df the Principal 6ffice thereof and names and' addresses of rifle President, Secretary, and Treas.urer. ,.. ,. ..... . . ..,..,' . .. · . ;, ~ '~' : ,,,';. ,~ . -.. . rr_,~,~-~--c. · .S~4 / 7-/../-- ~_ g~ L .".". ' :',,.: "'." 'L'' " ~ · . 03-2502-0! 210 54 September 2005 Attachment 0 o o oi~o ooo~oo o moo oooo oo o!oo o ooo o ooooo 0 00~0 ;0 00~0:00~000000000000000000000~ 0 8 °°°°o oooooooiooooooooooooo'o, oo 0!8188 ~o~o~ o~o~oooiommom~o~ooooiol~ .......................... ~! ~ 0 · - ~ ~oooo ddl~ddd~ddd~dddddddddddddd~d ~ o~o!o o o o o~olo o o o'o o o o o o o o o o o o o o o o o o o o ,000 ~ g ~id'dd~ ddde~d!ddd~id~ded~dddddddddd' o ~~ dddd~ ~ ~ oooo oo o~ ~~ ~~~oooo~ooo _ .- I ~..achment #_~ ~ U. m ~_ 0 ~)~ o '~ co +~ U.S Department of Transportation Federal Aviation Administration Western-Pacific Region Airports Division San Francisco Airports District Office Affochment 831 Mitten Road, Suite 210 Burlingame, CA 94010-1300 October 24, 2005 Ms. Diana Steele Director of Public Works City of Ukiah Department of Public Works 300 Seminary Avenue Ukiah, California 95482-5400 RECEIVED OCT 2, 5 2005 CITY OF UKIAH DEPT. OF PUBLIC WORKS Dear Ms. Steele: Ukiah Regional Airport AIP #3-06-0268-06, &-07 Authorization to Award Contract for Storm Drain Replacement, Perimeter Fencing, Apron, Service Road, Drainage Ditch Enclosure Project We' have reviewed the tabulation of bids for the subject project above. We concur in your recommendation, and you are authorized to award a contract to the lowest responsive bidder, Argonaut Constructors, for- the Base Bid for a total award amount of $709.697.00. At this time, we request that a pre-constructipn conference be scheduled to discuss pertinent labor regulations, safety and construction matters. The Notice to Proceed cannot be issued until the preconstruction conference is held. Please inform us of the date for such a meeting so that we may attend. Please contact me at 650-876-2778 ext 622 if you have any questions. Sincerely,- William Gin, P.E. Program Manager Copy To: Paul Richey/Airport Manager I-- Z 0 ~o ~o Z UJ Z Attachment AGENDA SUMMARY ITEM NO. 10b DATE: November 2, 2005 REPORT SUB3ECT: REVZEW~ DZSCUSS~ AND FORMULATE COMMENTS CONCERNZNG THE HOP KZLN (RYDER HOMES) DEVELOPMENT PRO3ECT ON :1.S4 ACRES ZN THE UNZNCORPORATED AREA NORTHEAST OF THE CITY SUMMARY: Mendocino County has distributed a referral packet of the Hop Kiln (Ryder Homes) development project to the City for review and comment (Attachment No. 1). The purpose of this Agenda ]:tem is to review and discuss the proposal, and formulate initial written comments to Mendocino County. PRO.1ECT DESCR]:PT1:ON: The Hop Kiln Ranch development proposal is located on 154 acres east of the Masonite plant property and includes two different scenarios. Scenario One: Scenario one consists of 150 apartment units, 91 townhomes, 469 single family homes, 24 "live/work" townhome units, 18 acres of parks and open space, and a 1.5 acre water production and treatment facility. Scenario Two: Scenario two would be similar to the first scenario, but would have 144 apartment units rather than 150, a reduction in single family homes by 56 units, and the addition of a mixed- use element containing 48,000 square feet of first-floor retail commercial space with 32 townhome units, additional commercial spaces and/or a hotel above in a number of three to four story buildings. (continued on page 2) RECOMMENDA'll:ON: Discuss the Hop Kiln (Ryder Homes) development project and formulate comments for consideration by IVlendocino County. ALTERNAT/VE COUNCZL POLZCY OPTZON: Do not prepare comments on the Hop Kiln (Ryder Homes) project and provide direction to Staff Citizen Advised: Notice of City Council discussion published in the Ukiah Daily Journal Requested by: Mendocino County Planning & Building Services Prepared by: Charley Stump, Director of Planning and Community Development Coordinated with: Candace Horsley, City Manager Attachments: 1. Hop Kiln (Ryder Homes) project referral materials (Council only) Candace Horsley, City M~ager In both scenarios, the applicants are proposing 74 or 10% of the 734 total units to be "affordable." It is unclear from the submitted materials if the affordable units would be apartments (rentals), townhomes (for sale) live/work units (for sale), the single family residences (for sale) or a combination of the four. REQUZRED EN'rZTLEMENTS: Various entitlements are requested by the applicants. These include changing the General Plan land use designation from ]ndustr/a/to Suburban Res/dent/a/and Commerda/(or North State Comp/ex if the UVAP is approved), amendments to the Zoning Ordinance and Map, a Vesting Tentative Map, Use Permit, Variance, and a Development Agreement. SEWER, WATER AND ACCESS: The following text reqarding sewer, water, and access was written by the Hop Kiln development applicants and is excerpted from their submitted application materials: Sewer: Sewage to be supplied by Ukiah Valley Sanitation District. Letter to be provided to County of Mendocino by applicant, or equivalent documentation, upon filing tentative map verifying willingness and ability to provide Sewer services to the proposed project, which will be a condition of approval for the project. Annexation to Sewer District will be filed with sanitation district and LAFCO as part of this application. Per discussion with Sewer District of the City of Ukiah adequate capacity will be available to meet this projects needs upon completion of the new Sewer treatment facility which is scheduled for completion in 2007. Water: Water to be supplied by Millview Water District. Letter was provided by applicant to the County of Mendocino. Annexation to the Millview Water district will be filed throuqh water district and LAFCO as part of this application. Subject property does have approximately 2'00+ acres (acre feet) of water rights to water from Russian River and is in the process of transferring this right to the Millview Water District with an additional well which Millview has stated will allow the removal of the current water moratorium. :In addition the Applicant and Masonite, as part of this transfer, will contribute 1.5 acre's (acre feet) to Millview Water District as a Water Treatment Facility. Will serve letter to be provided to the County of Mendocino at time of transfer of the property and the wells to Millview and prior to completion of Environmental Study and final map approval. Applicant will request an exception of the Land Division ordinance, MCC 17-41 (D)(3), to waive the requirement that a will-serve letter be filed with the Application for Tentative Map. Access: Ford Road, (Main Entrance). Secondary ingress and egress for Emergency Vehicles or Secondary Use provided on Northwestern portion of property, (existing 30 ft. easement) from subject property through Masonite Property to State Street. (See Attached). Future easement to Masonite Road and Orr Road extension to State Street to be obtained from adjoining property owners as shown on the tentative map. :In addition a 70 feet Right of Way (R/W) is planned to run parallel with the railroad tracks with the intent of connecting North and South travel, which is shown on the tentative map. Parks and Open Space: All Parks will be supplied by Applicant, which includes four soccer fields, basketball courts, tennis court, play area's, community center, perimeter walking path, and other amenities as shown on the submitted Landscaping and Lighting Plan for this proposed development. All Parks and Open Area's to be maintained by Homeowners Association or "Assessment District". maintained by an "Assessment District" then the Park will be open to the Public, which is the Applicants preferred option. ~[n the event that the Parks are maintained by the Homeowners Association than these Parks will be Private. ENVIRONMENTAL REVIEW: The County has required the preparation of an Environmental Impact Report for the project. An EIR"Scoping" meeting is scheduled for November 14, 2005. The purpose of the EIR "Scoping" meeting is to bring interested local, federal, and State Agency representatives, interested groups and organizations, and the general public together to discuss the proposed project, identify potentially significant environmental effects and feasible mitigation measures, and to discuss alternatives. It is a "tool" used to open a community dialog about the project and to decide the scope and magnitude of the EIR. Staff will attend and participate in the meeting. DISCUSSION: The County is seeking the City's initial comments on the largest single development project ever proposed in the Ukiah Valley. This is the first of many large projects that have undergone preliminary discussions with the County, and illustrates the intense interest in the Ukiah Valley from large development companies. While the Hop Kiln project is being touted by the developers as an "Urban Village Smart Growth Development" it has the potential to significantly alter the character of the valley and impact the City in many ways. Certainly the mix of housing types, parks and open spaces, varied architectural designs, and other components that make up the project are more desirable than traditional stark and mono-designed subdivisions, but it's a very large project that could potentially have a population nearly half the size of the City of Willits. This increase in the Valley's population could in turn significantly increase the City's already congested "daytime" population. The resulting traffic, air quality, and other potential impacts must be carefully analyzed and evaluated in relation to the benefits of increased and varied levels of housing stock, particularly with only 74 of the 734 units being proposed as "affordable." Scenario number two includes a large commercial/residential mixed-use component of clustered tall buildings that seem to provide a "downtown" atmosphere. While having a commercial component(s) in the project may be important for a number of reasons, Staff is concerned that a "mock" downtown may have adverse fiscal impacts on Ukiah's downtown. The applicants understand this issue, and are open to suggestions about the design of a commercial component to the project. They have indicated that a F/sca/Zrnpact/ina/ys/s may be prepared to evaluate this issue. The developers have established communication with City Staff, and have expressed a desire to understand any concerns the City has about the project. They have indicated a willingness to work with the City to solve potential problems and address City concerns. The City Council will have the opportunity to review and comment on the potential environmental impacts resulting from the project when the draft Environmental l~mpact Report is prepared and circulated for public review, and to also comment on the merits of the project. RECOMMENDATION: Discuss the Hop Kiln (Ryder Homes) development project and formulate initial comments for consideration by Mendocino County.