Loading...
HomeMy WebLinkAboutAgenda Packet 03/13/2001 AGENDA 1918 � . 1979 ATASCADERO CITY COUNCIL MEETING TUESDAY, MARCH 13, 2001 7:00 P.M. City of Atascadero 6500 Palma Avenue, 4th Floor Atascadero, California REDEVELOPMENT AGENCY: 5:30 P.M. REGULAR SESSION, 7:00 P.M.: PLEDGE OF ALLEGIANCE: Council Member Luna ROLL CALL: Mayor Arrambide Mayor Pro Tem Scalise Council Member Clay Council Member Johnson Council Member Luna APPROVAL OF AGENDA: Roll Call PRESENTATIONS: I. Planning Commissioner Harold Carden, III COMMUNITY FORUM: (This portion of the meeting is reserved for persons wanting to address the Council on any matter not on this agenda and over which the Council has jurisdiction. Speakers are limited to five minutes. Please state your name and address for the record before making your presentation. The Council may take action to direct the staff to place a matter of business on a future agenda_) COUNCIL ANNOUNCEMENTS AND REPORTS: (On their own initiative, Council Members may make a brief announcement or a brief report on their own activities. Council Members may ask a question for clarification, make a referral to staff or take action to have staff place a matter of business on a future agenda. The Council may take action on items listed on the Agenda.) ' A. CONSENT CALENDAR: Roll Call (All items on the consent calendar are considered to be routine and non-controversial by City staff and will be approved by one motion if no member of the Council or public wishes to comment or ask questions. If comment or discussion is desired by anyone, the item will be removed from the consent calendar and will be considered in the listed sequence with an opportunity for any member of the public to address the Council concerning the item before action is taken.) 1. City Council Minutes—February 27, 2001 ■ City Clerk recommendation: Council approve the City Council minutes of February 27, 2001 [City Clerk] 2. Elevator Control System Modernization Project ■ Fiscal Impact: $58,300.00 ■ Staff recommendation: Council authorize the City Manager to enter into an agreement with Republic Elevator Co. for the City Administration Building Elevator Control System Modernization Project. [Community Services] 3. Atascadero Lake Park Paddleboat Concession—Lease assignment ■ Fiscal Impact: None ■ Staff recommendation: Council authorize the City Manager to sign the Consent to Assignment with Lloyd Reeves for the Atascadero Lake Park Paddleboat Concession Lease [Community Services] 4. El Camino Real Widening Project—Bid No. 2000-02 ■ Fiscal Impact: $302,727.91 ■ Staff recommendation: Council: 1. Accept Souza Construction, Inc. work as complete; and 2. Authorize the Administrative Services Director to appropriate an additional $60,277.91 from Fund 281 (Street & Bridge Fee) to this Project account; and 3. Authorize the Contract Change Order #1 with Souza Construction, Inc.for $83,875.76; and 4. Authorize the Administrative Services Director to release the project retention of$25,017.58. [Public Works] B. PUBLIC HEARINGS: None 1. 2001 Community Development Block Grant Allocation ■ Fiscal Impact: The City has$257,162 funds available for award ■ Staff recommendation: Council direct staff to forward to the County Board of Supervisors allocation recommendations for the 2001 Community Development Block Grant (CDBG)funds as recommended in staff report. [Public Works] 2 2. Sewer Extension Reimbursement Agreement—Home Depot ■ Fiscal Impact: The City will receive a 2%administration fee from each reimbursement collected. ■ Staff recommendation: Council authorize the City Manager to execute a Sewer Extension Reimbursement Agreement between the City and Home Depot U.S.A., Inc. [Public Works] 3. Proposed Amendments to Atascadero Municipal Code—Relating to the Regulation and Location of Adult Oriented Businesses ■ Fiscal Impact: None ■ City Attorney recommendation: Council introduce for first reading by title only, the draft Ordinance adding Title 9 Chapter 16 to the Atascadero Municipal Code pertaining to zoning regulations applicable to adult oriented businesses and amending in full Title 5, Chapter 10 of the Atascadero Municipal Code relating to the regulation of adult oriented businesses. [City Attorney] C. MANAGEMENT REPORTS: 1. Solid Waste, Green Waste and Recycle Collection ■ Fiscal Impact: None ■ Staff recommendation: Council receive this report by Atascadero Waste Alternatives. [Public Works] 2. Atascadero Lake Park Master Plan and Lake Pathway Improvements—Design Services ■ FiscalImpact.• $51,700.00 ■ Staff recommendation.: Council authorize the City Manager to enter into an agreement with UP Productions for design services for the Atascadero Lake Park Master Plan and Lake Pathway Improvement Project. [Community Services] 3. Information Bulletin E. COMMITTEE REPORTS: (The following represent standing committees. Informative status reports will be given, as felt necessary.): Mayor Arrambide 1. S.L.O. Council of Governments(SLOCOG)/S.L.O. Regional Transit Authority(SLORTA) 2. Water Committees 3. County Mayor's Round Table Mayor Pro Tem Scalise 1. Finance Committee 2. City/ Schools Committee 3. Economic Opportunity Commission(EOC) 4. Atascadero State Hospital Advisory Board Council Member Luna 1. Finance Committee 2. Integrated Waste Management Authority (IWMA) 3. North County Homeless Coalition Council Member Johnson 1. Economic Vitality Corporation, Board of Directors (EVC) 2. Local Agency Formation Commissions (LAFCO) Council Member Clgy 1. Air Pollution Control District(APCD) 2. City/ Schools Committee F. INDIVIDUAL DETERMINATION AND/OR ACTION: 1. City Council 2. City Attorney 3. City Clerk 4. City Treasurer G. ADJOURNMENT: THE NEXT CITY COUNCIL MEETING WILL BE A REGULAR SESSION SCHEDULED ON MARCH 27, 2001,AT 7:00 P.M. Please note: Should anyone challenge any proposed development entitlement listed on this Agenda in court, that person may be limited to raising those issues addressed at the public hearing described in this notice, or in written correspondence delivered to the City Council at or prior to this public hearing. i I, Marcia McClure Torgerson, the City Clerk of the City of Atascadero, declare under the penalty of perjury that the foregoing agenda for the March 13, 2001 Regular Session of the Atascadero City Council was posted on March 7, 2001 at Atascadero City Hall, 6500 Palma Ave., Atascadero, CA 93422 and was available for public review in the City Clerk's office at that location. Signed this Ind day of March, 2001 at Atascadero, California. YAw Marcia McClure Torgerson, City Clerk City of Atascadero s 4 City of Atascadero WELCOME TO THE ATASCADERO CITY COUNCIL MEETING The City Council meets in regular session on the second and fourth Tuesday of each month at 7:00 p.m., in the Council Chamber of City Hall. Matters are considered by the Council in the order of the printed Agenda. Copies of the staff reports or other documentation relating to each item of business referred to on the Agenda are on file in the office of the City Clerk (Room 311) available for public inspection during City Hall business hours. An agenda packet is also available for public review at the Atascadero Library, 6850 Morro Road. Contracts, Resolutions and Ordinances will be allocated a number once they are approved by the City Council. The minutes of this meeting will reflect these numbers. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City meeting or other services offered by this City, please contact the City Manager's Office, (805) 461-5010, or the City Clerk's Office, (805) 461-5074. Notification at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service. TO SPEAK ON AGENDA ITEMS Members of the audience may speak on any item on the agenda. The Mayor will identify the subject, staff will give their report, and the Council will ask questions of staff. The Mayor will announce when the public comment period is open and will request anyone interested to address the Council regarding the matter being considered to step up to the podium. If you wish to speak for, against or comment in any way: • You must approach the podium and be recognized by the Mayor • Give your name and address(not required) • Make your statement • All comments should be made to the Mayor and Council • All comments limited to 5 minutes(unless changed by the Council) • No one may speak for a second time until everyone wishing to speak has had an opportunity to do so, and no one may speak more than twice on any item. The Mayor will announce when the public comment period is closed, and thereafter, no further public comments will be heard by the Council. TO SPEAK ON SUBJECTS NOT LISTED ON THE AGENDA Under Agenda item, "COMMUNITY FORUM", the Mayor will call for anyone from the audience having business with the Council to: • Please approach the podium and be recognized • Give your name and address • State the nature of your business This is the time items not on the Agenda may be brought to the Council's attention. A maximum of 30 minutes will be allowed for Community Forum (unless changed by the Council). . TO HAVE ITEMS PLACED ON AGENDA All business matters to appear on the Agenda must be in the Office of the City Manager ten days preceding the Council meeting. Should you have a matter you wish to bring before the Council, please mail or bring a written communication to the City Manager's office in City Hall prior to the deadline. ITEM NUMBER: A—1 DATE: 03/13/2001 DRAFT MINUTES 1979 ATASCADERO CITY COUNCIL MEETING TUESDAY, FEBRUARY 27, 2001 7:00 P.M. City of Atascadero 6500 Palma Avenue, 4t" Floor Atascadero, California REDEVELOPMENT AGENCY: 6:30 P.M. REGULAR SESSION: 7:00 P.M.: Mayor Arrambide called the meeting to order at 7:00 p.m. and Council Member Johnson led the Pledge of Allegiance. ROLL CALL: Present: Council Members Clay, Johnson, Luna, Scalise and Mayor Arrambide Absent: None Others Present: City Clerk Marcia McClure Torgerson and City Treasurer David Graham Staff Present: City Manager Wade McKinney, Assistant City Manager Brady Cherry, Administrative Services Director Rachelle Rickard, Police Chief Dennis Hegwood, Acting Fire Chief Kurt Stone, Public Works Director Steve Kahn, Community Services Manager Geoff English, Acting Community and Economic Development Director Warren Frace and City Attorney Roy Hanley. APPROVAL OF AGENDA: MOTION: By Council Member Johnson and seconded by Council Member Luna to approve the agenda. Motion passed 5:0 by a roll-call vote. CC 02/27/01 Pagel 001 PRESENTATIONS: 1. Proclamation declaring March 2001, "Grand Jury Month." Phyllis Heath, of the San Luis Obispo County Grand Jury, accepted the proclamation. 2. Presentation: Tree City USA Bruce Bonifas, President of the Atascadero Native Tree Association, accepted the proclamation. COMMUNITY FORUM: Carol Ball, 7070 Marchant Avenue, representing the Atascadero Association of Realtors and the Government Affairs Committee, spoke on the issue of the General Plan Update. She read from a report prepared by the Government Affairs Committee stating their recommendations to the City. Rusty Risch, 10518 Cuesta Court, representing the Coalition for Decency, spoke about his concerns with the sexually oriented business ordinance in Atascadero and encouraged the City to remain resolute in their enforcement of the ordinance. Raymond Jansen, 6655 Country Club Drive, expressed his feelings about the spiritual qualities of character that make a good community. Myra Douglass, 8005 El Retiro Avenue, representing Amigos De Anza, asked that the community remember that March 4ch has officially been proclaimed De Anza Day in Atascadero, to be commemorated and celebrated annually. Richard Hill, 8400 San Gabriel,read a prepared statement concerning his opposition to City and County laws concerning animal control. Carol Ball, 7070 Marchant Avenue, continued reading her report. John Bradley, 4475 San Jacinto, stated that he came to this meeting thinking the issue of the sexually oriented business ordinance review would be discussed and inquired when the issue would be before the Council. Richard Hill, 8400 San Gabriel, continued reading his prepared statement. Ames Almandorff, 11505 Salinas Road, expressed his opposition to Diamond Adult World's presence in the community. He encouraged the Council to do everything they can to remove Diamond's from Atascadero. Mayor Arrambide closed the Community Forum. CC 02/27/01 Page 2 002 COUNCIL ANNOUNCEMENTS AND REPORTS: 1. 3F Meadows Open Space Proposal ■ Staff recommendation: Council adopt draft Resolution supporting the • purchase of 770 acres in 3F Meadows by the Atascadero Land Preservation Society. [City Manager's office] City Manager Wade McKinney gave the staff report. PUBLIC COMMENT Bruce Bonifas, 5735 San Pedro, read a prepared statement supporting ALPS in their efforts and encouraged the City Council to use available tree funds for the preservation of this property. Doug Chisholm, Atascadero, expressed his support for ALPS' efforts to acquire the 3F Meadows extension. Dave Highland, 7275 Carmelita, stated his support for the preservation of this property as open space. Eric Greening, 6600 Lewis Ave., suggested the City and ALPS work together on preserving this property as open space. He feels the City should use their good name to leverage every possible type of grant funding for this project. Bettina and Alvin Salter, 14080 San Antonio Road, expressed in a prepared statement read by • Robert Phemister, 7109 San Gregorio Road, their support of ALPS' efforts to raise money and purchase the open space. (see Attachment A) Fred Frank, 3615 Ardilla, stated that his mother passed away last week. She had planned on attending this meeting and expressing her support for the preservation of open space in Atascadero. Mr. Frank also expressed his support for ALPS' efforts to acquire this property. Marilyn Brown, 8455 Graves Creek Road, stated she supports the preservation of this property as open space. Marge Mackey, Chairman of ALPS, gave the Council pictures of the property and asked for the Council's support of their project. She raised the question of transfer of development rights and whether there is not somewhere else in the City where the proposed developer of this site could build his homes. Livia Kellerman, 5463 Honda, encouraged the Council to support the efforts of ALPS to protect this property any way they can. Vickie Rayburn, 11705 Santa Lucia, said that the wildlife in this area should be given consideration in this issue. Mayor Arrambide closed Public Comment. • Council Member Johnson stated that he supports this acquisition if the parties are willing, even though it will require a major change to the General Plan. He expressed concern with the use of CC 02/27/01 Page 3 003 03 the City's tree fund monies, as there are many questions that still need to be answered. Additionally, he feels the issue of ownership and maintenance of the property must be addressed. Council Member Clay stated that he respects what ALPS is trying to do but he cannot support • the Resolution. He explained that there are many charitable organizations in Atascadero that have a greater need for funds, and the City should not involve City funds in the acquisition of property for open space. He prefers other methods of funding such as transfer of development credits or doing a partial development and selling the balance of the development credits, which would pay for the balance of the open space. Mayor Pro Tem Scalise said that she agrees with Council Members Clay and Johnson. She explained that she does not support the City assisting in the funding of this project. Council Member Luna expressed his support of the Resolution stating that the General Plan and the Atascadero Smart Growth Principles support it. In referring to the Resolution, he suggested that item #2 be amended to read, "The City Council supports the effort and will take reasonable steps including a possible pledge of tree fund money to assist ALPS in the funding and development of this project." He encouraged the Council and the public to support ALPS' efforts. Mayor Arrambide stated he has questions, such as public access to existing property that ALPS has participated in. He feels the draft Resolution needs changes and would like to see the first WHEREAS extended to read, "WHEREAS the Atascadero Land Preservation Society (ALPS) is working to acquire 770 acres on the 3F Meadows area for the purpose of public use and conservation." Additionally, he would like item #1 to read, "The City Council encourages all community members to join in the effort with ALPS to purchase the property for open space and ultimate public use." In item #2 Mayor Arrambide stated he is uncomfortable with the issue of • reasonable financial assistance by the City to ALPS. Council Member Luna stated that there were other players involved in this issue in addition to ALPS. Mayor Pro Tem Scalise agreed and felt that the Resolution is premature based on issues raised by Mayor Arrambide. She feels that there is a community trust that the use of this property be for the good of all. She also said that she feels the Council has an obligation to the entire electorate to let the eventual disposition of the property be worked out on its own at which time the Council could become involved with preservation issues. Council Member Luna made a motion that the Council adopt the draft Resolution amended as follows: Item #2. The City Council support the effort and will take reasonable steps including a possible pledge of tree fund money to assist ALPS in the funding and development of this rp olect. There was no second to this Motion. Council Member Johnson expressed his concern with the financial support aspect of this Resolution. Council Member Luna suggested they pass the Resolution as originally presented by City staff. Mayor Arrambide asked if`'reasonable steps" could be construed as mandatory. • CC 02/27/01 Page 4 004 Council Member Clay reiterated his concern that there were many good causes in the community and he does not feel the City should single out this one cause. • MOTION: By Council Member Johnson and seconded by Council Member Luna to adopt the draft Resolution as presented with the following amendment: Item #2. The City Council supports the efforts and will take reasonable steps to assist ALPS in the funding and development o this project. Motion passed 3:2 by a roll call vote. (Council Members Clay and Scalise voted no.) (Resolution No. 2001-007) Mayor Arrambide declared a recess at 8:36 p.m. Mayor Arrambide reopened the Council meeting at 8:48 p.m. A. CONSENT CALENDAR: 1. City Council Minutes— Special Meeting - February 8, 2001 ■ City Clerk recommendation: Council approve the City Council minutes of February 8, 2001 [City Clerk] 2. City Council Minutes—February 13, 2001 ■ City Clerk recommendation: Council approve the City Council minutes of February • 13, 2001 [City Clerk] 3. Acceptance of Phase 2 of Final Tract Map 98013 / Tract 2317 — 3900 Traffic Way (Shores / Wilson Survey/RTC) ■ Fiscal Impact: Negligible: City already maintains Traffic Way ■ Staff recommendation: Council accept Phase 2 of Final Tract Map 98013 / Tract 2317 including the dedication of lot 41 for Public Park purposes and a portion of Traffic Way for public acceptance. [Community Development] 4. Annual Disadvantaged Business Enterprise Goal ■ Fiscal Impact: None ■ Staff recommendation: Council adopt annual Disadvantaged Business Enterprise (DBE)participation goal. [Public Works] MOTION: By Council Member Luna and seconded by Council Member Johnson to approve the Consent Calendar. Motion passed 5:0 by a roll-call vote. B. PUBLIC HEARINGS: None • CC 02/27/01 Page 5 - 005 C. MANAGEMENT REPORTS: 1. 2000 Audit Report—Review and accept ■ Staff recommendation: Council review and accept the audit report for the fiscal year • ended June 30, 2000. [Administrative Services) Administrative Services Director Rachelle Rickard gave the staff report and answered questions of Council. PUBLIC COMMENT Eric Greening, 6600 Lewis Ave., expressed his concern with what he perceives to be the hasty decisions being made by the State regarding energy. He would like to see an organized effort by local government to protect its fiscal position in the State. Mayor Arrambide closed Public Comment. MOTION: By Council Member Clay and seconded by Mayor Pro Tem Scalise to review and accept the audit report for the fiscal year ended June 30, 2000. Motion passed 5:0 by voice vote. 2. Mid-Year Budget Review ■ Fiscal Impact: Revenue Increase of S240,000. Additional Appropriations of 5249,460 ■ Staff recommendation: Council adopt draft Resolution amending the 2000-01 Budget (Resolution No. 2000-027) [Administrative Services] Administrative Services Director Rachelle Rickard gave the staff report and answered questions of Council. PUBLIC COMMENT: None MOTION: By Council Member Luna and seconded by Council Member Johnson to adopt the draft Resolution amending the 2000-01 Budget (Resolution No. 2000-027). Motion passed 5:0 by a roll call vote. (Resolution No. 2001-008) 3. Youth/Community Center Site Options ■ Approval of this recommendation will result in the availability of an additional one million dollars of external fiords for this project. ■ Staff recommendation: Council direct staff to prepare and bring back a draft agreement with the San Luis Obispo County Office of Education for a partnership to construct and operate a Youth /Community Center on the grounds of the El Camino Real Continuation School and prioritize the remaining potential building sites. [Community Services] Assistant City Manager Brady Cherry gave the staff report and answered questions of Council. • CC 02/27/01 Page 6 - 006 PUBLIC COMMENT George Dodge, 5670 Lobos Lane, expressed his support for staff's recommendation and • encouraged the Council to approve this proposal. Eric Greening, 6600 Lewis Avenue, stated that he feels a downtown location is preferable. He asked if the public transit service would expand their hours to accommodate this proposed project. Rick Mathews, 6915 Navarette Avenue, recommended the Council approve the staff's proposal. Sandy Mathias, 4516 Yerba, a member of the Youth Task Force, thanked the City staff for their efforts in finding a way to make the community's desires a reality. Joan O'Keefe, 9985 Old Morro Road East, stated she has concerns about parking and the accessibility of this site. She feels the downtown area is a better site for the project. Barbie Butz, 3370 San Fernando Road, said she is concerned that the other Parks and Recreation Commissioners are not aware of this new proposal. She expressed her support but asked that a special meeting be scheduled for the Commission. Juana Adams, Atascadero Youth Task Force, pointed out to the Council that this would be a community school, not a continuation school. She feels this raises issues regarding the type of students at the site. Mike Zappas, 8189 San Dimas Lane, said that he is building an apartment building behind this • site. He stated that he has visited schools similar to the one proposed for this site and feels they are very well regulated. In speaking with the neighbors at these sites he has found that there were never any problems with the students attending the schools. Mayor Arrambide closed Public Comment. Mayor Pro Tem Scalise recommended that the Parks and Recreation Commission be contacted regarding this issue. Assistant City Manager Cherry stated that an informational package could be delivered to the Commission tomorrow. MOTION: By Council Member Clay and seconded by Council Member Luna to direct staff to prepare and bring back a draft agreement with the San Luis Obispo County Office of Education for a partnership to construct and operate a Youth / Community Center on the grounds of the El Camino Real Continuation School and prioritize the remaining potential building sites. Motion passed 5:0 by a roll call vote. 4. Information Bulletin CC 02/27/01 007 Page 7 D. COMMITTEE REPORTS: Mayor Arrambide SLO Council of Governments (SLOCOG)/S.L.O. Regional Transit Authority(SLORTA): Will be meeting next week. Council Member Luna Integrated Waste Management Authority (IWMA): The IWMA will consider adding one representative from the community on the second Wednesday in March. Council Member Johnson Economic Vitality Corporation, Board of Directors (EVC): The State Commerce Department is sending a trade mission to Japan and EVC will be covering it to give exposure to companies here. He will be going to Japan next week with the mission. E. INDIVIDUAL DETERMINATION AND/OR ACTION: City Attorney Roy Hanley He reported that the City has prevailed on the lawsuit filed by Mr. Terrill Graham. F. ADJOURNMENT: Mayor Arrambide adjourned the meeting at 10:09 p.m. to the next regular session on March 13, 2001, at 7:00 p.m. • MEETING RECORDED AND MINUTES PREPARED BY: Marcia McClure Torgerson, City Clerk CC 02/27/01 ®® Page 8 - Atascadero City Council February 27, 2001 ATTACHMENT A • February 25, 2001 To: Atascadero City Council Members Dear Sir or Madam: We wish to entreat you to support the Atascadero Land Preservation Society's efforts to raise money and purchase the open space. This will be a wonderful asset to the City of Atascadero! We all wish to continue to live in this great place and keep it great--what better way than to put our money where our mouths are and buy open space land for the enjoyment of our children, grandchildren and 100 generations to come. Houses, shopping malls, roads and freeways only last a few generations but the land lasts forever. Please hear our request and support the Atascadero Land Preservation Society with your votes and support. Sincerely, Bettina H. Salter AI in J. Salter X,J 14080 San Antonio Road Atascadero CA 93422 • 00 ITEM NUMBER: A-2 gaNwb DATE: 03/13/2001 leis A p 1979 Atascadero City Council Staff Report - Community Services Department Elevator Control System Modernization Project RECOMMENDATION: Council authorize the City Manager to enter into an agreement with Republic Elevator Co. for the City Administration Building Elevator Control System Modernization Project. DISCUSSION: Bids were received and publicly opened on February 6, 2001 for Elevator Control System Modernization Project for the City Administration Building. The award of the contract requires Council approval per the City procurement manual. A bid summary prepared by the City Clerk and an itemized bid is attached. Republic Elevator Co. submitted a total project bid of$58,300.00. The City Council allocated $75,000.00 for this project in fiscal year 2000-2001. This project will replace the antiquated electrical relays and switches that control the elevator. In addition, the elevator will be equipped with ADA approved control panels and signals. This project will not replace the mechanical systems of the elevator, such as the motor, hoists and door opening mechanisms. FISCAL IMPACT: Approval of this agreement will result in expenditures of$58,300.00 ALTERNATIVES: No Alternative. 010 City of A Office of the City Clerk BID SUMMARY TO: Geoff English, Community Services Manager FROM: Marcia McClure Torgerson, City Clerk titin BID NO.: 2000-013 OPENED: February 6, 2001 PROJECT: Elevator Control System Modernization Project (2) Bids were received and opened today,as follows: • Total ADA Portion Bidder Bid of Total Bid Republic Elevator Co. $58,300.00 $19,400.00 P.O. Box 1222 Goleta, CA 93116 Thyssen Elevator Co. $70,252.00 $12,341.00 350 South Kellogg Ave. Goleta,CA 93117 Attachments: 2 bids • v 012 • AGREEMENT FOR SERVICES OF CONTRACTOR This agreement is made upon the date of execution, as set forth below, by and between Republic Elevator Company, hereinafter referred to as "Contractor," and the City of Atascadero, California, a Municipal Corporation, hereinafter referred to as "City." The parties hereto, in consideration of the mutual covenants contained herein, hereby agree to the following terms and conditions: 1.00 GENERAL PROVISIONS 1.01 TERMS: This agreement will become effective on the date of execution set forth below, and will continue in effect until terminated as provided herein. 1.02 SERVICES TO BE PERFORMED BY CONTRACTOR: Contractor agrees to perform or provide the services specified in "Description of Services" attached hereto as "Exhibit A" hereby incorporated herein. Contractor shall determine the method, details and means of performing the above-referenced services. Contractor may, at Contractor's own expense, employ such assistants as • Y p p Y Contractor deems necessary to perform the services required of Contractor by this agreement. City may not control, direct or supervise Contractor's assistants or employees in the performance of those services. 1.03 COMPENSATION: In consideration for the services to be performed by Contractor, City agrees to pay Contractor the consideration set forth in the amounts and under the terms provided in "Exhibit B," hereby incorporated herein. 2.00 OBLIGATIONS OF CONTRACTOR 2.01 MINIMUM AMOUNT OF SERVICE BY CONTRACTOR: Contractor agrees to devote the hours necessary to perform the services set forth in this agreement in an efficient and effective manner. Contractor may represent, perform services for and be employed by additional individuals or entities, in Contractor's sole discretion, as long as the performance of these extra- contractual services does not interfere with or present a conflict with City's business. 1 • 013 • 2.02 TOOLS AND INSTRUMENTALITIES: Contractor shall provide all tools and instrumentality's to perform the services under this agreement except those listed in "Tools and Instrumentality's Provided by City" attached hereto as "Exhibit C" and hereby incorporated herein. 2.03 WORKER'S COMPENSATION AND OTHER EMPLOYEE BENEFITS: City and Contractor intend and agree that Contractor is an independent contractor of City and agrees that Contractor and Contractor's employees and agents have no right to Worker's Compensation and other employee benefits. If any worker insurance protection is desired, Contractor agrees to provide Worker's Compensation and other employee benefits, where required by law, for Contractor's employees and agents. Contractor agrees to hold harmless and indemnify City for any and all claims arising out of any claim for injury, disability, or death of any of Contractor and Contractor's employees or agents. 2.04 INDEMNIFICATION: Contractor hereby agrees to, and shall, hold City, its elective and appointive boards, officers, agents and employees, harmless and shall defend the same from any liability for damage or claims for damage, or suits or actions at law or in equity which may allegedly arise from Contractor's or any of Contractor's employees' or agents' operations under this agreement, whether such operations be by Contractor or by any one or more persons • directly or indirectly employed by, or acting as agent for, Contractor; provided as follows: a. That the City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described. b. That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any agent or employee of Contractor regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 2.05 INSURANCE: Contractor shall not commence work under this contract until they have obtained all insurance required under this section and such insurance shall have been approved by City as to form, amount and carrier: a. Public Liability and Property Damage Insurance. Contractor shall take out and maintain during the life of this contract such public liability and • 2 914 property damage insurance as shall protect City, its elective and • appointive boards, officers, agents and employees, and Contractor and any agents and employees performing work covered by this contract from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any subcontractor's operations under this contract, whether such operations be by Contractor or by anyone directly or indirectly employed by contractor and the amounts of such insurance shall be as follows: (1) Public Liability Insurance. In an amount not less than $ 1,000,000.00 for injuries, including, but not limited to death to any one person and, subject to the same limit for each person, in an amount not less than $500,000.00 on account of any one occurrence; (2) Property Damage Insurance. In an amount of not less than $ 1,000,000.00 for damage to the property of each person on account of any one occurrence. (3) Comprehensive Automobile Liability. Bodily injury liability coverage of $ 1,000,000.00 for each person in any one accident and $_$500,000.00 for injuries sustained by two or more persons in any one accident. Property damage liability of • $-$500,000.00for each accident. (4) Worker's Compensation Insurance. In the amounts required by law as set forth in Section 2.03 above. b. Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be declared to, and approved by, the City. The City may require that either the insurer reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected or appointed officials, employees, agents or volunteers; or the Contractor shall procure a bond guaranteeing payment of all losses, and related investigation, claims administration and legal expenses. C. Proof of Insurance. Contractor shall furnish City, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required, and adequate legal assurance that each carrier will give City at least thirty (30) days' prior notice of the cancellation of any policy during the effective period of this contract. The certificate or policy of liability of insurance shall name City as an additional insured with the Contractor. 3 • 015 • 3.00 OBLIGATIONS OF CITY 3.01 COOPERATION: City agrees to comply with all reasonable requests of Contractor necessary to the performance of Contractor's duties under this agreement. 3.02 PLACE OF WORK: City agrees to furnish space for use by the Contractor while performing the services described in this agreement only as set forth in "Exhibit D," hereby incorporated herein. Any work space requirements not set forth in "Exhibit D" shall be the responsibility of Contractor, and Contractor may use alternate space for performing described services. 4.00 TERMINATION OF AGREEMENT 4.01 TERMINATION OF NOTICE: Notwithstanding any other provision of this agreement, any party hereto may terminate this agreement, at any time, without cause by giving at least thirty LaOl days prior written notice to the other parties to this agreement. 4.02 TERMINATION ON OCCURRENCE OF STATED EVENTS: This agreement shall terminate automatically on the occurrence of any of the • following events: (1) Bankruptcy or insolvency of any party; (2) Sale of the business of any party; (3) Death of any party; (4) The end of the (30) days as set forth in Section 4.01; (5) End of the contract to which Contractor's services were necessary; or (6) Assignment of this agreement by Contractor without the consent of the City. 4.03 TERMINATION BY ANY PARTY FOR DEFAULT OF CONTRACTOR: Should any party default in the performance of this agreement or materially breach any of its provisions, a non-breaching party, at their option, may terminate this agreement, immediately, by giving written notice of termination to the breaching party. 4.04. TERMINATION: This agreement shall terminate upon on calendar year, following completion of the project, unless extended as set forth in this Section. The City, with the agreement of the Contractor, is authorized to extend the term of this agreement beyond the termination date, as needed, under the same terms and conditions set forth in this agreement. Any such extension shall be in • 4 016 writing and be an amendment to this agreement. • 5.00 LIQUIDATED DAMAGES Contractor agrees to complete the entire Scope of Work mentioned in Exhibit A, within thirty (30) days of the commencement of work. Failure to complete the Scope of Work, except the maintenance and inspection requirements, within thirty (30) days of the commencement of work will result in liquidated damages of $500.00 per day beyond the project deadline. 6.00 MISCELLANEOUS 6.00 REMEDIES: The remedies set forth in this agreement shall not be exclusive but shall be cumulative with, and in addition to, all remedies now or hereafter allowed by law or equity. 6.01 NO WAIVER: The waiver of any breach by any party of any provision of this agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of this agreement. 6.02 ASSIGNMENT: This agreement is specifically not assignable by Contractor to any person or entity. Any assignment or attempt to assign by Contractor, whether it be voluntary or involuntary, by operation of law or otherwise, is void and is a material breach of this agreement giving rise to a right to terminate as set forth in Section 4.03. 6.03 ATTORNEY FEES: In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this agreement, or the breach thereof, the prevailing party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum as and for attorney fees. 6.04 TIME FOR PERFORMANCE: Except as otherwise expressly provided for in this agreement, should the performance of any act required by this agreement to be performed by either party be prevented or delayed by reason by any act of God, strike, lockout, labor trouble, inability to secure materials, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period of time equivalent to the period of delay and performance of the act during the period of delay will be excused; provided, however, that nothing contained in this Section shall exclude the prompt payment by either party as required by this agreement or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. 6.05 NOTICES: Except as otherwise expressly provided by law, any and all 5 • 017 notices or other communications required or permitted by this agreement or by • law to be served on or given to any party to this agreement shall be in writing and shall be deemed duly served and given when personally delivered or in lieu of such personal service when deposited in the United States mail, first-class postage prepaid to the following address for each respective party: PARTY ADDRESS A. CITY OF ATASCADERO 6500 Palma Avenue Atascadero, CA 93422 Attention: (Public Works Department) B. Republic Elevator Company P. O. Box 1222 Goleta CA 93116 6.06 GOVERNING LAW: This agreement and all matters relating to this agreement shall be governed by the laws of the State of California in force at the time any need for the interpretation of this agreement or any decision or holding concerning this agreement arises. • 6.07 BINDING EFFECT: This agreement shall be binding on and shall inure to 9 9 the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this Section shall be construed as a consent by City to any assignment of this agreement or any interest in this agreement. 6.08 SEVERABILITY: Should any provision of this agreement be held by a court of competent jurisdiction or by a legislative or rulemaking act to be either invalid, void or unenforceable, the remaining provisions of this agreement shall remain in full force and effect, unimpaired by the holding, legislation or rule. 6.09 SOLE AND ENTIRE AGREEMENT: This agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof. This agreement correctly sets forth the obligations of the parties hereto to each other as of the date of this agreement. All agreements or representations respecting the subject matter of this agreement not expressly set forth or referred to in this agreement are null and void. 6.10 TIME: Time is expressly declared to be of the essence of this agreement. 6.11 DUE AUTHORITY: The parties hereby represent that the individuals • 6 018 executing this agreement is expressly authorized to do so on and in behalf of the parties. • 6.12 CONSTRUCTION: The parties agree that each has had an opportunity to have their counsel review this agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this agreement or any amendments or exhibits thereto. The captions of the sections are for convenience and reference only, and are not intended to be construed to define or limit the provisions to which they relate. 6.13 AMENDMENTS: Amendments to this agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this agreement. Executed on 2001, at Atascadero, ATTEST: CITY OF ATASCADERO By: Marcia McClure Torgerson J. Michael Arrambide . City Clerk Mayor APPROVED AS TO FORM: By: Roy A. Hanley Contractor City Attorney APPROVED AS TO FORM: Rachelle Rickard Administrative Services Director 7 • 019 • EXHIBIT A PROFESSIONAL SERVICES TO BE PERFORMED BY THE CONTRACTOR Contractor shall provide services to City as follows: ELEVATOR CONTROL SYSTEM MODERNIZATION PROJECT SCOPE OF WORK Modernize the control systems on an existing single-door, five-stop elevator. Listed below is technical information about the specific elevator: Location: 6500 Palma Avenue, Atascadero CA. Description: Passenger ( single door with 5 stops) State Elevator#: 032027 Load Permissible: 1,500 pounds Power: AC 1,2 speed Type of Machine: Overhead Traction Existing Control Type: Collective/ Selective • The contractor will be required to furnish and install the following: 1. A new microprocessor control system using a variable frequency drive using the existing AC hoists motor. The microprocessor must be non-proprietary and meet all current State of California regulations. 2. This installation will include all new wiring, and the removal and disposal of unused equipment. 3. The installation will also include a new top-of-car selector and slow down system and limit switches. 4. The existing DC brake system will be replaced with a compatible AC brake system. 5. The installation will be compatible with the existing hoist motor and door operator equipment. 6. Replace all of the existing Hall call panels and the Car operating panel (COP) with panels that are compliant with all related requirements of the Americans With Disabilities Act (ADA). The COP must have lockout key capability for all stops. 7. Install ADA compliant auditory and visual signals in the car and all five stops. • g 020 THE FOLLOWING REQUIREMENTS APPLY TO ALL WORK COMPLETED BY THE • CONTRACTOR: All equipment and renovations must meet all current State of California regulations and comply with all mandates specified within the Americans with Disabilities Act. The Contractor will furnish all labor, materials, equipment, and necessary liability insurance coverage to complete the elevator control system modernization. The Contractor must complete the entire elevator control system modernization project, using trained employees directly employed by and/or supervised by the Contractor. Employees shall be qualified and licensed by the State of California to provide the services requested in this RFQ. All work is to be performed in an expedient manner to enable the equipment to be used during business hours whenever possible. Upon completion of this work the contractor will conduct a final inspection with the State of California to obtain a license for the elevator. All materials, parts and labor must be guaranteed for one (1) year for the specified electric passenger elevator located in the City of Atascadero Administration Building, 6500 Palma Avenue, Atascadero, California. This Contractor will, at his own expense, provide an examination, re,adjustmentair • 1 p and/or replacement on all relative elevator control system adjustment, repair and/or replacement on all relative elevator control system operating equipment, thirty days following the completion of the modernization project. In addition, the contractor will, at his expense, respond within 24 hours, during the warrantee period, to calls for service from the City of Atascadero related to the elevator control system modernization project described in the Scope of Work listed above. 9 • 021 • EXHIBIT B CONSIDERATION FOR SERVICES Contractor shall be paid as follows: The City agrees to pay Republic Elevator Company fifty-eight thousand, three hundred dollars, ($ 58,300.00) within thirty (30) days of the completion of the Scope of Work specified in Exhibit A. • • 10 022 ITEM NUMBER: A-3 DATE: 03/13/2001 MA 1818 p, r-r9 Atascadero City Council Staff Report - Community Services Department Assignment of the Equipment Rental Concessions Lease at Atascadero Lake Park RECOMMENDATION: Council authorize the City Manager to sign the Consent to Assignment with Lloyd Reeves for Equipment Rental Concessions Lease at Atascadero Lake Park DISCUSSION: After a year of soliciting buyers, Bill Rabenalt, owner and operator of Atascadero Lakeside Rentals has sold his boats, bicycles and related concession equipment to Lloyd Reeves of Morro Bay. Bill Rabenalt has one year, plus an optional three additional years upon mutual consent, left on the lease for the Concessions rights to rent watercraft, bicycles and related recreational equipment at Atascadero Lake Park. Lloyd Reeves is requesting that the City of Atascadero assign him the remaining terms of the Equipment Rental Concessions Lease at Atascadero Lake Park, currently assigned to Bill Rabenaldt. Lloyd Reeves currently runs, owns and operates a Kayak rental bu$iness in Morro Bay and would like to expend his business to Atascadero Lake. Lloyd Reeves currently contracted with the City of Morro Bay for his boat concessions business and is familiar with the Atascadero Lake paddleboat operation. Staff recommends the approval of this Consent to Assignment due to Mr. Reeves' experience in the boat rental business. FISCAL IMPACT: No fiscal impact ALTERNATIVES: No Alternative. ATTACHMENTS: 1. Consent to Assignment 2. Letter from Bill Rabenaldt 3. Atascadero Lake Paddleboat Concessions Agreement 025 CONSENT TO ASSIGNMENT The City of Atascadero hereby consents to the assignment to Lloyd Reeves of the contract involving the City of Atascadero and Bill Rabaenaldt for the lease of premises and operation of a concession at Atascadero Lake Park. The contract is attached hereto as an exhibit and included as though fully set forth herein. PARTY ADDRESS A. CITY OF ATASCADERO 6500 Palma Avenue Atascadero, CA 93422 Attention: (Public Works Department) B. Lloyd Reeves 699 Embarcadero #9 Morro Bay CA 93442 Executed on 2001, at Atascadero, ATTEST: CITY OF ATASCADERO By: Marcia McClure Torgerson J. Michael Arrambide City Clerk Mayor APPROVED AS TO FORM: By: Roy A. Hanley Lloyd Reeves City Attorney APPROVED AS TO FORM: Rachelle Rickard Administrative Services Director 1 026 11,25/2000 12:08 8057735518 RASENALDT PAGE 01 i I Bill Rabenaldt • 150 Hinds Avenue Pismo Beach CA 93449 Phone/Fax (805) 773-551.8 ! I November 29,2000 I i I Attn: Geoff English City of Atascadero 6500 Palma Avenge Ataseadero CA 93422 I Dear Geoff, Please accept this letter as formal notification of the sale of my business, L�keSide Rentals at Atascadero Lake Park, to Lloyd Reeves. I hereby release all interests in the boating and supportive equipment and the 10' Y 20' foot building located at and on the lake dock. i to addition, I am requesting that the City of Atascadero release me from o�r agreement in favor of Lloyd Reeves. j I have enjoyed our relationship over the years and wish Lloyd the best of luck. • Should you have any questions or require any additional information, P lea$e call at any time. (;I rely, i analdt i I i I I i 027 Contract No. 97010 AGREEMENT FOR SERVICES BY CONTRACTOR PADDLE BOAT, WATERCRAFT AND RECREATIONAL EQUIPMENT CONCESSION OPERATION AT ATASCADERO LAKE PARR APRIL 26, 1997 - DECEMBER 31, 2001 This agreement is made upon the date of execution, as set forth below, by and between "BEACH CYCLE RENTALS OF PISMO BEACH" hereinafter referred to as "Contractor" , and the City of Atascadero, California, a Municipal Corporation, hereinafter referred to as "City. " The parties hereto, in consideration of the mutual covenants contained herein, hereby agree to the following terms and conditions: 1.00 GENERAL PROVISIONS 1 . 01 TERM: This agreement will become effective on the date of execution set forth below, and will continue in effect until terminated as provided herein. 1 . 02 SERVICES TO BE PERFORMED BY CONTRACTOR: Contractor agrees to perform or provide the services specified in "Description of Services" attached hereto as "Exhibit A" hereby incorporated herein. Contractor shall determine the method, details and means of performing the above-referenced services.. Contractor may, at Contractor's own expense, employ such assistants as Contractor deems necessary to perform the services required of Contractor by this agreement. City may not control, direct or supervise Contractor's assistants or employees in the performance of those services . 1 . 03 RENT/ PERCENTAGE OF GROSS SALES RECEIPTS: In consideration for the terms of this agreement, the contractor will pay the City an annual flat fee and percent of the total gross earnings monthly of all monies from sakes received by the Contractor from the use of the equipment and premises described in this contract. The annual flat fee and percentage will be paid according to the "Exhibit B" . Gross earnings shall not include any sales or excise taxes imposed by any governmental entity. Payment to the City of Atascadero of the monthly flat fee payment and the percentage gross of earnings received shall be made by the tenth (10th) day of each month. Payments are required to be submitted to the City of Atascadero, • Department of Community Services, Room 107, Atascadero, California (Attention: Geoff English, Recreation Supervisor) . 1 02$- Payments received from the tenth (10th of each month twenty-fifth (25th) of each month shall be considered to the delinquent and assessed a' ten percent (10%) penalty. Payments received after .the twenty-fifth (25th) of each month shall be assessed an additional ten percent (10%) penalty. Failure by the Contractor to tender payment to the City within thirty (30) days of any payment so due, shall be sufficient cause for the City to terminate this agreement. 1.04 LOCATION: Premises of operations is the boat docks located adjacent to Atascadero Lake in Atascadero Lake Park, 9315 Pismo Avenue, Atascadero, California. 1. 05 SUBLEASE: Contractor shall not sublease or otherwise convey any interest of any sort granted by this agreement to any -person or persons whatsoever without prior written - consent and approval by the City. 1 . 06 RECORDS AND ACCOUNTS: Contractor shall keep true and accurate books and records showing all of its business transactions in separate records of account for the concession operation, in a manner acceptable to the City. • the City shall have the right, through its representatives, and at all reasonable times, to inspect such books and records, including State of California sales tax records. The City may require Contractor, at his expense, to have his records and accounts audited by an auditor acceptable to the City and shall present said audit -to the Director of Administrative Services within thirty (30) days after the completion of the audit. If Contractor fails to provide the required audit, the City shall contract to have an audit performed at the Contractor's expense. 1 .07 CONDITIONS OF PREMISES: The taking of possession of the subject premises by Contractor shall, in itself, constitute acknowledgement that the premises are in good and tenantable condition. Contractor agrees to accept said premises in the present existing condition, "as is" and the additions, or betterments thereto. Contractor may construct or modify the said premises with prior written approval by the Director (or designee) of the Department of Community Services. Any plans for such • construction, if applicable shall be submitted to the City for approval. Such construction or modification shall be without cost to the City. 2 029 1.08 . SIGNAGE: All signs, names or placards shall be approved by the Department of Community Services prior to installation.. All signs must meet all requirements and specifications as set forth by the City. 1 . 09 . DAMAGE TO/DESTRUCTION OF PREMISES Should the subject premises or the building and other improvements in which the subject premises are situated be totally or partially damaged or destroyed, the City shall promptly repair the same, except that the City shall have the option to. terminate this Agreement if (a) the subject premises or the building and improvements in which the promises are situated cannot reasonably be expected to be restored under existing law to substantially the same condition as existed prior to such damage or destruction within ninety (90) days from the date that the insurance proceeds become available to the City; or (b) if the costs of such restoration would exceed one-half ( 1/2 ) of the full insured value of the building- and other improvements in which the subject premises are situated; or (c) if the damage or destruction results from a casualty not customarily insured against by a policy of standard fire and extended coverage insurance having vandalism and malicious mischief endorsements. Any notice of termination given here shall be given to Contractor with • fifteen ( 15) days after City determines the period of time required for and the estimated cost of such repair or restoration. 2.00 OBLIGATIONS OF CONTRACTOR 2 . 01 MINIMUM AMOUNT OF SERVICE BY CONTRACTOR: Contractor agrees to devote the hours necessary to perform the services set forth in this agreement in an efficient and effective manner. Contractor may represent, perform services for and be employed by additional individuals or entities, in Con- tractor's_ sole discretion, as long as the performance of these extra-contractual services -does not interfere with or presents. a conflict with City's business. 2 . 02 HOURS OF OPERATION: Hours of operation to be established by Contractor upon mutual agreement with the Director (or designee) of the Department of Community Services . 2 . 03 PERMITS: Contractor is required to provide City, prior to commencement of operation of concession, a copy of a City Business License and a Board of Equalization Certificate. 2 . 04 TAXES: Contractor agrees topay a all lawful taxes, • assessments or charges which may be levied by government entities. 3 030 •• 2 . 05 EQUIPMENT: Contractor, at his own expense, shall ' completely equip the concession and keep all equipment in a good repair and in safe operating condition in a manner to satisfy of the Department of Community Services throughout the term of this contract. Daily inspections of the contractors equipment must be maintained. and available for review upon request of the City of Atascadero. Contractor shall have a right to use five (5) City owned paddle boats and floating dock area. In addition, the Contractor shall have the right to use a fenced cemented area directly in front of the floating dock area. 2 . 06 QUALITY OF SERVICE/CONTROLLED RATES AND CHARGES The City has the right to inspect and schedule the prices and rates of goods sold upon the subject premises. The City reserves the right to prohibit the sale of any item which it deems objectionable or beyond the scope of merchandise/ deemed necessary for proper service to the public. Contractor shall post rates and prices of all items in such places as designated by the City. 2 . 07 SECURITY / COMMUNICATIONS• The contractor agrees to • provide telephone and security alarm services to concession throughout the duration of this contract at contractor's expense. 2 . 08 . TOOLS AND INSTRUMENTALITIES: Contractor shall provide all tools and instrumentalities to perform the services under this agreement. 2 . 09 WORKER'S COMPENSATION AND OTHER EMPLOYEE BENEFITS: City and Contractor intend and agree that Contractor is an independent contractor of City and agrees that Contractor and Contractor's employees and agents has no right to work- er's compensation and other employee benefit. If any .worker insurance-protection is desired, Contractor agrees to provide worker's compensation and other employee benefits, _ where required by law, for Contractor's employees and agents. Contractor agrees to hold harmless and indemnify City for any and all claims arising out of any claim for injury, disability, or death of any of Contractor and Con- tractor's employees or agents. 2 . 10 INDEMNIFICATION: Contractor hereby agrees to, and shall, hold City, its elective and appointive boards, of- ficers, agents and employees, harmless and shall defend the same from any liability for damage or claims for damage, or • suits or actions at law or in equity which may allegedly arise from Contractor's or any 'of Contractor's employees' or agents' operations under this agreement, whether such opera- 4 031 tions be by Contractor or by any one or more persons direct- ly or indirectly employed by, or acting as agent for, Con- tractor; provided as follows: a. That the City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described. b. That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any agent or employee of Contractor regardless of whether or not such insurance policies shall have been determined to be applicable to* any -of such damages or claims for damages. 2 . 11 INSURANCE: Contractor shall not commence work under this contract until s/he shall have obtained all insurance required under this section and such insurance shall have been approved by City as to form, amount and carrier: • a. Public Liability and Property Damage Insurance. Contractor shall take out and maintain during the life of this contract such public liability and property damage insurance as shall protect City, its elective and appointive boards, officers, agents and employees, and Contractor .and any agents and employees performing work covered by this contract from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any subcontractor's operations under this contract, whether such operations be by Contractor or by anyone directly or indirectly employed by Contractor, the amounts of such insurance shall be as_: follows : ( 1) Public Liability Insurance. In an amount not less than $500,000 per injury, including, but not limited to death to any one person and, subject to the same limit for each person, in an amount not less than $1,000,000 on account of any one occurrence; (2) Property Damage Insurance. • In an amount of not less than $50,000 for damage to the property of each person on account of any one occurrence. 5 03-2 • (3) Comprehensive Automobile Liability, Bodily injury liability coverage of $500,000. for each person in any one accident and $1,000,000 for injuries sustained by two or more persons in any one accident. Property damage liability of $50,000 for each accident. .(4 ) Worker's Compensation insurance In the amounts required by law, if applicable. b. PROOF OF INSURANCE. Contractor shall furnish City, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required, and adequate legal assurance that each carrier will give City at least thirty (30) days ' prior notice of the cancellation of any policy during the effective period of this contract'. The certificate or policy of liability of insurance shall name City as an additional insured with the Contractor. 2 . 12 CONTRACTOR'S MAINTENANCE: Except as otherwise provided in this Agreement, Contractor, at its own cost and expense agrees : a. To maintain throughout the agreement term in good sanitary order, condition, and repair, all portions of the leased premises, including, without limitation, (a) the five (5) City-owned paddle boats, the floating dock area and the fenced, cemented area directly in front of the floating dock (b) any personal property of the Contractor situated in or upon the subject premises; b. To notify the City promptly of any damage to the . subject premises situated resulting from or attributable to the acts or omissions of the Contractor, its invitees or its authorized representatives, and thereafter promptly to repair all such damage at Contractor's sole cost and expense. C. Contractor waives the provisions of Section 1941 and 1942 of the California Civil. Code with respect to Contractor's right to make repairs and to deduct the expenses thereof from the monthly payment payable by the Contractor. • 2 . 13 UTILITIES: Contractor shall pay the actual utilities, including water, gas, and heat, light and power supplied to the subject premises. There are customary and reasonable 6 - 033 charges one would expect to pay for these services. The • contractor agrees to pay their fair share of all utilities including water, gas, heat, light and power supplied. to subject premises, based on the percentage of square feet of subject premises compared with the utility charges for the entire building site, up to a maximum charge of $200 . 00 per month. The charges will -be billed to the Contractor monthly, and payable to the City of Atascadero. Contractor shall make all arrangements for and pay the charges when due for telephone service. The suspension or interruption in utility service to the leased premises for reasons beyond the ability of City to control shall not constitute a default by City or entitle Contractor to any reduction or abatement of the monthly payment due to the City. 3.00 OBLIGATIONS OF CITY 3 . 01 COOPERATION: City agrees to comply with all reasonable requests of Contractor necessary to the performance of Contractor's duties under this agreement. 3 . 02 PLACE OF WORK: City agrees to furnish the use of the • floating docks located in Atascadero Lake Park use by the Contractor while performing the services described within this contract. 4 .00 TERMINATION OF AGREEMENT 4 . 01 TERMINATION ON NOTICE: Notwithstanding any other pro- vision of this agreement, any party hereto may terminate this agreement, at any time, without cause by giving at least thirty ( 30 ) days prior written notice to the other parties to this agreement. 4 . 02 TERMINATION ON OCCURRENCE OF STATED EVENTS: This agreement shall terminate automatically on the occurrence of any of the following events: ( 1) Bankruptcy or insolvency of any party; (2) Sale of the business of any party; (3) Death of any party; (4 ) The end of the thirty (30) days as set forth in this agreement (5) End of the contract to which Contractor's services were necessary; or • (6) Assignment of this agreement by Contractor -without the consent of the City. 7 034 4 .03 TERMI NATION BY ANY PARTY FOR DEFAULT OF CONTRACTOR: ' Should any party default in the performance of this agree- ment or materially breach any of its provisions, a non- breaching party, at their option, may terminate this agree- ment, immediately, by giving written notice of termination to the breaching party. 4 .04 TERMINATION: This Agreement shall terminate on Decmeber 31, 2001, unless extended as set forth in this Section. The City, with the agreement of the Contractor, is authorized to extend the term if this Agreement beyond the termination date, as needed, under the same terms and condi- tions set forth in this Agreement. Any such extension shall be in writing and -be an amendment to this Agreement. 4 .05 REMOVAL OF ALTERATIONS: City, by giving written notice to Contractor within thirty (30) days before the expiration or termination of the agreement, may elect to require _ Contractor, at its sole cost and expense, to remove the alterations specified by City in its notice, and ' shall make such repairs necessitated by the removal of said alterations, and any damage resulting therefrom, 'as may be necessary to restore the subject premises to good condition and repair, excepting only reasonable wear and tear, before . the last day of the lease term or within thirty (30) days of the City's notice. This stipulation will not affect any improvements agreed to by the Director of Community Services, as described in Section 1. 07 of this agreement. 5.00 MISCELLANEOUS 5 . 01 REMEDIES: The remedies set forth in this agreement shall not be exclusive but shall be cumulative with, and in addition to, all remedies now or hereafter allowed by law or equity. 5 . 02 NO WAIVER: The waiver of any breach by any party of any provision of this agreement shall not constitute a con- tinuing waiver or a waiver of any subsequent breach of this agreement. 5 .03 ASSIGNMENT: This agreement is specifically not assignable by Contractor to any person or entity. Any assignment or attempt to assign by Contractor, whether it be voluntary or involuntary, by operation of law or otherwise, is void and is a material breach of this agreement giving rise to a right to terminate as set forth in Section 4 .03. 5.04 ATTORNEY FEES: In the event of any controversy, claim • or dispute between the parties hereto, arising out of or relating to this agreement, or the breach thereof, the pre- vailing party shall be entitled, in addition to other such 8 035 relief as may be granted, to a reasonable sum as and for attorney fees. 5.05 TIME FOR PERFORMANCE: Except as otherwise expressly provided for in this agreement, should the performance of any act required by this agreement to be performed by either party be prevented or delayed by reason by any act of God, strike, lockout, labor trouble, inability to secure materials, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period of time equivalent to the period of delay and performance of the act during the period of delay will be excused; pro- vided, however, that nothing contained in this Section shall exclude -the prompt payment by either party as required by this agreement or the performance of any act rendered dif- ficult or impossible solely because of the financial condi- tion of .the party required to perform the act. - 5 . 06 NOTICES: Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this agreement or by law to be served on or given to any party to this agreement shall be in writing and shall be deemed duly served and given when personally deliv- • ered or in lieu of such personal service when deposited in the 'United States mail, first-class postage prepaid to the following address for each respective party: PARTY ADDRESS A. CITY OF ATASCADERO 6500 Palma Avenue Department of Atascadero, CA. 93422 Community Services Attention: Recreation Supervisor (805) 461-5003 / 461-5002 B. CONTRACTOR - BEACH CYCLE RENTALS 150 Hinds Avenue Pismo Beach CA 93449 Attention: Bill Rabenaldt (805) 773-5518 5 .07 GOVERNING LAW: This agreement and all matters relating to this agreement shall be governed by the laws of the State of California in force at the time any need for • the interpretation of this agreement or any decision or holding concerning this agreement arises. 9 - 03b • 5.08 - BINDING EFFECT. This agreement shall be binding on and shall inure to the benefit of the heirs, executors, ad- ministrators, successors and assigns of the parties hereto, but nothing in this Section shall be construed as a consent by City to any assignment of this agreement or any interest in this agreement. 5 . 09 SEVERABILITY: Should any provision of this agreement be held by a court of competent jurisdiction or by a legis- lative or rule making act to be either invalid, void or unenforceable, the remaining provisions of this agreement shall- remain in full force and effect, unimpaired by the holding, legislation or rule. 5 . 10 SOLE AND ENTIRE AGREEMENT: This agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof. This agreement correctly sets forth the obligations of the parties hereto to each other as of the date of this agreement. All agreements or representations respecting the subject matter of this agreement not expressly set forth or referred to in this agreement are null and void. 5 . 11 TIME: Time is expressly declared to be of the essence of this agreement. 5 . 12 DUE AUTHORITY: The parties hereby represent that the individuals executing this agreement are expressly authorized to do so on and in behalf of the parties . 5 . 13 CONSTRUCTION: The parties agree that each has had an opportunity to have their counsel review this agreement and that any rule to the effect that ambiguities are to be resolved against the .drafting shall not apply in the interpretation of this agreement or any amendments or exhibits thereto. The captions of the sections are for convenience and reference only, and are not intended to be construed- to define or limit the provisions to which they relate. 5. 14 AMENDMENTS: Amendments to this agreement shall be made only with the mutual written consent of all of the parties to this agreement. • 10 , 037 Executed on April 8 , 1997, at Atascadero, California. Attest: qMayor TA CADERO By, MARCIA -TORG RSON NS N City Clerk Approvedas to form: ROY LEY, CONTRACTOR - Ci Attorney • • 11 038 • EXHIBIT _ . A PROFESSIONAL SERVICES TO BE PERFORMED BY CONTRACTOR Contractor shall provide consultation and professional management services to City as follows: The Contractor shall utilize said premises for the following purposes: A. Premises shall be used for the purpose of renting paddle boats, appropriate watercraft, bicycles and other mutually agreed upon recreational equipment. B. Furnish and install at his own expense, all necessary equipment required for proper service to the general public. C. The storage and service thereof shall be in an area approved by the Director of Community Services. D. Furnish and maintain proper facilities, equipment and devices for the concession as herein provided. 40. Operate the facility in a business-like manner to the satisfaction of the Department of Community Services, and maintain said areas in conformance with the highest standards of health and safety for patrons of said operation. - F. All items to be sold shall be approved by the Department of Community Services . No food or beverages may be sold. C: \WP51\CNTRCTS\NCIINC96 .LEA • 039 EXHIBIT B • CONTRACTOR PAYMENT SCHEDULE Contractor will pay the City Annually: YEAR FLAT FEE PERCENTAGE OF GROSS RECEIPTS 1997 $ 2,000.00 5 % 1998 $ 2,500.00 6 $ 1999 $ 2,500. 00 7 $ 2000 $ 2,500.00 8 $ 2001 $ 2,500.00 9 % C: \WP51\CNTRCTS\NCIINC96.LEA • • 040 RESOLUTION NUMBER 21-97 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH BEACH CYCLE . RENTALS OF PISMO BEACH FOR CONCESSIONAIRE RIGHTS AT ATASCADERO LAKE PARR TO RENT WATERCRAFT, BICYCLES AND RELATED RECREATIONAL EQUIPMENT The City Council of the City of Atascadero, California, hereby resolves as follows : 1 . The Mayor is hereby authorized to execute an ' agreement with Bill 'Rabenaldt of Beach Cycle Rentals of Pismo Beach for concessionaire rights to rent watercraft, bicycles and related recreational equipment at Atascadero Lake. • 2 . The City Manager is hereby authorized to make minor corrections or modifications of a mathematical or clerical nature. 3 . The City Accountant is hereby authorized to appropriate funds, if necessary; release and expend funds; and issue warrants to comply with the terms of this agreement. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Atascadero, held on the 8th of April, 1997 . ATTEST: CITY OF CAD RO I4ARCIA M. TORS"PERSON, ity Clerk RAY JOHNS N Mayor APPROVED AS TO _ORM: qf (/ , ROY . HANLEY, City ttorney • 041 ITEM NUMBER: A-4 DATE: 03/13/2001 n we 19181 ^ p 1979 Atascadero City Council Staff Report - Public Works Department El Camino Real Widening Project Bid No. 2000-02 RECOMMENDATION: Council: 1) Accept Souza Construction, Inc. work as complete; and 2) Authorize the Administrative Services Director to appropriate an additional $60,277.91 from Fund 281 (Street and Bridge Fee)to this Project account; and 3) Authorize the Contract Change Order # 1 with Souza Construction, Inc. for $83,875.76; and 4) Authorize the Administrative Services Director to release the project retention of $25,017.58. DISCUSSION: The improvements included in the project on El Camino Real between San Anselmo Avenue and Maya Court are: The widening of this portion of El Camino allowed for the extension of the existing two-way left-turn lane. A new two-way left-turn lane now provides storage for vehicles making left turn movements from El Camino Real to adjacent businesses and residences reducing the accident potential in the area. On September 12, 2000, Council authorized the execution of an agreement with Souza Construction, Inc. to construct the El Camino Real Widening Project. The Project was started in November 2000 and construction was completed at the end of January 2001. Atascadero Mutual Water Company was replacing a water line at the same time and location as the City was improving the road. This was planned so that the new asphalt would not have to be cut to install the water line. Souza Construction worked very closely with the Water Company's contractor to insure a cost effective and quality project for the public. Due to this, Souza performed some work that the Water Company has agreed to pay for. Staff is preparing a claim with the Water Company for approximately $10,000.00 to pay for this work. These funds will be placed back in the Street and Bridge Fee account when they are received. Information discovered during construction required changes in design and increases in labor and material quantities. The main causes of the increases were poor existing soil conditions and a 042 ITEM NUMBER: A-4 DATE: 03/13/2001 high water table. Listed below are details of the changes in the project: • Increase in road structural section from 3" asphalt over 8" aggregate base to 4" asphalt over 10" aggregate base due to soil "R"value. • Remove liquefied soil and replace with aggregate base. • Remove soil and replace with road drain system. • Atascadero Mutual Water Company work included: paving, relocation of water services, raising water valves and damage caused by a water main break. • Utility relocation • Changes to the storm drain inlet and pipe design. • Increased grading and driveway paving. • Changes in street striping. Council was not notified of these changes, prior to the work being authorized, because the conditions were discovered as the contractor was working. The environmental mitigation for the project required planting of oak trees along El Camino Real to mitigate for the removal of oak trees. The City is working with the local property owners to identify receiver sites for the trees. This work will be completed this spring. Contract Change Order No. 1 and adjustments were made to unit quantities, bringing the total contract price to $250,175.76 from $166,300.00. The City Engineer has reviewed the completed improvements by Souza Construction, Inc. and has found them to be in substantial conformance with the project plans and specifications as changed. FISCAL IMPACT: PROJECT FUNDING Fund 281 — Streets and Bridges Fees (already allocated) $13,950.00 Fund 281 - Streets and Bridges Fees (allocation requested) $60,277.91 Fund 310 - State Transportation Improvement Program (STIP) $228,500.00 TOTAL CONSTRUCTION FUNDING $302727.91 PROJECT EXPENDITURES Construction $250,175.76 Design $15,000.00 Right of Way Acquisition $4,000.00 Environmental Mitigation and Erosion Control $10,000.00 Contract Administration, Construction Engineering and Inspection $23,552.15 TOTAL CONSTRUCTION EXPENDITURES $302727.91 ATTACHMENTS: Notice of Completion Contract Change Order No. # 1 043 RECORDING REQUESTED BY: (and when recorded, mail to:) City Clerk • CITY OF ATASCADERO 6500 Palma Avenue Atascadero, CA 93422 NOTICE OF COMPLETION NO TRANSFER OF PROPERTY Notice is hereby given pursuant to Civil Code Section 3093: 1. The undersigned is corporate officer for the City of Atascadero, owner of property hereinafter described. 2. The full name of the owner is the City of Atascadero. 3. The full address of the owner is: 6500 Palma Avenue, Atascadero, CA 93422 4. The nature of the interest of the owner is in fee. 5. A work of improvement on the property hereinafter described was completed on January 9, 2001. 6. The work done was the EI Camino Real Widening Project (City Bid No. 2000-02). 7. The name of the contractor who performed such work of improvement was Souza Construction, Inc. • Dated: By: Wade G. McKinney, City Manager City of Atascadero VERIFICATION I, the undersigned, say that I am the City Manager, declarant of the foregoing Notice of Completion; I have read said Notice of Completion and know the contents thereof; the same is true of my own knowledge. I declare under penalty of perjury that the foregoing is true and correct. Executed on at the City of Atascadero, California. By: Wade G. McKinney, City Manager • City of Atascadero C:\windows\TEMP\CC ECR Widening notice of Comp.doc 044 e CITY OF ATASCADERO COMMUNITY SERVICES DEPARTMENT 1979 6500 PALMA AVENUE,ATASCADERO,CA 93422 • Telephone:(805)461-5020 • Far:(805)461-7615 CONTRACT CHANGE ORDER No.: CCO-01 Project: EI Camino Real Widening Project Bid No.: 2000-02 Date of Issuance: February 20, 2001 Contractor.• Souza Construction, Inc. You are hereby directed to make the following changes in the Contract Documents. Revise the contract documents per Attachment A Purpose of Change Order.• Extra Work Items added to contract, and adjustments made to final contract amounts. Attachments: Attachment A - Change Order Itemization CHANGE IN CONTRACT PRICE CHANGE IN CONTRACT TIME Original Contract Price Original Contract Time $166,300.00 40 working days • Previous Change Orders, (None) Net Change from previous Change Orders None 0 working days Contract Price prior to this Change Order Contract Time prior to this Change Order $166,300.00 40 working days Net Increase (Decrease) of this Change Net Increase (Decrease) of this Change Order Order $83,875.76 0 working days Contract Price with all approved Change Contract Time with all approved Change Orders Orders $250,175.76 40 working days Recommended by: Approved by: Accepted by: Souza Construction, Inc. Steven B. Kahn Wade G. McKinney (signature) Public Works Director City Manager (printed name) • CITY OF ATASCADERO CHANGE ORDER NO.CCO-01 EI Camino Real Widening Project PAGE 1 OF 3 Pages 045 CITY OF ATASCADERO DEPARTMENT OF PUBLIC WORKS • goes ow h 6500 PALMA AVENUE,ATASCADERO, CA 93422 Telephone:(805)461-5020 ' Fax:(805)461-7615 Ilia % 1976 ATTACHMENT A CHANGE ORDER NO. CCO-01 EL CAMINO REAL WIDENING PROJECT BID NO. 2000-02 It is mutually agreed by and between the City and the Contractor that the following changes are hereby made to the contract documents, special provisions and plans. Numbers in parenthesis designate a reduction on the contract price. I. EXTRA WORK ADDED TO CONTRACT: DESCRIPTION AMOUNT Additional grading -483 c.y. @$20.00 $9,660.00 Extra Work Billing, dated 1/3/01 (see attached breakdown of costs and documentation) $8,282.00 Extra Work Billing, dated 1/17/01 (see attached breakdown of costs and documentation) $27,050.81 Striping $5,070.06 Extra Work Billing, dated 2/16/01 (see attached breakdown of costs and documentation) $10,086.17 TOTAL EXTRA WORK: $60,149.04 •I1. ADJUSTMENTS TO FINAL CONTRACT AMOUNTS: BID ITEM DESCRIPTION ADJUSTMENT 3 Asphalt Concrete INCREASE by 325.63 Tons $16,281.50 4 Aggregate Base INCREASE by 895 Tons $14,320.00 5 AC Dike INCREASE by 114 L.F. $456.00 6 Conc Curb &Gutter DECREASE by 33 L.F. ($610.50) 7 Conc Sidewalk DECREASE by 995 S.F. ($3,482.50) 8 Conc Driveway Approach INCREASE by 372.5 S.F. $2,235.00 11 Adj Water Valve Box/Monument Well DECREASE by 5 Each ($850.00) 12 Relocate Water Meter Assembly DECREASE by 7 Each ($3,605.00) 13 Relocate Fire Hydrant Assembly DECREASE by 2 Each ($1,820.00) 14 Relocate Mail Box INCREASE by 1 Each $187.00 18 Relocate Post and Rail Fence INCREASE by 10 L.F. $155.00 22 Traffic Stripe, Detail 9 INCREASE by 475 L.F. $85.50 23 Traffic Stripe, Detail 22 INCREASE by 112 L.F. $44.80 24 Traffic Stripe, Detail 27B INCREASE by 40 L.F. $12.80 25 Traffic Stripe, Detail 32 DECREASE by 130 L.F. ($39.00) 26 Traffic Stripe, Detail 38A INCREASE by 140 L.F. $113.40 27 Traffic Stripe, Detail 39 INCREASE by 421 L.F. $134.72 30 Pavement Markers INCREASE by 24 Each $108.00 • ADJUSTMENT TO CONTRACT PRICE: $23,276.72 CITY OF ATASCADERO CHANGE ORDER NO.CCO-01 EI Camino Real Widening Project PAGE 2 OF 3 Pages 046 TOTAL CONTRACT CHANGE ORDER NO. 1: I. EXTRA WORK ADDED TO CONTRACT: $60,149.04 • II. ADJUSTMENTS MADE TO FINAL CONTRACT AMOUNTS: $23,276.72 NET INCREASE THIS CHANGE ORDER: $83,875.76 Accepted by: SOUZA CONSTRUCTION, INC. (signature) (date) (printed name) • • CITY OF ATASCADERO CHANGE ORDER NO.CCO-01 EI Camino Real Widening Project PAGE 3 OF 3 Pages 047 ITEM NUMBER: B- 1 DATE: 03/13/2001 Y 1918 P 1979 Atascadero City Council Staff Report - Public Works Department 2001 Community Development Block Grant Allocation RECOMMENDATION: Council direct staff to forward to the County Board of Supervisors allocation recommendations for the 2001 Community Development Block Grant(CDBG) funds as follows: Public Facilities North County Women's Resource Center/Shelter—Bathroom Renovation 3,000 E.O.C. —Head Start Building Renovation 23,000 City of Atascadero—Infrastructure Improvements—Low/Mod Income Area 105,600 Food Bank Coalition of San Luis Obispo—Warehouse Purchase 24,000 Public Services—Maximum 15% = $38,575 Homeless Housing Project—Motel Voucher Program 7,500 El Camino Homeless Organization—Office Equipment and Supplies 5,000 Community Services Foundation—Youth Scholarships 6,500 E.O.C. —Forty Wonderful Program—Health Screening 2,000 E.O.C. - Senior Health Screening 2,000 Creative Alternative for Living and Learning (C.A.L.L.)—Washing Machine 442 Creative Alternative for Living and Learning (C.A.L.L.)—Dishwasher 805 Creative Alternative for Living and Learning (C.A.L.L.)-Gas Ranges (2) 942 Housing E.O.C. —Home Repair Program 25,000 Administration City Program Administration Costs—Maximum 20% 51,373 Total 2001 CDBG Grant Funds Available $257,162 DISCUSSION: Background: Preparation of the 2001 CDBG Consolidated Plan began in the fall of 2000. Workshops were held throughout the County to solicit public comment on community needs. The County published a request for CDBG and HOME Investment Partnership Act (HOME) 4 ITEM NUMBER: B- 1 DATE: 03/13/2001 proposals. The City received 19 applications for CDBG funds (no requests for HOME funds were received)totaling $991,888. The City has $257,162 in CDBG funds available. CDBG funds are available for community development activities, which meet at least one of the three national objectives: 1. A benefit to low and moderate income persons; 2. Aid in the prevention or elimination of blight; 3. Address urgent needs that pose a serious and immediate threat to the health or welfare of the community. In order for a program to qualify under the low and moderate income objective, at least 51% of the persons benefiting from the project or program must earn no more than 80% of the area median. Additionally, at least 70% of the CDBG funds must be spent toward this objective. The following criteria should also be used to guide selection of CDBG programs: 1. The proposal is consistent with the national objectives and eligibility criteria of the HUD CDBG program. 2. The proposal is consistent with the Urban County Consolidated Plan. 3. The proposal is consistent with the General Plan and other City codes/ordinances. 4. The proposal will achieve multiple community development objectives. 5. The proposal can be implemented in a timely manner, without significant environmental, policy, procedural, legal, or fiscal obstacles to overcome. 6. The project is not financially feasible without CDBG funding. Summary The following is a summary of each application received: Recommended for Fundinz: North County Women's Resource Center—Restroom Renovation Funds Requested: $3,000 Recommended Funding: $3,000 North County Women's Resource Center provides assistance to women and children who are victims of domestic violence. Grant funds would be used for renovation of two restrooms which have deteriorated due to age and water damage. Economic Opportunity Commission—Head Start Facility Funds Requested: $23,000 Recommended Funding: $23,000 049 ITEM NUMBER: B- I DATE: 03/13/2001 • E.O.C. operates a Head Start program at 965 El Camino Real. They have leased this property since 1967 and have recently obtained funding to purchase the site. E.O.0 has also received a Head Start Program Improvement Grant for renovation of the site. Total project costs are $148,550. City of Atascadero—Infrastructure Improvements—Low Income Area Requested Funding: $200,000 Recommended Funding: $105,600 This area is located in a geographic area that is predominantly low and moderate income. An area-wide project to correct and improve drainage would safeguard homeowners from flooding as well as protect property values from falling. Food Bank Coalition of San Luis Obispo County—Warehouse Purchase Requested Funding: $ 24,000 Recommended Funding: $24,000 The Food Bank Coalition is a private, non-profit organization that distributes food to low income citizens. They currently operate out of rented space in Paso Robles and are requesting funds to • purchase a larger facility in Paso Robles. Total CDBG funds requested from the participating agencies is $300,000. The share requested from each agency is based upon the qualifying population of that jurisdiction. Homeless Housing Project—Emergency Shelter Program Requested Funding: $24,000 Recommended Funding: $7,500 The Homeless Housing Project is requesting funds to continue their Motel Voucher Program. This program enables homeless persons to stay in motel rooms for limited periods until more permanent shelter can be arranged. El Camino Homeless Organization—Homeless Dav Center Requested Funding: $66,700 Recommended Funding: $5,000 ECHO is a new organization attempting to establish a facility to provide meals, showers and laundry facilities for homeless individuals. They propose to provide space for clients to meet with counselors, housing specialists, medical personnel and volunteers. Funds are requested for • rent, operating expenses and salaries for crisis intervention workers. Recommended funding in the amount of$5,000 would allow for the purchase of computers and office furniture to enable volunteers to provide outreach services to the homeless population. 050 ITEM NUMBER: B- 1 DATE: 03/13/2001 Ata cadero Communi tyServices Foundation—Youth Activity Scholarship Fund • Requested Funding: $6,500 Recommended Funding: $6,500 The Community Services Foundation has established a scholarship fund to assist families of low- income youth to participate in recreational and social activities. Because this program is limited to low income youth, the benefit criteria will be met. Economic Opportunity Commission—Forty Wonderful Program Requested Funding: $2,000 Recommended Funding: $2,000 E.O.C. is requesting funding from all agencies for the "Forty Wonderful Program" which is designed to improve access to medical services, early detection and intervention of chronic diseases and reduce mortality for low-income women age 40 and older. Economic Opportunity Commission—Senior Health Screening Requested Funding: $2,000 Recommended Funding: $2,000 • E.O.C. is also requesting funds from all agencies to support the Senior Health Screening program for seniors. Funds would cover testing and expenses. Creative Alternative for Learning and Living Inc. (C.A.L.L.) —Washing Machine Requested Funding: $442 Recommended Funding: $442 The C.A.L.L. program is a non-profit organization which provides services for adults with developmental disabilities. This request is for funds to purchase a washing machine for use at their adult day care facility. Creative Alternative for Learning and Living, Inc. (C.A.L.L.) — 2 Ranges Requested Funding: $942 Recommended Funding: $942 This request is for the purchase of two kitchen ranges for their adult day care facility. • 051 ITEM NUMBER: B- I DATE: 03/13/2001 • Creative Alternative for Learning and Living, Inc. (C.A.L.L.) - Dishwasher Requested Funding: $805 Recommended Funding: $805 The C.A.L.L. program is also requesting funds for the purchase of a high temperature dishwasher for their adult day care facility. Economic Opportunity Commission-Home Repair Program Requested Funding: $25,000 Recommended Funding: $25,000 This program provides needed home repairs for lower income families, seniors and disabled individuals. These repairs include the removal of architectural barriers, roof repairs, plumbing repairs, etc. EOC has previously received grant awards of $30,000 in 2000, $25,000 in 1999, $20,460 in 1998, $18,000 in 1997, and $14,570 in 1996. Not Recommended for Funding this Year Homeless Housing Project-Permanent Shelter Facility • Funding Requested: $514,000 Funding Recommended: 0 The Homeless Housing Project is requesting funds to establish a permanent homeless shelter in the North County. Identical applications have been submitted to the City of Paso Robles and the County of San Luis Obispo, neither of these agencies are recommending funding during this cycle. The application indicates the funds are proposed to be used for the acquisition of a site, site improvements and furnishings, staffing, legal services, a feasibility study and administrative costs. Funding is not recommended at this time. This project does not meet the recommended criteria as it cannot expect to be ". . implemented in a timely manner, without significant environmental, policy, procedural, legal or fiscal obstacles to overcome. . . ". Camp Fire - Staff and Supplies Requested Funding: $1,500 Recommended Funding: 0 Requesting funds for the payment of part-time staff, supplies and scholarships to start a club in Atascadero. • Funding is not recommended this cycle. Without an established program and participant income data we cannot ensure that the program qualifies under the benefit to low and moderate income individuals. Scholarships are available through the Atascadero Community Services Foundation. 052 ITEM NUMBER: B- 1 DATE: 03/13/2001 • Creative Alternative for Learning and Living, Inc. (C.A.L.L.)—Van Requesting Funding : $25,000 Recommended Funding: $25,000 The C.A.L.L. program is also requesting funding for the purchase of a 15 passenger van to transport their clients to recreational and vocational activities. Funding is not recommended this year due to limited Public Service funds. Career Training Center—Medical Assistant Training Requested Funding: $16,667 Recommended Funding: $0 The Career Training Center is requesting funds to provide scholarships for two students to participate in their Medical Assistant Training program. $13,950 is requested for the two scholarships and $2,716 for staff costs to administer program. Funding is not recommended this year due to limited Public Service funds. • Homeless Housing Project—Permanent Shelter Feasibility and Operational Study Funding Requested: $5,000 Funding Recommended: $0 The Homeless Housing Project is requesting $5,000 to perform a Permanent Shelter Feasibility and Operational Study. Funds have also been requested from Paso Robles and San Luis Obispo County. Funding is not recommended at this time. Several agencies and local organizations are interested in looking into this issue and a feasibility study may be needed in the future. FISCAL IMPACT: The City has $257,162 funds available for award. ALTERNATIVES: Council may choose to modify the grant recommendations made by Staff. However, awards must meet program requirements, providing a minimum of 70% of funding for benefit to low and moderate income persons, and no more than 15% allocated to public service items. • ATTACHMENTS: Application Spreadsheet 053 O O O O O O O O O O N LO N 0) O O M Cl) N O O O O O O O O O O •cr O s}• CO Cl O 1,- ti t0 O O (O O w In O Lf) O O I• a0 O O O Cl) M r M M to tq f� Lc (O N N N> lf) LC) 7 V 1` WC*4 C) C14 C14 C14 to r N z z W � z O � U u' W 0 0 0 0 0 O O O O O O N tf) N O I� tC O O M O Cl) Q) N O N 0 0 0 0 0 0 0 0 0 0 0 0 C) qt 0 w LO f— O 1� N CO O (D 0 0 0 0 0 O to f-tn 0 0 qt m 0 0 0 N C Cl) O M (1) (O L r v!:: W M N O N d Lo CD N (D (O N N N VO LO Lo Q) d0' Lr) Z< y N (n N N a) N N O w 409- M fiM CY Q W ai N z LL ayi ayi c o z ULU H z m oU. Q J ' ti U x N U O o Q i m c O > .Q 0 -Q J N Q a ¢ Q O IL co O O r Q LL LL z0 II � o H E c U N N Q N W (°� W Cn Q O H � -� = y ~O J O O c o af°i 0. a E = H LU 0 > 3 a) R j U C J O 071 a) E C: .�� W W a) �' C v- E O CY O CL E fOA di N O a)i U + U W I' .�_+ fII r to O E LE U) O O > O V I O co L a U C N '0 0 > 4: C LI C ` ` (/) L N R ;` E 0 U m C :� U i 7 cm'; p"OQ y cQ �, (n °� y m N z U L c m a) c C S E— E ;a U) ti C'-C ;°' U 0 = N c o N °� E _ LL � +;L .2s � � m m Q Q fa •� L a) N C 7 C R L y s E (c0 �.. co CU wc"ro > ui � oc� rin = vii o v O c�> o N C> U O o o Q ` F- E 0 _ U 0O U U j �! C �••- U J �- o o OlLL � 0 0 IL c a o`_ cn a c o a LO cn E CU �N 2 -0 M o a) oQy c � Uad aO OI0 c L)O Oc E c _ i + NX c 0 :3 fV3 �cu C N d N O a) LO yL gym,, fn U. R a) U N LL •C 7 J J J J 0 0 C Q a) v CO) U O � V N o EUUJJJJ N C (� .y U E O O oQ ._ o o M o o t/ o000QQQ cc o p o -�a o azw0u. =, a =;Uw,Uuiui,cic� ciUU -xui ¢ � _ 054 ITEM NUMBER: B-2 DATE: 03/13/2001 iais' 'ea s �s7s Atascadero City Council Staff Report - Public Works Department Sewer Extension Reimbursement Agreement Home Depot RECOMMENDATION: Council authorize the City Manager to execute a Sewer Extension Reimbursement Agreement between the City and Home Depot U.S.A., Inc. DISCUSSION: A sewer force main and pump station were constructed to serve the new commercial development on the north end of El Camino Real, Home Depot. This public sewer extension is idescribed as follows: 1. A sewer pump station designed to accept and convey 252,000 gallons per day of sewage effluent. Located on El Camino Real near Home Depot. 2. 12,500 linear feet of six-inch sewer force main. Staff has reviewed the construction of the improvements and found them to be in substantial conformance with the plans approved by the City Engineer. The effluent is pumped to lift station #8 and eventually to the wastewater treatment plant. Under this agreement the reimbursement cost for this portion of the system will be $2.77 per gallon per day. Staff has also reviewed the proposed method of reimbursement and found that fees will be fairly apportioned on the basis of benefit. FISCAL IMPACT: Reimbursements for the public sewer service extension will be collected by the City at the time of connection and reimbursed to the Applicant. The City will receive a 2% administration fee from each reimbursement collected. ATTACHMENTS: Sewer Extension Reimbursement Agreement 055 PUBLIC EXTENSION REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF ATASCADERO AND HOME DEPOT U.S.A.,INC. FOR CONSTRUCTION OF LIFT STATION NO. 13 AND FORCE MAIN SEWER IMPROVEMENTS THIS AGREEMENT is made this day of , 2001, in San Luis Obispo County, California, by and between the City of Atascadero, California, hereinafter referred to as"City", and Home Depot U.S.A., Inc., a Delaware corporation, hereinafter referred to as"Applicant" with reference to the following recitals. A. Applicant has developed certain property within the boundaries of the City, commonly referred to as Parcel 1 of Parcel Map AT 99-164 as recorded in Book 54 of Parcel Maps at Page 43 in the office of the San Luis Obispo County Recorder and as shown on Exhibit A, and herein referred to as the"Property"; and B. In order to develop the Property, Applicant opted to construct a public sewer lift station and force main to serve the Property. Said public sewer extension is described as follows: 1. A sewer lift station designed to accept and convey 250 gallons per minute of sewage effluent and constructed in accordance with all City Standards and Specifications. 2. 12,500 linear feet of six-inch PVC sewer force main constructed in El Camino Real from the aforementioned lift station on El Camino Real, located approximately 650 feet north of Santa Cruz Road, to Del Rio Road, and in Del Rio Road from El Camino Real to San Anselmo Road, in San Anselmo Road from Del Rio to Estrada Avenue, and in Estrada Avenue to City Sewer Lift Station No. 8. C. Said public sewer extension is to be shown on a map attached hereto as Exhibit B. 056 • D. The Applicant's cost descriptions in construction of the public sewer PP P extension are described as follows: Description Total Permits $ 6,900 Engineering and Surveying 103,590 Construction 582.979 TOTAL $693,469 E. Applicant has agreed to dedicate, or has dedicated the public sewer extension to the City. F. The public sewer extension will serve other landowners within the City of Atascadero as provided in the rules and regulations of the City. G. The City will reimburse Applicant for part of Applicant's costs in constructing the public sewer extension from adjacent landowners as herein provided. The total reimbursement to the Applicant shall not exceed $670,848 which represents total project expenses less Administrative Fee and Applicant's share. • NOW, THEREFORE, in consideration of the mutual conveyance contained herein, applicant and City Agree as follows: 1. Term The term of this agreement shall be for 15 years from the date it is approved by the City Council of City. 2. Rate of Reimbursement During the term of this Agreement, the City will reimburse Applicant for his costs in constructing the public sewer extension from adjacent landowners pursuant to the methodology described in Exhibit B. Except as provided below the City will collect said amount from each adjacent landowner before permitting said owner to connect to the public sewer extension. • 057 The City may, upon prior written authorization from the Applicant, allow for connection to the public sewer extension without reimbursement. In • this event, the City will be provided the flow data necessary to calculate the reimbursement amount to be waived. The total amount of reimbursement due Applicant will be reduced by the amount that would have been charged pursuant to the methodology described in Exhibit B. 3. Administrative Costs Two percent(2%)of all monies collected pursuant to this agreement shall accrue to the City as administrative fees. 4. Conditions of Reimbursement City's obligation to reimburse Applicant is conditioned on the following: 4.1 Applicant providing City with an engineer's certification that extensions are constructed in substantial conformance with the plans and standard improvement drawings submitted to the City. 4.2 The public sewer extension has been inspected and approved by City. 4.3 Applicable easements have been offered and accepted by the City. • 4.4 Applicant providing the City with a detailed accounting, satisfactory to the City of the amounts expended for the construction and installation of the public sewer extension. 4.5 Applicant has provided the City with a maintenance bond, letter of credit or other financial security satisfactory to the City in a sum equal to ten percent (10%) of the cost of constructing the public sewer, extension, or such agreement satisfactory to the City whereby the Contractor and/or it's surety will repair or replace to the satisfaction of the City, any and all such work that may prove defective in workmanship or materials for a one year period, ordinary wear and tear excepted, together with any other work which may be damaged or displaced in so doing. • 058 • 5. Obligation of City If, for any reason, the reimbursement fee is or becomes legally uncollectable, the City shall not be responsible in any way for collecting the reimbursement fee and/or reimbursing the Applicant for the costs of the public sewer extension. Reimbursement shall be made only when the City collects money from the owners of properties whose buildings are to be connected to the public gravity sewer or will contribute flow to Lift Station No. 13 and forcemain, notwithstanding any provision of any law, the code of this Agreement. 6. Place of Payment The City shall make payment to Applicant at: Home Depot U.S.A., Inc. 3800 West Chapman Avenue Orange, CA 92868 Attention: Ms. Nancie Baiza (Reference: Atascadero Sewer Reimbursement Agreement) This address may be changed at any time by Applicant by receipt of written notice to the City. • 7. Successors and Heirs This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto, but nothing in this Section shall be construed as a consent by City to any assignment of this Agreement or any interest herein by Applicant. 8. Severability Shall any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the court ruling. 059 9. Sole Agreement • This Agreement constitutes the sole and only agreement between the City and Applicant respecting reimbursement for construction or improvements specified herein and correctly sets forth the obligations of City and Applicant to each other as if its date. Any agreements or representations respecting said reimbursement or any other matters discussed in this agreement not expressly set forth in this Agreement are null and void. 10. Governing Law The laws of the State of California shall govern this Agreement, and all matters relating to the Agreement, at the time any need for interpretation of this Agreement or any decision or holding concerning this Agreement arises. 11. Captions The captions of the Sections of the Agreement are for convenience and reference only. They shall not be construed to define or limit the provisions to which they relate. 12. Indemnity • Applicant agrees to save, indemnify and hold harmless, the City of Atascadero, its officers, employees and agents, from all liabilities, judgements, costs and expenses, due to any and all activities related to the implementation of the rights and privileges granted in this agreement, except for liabilities, judgements, costs and expenses due to the City's negligence. 13. Time Time is expressly declared to be the essence of this Agreement. 14. Authorization to Execute The parties hereby represent that the parties executing this Agreement are expressly authorized to do so for and on behalf of the parties. • 060 IN WITNESS WHEREOF, the parties hereto have executed this Agreement • effective as of the day approved by the City Council of the City of Atascadero. Approved by the Council of the City of Atascadero on this day of 2001. CITY OF ATASCADERO By: J. Mike Arrambide, Mayor ATTEST: By: Marcia M. Torgerson, City Clerk APPROVED AS TO FORM: By: Roy A. Hanley, City Attorney HOME DEPOT U.S.A., INC. . A Delaware corporation By: Daniel R. Hatch, Senior Corporate Counsel, Western Division • 061 �a - t a 8 J o a a s # ���3OM m a w a =a� w � a sip Egli Jct W 08 w a=' � a a CL wV [ Y Z .d Q w Wfj U Md LO a CL N •� CL r � r:. w< N 'g J �+J� 0- W W J J!� ffi W pp O U ti• � ,� W.4 Jj Q W �\. J v J N < W O Qa �g �a a CL r� LLI wa W Y /' Ix CL a • f� 062 w L O P v) W g �G LU w O � np m w Z >- 00 ® Z Z w v c I— Gl� O > �� m -�Z !!1 Z ao� = OZ Zo 4 a�� W �F Obpb ` w(n p N3SNb a o a 0 V) La C w �Q- w 0 Of O D N O F— Z CL a w 0 w wce U O N O D < O O Z N Z D O or F' U < < N I— Z LL 1� (7) 063 EXHIBIT B PRORATION METHODOLOGY Design flow for lift station#13 252,000 gallons per day Applicant's costs $693,469 Total project costs by flow rate $2.77 per gallon/per day Estimated effluent from Home Depot 3,224 gallons per day Applicant's share= $2.77/GPD x 3,224 GPD=$8,930 Home Depot Share • 064 ITEM NUMBER: B-3 DATE: 03/13/2001 191$' e � 197a Atascadero City Council City Attorney Report Proposed Amendments to the Atascadero Municipal Code Relating to the Regulation and Location of Adult Oriented Businesses RECOMMENDATION: Council introduce, for first reading by title only, the draft Ordinance adding Title 9 of Chapter 16 to the Atascadero Municipal Code pertaining to zoning regulations applicable to adult oriented businesses and amending, in full, Title 5 Chapter 10 of the Atascadero Municipal Code relating to the regulation of adult oriented businesses. DISCUSSION: Background: Attached to this report is a copy of the Planning Commission Staff Report dated 2-20-01. That report contains the conclusions and advice of City staff in regard to the proposed changes. The Planning Commission reviewed the proposed zoning changes, but not the proposed definitional and regulatory changes. (Review of zoning changes is all that is required of the Planning Commission.) The Planning Commission recommended that the City Council adopt the zoning regulation as proposed and requested that staff and City Council review the map to make sure all appropriate sensitive sites are included, and to make sure that the map is as accurate as possible in including the sites to be used for defining the buffer zones. This ordinance will have two readings. Tonight is the first reading. The second reading will take place on March 27, 2001. Assuming that the second reading makes no changes from the first reading (or a further "reading" must take place) the ordinance will become effective thirty days after its passage, or tentatively on April 26, 2001. All existing non conforming uses will then have sixty (60) days within which to apply for an extension of their right to do business at their location.Any such application will have to be given due process. FISCAL IMPACT: Staff has not identified any fiscal impact from this proposal. 065 ITEM NUMBER: B-3 DATE: 03/13/2001 ALTERNATIVES: The City must address this issue as there have been many changes to the law since April of 1996. The City Council is free to discuss the alternatives for locational restrictions mentioned in the 2- 20-01 Planning Commission Staff Report. ATTACHMENTS: Proposed Map Proposed Ordinance Planning Commission Staff Report Planning Commission Resolution PC 2001-009. 066 IN a Off`-��1��Q11 �� .•�I�l�� 111°���`i►�`���`����% 7�i.r.lt��w�♦♦♦1 411limit ��� MW IN I- ,,�;.:.'!`v:'• �► rte, ,�','°.o;: .o%.I��� `' rt\\11111 � I' ♦,, t m u n . t `,, tI ,/ vim \\ • ♦.e ` \ ���� /SII � r�/ �♦ � �� �;12<'/5--,� .1 � ♦♦N �i ��•�� ��►\ _� _� � uu ry ► I iiirl G i /.�:� / M. � '-\�� \ •1/�1��I I �t ///// - 11111 /i 4� �� �♦ �� QI qr n //11 i r •�i� / ill H. lam\ ♦�j:, � '.• �.j�u ..i/ pl►. . � ,. ` ��1�1 �- • IIIII��������/.. tow tl��r `♦ � I � iia\ � •_.• X111 r;► �'►��` �1/�...✓`\ r� ���/�.�i It /.o aA • i moi. 1 11 ♦ / �'♦ 11/ IA �� �,I �� �Ii♦ Vii\ �/�� 1�-w�♦ �. ♦ �V♦ 1.�1 r�A\ ✓t� � tI ,,�� ay -1[i=�i\���`��ti;:\,.�A�:'i�rlq/::�t��0��1;�0���• OWN IfId ���,1��I� ,O♦ A�.�\'\•� ♦t�� kv �;``l��`l��w \����►�,��t SII011 VIV NOW W_ � A♦,�r�.�.�A�IO�, Illi) 11���WAI _Ison '1~ ��I���,�� I •� X • � ♦�\f#v NMI, �.dn�l Jr / .fir ��� Al MAY AM; 400010A NONNI w INS -70 INN I�� . r �� vim•.. » ���•`�,�� r.♦ / � WIN i���.��.wM ♦�r���a � i Off`-��1111111����` .�,•, Am ban �/ �♦ OR Imp L iii; •.�\ �4: �►i r��•40 �Ilk �. "'M WOW- It NONE 0� • � civ iul' i/ IIN�I:•���` ��`�``''�\ `t= �■. �0 r- MEM 11 . �' .Liu, Bob ,/� :- •nu �:•'i Biu: � '/ 1 • VIII CJI~�� ,,.�•' �••if ice♦ %•ii,.I••:iu• .tet•':i. ' :i�!�,�'��� ��NP• VON N �.•'� ��j• /1♦�♦♦ 1,� r�� �_ce-��Yii_"� • ft M. � a 'a��!�` j� „� j )/gkg%�C-YAWNS b� � ��`��% R. /Or �fO , • �► I Rk • ���� � � � I' ��v� r� t.� � ��.�� A �i %1AP•..�I �►���� ♦fir -aN RVEMP 120111210#001 VI*. 0750* �ii�jl��i..Q� ';,♦ .>c9�, � • 111 `���1�I1� � �1��..v.1 , �'1.O I•�1►%G-��• i�• Uri `�.1� �. \/ ♦ • r:/� ..< -►`,♦ 11n•\... .1► �� ,.� �.� �,.: . ...�/ 411 %..•,�,._►-+ gmal ORkm I�i0.0���P'l wp 4,% les/���� �•��� �, �''�� ���• �� \ �� •I MIN WIN,F_ i�11/111r•,.�1t�•», r, ������,�� ��♦ of- � �:.►c��``I'����:�!—�:R�Ii�•i,* I%" _:��!% RW 4F,—.�^... ���°tel �y� �•%��t DRAFT ORDINANCE is AN ORDINANCE ADDING TITLE 9 CHAPTER 16 TO THE CITY OF ATASCADERO MUNICIPAL CODE PERTAINING TO ZONING REGULATIONS APPLICABLE TO ADULT-ORIENTED BUSINESSES AND ADDING TITLE 5 CHAPTER 10 OF THE ATASCADERO MUNICIPAL CODE RELATING TO REGULATION OF ADULT ORIENTED BUSINESSES. The Council of the City of Atascadero does ordain as follows: SECTION 1. FINDINGS. The City Council of the City of Atascadero hereby finds that: (a) The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Adult Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to • regulate the adverse secondary side effects of Adult Oriented Businesses, and more specifically finds that these studies provide convincing evidence that: (1) Adult Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (2) The proximity of Adult Oriented Businesses to sensitive land uses tends to result in the blighting and deterioration of the areas in which they are located. (3) The proximity and concentration of Adult Oriented Businesses adjacent to other commercial and tourist-oriented uses can cause other businesses and uses to move elsewhere. (4) There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Adult Oriented Businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that Adult Oriented Businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. (b) Based on the foregoing, the City Council of the City of Atascadero finds and determines that special regulation of Adult Oriented Businesses is necessary to ensure that their • adverse secondary side effects will not contribute to an increase in crime rates or to the blighting 1 ., 068 • or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Adult Oriented Businesses have serious objectionable operational characteristics. It is the purpose and intent of these special regulations to prevent the concentration of Adult Oriented Businesses and thereby prevent such adverse secondary side effects. (c) The locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Adult Oriented Businesses in the City of Atascadero, and a sufficient reasonable number of appropriate locations for Adult Oriented Businesses are provided by this ordinance. The City Council finds, in part based upon its understanding of documents and judicial decisions available to the public, that the City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. The City Council takes note of the proliferation of adult material on the internet and its availability as an alternative avenue of communication. The City Council also takes note that internet access is available at nearby public libraries and at coffee shops. The City Council also considers and relies on published decisions examining the proliferation of communications on the internet. (Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2.d 874 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the internet]; Anheuser-Busch v. Schmoke, 101 F. 3d 325, 329 (4t' Cir. 1996) cert, denied 520 U.S. 1204(1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9t" Cir. • 1997); see also U.S. v. Thomas, 74 F.3d 701 (6tn Cir. 1996) cert. Denied 519 U.S. 820 [recognizing the internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke. An adult business no longer has to be "actually" physically located in a city to be available in the community. (d) In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Adult Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of Adult Oriented Businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of Adult Oriented Businesses, including but not limited to: Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) (Reh. denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener, 3 Cal. 4th 832 (1993); People v. Superior Court (Lucero) 49 Cal. 3d 14 (1989); and City of Vallejo v. Adult Books, et al., 167 Cal. App. 3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F. 2d 1255, Hang On, • Inc. v. Arlington (5th Cir. 1995) 65 F. 3d 1248, Mitchell v. Commission on Adult 2 069 Entertainment (3rd Cir. 1993) 10 F. 3d 123, International Eateries v. Broward County (11th • Cir. 1991) 941 F. 2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F. 2d 1074. (e) The City Council of the City of Atascadero also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of the City of Atascadero, and thus certain requirements with respect to the ownership and operation of Adult Oriented Businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Key. Inc. v. Kitsap County, 793 F. 2d 1053 (1986), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems. (f) The City Council finds the following, in part based upon its understanding of the documents and judicial decisions in the public record: (1) Evidence indicates that some dancers, models and performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical parts in Adult Oriented Businesses (collectively referred to as 'performers') have been found to engage in sexual activities with patrons of Adult Oriented Businesses on the site of the Adult Oriented Business; (2) Evidence has demonstrated that performers employed by Adult Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are • permitted to observe and participate with the performers in live sex shows; (3) Evidence indicates that performers at Adult Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment; (4) Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as a location for engaging in unlawful sexual activity; (5) As a result of the above, and the increase in incidents of AIDS and Hepatitis B, which are both sexually transmitted diseases, the City has a substantial interest in adopting regulations which will reduce, to the greatest extent possible, the possibility for the occurrence of prostitution and casual sex acts at Adult Oriented Businesses. (g) Zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Atascadero and to help assure that all operators of Adult Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses. (h) The City Council of the City of Atascadero recognizes the possible harmful effects on children and minors exposed to the effects of such Adult Oriented Businesses and the • ., . 070 • deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the city Council desires to minimize and control the adverse secondary side effects associated with the operation of Adult Oriented Businesses and thereby protect the health, safety, and welfare of the citizens of Atascadero; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases. (i) It is not the intent of the City Council of the City of Atascadero in enacting this ordinance, or any provision thereof, to condone or legitimize the distribution of obscene material, and the City of Atascadero recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in the City of Atascadero. 0) Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof. (k) In prohibiting public nudity in Adult Oriented Businesses, the City Council does • not intend to proscribe the communication of erotic messages or any other communicative element or activity, but rather only to prohibit public nudity due to the secondary impacts associated with such public nudity; and (1) The City Council also finds, as a wholly independent basis, that it has a substantial public interest in preserving societal order and morality, and that such interest is furthered by a prohibition on public nudity; and (m) While the City Council desires to protect the rights conferred by the United States Constitution to Adult Oriented Businesses, it does so in a manner that ensures the continued and orderly development of property within the City and diminishes, to the greatest extend feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of Adult Oriented Businesses; and (n) In enacting a nudity limitation, the City declares that the limitation is a regulatory licensing provision and not a criminal offense. The City has not provided a criminal penalty for a violation of the nudity limitation. The City adopts such a limitation only as a condition of issuance and maintenance of an Adult Oriented Business permit issued pursuant to the City Code; and (o) The City Council finds that preventing the exchange of money between performers and patrons also reduces the likelihood of drug and sex transactions occurring in is Adult Oriented Businesses; and 4 071 (p) Requiring separations between performers and patrons reduces the likelihood that • such persons will negotiate narcotics sales and/or transact sexual favors within the Adult Oriented Business. (q) Enclosed or concealed booths and dimly-lit areas within Adult Oriented Businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areas be open to view by management at all times, and that adequate lighting be provided are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct within Adult Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel. (r) The City Council enacted a comprehensive sexually oriented business ordinance in 1996. The effective date of that ordinance was April 11,1996. That ordinance allowed uses of real property existing on or before its effective date to be regarded as a non-conforming use and were allowed to continue until April 11,2001. This ordinance shall not be interpreted to extend the time of allowed continuance beyond that date unless an extension is granted pursuant to Title 9 Chapter 16.105 below, except for the purpose of applying for an extension of time as hereinafter provided. SECTION 2. AMENDMENT OF CODE. Chapter 16 entitled "Adult Oriented Businesses" is hereby added to Title 9 of the Atascadero Municipal Code to read as follows: ARTICLE 9.16. ADULT ORIENTED BUSINESSES. • SEC. 9.16.101. PURPOSE. It is the intent of this article to prevent community wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of Adult Oriented Businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, churches, and residentially zoned districts or uses. The City Council finds that it has been demonstrated in various communities, which demonstrations the City Council finds are relevant to the City of Atascadero, that the concentration of Adult Oriented Businesses causes and increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this article to establish reasonable and uniform regulations to prevent the concentration of Adult Oriented Businesses or their close proximity to incompatible uses, while permitting the location of Adult Oriented Businesses in certain areas. SEC. 9.16.102. DEFINITIONS. (a) Establishment of an Adult Oriented Business. As used herein, to "establish" an Adult Oriented Business shall mean and include any of the following: • 5 072 • (1) The opening or commencement of any Adult Oriented Business as a new business; (2) The conversion of an existing business, whether or not an Adult Oriented Business; to any Adult Oriented Business defined herein; (3) The addition of any of the Adult Oriented Businesses defined herein to any other existing Adult Oriented Business; or (4) The relocation of any such Adult Oriented Business. (b) Specified anatomical areas. As used herein, "specified anatomical areas" shall mean and include any of the following: (1) Less than completely and opaquely covered , and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered: (i) human genitals or pubic region; (ii) buttocks anus; and (iii) female breast below a point immediately above the top of the areola; (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered; • (c) Specified sexual activities. As used herein, "specified sexual activities" shall mean and include any of the following: (1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; (2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; (3) Masturbation, actual or simulated; (4) Excretory functions as part of or in connection with any of the other activities described in subdivision(1) through (3) of this subsection. (d) Adult arcade. "Adult Arcade" shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or "specified anatomical areas." Such devices shall be referred to as "adult arcade devices." (e) Adult Retail Store. The term "adult retail store" is a business establishment • having as a regular and substantial portion of its stock in trade, "adult 6 073 oriented material." • (f) Adult Booth/Individual Viewing Area. The term "adult booth/individual viewing area" shall mean a partitioned or partially enclosed portion of an adult business used for any of the following purposes: (1) Where a live or taped performance is presented or viewed, where the performances and/or images are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activites" or "specified anatomical areas"; (2) Wher"adult arcade devices" are located. (g) Adult Business. The term "adult business" shall mean (1) A business establishment or concern that as a regular and substantial course of conduct operates as an adult retail store, adult motion picture theater, adult arcade, adult cabaret, adult motel or hotel, adult modeling studio: or (2) A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes"adult oriented material" or "sexually oriented merchandise," or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or specified anatomical areas" but not including those uses or activities which are preempted by State law. (h) Adult Cabaret. "Adult cabaret" shall mean a business establishment (whether or not serving alcoholic beverages) that features "adult live entertainment." • (i) Adult Hotel/Motel. "Adult hotel/motel" shall mean a "hotel" or "motel" as defined in the Municipal Code tht is used for presenting on a regular an substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to "specified sexual activities" or"specified anatomical areas." (j) Adult Live Entertainment. "Adult live entertainment" shall mean any physical human body activity, whether performed or engaged in, alone or with other persons, including but not limited to singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, win which: (1) the performer (including but not limited to a topless and or bottomless dancer, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, "specified anatomical areas"; and/or (2) the performance or physical human body activity depicts, describes, or relates to "specified sexual activities"whether or not the specified anatomical areas are covered. (k) Adult Modeling Studio. "Adult modeling studio" shall mean a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays • 7 074 • "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such consideration. "Adult modeling studio" does not include schools maintained pursuant to standards set by the Board of Education of the State of California. (1) Adult Motion Picture Theater. "Adult motion picture theater" shall mean a business establishment, with or without a stage or proscenium, where, on a regular and substantial basis and for any form of consideration, material is presented through films, motion pictures, video cassettes, slides, laser disks, holograms, virtual reality devices, or similar electronically generated reproductions that is characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." (m) Adult Oriented Material. "Adult oriented material" shall mean accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical." "Adult oriented material" shall include sexually oriented merchandise. SEC. 9.16.103. LOCATION REQUIREMENTS. • a Except as specified in b below, no Adult Oriented Business shall be established ( ) p p ( ) , or located in any zone in the City. (b) Adult oriented business uses shall be permitted in the CR (Commercial Retail), CS (Commercial Services), IP (Industrial Park) and I (Industrial) zoning districts provided the subject site is at least One Thousand (1,000) feet from the property line of the school, church, library or park site that existed on January 1, 2001, and as shown on Exhibit"A." SEC. 9.16.104. AMORTIZATION OF NONCONFORMING ADULT ORIENTED USES. Any use of real property existing on or before April 111996 which did not conform to the provisions of Section9.16.103, but which was constructed, operated, and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued until April 11, 2001. On or before such date, all such nonconforming uses shall be terminated unless an extension of time has been approved by the hearing officer in accordance with the provisions of Section 9.16.105. (a) Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as an Adult Oriented Business shall result in a loss of legal • nonconforming status of such use. 8 075 (b) Amortization -- annexed property. Any Adult Oriented Business which was a legal use at • the time of annexation of the property and which is located in the City, butwhich does not conform to the provisions of Section 9.16.103 shall be terminated within one (1) year of the date of annexation unless an extension of time has been approved in accordance with the by provisions of Section 9.16.105. SEC. 9.16.105. EXTENSION OF TIME FOR TERMINATION OF NONCONFORMING USE The owner or operator of a nonconforming use as described in Section 9.16.104 may apply under the provisions of this section to for an extension of time within which to terminate the nonconforming use. (a) Time and manner of application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of Section 9.16.103, may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an at application must be filed with the City Clerk at least thirty (30) days but no more than one hundred eighty (180) days prior to the time established in Section 9.16.104 for termination of such use or within sixty (60) days of the effective date of this ordinance, whichever date is the last to occur. (b) Content of application; fees. The application shall state the grounds for requesting an • extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the City Council. (c) Hearing Procedure. The City Manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within forty-five (45) days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure section 1094.8 (d) Approval of extension; findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, and shall be approved only if the hearing officer makes all of the following findings or such other findings as are required by law. (1) The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to • 9 076 • another use; and such investment was made prior to _the effective date of this ordinance; (2) The applicant will be unable to recoup said investment as of the date established for termination of the use; and (3) The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with Section 9.16.103. SECTION 3. AMENDMENT OF CODE. Title 5 Chapter 10 of the Municipal Code is hereby appealed and amended to read in its entirety as follows: CHAPTER 10. ADULT ORIENTED BUSINESSES ARTICLE 1. GENERAL PROVISIONS SEC. 5.10.100.101. LEGISLATIVE PURPOSE. It is the purpose of this ordinance to regulate Adult Oriented Businesses in order to promote the health, safety, and general welfare of the citizens of the City. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to adult oriented materials protected • by the First Amendment, or to deny access by the distributors and exhibitors of adult oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. The City Council finds and determines as follows: On September 10, 1998, the Ninth Circuit issued its opinion in Baby Tam & Co., Inc. v. City of Las Vegas, 154 F. 3d 1097 (1998), holding that adult use business licensing ordinances are required to provide for prompt hearing and prompt judicial review for persons whose license or permit applications had been denied. On January 14, 2000, the Ninth Circuit issued its opinion in Baby Tam & Co., Inc. v. City of Las Vegas, No. 99-16809, making further holdings in this regard. The City Council finds that the time allowances in this ordinance are the shortest fixed periods compatible with the balancing between sound planning and land use and protection of First Amendment freedoms. The City Council finds that these time frames are reasonable, in that the City is granting or denying an adult use permit within seven (7) days of the filing of a completed application for such permit. After this filing of an appeal of a decision to grant, conditionally grant or deny an application, the City Council conducts a public hearing on such appeal and renders a written decision. The City Council takes not that California Code of Civil Procedure section 1094.8 was adopted in direct response to Baby Tam I and sets forth an expedited review process for review of permits with any first amendment protections. SEC. 5.10.100.102. DEFINITIONS. • For the purpose of this chapter the words and phrases shall have the meanings respectively 10 077 ascribed to them by section 9.16.102 of the Atascadero Municipal Code which is adopted • concurrently with this section and included herein as though fully set forth at this point by this reference. Additional words and phrases used in this chapter shall have the following meanings: (a) Adult Oriented Business Operator. "Adult oriented business operator" (hereinafter "operator") means a person who supervises, manages directs, organizes, controls or in any other way is responsible for or in charge of the premises of and "adult oriented business" or the conduct of activities occurring on the premises thereof. (b) Applicant. "Applicant means a person who is required to file an application for a permit under this chapter, including and individual owner, managing partner, officer of a corporation, or other operator,manager, employee, or agent of an "adult oriented business." (c) Bar. A bar is defined as any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises. (d) Figure Model. "Figure model" means any person who for pecuniary compensation, consideration, hire or reward serves as a live human model for the purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying such compensation or consideration. (e) Health Officer. "Health officer" means any duly authorized representative of the City of Atascadero. (f) Permittee. "Permittee" means the person to whom an adult oriented business permit is issued. (g) Police Chief. "Police Chief' means the Chief of Police of the City of Atascadero or any duly authorized representative thereof. • (h) Person. "Person" means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character. SEC. 5.10.100.103. PERMITS REQUIRED. (a) It shall be unlawful for any person to conduct operate in the City of Atascadero , the operation of an Adult Oriented Business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Atascadero as herein required. (Adult Oriented Business Regulatory permit) (b) It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an Adult Oriented Business unless the person first obtains and continues in full force and effect a permit from the City of Atascadero as herein required. (Adult Oriented Business Performer Permit) (c) The City's designee shall be the City Manager, or any other officer or employee designated by the City Manager to deal with the provisions of this Chapter. • 11 078 • ARTICLE 2. APPLICATION AND PERMITS SEC. 5.10.100.201. ADULT ORIENTED BUSINESS REGULATORY PERMIT REQUIRED (a) Every person who proposes to maintain, operate or conduct an Adult Oriented Business in the City of Atascadero shall file an application with the City upon a form provided by the City of Atascadero and shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable. The fee established may not exceed the cost of processing the application. The City's designee is responsible for granting, denying, revoking, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses SEC. 5.10.100.202. APPLICATIONS. (a) Adult Oriented Business Regulatory Permits are nontransferable, except in accordance with Section 5.10.100.205. Therefore, all applications shall include the following information: (1) If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least eighteen (18) years of age. • 2 If the applicant is a partnership, the partners shall state the partnership's ( ) pp p p p p p complete name, address, the names of all partners, whether the partnership is general or limited. (3) If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California, the names and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered office for service of process. (b) If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity shall sign the application. (c) If the applicant intends to operate the Adult Oriented Business under a name other than that of the applicant, the applicant shall file the fictitious name of the Adult Oriented Business and show proof of registration of the fictitious name. (d) A description of the type of Adult Oriented Business for which the Permit is requested and the proposed address where the Adult Oriented Business will operate, plus the names and addresses of the owners and lessors of the Adult Oriented Business site . • (e) The address to which notice of action on the application is to be mailed. 12 079 (f) The names of all employees, independent contractors, and other persons who will • perform at the Adult Oriented Business, who are required by Section 5.10.100.206 to obtain an Adult Oriented Businessperformer License (for ongoing reporting requirements see Section 5.10.100.206). (g) A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the Adult Oriented Business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches. (h) A diagram of the of f-street parking areas and premises entries of the Adult Oriented Business showing the location of the lighting system required by Section 5.10.100.301(c). SEC. 5.10.100.203. INVESTIGATION AND ACTION ON APPLICATION. (a) Upon receipt of a completed application and payment of the application and Permit fees, the City shall immediately stamp the application as received and promptly investigate the information contained in the 'application to determine whether the application is complete and whether the applicant shall be issued an Adult Oriented Business Regulatory Permit. (b) Upon receipt of an application properly filed with the City, and upon payment of the non- • refundable application fee, the City or its designee shall immediately stamp the application as received on that date. Within two business days of receipt the City shall determine whether or not the application is complete. If the application is not complete the City shall promptly notify the applicant of that fact. The time period for granting or denying a Permit shall be stayed during the period win which the application is incomplete. (c) Within fifteen (15) days of receipt of the completed application, the City's designee shall complete the investigation, grant or deny the application in accordance with the provisions of this Section, and so notify the applicant as follows: (1) The City's designee shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the City's designee shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the City's designee shall attach to the application an Adult Oriented Business Regulatory Permit. (4) The application as granted or denied and the Permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at • 13 080 • the address stated in the application. (d) The City's designee shall grant the application and issue the Adult Oriented Business Regulatory Permit upon findings that the proposed business meets the locational criteria of Section 9.16.103; unless the application is denied. The Permittee shall post the Permit conspicuously in the Adult Oriented Business premises. (e) If the City's designee grants the application or if the City's designee neither grants nor denies the application within fifteen (15) days after it is stamped as received (except as provided in Section 5.10.100.202 0), the applicant may begin operating the Adult Oriented Business for which the Permit was sought subject to compliance with the development and performance standards and requirements of Sections 5.10.100.301. Compliance with all portions of the Atascadero Municipal Code is a condition of any permit issued pursuant to this Chapter. SEC. 5.10.100.204. PERMIT DENIAL. The City's designee shall deny the application for any of the following reasons: (a) The building, structure, equipment, or location used by the business for which an Adult-Oriented Business Regulatory Permit is required do not comply with the locational or development and performance standards and requirements of these regulations. • (b) The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an Adult Business Regulatory Permit. (c) An applicant is under eighteen (18) years of age. (d) The required application fee has not been paid. SEC. 5.10.100.205. TRANSFER OF ADULT ORIENTED BUSINESS REGULATORY PERMITS. (a) A permittee shall not operate an Adult Oriented Business under the authority of an Adult Oriented Business Regulatory permit at any place other than the address of the Adult Oriented Business stated in the application for the permit. (b) A permittee shall not transfer ownership or control of an Adult Oriented Business or transfer an Adult Oriented Business Regulatory Permit to another person unless and until the transferee obtains an amendment to the Permit from the City's designee stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the City's designee in accordance with Sections 5.10.100.201 and 5.10.100.202, accompanies the application with a transfer fee in an • amount set by resolution of the City Council, and the City's designee determines in 14 081 accordance with Section 5.10.100.203 that the transferee would be entitled to the issuance of an original Permit. • SEC. 5.10.100.206. ADULT ORIENTED BUSINESS PERFORMER PERMIT. (a) No person shall engage in or participate in any live performance with an emphasis upon "specified anatomical areas" or "specified sexual activities" in an Adult Oriented Business, without a valid Adult Oriented Business Performer Permit issued by the City. All persons who have been issued an Adult Oriented Business Regulatory Permit shall promptly supplement the information provided as part of the application for the Permit required by Section 5.10.100.201, with the names of all Performers required to obtain an Adult Oriented Business Performer Permit, within thirty (30) days of any change in the information originally submitted. (b) The City's designee shall grant, deny and renew Adult Oriented Business Performer Permits. (c) The application for a Permit shall be made on a form provided by the City's designee. An original and two copies of the completed and sworn permit application shall be filed with the City's designee. (d) The completed application shall contain the following information and be accompanied by the following documents: 1 The applicant's legal name and any other names (including "stage names" and aliases) • used by the applicant; (2) Age, date and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number; (5) Whether the applicant has ever been convicted of- (i) £(i) Any of the offenses set forth in Sections 315, 316, 266a, 266b, 266c, 266e, 266g, 266h, 2661, 647(a), 647(b) and 647(d) of the California penal Code as those sections now exist or may hereafter be amended or renumbered. (ii) The equivalent of the aforesaid offenses outside the State of California. (6) Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a statement shall be • 15 082 • submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution. (7) State driver's license or identification number; (8) Satisfactory written proof that the applicant is at least eighteen (18) years of age; (9) If the application is made for the purpose of renewing a License, the applicant shall attach a copy of the License to be renewed. (e) The completed application shall be accompanied by a non-refundable application fee. The amount of the fee shall be set by resolution of the City Council. The amount of such fee may not exceed the cost of processing the application. (f) Upon receipt of an application and payment of the application fees, the City's designee shall immediately stamp the application as received and promptly investigate the application. (g) If the City's designee determines that the applicant has completed the application improperly, the City's designee shall promptly notify the applicant of such fact. The time period for granting or denying a Permit shall be stayed during the period in which the • application is incomplete. SEC. 5.10.100.207. INVESTIGATION AND ACTION ON APPLICATION. (a) Within two (2) business days after receipt of the completed application, the City's designee shall grant or deny the application and so notify the applicant as follows: (1) The City's designee shall write or stamp "Granted" or "Denied" on the application and date and sign such notation (2) If the application is denied, the City's designee shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the City's designee shall attach to the application an Adult Oriented Business Performer Permit. (4) The application as granted or denied and the permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the residence address stated in the application. (b) The City's designee shall, grant the application and issue the Permit unless the application is denied for one or more of the reasons set forth in subsection (d) of this • section. 16 083 (c) If the City's designee grants the application or if the City's designee neither grants nor • denies the application within two (2) business days after it is stamped as received (except as provided in Section 5.10.100.206 (g), the applicant may begin performing in the capacity for which the License was sought. (d) The City's designee shall deny the application for any of the following reasons: (1) The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a Permit; (2) The applicant is under eighteen (18) years of age; (3) The Adult-Oriented Business Performer Permit is to be used for performing in a business prohibited by State or City law. (4) The applicant has been registered in any state as a prostitute. (5) The applicant has been convicted of any of the offenses enumerated in Section 9.30.100.206(d) (5) or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed within the State of California. A Permit may be issued to any person convicted of the described crimes if the conviction occurred more than five (5) years prior to the date of the application. • (e) Each Adult Oriented Business Performer Permit shall expire one (1) year from the date of issuance and may be renewed only by filing with the City's designee a written request for renewal, accompanied by the application fee and a copy of the Permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the Permit. Applications for renewal shall be acted on as provided herein for applications for Permits. SEC. 5.10.100.209. APPEAL OF DENIAL, SUSPENSION OR REVOCATION. (a) Administrative Appeal to the City Council. (1) After denial of an application or suspension or revocation of a permit, the applicant or permittee may seek prompt review of such administrative action through the City Council, under the provisions of the Atascadero Municipal Code and may appeal any decision of the City Council to the Superior Court pursuant to California Code of Civil Procedure 1094.8 • 17 084 ARTICLE 3. OPERATING AND DEVELOPMENT STANDARDS. • SEC. 5.10.100.301. ADULT ORIENTED BUSINESS DEVELOPMENT AND OPERATING STANDARDS. (a) Operating standards are a legitimate and reasonable means of ensuring that adult businesses are conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators and businesses comply with reasonable regulations related to such requirements to minimize control problems associated with such businesses and thereby protect the health, safety, and welfare of City residents, protect citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. The operational requirements contained in this Ordinance do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses in the City. (b) The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. For example, the closing hours requirement means that adult businesses are free to operate seven (7) days a week for sixteen (16) hours per day. The City Council takes note of the proliferation of adult material on the Internet and its availability as an alternative avenue of communication. The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. ( Reno v. American Civil Liberties Union, 521 U.S. 844[the principle channel through which many Americans now transmit • and receive sexually explicit communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F. 3d 325 [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U.S. v Hockings, 129 F. 3d 1069; U.S. Thomas, 74 F. 3d 701 [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested person in every community with a mere keystroke. An adult business no longer has to be "actually" physically located in a city to be available in the community. (c) The City Council has also determined that a closing hours requirement promotes the reduction of deleterious secondary effects from adult facilities and reasonably relies on prior court decisions on the need for closing hours including Mitchell v. Comm. On Adult Entertainment, 10 F. 3d 123; Lady J Lingerie, Inc. v. City of Jacksonville, 973 F. Supp 1428; and City of Colorado Springs v. 2345 Inc, 896 P. 2d 272. (d) No Adult Oriented Business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and • any exterior windows shall be covered with opaque covering at all times. 18 85 (e) All off-street parking area and premise entries of the sexually oriented business shall be • illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1) foot candle of light on the parking surface and/or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct The lighting shall be shown on the required sketch or diagram of the premises. (f) Except for those businesses also regulated by the California Department of Alcoholic Beverage Control, an Adult Oriented Business shall be open for business only between the hours of 8:00 a.m. and 2:00 a.m. This restriction shall not apply to an adult hotel or adult motel. (g) The building entrance to an Adult Oriented Business shall be clearly and legibly posted with a notice indicating that persons under eighteen (18) years of age are precluded from entering the premises. No person under the age of eighteen (18) years shall be permitted within the premises at any time. (h) All indoor areas of the Adult-Oriented Business within which patrons are permitted, except rest rooms, shall be open to view by the management at all times. (i) Any adult-oriented business which is also an "adult arcade", shall comply with the • following provisions: (1) No adult booth/individual viewing area shall be occupied by more than one individual at a time. (2) Each adult booth/viewing area within the adult business shall be visible from a continuous and accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two way mirror or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle. A manager shall be stationed in the main aisle at all times. Further, no one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior wherein the picture or entertainment that is viewed is visible from one main aisle. The entire body of any patron in any adult booth/individual viewing area must be visible from the main aisle without the assistance of mirrors or other device. (3) No doors are permitted on an adult booth/individual viewing are. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individually viewing areas shall be maintained. (4) The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any two such rooms such as would • 19 086 • allow viewing from one booth into another or such as to allow physical contact of any kind between the occupants of any two such booths or rooms. (5) No holes or other openings (commonly known as "glory holes") shall be permitted between adult booths/individual viewing areas. Any such hole or opening shall be repaired within 24 hours using "pop" rivets to secure metal plates over the hole or opening to prevent patrons from removing the metal plates. (6) The floors, seats, walls and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any such booths shall be evidence of improper maintenance and inadequate sanitary controls. (7) No beds shall be permitted in an adult booth/individual viewing area. (j) All areas of the Adult Oriented Business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at ground level: Area Foot-Candles Bookstores and other retail 20 establishments • Theaters and cabarets 5 (except during performances, at which times lighting shall be at least 1.25 foot-candles) Arcades 10 Motels/Hotels 20 (in public areas) Modeling studios 20 (k) The Adult Oriented Business shall provide and maintain separate rest room facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) for males, except to carry out duties of repair, maintenance and cleaning of the rest room facilities The rest rooms shall be free from any Adult Material. Rest rooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an Adult Oriented Business which deals exclusively with sale or rental of Adult Material which is not used or consumed on the premises, such as an Adult Bookstore or Adult Video Store, • and which does not provide rest room facilities to its patrons or the general public. 20 ® 7 (1) On Site Manager; Security Measures. All adult businesses shall have a responsible person is who shall be at least 18 years of age and shall be on the premises to act as a manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on site manager shall provide his/her name to the Planning Director to receive all complaints and be given by the owner and or operator the responsibility and duty to address and resolve all violations taking place on the premises. All adult businesses shall proved a security system that visually records and monitors all parking lot areas, or in the alternative, state licensed unformed security guards to patrol and monitor the parking lot areas during all times during which the business is open. It the business employs security guards, they shall provide written confirmation to the Police Chief prior to their employment that the guards are duly registered. No performer may serve as a security guard. A sign indicating compliance with this provision shall be posted on the exterior of the premises between four to six feet from the ground. The sigh shall not exceed two feet by three feet and shall at a minimum be one foot bone and a half feet and shall utilize red or black printing letters of not less than 1 inch in size. (m) No exterior door or window on the premises of an adult business shall be propped or kept open at anytime while the business is open and any exterior windows shall be covered with opaque coverings at all times. (n) The following additional requirements shall pertain to Adult Oriented Businesses providing live entertainment: ( )1 No person shall perform live entertainment for patrons of an Adult Oriented • Business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least ten(10) feet from the nearest area occupied by patrons, and no patron shall be permitted within ten (10) feet of the stage while the stage is occupied by an performer. "Performer" shall mean any person who is an employee or independent contractor of the Adult Oriented Business, or any person who, with or without any compensation or other form of consideration, performs live entertainment for patrons of an Adult Oriented Business. (2) The Adult Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the performers' use. (3) The Adult Oriented Business shall provide an entrance/exit for performers which is separate from the entrance/exit used by patrons. (4) The Adult Oriented Business shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the Adult-Oriented Business shall provide a minimum three (3) foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which actually results • 21 088 • in) preventing any physical contact between patrons and performers. (5) No performer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any performer either before, during or after performances by such performer. This subsection shall only apply to physical contact on the premises of the Adult Oriented Business. This limitation shall not be construed to apply to incidental physical contact. (6) Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between performers and patrons required by this subsection. (7) No patron shall directly pay or give any gratuity to any performer and no performer shall solicit any pay or gratuity from any patron. (8) No owner or other person with managerial control over an Adult Oriented Business (as that term is defined herein) shall permit any person on the premises of the Adult Oriented Business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered. • SEC. 5.10.100.302. REGISTER AND PERMIT NUMBER OF EMPLOYEES. (a) Every permittee of an Adult Oriented Business which provides live adult must maintain a register of all persons so performing on the premises and their permit numbers. Such register shall be available for inspection during regular business hours by any police officer of the City of Atascadero. SEC. 5.10.100.303. DISPLAY OF PERMIT AND IDENTIFICATION CARDS. (a) Every Adult Oriented Business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such Adult Oriented Business in a conspicuous place so that the same may be readily seen by all persons entering the Adult Oriented Business. (b) The Police Chief shall provide each Adult Oriented Business Performer required to have a Permit pursuant to the chapter, with an identification card containing the name, address, photograph and permit number of such performer. (c) An Adult Oriented Business Performer shall have such card available for inspection at all times during which such person is on the premises of the Adult Oriented Business. • 22 089 SEC. 5.10.100.304. EMPLOYMENT OF AND SERVICES RENDERED TO PERSONS • UNDER THE AGE OF EIGHTEEN (18)YEARS PROHIBITED. (a) It shall be unlawful for any permittee, operator or other person in charge of any Adult Oriented Business to employ, or provide any service for which it requires such permit, to any person who is not at least eighteen (18) years of age. (b) It shall be unlawful for any permittee, operator or other person in charge of any Adult Oriented Business to knowingly permit to enter, or remain within the Adult Oriented Business, any person who is not at least eighteen years of age. ARTICLE 4. MISCELLANEOUS PROVISIONS SEC. 5.10.100.401. INSPECTION. An applicant or Permittee shall permit representatives of the Police Department, Health Department, Fire Department, Planning Division, or other City Departments or Agencies to inspect the premises of an Adult Oriented Business for the purpose of insuring compliance with the law at any time it is occupied or opened for business. A person who operates an Adult Oriented Business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business. • SEC. 5.10.100.402. REGULATIONS NONEXCLUSIVE. The provisions of this article regulating Adult Oriented Businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the City Council of the City of Atascadero. SEC. 5.10.100.403. EMPLOYMENT OF PERSONS WITHOUT PERMITS UNLAWFUL. It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of an Adult Oriented Business which provides live adult entertainment to allow any person to perform such entertainment who is not in possession of a valid Adult Oriented Business Performer Permit. SEC. 5.10.100.404. TIME LIMIT FOR FILING APPLICATION FOR PERMIT. All persons who possess an outstanding business license 'heretofore issued for the operation of an Adult Oriented Business and all persons required by this chapter to obtain an Adult Oriented • 23 090 • Business Performer Permit, must apply for and obtain such a permit within ninety (90) days of the effective date of this chapter. Failure to do so and continued operation of an Adult Oriented Business, or the continued performances in an Adult Oriented Business after such time without a permit shall constitute a violation of this chapter. SEC. 5.10.100.405. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDING. The City Council finds that this ordinance is enacted in order to mitigate the threat posed to the public peace, health, or safety by Adult Oriented Businesses. In this regard, the findings set forth in Section 1 of this ordinance are incorporated herein by reference. This ordinance either provides for the amendment of existing regulations applicable to Adult Oriented Businesses or, for the first time, provides for zoning regulations which are specifically applicable to Adult Oriented Business uses. Such uses are already allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment, and therefore the adoption ordinance is exempt from CEQA pursuant to Section 15061(b) (3) of this the CEQA guidelines. SECTION 5: The City Clerk shall cause a summary of this ordinance, approved by the City Attorney, together with ayes and noes, to be published at least five days prior to its final passage in the Atascadero News, a newspaper of general circulation, printed, published and circulated in the City of Atascadero in accordance with Section 36933 of the Government Code. The City Clerk shall cause a summary of this Ordinance, approved by the City Attorney, together with ayes and noes, to be published before the expiration of fifteen (15) days after its final passage in the Atascadero News. A copy of the full text of this Ordinance shall be on file in the City Clerk's Office on and after the date following introduction and passage and shall be available to any interested member of the public. This ordinance shall take effect and be in full force and effect thirty (30) days after its final passage. On motion by Council Member and seconded by Council Member the foregoing Ordinance is adopted by the following roll call vote: AYES: NOES: • ABSENT: 24 091 CITY OF ATASCADERO • J. Michael Arrambide, Mayor ATTEST: Marcia McClure Torgerson, City Clerk ORDINANCE CODE PROVISION APPROVED AS TO FORM AND CODIFICATION: By: Roy A. Hanley, City Attorney Dated: • 25 092 ITEM NUMBER: 5 DATE: 2-20-01 19Y8 � 1-97-9 Planning Commission Staff Report Public Hearing Zone Change 2000-0007 Adult Oriented Businesses Citywide SUBJECT: Staff initiated discussion and recommendations concerning proposed changes to zoning portions of the Atascadero Municipal Code Relating to Adult Oriented Businesses. The proposed changes that the Planning Commission is requested to review relating to location restrictions, and not to regulatory provisions. RECOMMENDATION: . Staff Recommends: That the Planning Commission, review and make recommendations to the City Council on proposed changes to the Atascadero Municipal Code and adopt Resolution No. PC 2001-009. DISCUSSION: Background: The City Council of the City of Atascadero established a comprehensive ordinance relating to sexually oriented, or adult oriented, businesses. There have been many changes to the law in regards to the regulation and restrictions that can be imposed upon such businesses since 1996. The original ordinance established an amortization period for legally established, but non-conforming uses, of five (5) years. That five (5) year period is about to run on the only legally established sexually oriented adult oriented business in Atascadero that staff is aware of. The proposed changes to the ordinance do not extend or modify the amortization period. Any changes in the regulatory provisions that are presented to the City Council after this Planning Commission hearing will not include an automatic extension of the amortization period. Rather, the ordinances will relate back to that originally established in 1996. • 093 ITEM NUMBER: 5 DATE: 2/20/01 The specific action that the Planning Commission is being asked to address today is the location • requirements. Currently, the location requirements are all contained in the Health and Safety provision of the Atascadero Municipal Code. Current experts in the field of regulating such businesses advise that the regulatory provisions and the locational provisions be separated. The Planning Commission is being asked to examine a location requirement that will be contained in Chapter 9 of the Atascadero Municipal Code. This is where all of the other zoning provisions are located. The regulatory provisions that the City Council will be looking at will remain in the Health and Safety portion of the Municipal Code. Specifically, staff proposes that a Section 9, Chapter 16 in regards to adult oriented businesses be established as the successor in interest to the previous locational restrictions. The proposed language is as follows: Section 9.16.103 Location Requirements. Adult oriented business uses shall be permitted in the CR (Commercial Retail), CS (Commercial Services), IP (Industrial Park) and I (Industrial) zoning districts provided the subject site is at least One Thousand (1,000) feet from the property line of the school, church, library or park site that existed on January 1, 2001, and as shown on Exhibit "A." One net effect of this proposed change is that adult oriented businesses would be dropped as a • permissive use from the CP zone. Some brief discussion of regulatory and locational issues is in order so that the Planning Commission can make their recommendation in context. It is very important for the Planning Commission to remember that the City may not legally ban such businesses from the City of Atascadero. The City of Atascadero has to have "reasonable" numbers of locations where such businesses are legal. In the absence of a reasonable number of such locations, the entire ordinance will be tossed and the businesses are free to locate and remain wherever they wish. The location and the regulatory restrictions can only legally be used to address the adverse secondary effects that result from adult oriented businesses. The City can only address the adverse secondary effects of legal uses. The City is not allowed to address obscenity or personal sexual conduct. Those issues have been fully occupied by the State of California. Therefore, the City is free only to place restrictions on what is otherwise legal activity, and those restrictions must be tailored to address the adverse secondary effects of the legal activity. There is no hard and fast rule that can be pointed to for the minimum number of sites that must be available in the City for adult oriented businesses. We know only that they must be reasonable. Reasonableness is defined as the ability to reasonably communicate the ideas involved in the legal, but pornographic, material. The City is not free to dream up locational restrictions that in reality mean there are no sites for potential location. This has been tried in other communities, for instance by designating old paper lots that existed on the landing tarmac • at Los Angeles International Airport. If there is no practical ability to use any of the designated locations, that is the same as attempting to ban businesses all together. Under those 094 ITEM NUMBER: 5 • DATE: 2/20/01 circumstances, the ordinance will fail, and the businesses will be free to locate and stay where they desire. The leading Unites States Supreme Court case in this area held that where a City set aside five percent (5%) of its geographical area for the location of such businesses legally, that met the minimum standard. In Atascadero if we follow that statement strictly, every single commercial piece of property would be a legal location. We are largely a residential community. The entire potential area for businesses to locate does not reach five percent (5%) of the geographical area of the City. We are therefore, embarking, as always in this area, on a decision that the pornography industry will be willing to argue about. Staff feels that the proposed locational restrictions provide more than adequate potential sites for these businesses yet preserve the downtown area, which area is already subject to blight and needs to be rehabilitated, and provides a buffer zone between sensitive uses and any newly located adult business. The purpose for establishing the buffer zones based upon sensitive uses existing on January 1, 2001, is to prevent the City's ordinance from violating recent state court appellate decisions. There have been recent cases holding that giving sensitive uses the right to move into a new location, and therefore preclude adult businesses from locating there, essentially gave these uses a veto power over adult uses. This was held unconstitutional. Staff feels that by providing the buffer zones that are shown on the • exhibits to be presented at the Planning Commission hearing will protect those sensitive uses, provide many spaces or safe zones where future sensitive uses can locate knowing that they will not be next to an adult business, and yet provides a number of potential sites for adult oriented businesses that will survive any constitutional challenge. CONCLUSIONS: The alternatives the Planning Commission may discuss include simply continuing the ban of adult oriented businesses in the legally defined downtown area, but allowing them in any other location where commercial activity can take place, establishing buffer zones of a shorter distance than the One Thousand (1,000) feet recommended by staff, and should include some discussion of the risks involved in extending the buffer zones any further. The specific risk of course, is that in extending the distance of the buffer zones the number of legal sites available is reduced to a level below what a court would determine to be reasonable under the law as set forth by the United States Supreme Court and the Ninth Circuit Court of Appeals. Staff recommends the One Thousand (1,000) foot buffer zone as being the best way to protect sensitive uses while still allowing a sufficient number of sites so that the ordinance can remain enforceable. • PREPARED BY: Roy Hanley, City Attorney 095 ITEM NUMBER: 5 DATE: 2/20101 ATTACHMENT 1: Draft Resolution PC 2001-0009 ZC 2000-0007 Citywide DRAFT RESOLUTION NO. PC 2001-009 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ATASCADERO RECOMMENDING THAT THE CITY COUNCIL APPROVE ZONE CHANGE 2000-0007 THEREBY AMENDING THE MUNICIPAL CODE REGARDING THE ALLOWED LOCATION OF ADULT ORIENTED BUSINESSES (City of Atascadero) WHEREAS, City Staff has initiated discussion and recommendations for changes to the Atascadero Municipal Code relating to the allowed locations of Adult Oriented Businesses, WHEREAS, the Planning Commission has determined that it is in the best interest of the City to enact this amendment to the Municipal Code to protect the health, safety and welfare of its citizens by applying orderly development of the City; and, WHEREAS, the laws and regulations relating to the preparation and public notice of environmental documents, as set forth in the State and local guidelines for implementation of the California Environmental Quality Act(CEQA)have been adhered to; and, WHEREAS, a timely and properly noticed Public Hearing upon the subject Zone Change application was held by the Planning Commission of the City of Atascadero at which hearing evidence, oral and documentary, was admitted on behalf of said Zoning amendments; and, WHEREAS, the Planning Commission of the City of Atascadero, at a Public Hearing held on February 20, 2001 studied and considered Zone Change 2000-0007, after first studying and considering the proposed environmental exemption prepared for the project, and, NOW,THEREFORE, the Planning Commission takes the following actions: SECTION 1. Certification of Proposed environmental exemption the Planning Commission of the City of Atascadero, hereby certifies that Zone Change 2000-0007 is exempt from CEQA under Section 15061 (b) (3), Preliminary Review of Projects. CEQA allows this • exemption when it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. 097 ITEM NUMBER: 5 DATE: 2/20/01 SECTION 2 . Approval. The Planning Commission does hereby recommend that the City Council approve Zone Change 2000-0007, subject to the following Exhibits: Exhibit A: Adult Business Buffer Zones Exhibit B: Proposed text amendment On motion by Commissioner and seconded by Commissioner the foregoing resolution is hereby adopted in its entirety by the following roll call vote: AYES: NOES: ABSENT: � � • ADOPTED: CITY OF ATASCADERO, CA Royce Eddings, Planning Commission Vice-Chair ATTEST: Warren Frace, Interim Director Community Development Department • 098 ITEM NUMBER: 5 • DATE: 2/20/01 EXHIBIT A. Adult Business Buffer Zones Map Draft Resolution PC 2001-009 ZCH 2000-007 ADULT BUSINESS BUffR ZON�S Legend land Uses Punh of Inleresl O warn emery X71 i S�!'T'�� -=`'�y � t� �--�"�.��� „--r�• a /f '�. � � r CITY of ATASCADIRO 099 ITEM NUMBER: 5 DATE: 2/20/01 • EXHIBIT B: Proposed Municipal Code Text Addition Draft Resolution PC 2001-009 ZCH 2000-0007 Section 9.16.103 Location Requirements. Adult oriented business uses shall be permitted in the CR (Commercial Retail), CS (Commercial Services), IP (Industrial Park) and I (Industrial) zoning districts provided the subject site is at least One Thousand (1,000) feet from the property line of the school, church, library or park site that existed on January 1, 2001, and as shown on Exhibit "A." • 100 ITEM NUMBER: C- 1 DATE: 03/13/2001 i Fat RIM M S .. 1 i"sia' � � 1979 C" Atascadero City Council Staff Report - Public Works Department Solid Waste, Green Waste and Recycle Collection RECOMMENDATION: Council receive this report on the solid waste, green waste and recycle collection by Atascadero Waste Alternatives. DISCUSSION: Background: Atascadero Waste Alternatives (AWA) provides solid waste, green waste and recycle collection for the City of Atascadero per a solid waste collection franchise agreement. Solid waste is collected weekly with 3 container sizes (96 gallon, 64 gallon and 35 gallon). Green waste is collected bi-weekly in 32-gallon container(s) provided by the customer. Recyclables are collected weekly in 14-gallon yellow bins. The monthly fee for collection is $28.90 for 96-gallon service, $21.80 for 64-gallon service and $11.30 for 35-gallon service. The City is served by 10 routes that collect on different days of the week. Summary: Atascadero Waste Alternatives is working toward completely automating their collection system. They are proposing to provide 90-gallon wheeled containers for green waste, 90-gallon wheeled containers for recyclables and the solid waste container sizes would remain the same size. A driver in a solid waste collection vehicle equipped with a mechanical pick-up arm will collect the refuse, green waste, and recyclables. Atascadero Waste Alternatives is proposing to start a test route with this type of service to work out the logistics and to determine if increased diversion occurs with the higher capacity, easier- to-use wheeled containers. This will help the City to meet its AB939 goal of reducing waste by 50%. The frequency they propose is every week for solid waste and every other week for green waste and recyclables. One week would be green waste collection and the next would be recyclables. This collection frequency could be increased to weekly, but AWA would like to see if the every-other-week scenario worked. It is much easier to start with every-other-week and go to weekly rather than starting with weekly and trying to cut back to every-other-week. The every-other-week scenario saves in cost to the consumer as well as reducing truck traffic. Enclosed is a map showing the proposed test routes. 101 ITEM NUMBER: C- 1 DATE: 03/13/2001 Staff is working with Atascadero Waste Alternatives and Chicago Grade Landfill to provide a yearly event to help clean up the City. The goal is to help dispose of large quantities of green waste, large objects and "spring cleaning" waste. Ideas being discussed are "free landfill day" and once a year increased collection day. Staff is also working with the Integrated Waste Management Board staff and Atascadero Waste Alternative on purchasing a chipper and providing free "chippings" for pick up. Staff will report back as details are worked out. FISCAL IMPACT: No rate change is proposed with this sample route. If Atascadero Waste Alternatives proposes any rate change to fully automate the collection for the City, Council would have to approve the revision to the solid waste collection franchise agreement. ALTERNATIVES: Direct Staff to work with Atascadero Waste Alternatives on different test route or system changes. ATTACHMENTS: Collection Map 102 O ROb \ OE RIO \ M aq 9. 41 a Atascadero of Commerce 8 o <y 'ry a s Y i J \� m 6550 EI Camino Real A�aSCadoro, � CA 93422 4°E A,� q4°q rER,E 'W�b- Iy808.466.204 I a \meq p y ,x+va ,�F \ bw <. r'.• -/' M'w^Q"� of \ w � Porta O c a • 'E Rq r\ . E•`�' o}P°- � la FqH <Jr RORTOLR 3ORD !a \�e\� � � 1 a hMona °' •,; �W� Y 4 a 4PPT w x<.a °� r'1 �J ,ln. M• nb �M s '� u aS e R>w P b a r- sr i sr y„ s LEGEND J l8 ! dpi SO Jl- 6 8 7 Ita: 10 ITEM NUMBER: C-2 DATE: 03/13/2001 i9rs p iaie Atascadero City Council Staff Report - Community Services Department Atascadero Lake Park Master Plan and Lake Pathway Improvements Design Services RECOMMENDATION: Council authorize the City Manager to enter into an agreement with CJP Productions for design services for the Atascadero Lake Park Master Plan and Lake Pathway Improvement Project. DISCUSSION: Staff mailed out a Request for Proposals (RFP) for Design Services for the Atascadero Lake Park Master Plan and Lake Pathway Improvement Project on Wednesday, January 10, 2001. Staff prepared and sent out an RFP to eleven (11) Park Planning and Landscape Architectural firms, who specialize in public recreation facilities, from throughout San Luis Obispo County and the State. A list of the firms solicited is attached. Of the eleven firms who received the RFP, three responded with proposals by the Tuesday, February 13, 2001 deadline. A list of these three firms is also attached. A Consultant Selection Team, assembled to assist in the selection process for the submitted proposals, evaluated all of the submitted proposals to determine the best-qualified architect. The proposals were evaluated on the following criteria; a.) Key personnel b.) Consultant experience and qualifications c.) Similar projects completed by the project team d.) Client references e.) Detailed proposed Work Plans £) Project time-schedule g.) Approach/Understanding of the project Based on the evaluation of the proposals on the criteria, the Committee Selection Team selected three architectural firms to return for an interview. Following these interviews, the Selection Team ranked the top three Architectural firms as follows. 1. CJP Productions Atascadero CA 2. Oasis Associates, Inc. San Luis Obispo CA 3. Richard Splenda& Associates Berkeley CA - 104 ITEM NUMBER: C-2 DATE: 03/13/2001 All three of these Park Planning and Landscape Architectural firms are qualified in the area of design of public recreation facilities. CJP Productions ranked first among the submitted proposals due to their superior Scope of Work and understanding of the project. In addition, CJP Productions is based in Atascadero and has previously provided quality landscape design services to the City of Atascadero. FISCAL IMPACT: Approval of this agreement will result in expenditures of$56,030.00 from allocated City general funds for the Lake Park Master Plan and an additional $11,875.00 from allocated T-21 transportation funds for the design plans and construction drawings for Atascadero Lake Pathway Improvement project. ALTERNATIVES: No Alternative. ATTACHMENTS: 1. Atascadero Lake Park Master Plan and Lake Pathway Improvement Project RFP Distribution List 2. Summary Bid List 3. Consultant Services Agreement 105 . ATTACHMENT #1 Youth Center RFP Distribution List 1. Company Address 2. RRM Design Group 3701 South Higuera Street, San Luis Obispo CA 93401 3. Don Doubledee Architect 742 Morro Bay Blvd., Morro Bay CA 93442 4. Addington Partenship 997 Saint Mary, Cayucos CA 934299 5. EDA 1320 Nipomo Street, San Luis Obispo CA 93401 6. Rinaldi Architects 3506 El Camino Real, Atascadero CA 93422 7. Ravatt-Albrecht & Assoc. Inc. P. O. Box 528, Santa Maria CA 93456 8. Heiser & Associates 823 "D" Street, San Rafael CA 94901 9. BFGC Architects, Inc. 4115 Broad Street, Suite B-6, SLO CA 93401 10.Westberg+White, Inc. 719 S. McClelland Street, Santa Maria CA 93454-5122 11.F.L. Henderson & Associates 5825 Venado Road, Atascadero CA 93422 12.US Leonard J. Schroeder, AIA 4201 Ardmore Avenue #9, Bakersfield CA 93309-4987 13.gpra 1880 Santa Barbara Street, Suite D, SLO CA 93401 14.SC Architect, Inc. 1301 "L" Street, Bakersfield CA 93301 15.purkiss-rose-rsi, Inc. 801 North Harbor Blvd. Fullerton CA 92832 16.Reise Associates PO Box 91594, San Luis Obispo CA 93401 17.Grillias, Rirc. Rosier, Alves 1445 Grand #B, Grover Beach CA 93433 18.Jeff Schneidereit, Architect 104 S. Main Street, Templeton CA 93465 19.John McGoff 9192 Maple Street, Atascadero CA 93422 20.RTC 7400 Morro Road, Atascadero CA 93422 21.RNL Design 611 West 6th Street, Suite350 Los Angeles CA 90017 22.Moore, Lachcofno & Goltsman 800 Hearst Avenue, Berkeley CA 94710 • 106 ATTACHMENT #2 • BID NO. 2000-10 PROJECT: Youth/Community Center OPENED: 11/15/00 — 5:00 p.m. RECEIVED - RFP'S Bidder Date Received Don Doubledee Architect 11/15/00 742 Morro Bay Blvd. Morro Bay, CA 93442 Ravatt Albrecht& Assoc., Inc. 11/15/00 1460 N. Higuera San Luis Obispo, CA 93401 Westberg& White, Inc. 11/15/00 Architects and Planners 14471 Chambers Rd., Ste. 210 Tustin, CA 92780 SC Architect, Inc. 11/15/00 • 1301 L Street Bakersfield, CA 93301 Kirk Heiser 11/15/00 Heiser& Associates, Inc. 823 D Street San Rafael, CA 94901 Grillias, Pirc,Rosier, Alves 11/15/00 17875 Von Karman Ave., Ste. 301 Irvine, CA 92614 Bfgc Architecture 11/15/00 4115 Broad St., Ste. B6 San Luis Obispo, CA 93401-7992 RRM Design Group 11/15/00 3701 So. Higuera St. • San Luis Obispo, CA 93401 107 • AGREEMENT FOR CONSULTANT SERVICES This agreement is made upon the date of execution, as set forth below, by and between CJP Productions, hereinafter referred to as "Contractor," and the City of Atascadero, California, a Municipal Corporation, hereinafter referred to as "City." The parties hereto, in consideration of the mutual covenants contained herein, hereby agree to the following terms and conditions: 1.00 GENERAL PROVISIONS 1.01 TERMS: This agreement will become effective on the date of execution set forth below, and will continue in effect until terminated as provided herein. 1.02 SERVICES TO BE PERFORMED BY CONTRACTOR: Contractor agrees to perform or provide the services specified in "Description of Services" attached hereto as "Exhibit A" hereby incorporated herein. Contractor shall determine the method, details and means of performing the above-referenced services. • Contractor may, at Contractors own expense, employ such assistants as Contractor deems necessary to perform the services required of Contractor by this agreement. City may not control, direct or supervise Contractor's assistants or employees in the performance of those services. 1.03 COMPENSATION: In for the services to be performed by Contractor, City agrees to pay Contractor the consideration set forth in the amounts and under the terms provided in "Exhibit B," hereby incorporated herein. 2.00 OBLIGATIONS OF CONTRACTOR 2.01 MINIMUM AMOUNT OF SERVICE BY CONTRACTOR: Contractor agrees to devote the hours necessary to perform the services set forth in this agreement in an efficient and effective manner. Contractor may represent, perform services for and be employed by additional individuals or entities, in Contractor's sole discretion, as long as the performance of these extra- contractual services does not interfere with or present a conflict with City's business. • 1 108 2.02 TOOLS AND INSTRUMENTALITIES: Contractor shall provide all tools • and instrumentality's to perform the services under this agreement except those listed in "Tools and Instrumentality's Provided by City" attached hereto as "Exhibit C" and hereby incorporated herein. 2.03 WORKER'S COMPENSATION AND OTHER EMPLOYEE BENEFITS: City and Contractor intend and agree that Contractor is an independent contractor of City and agrees that Contractor and Contractor's employees and agents have no right to Worker's Compensation and other employee benefits. If any worker insurance protection is desired, Contractor agrees to provide Worker's Compensation and other employee benefits, where required by law, for Contractor's employees and agents. Contractor agrees to hold harmless and indemnify City for any and all claims arising out of any claim for injury, disability, or death of any of Contractor and Contractor's employees or agents. 2.04 INDEMNIFICATION: Contractor hereby agrees to, and shall, hold City, its elective and appointive boards, officers, agents and employees, harmless and shall defend the same from any liability for damage or claims for damage, or suits or actions at law or in equity which may allegedly arise from Contractor's or any of Contractor's employees' or agents' operations under this agreement, whether such operations be by Contractor or by any one or more persons directly or indirectly employed by, or acting as agent for, Contractor; provided • as follows: a. That the City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit with City by Contractor, of any of the insurance policies hereinafter described. b. That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations of Contractor or any agent or employee of Contractor regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 2.05 INSURANCE: Contractor shall not commence work under this contract until they have obtained all insurance required under this section and such insurance shall have been approved by City as to form, amount and carrier: a. Public Liability and Property Damage Insurance. Contractor shall take out and maintain during the life of this contract such public liability and 2 • 109 • property damage insurance as shall protect City, its elective and appointive boards, officers, agents and employees, and Contractor and any agents and employees performing work covered by this contract from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from Contractor's or any subcontractor's operations under this contract, whether such operations be by Contractor or by anyone directly or indirectly employed by contractor and the amounts of such insurance shall be as follows: (1) Public Liability Insurance. In an amount not less than $ 1,000.000.00 for injuries, including, but not limited to death to any one person and, subject to the same limit for each person, in an amount not less than $500,000.00 on account of any one occurrence; (2) Property Damage Insurance. In an amount of not less than $ 1,000,000.00 for damage to the property of each person on account of any one occurrence. (3) Comprehensive Automobile Liability. Bodily injury liability coverage of $ 1,000.000.00 for each person in any one accident and $500,000.00 for injuries sustained by two or . more persons in any one accident. Property damage liability of $ $500,000.00 for each accident. (4) Worker's Compensation Insurance. In the amounts required by law as set forth in Section 2.03 above. b. Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be declared to, and approved by, the City. The City may require that either the insurer reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected or appointed officials, employees, agents or volunteers; or the Contractor shall procure a bond guaranteeing payment of all losses, and related investigation, claims administration and legal expenses. C. Proof of Insurance. Contractor shall furnish City, concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required, and adequate legal assurance that each carrier will give City at least thirty (30) days' prior notice of the cancellation of any policy during the effective period of this contract. The certificate or policy of liability of insurance shall name City as an additional insured with the Contractor. • 3 110 3.00 OBLIGATIONS OF CITY 3.01 COOPERATION: City agrees to comply with all reasonable requests of Contractor necessary to the performance of Contractor's duties under this agreement. 3.02 PLACE OF WORK: City agrees to furnish space for use by the Contractor while performing the services described in this agreement only as set forth in "Exhibit D," hereby incorporated herein. Any work space requirements not set forth in "Exhibit D" shall be the responsibility of Contractor, and Contractor may use alternate space for performing described services. 4.00 TERMINATION OF AGREEMENT 4.01 TERMINATION OF NOTICE:Notwithstanding any other provision of this agreement, any party hereto may terminate this agreement, at any time, without cause by giving at least thirty (30) days prior written notice to the other parties to this agreement. 4.02 TERMINATION ON OCCURRENCE OF STATED EVENTS: This • agreement shall terminate automatically on the occurrence of any of the following events: (1) Bankruptcy or insolvency of any party; (2) Sale of the business of any party; (3) Death of any party; (4) The end of the (30) days as set forth in Section 4.01; (5) End of the contract to which Contractor's services were necessary; or (6) Assignment of this agreement by Contractor without the consent of the City. 4.03 TERMINATION BY ANY PARTY FOR DEFAULT OF CONTRACTOR: Should any party default in the performance of this agreement or materially breach any of its provisions, a non-breaching party, at their option, may terminate this agreement, immediately, by giving written notice of termination to the breaching party. 4.04. TERMINATION: This agreement shall terminate upon completion of the Scope of Work specified in Section A, unless extended as set forth in this Section. The City, with the agreement of the Contractor, is authorized to extend the term of this agreement beyond the termination date, as needed, under the 4 • - 111 • same terms and conditions set forth in this agreement. Any such extension shall be in writing and be an amendment to this agreement. 5.00 SPECIAL PROVISIONS Contractor agrees to complete the entire Scope of Work mentioned in Exhibit A, within thirty (30) days of the commencement of work. Failure to complete the entire Scope of Work with thirty (30) days of the commencement of work will result in a fine of 10% of the total value of the Maintenance bond for each week, or any portion of a week beyond the project deadline. 6.00 MISCELLANEOUS 6.00 REMEDIES: The remedies set forth in this agreement shall not be exclusive but shall be cumulative with, and in addition to, all remedies now or hereafter allowed by law or equity. 6.01 NO WAIVER: The waiver of any breach by any party of any provision of this agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of this agreement. 6.02 ASSIGNMENT: This agreement is specifically not assignable by Contractor to any person or entity. Any assignment or attempt to assign by • Contractor, whether it be voluntary or involuntary, by operation of law or otherwise, is void and is a material breach of this agreement giving rise to a right to terminate as set forth in Section 4.03. 6.03 ATTORNEY FEES: In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this agreement, or the breach thereof, the prevailing party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum as and for attorney fees. 6.04 TIME FOR PERFORMANCE: Except as otherwise expressly provided for in this agreement, should the performance of any act required by this agreement to be performed by either party be prevented or delayed by reason by any act of God, strike, lockout, labor trouble, inability to secure materials, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period of time equivalent to the period of delay and performance of the act during the period of delay will be excused; provided, however, that nothing contained in this Section shall exclude the prompt payment by either party as required by this agreement or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. is5 112 6.05 NOTICES: Except as otherwise expressly provided by law, any and all • notices or other communications required or permitted by this agreement or by law to be served on or given to any party to this agreement shall be in writing and shall be deemed duly served and given when personally delivered or in lieu of such personal service when deposited in the United States mail, first-class postage prepaid to the following address for each respective party: PARTY ADDRESS A. CITY OF ATASCADERO 6500 Palma Avenue Atascadero, CA 93422 Attention: (Public Works Department) B. CJP Propductions 10659 Realito Avenue Atascadero CA 93422 6.06 GOVERNING LAW: This agreement and all matters relating to this agreement shall be governed by the laws of the State of California in force at the time any need for the interpretation of this agreement or any decision or holding concerning this agreement arises. 6.07 BINDING EFFECT: This agreement shall be binding on and shall inure to • the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this Section shall be construed as a consent by City to any assignment of this agreement or any interest in this agreement. 6.08 SEVERABILITY: Should any provision of this agreement be held by a court of competent jurisdiction or by a legislative or rulemaking act to be either invalid, void or unenforceable, the remaining provisions of this agreement shall remain in full force and effect, unimpaired by the holding, legislation or rule. 6.09 SOLE AND ENTIRE AGREEMENT: This agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof. This agreement correctly sets forth the obligations of the parties hereto to each other as of the date of this agreement. All agreements or representations respecting the subject matter of this agreement not expressly set forth or referred to in this agreement are null and void. 6.10 TIME: Time is expressly declared to be of the essence of this agreement. 6.11 DUE AUTHORITY: The parties hereby represent that the individuals 6 • _ 113 • executing this agreement is expressly authorized to do so on and in behalf of the parties. 6.12 CONSTRUCTION: The parties agree that each has had an opportunity to have their counsel review this agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this agreement or any amendments or exhibits thereto. The captions of the sections are for convenience and reference only, and are not intended to be construed to define or limit the provisions to which they relate. 6.13 AMENDMENTS: Amendments to this agreement shall be in writing and shall be made only with the mutual written consent of all of the parties to this agreement. Executed on 2001, at Atascadero, ATTEST: CITY OF ATASCADERO By: • Marcia McClure Torgerson J. Michael Arrambide City Clerk Mayor APPROVED AS TO FORM: By: Roy A. Hanley Contractor City Attorney APPROVED AS TO FORM: Rachelle Rickard Administrative Services Director • 7 114 EXHIBIT A • PROFESSIONAL SERVICES TO BE PERFORMED BY THE CONTRACTOR Contractor shall provide services to City as follows: PROPOSED SCOPE OF WORK & PROCESS OUTLINE, PHASE 1 TASK 1 1A. KICK-OFF MEETING The City of Atascadero & CJP/RTC will schedule a meeting to discuss the scope of project, schedule Community Workshop, other meetings, set contact hierarchy, gather background information & other data, and other necessary contacts. The meeting will consist of City staff, CJP/RTC staff and member of the Lake Park Master Plan Advisory Team. 18. SITE SURVEY& INVENTORY The first required duty is site observation. This primarily lets CJP/RTC get to know the site in a causal way, without any correspondence to the goal and objective defined in the program. This observation provides an orientation to the site, finding out about a • little of its history. How the site has naturally evolved over time. Once familiar with the site and knowing what the program is, CJP/RTC can do the site inventory. There are three main categories associated with the site inventory. One is the base map preparation. This plan is the bases for all design work and helps in the collection of other important information. The next category is the physical data. Examples of these are geology, soils, water, topography (aerial & site survey), climatic factors, existing vegetation and wildlife, existing buildings. Included in this are sensuous qualities like views and noise. The last category is the cultural data. How are the local neighborhood and other city residents using the site? What is the current behavioral setting? What are the site values, rights, and constraints, which relate to zoning and planning requirements? 1C. COMMUNITY WORKSHOP The City and CJP/RTC will schedule a workshop to ascertain the needs and desires of the users of the park. The City will prepare and send out public notices for this workshop. The base map will be available for review by the public delineating the project boundary and other important information. The project's background, scope and design process will be presented. The public will have opportunities to ask questions and provide feedback on the project. To help gather data, a questionnaire will be developed before the meeting and distributed at the workshop. i 1� 5 • 1D. PROGRAM DEVELOPMENT CJP/RTC will present information and data gathered from the Public Workshop, site survey & inventory to the Lake Park Master Plan Advisory Team at a schedule meeting. This meeting will start program development and the following issues will be covered: ■ Develop goals and objectives for the project. These contain design philosophies to apply to the project. ■ The use and behavioral settings to achieve in the project. ■ And lastly, the project's cost constraints. This includes the construction budget and the operational budget once the project is complete. From this, a list is produced that shows important elements that must be realized in the final Master Plan for the park. Another meeting will be scheduled to present this program list to the Lake Park Master Plan Advisory Team. Task 1E. VISITING SIMILAR PARKS CJP/RTC will investigate, research and develop a visitation schedule of existing parks similar to Atascadero Lake Park in the state of California. City Staff members, other concerned parties, Casey Patterson (CJP Productions) along with Russ Thompson (R. Thompson Consulting) will visit these parks to ascertain design information. It is the responsibility of the City to provide transportation, meals and lodging (if required) for this task. • Upon completion of visiting these parks, CJP/RTC will produce a report and present its finding to the City and the Lake Park Master Plan Advisory Team. The report will provide information, examples and other data on the design of these comparable parks. TASK 2 2A. ANALYSIS STAGE ■ PROGRAM RELATIONSHIPS From the program list, relationships of the items are analyzed to determine their associations. After the listing, CJP/RTC assign preliminary budgets to each. These are used as a guide on how to allocate available funds. ■ RELATIONSHIP In union with the preparation of the preliminary budgets, relationship diagrams are developed. The diagrams show how each activity and use relate logically to each other, their functional relationship to each other, and then what is the best way to connect them or not. ■ SITE ANALYSIS is 9 116. Concurrently with program development the site analysis occurs. This is the • development of a concise statement of the site's essential elements and character. This relates to how the site maintains itself. How the site would respond to development. Major problem areas of the site, and potentialities of the site. This provides CJP/RTC of where best to put uses and activities. It also shows where these items should not be put. 2B. DESIGN CONCEPTS One definition of synthesis is the coming together of elements. By overlaying the relationship diagram, CJP/RTC will generate design concepts. By massaging the site with the relationship diagram, we find the best fit of the uses and activities on the site. Working this through different alternatives, coming up with a final alternative that meets, as best as possible, our goals and objectives for the project. This final alternative should be more refined than the relationship diagrams. This plan shows patterns of activity, patterns of circulation, and lastly, can start to show physical forms of building and outdoor spaces. A Lake Park Master Plan Advisory Team meeting will be scheduled to review the final alternative(s). TASK 3 3A. PRESENTATION OF PLAN(S) CJP/RTC will present the "Draft Atascadero Lake Park Master Plan" to the advisory team. The team reviews the plan(s) on how well it meets the goals and objectives of • the project. If there is more than one plan, the team will select the best plan or select the best feature of each plan to be synthesized into another plan. TASK 4 4A. PLAN REVISION After review and input from the advisory team, the plan will be revised. The revision will incorporate into the design issue and items addressed from the meeting. This plan will be presented to the team for comment and acceptance. TASK 5 5A. ENVIRONMENTAL IMPACTS The design team will analyze the approved plan impacts to the park's and neighborhood's existing environment. A report will be produced providing a summary on the impacts to the site and surround environment and how best to lessen them. 5B. ADA COMPLIENCE The plan will be reviewed by CJP/RTC for compliance with Americans with Disabilities Act (ADA). A report will be prepared showing issues related to these regulations. 10 • 117 • 5C. COST ESTIMATE The cost to construct the "Draft Atascadero Lake Park Master Plan" will be estimated. This estimate will show each design element and its approximate lump sum cost in a tabular format (i.e. spread sheet) resulting in a total construction cost. TASK 6 6A. PREPARATION OF MASTER PLAN A detailed colored plan will be prepared of the "Draft Atascadero Lake Park Master Plan" by CJP/RTC for the Commission meeting. 6B. PRESENTATION TO PARKS & RECREATION COMMISION CJP/RTC will present the "Draft Atascadero Lake Park Master Plan", the cost estimate, and the environmental impact and ADA reports to the Atascadero's Parks & Recreation Commission for their review. The design team will respond to questions and clarify design elements as needed from the Commission and the public. TASK 7 7A. REVISION OF THE "DRAFT ATASCADERO LAKE PARK MASTER PLAN" The master plan will be revised based on comments from the Parks & Recreation Commission and the public. A final "Administrative Draft Atascadero Lake Park Master Plan" will be prepared for an Atascadero City Council meeting. • TASK 8 8A. PRESENTAION TO THE CITY COUNCIL CJP/RTC will present the "Administrative Draft Atascadero Lake Park Master Plan", with supporting data to the Atascadero's City council for their review. The design team will respond to questions and clarify design elements as needed from the Commission and the public. PHASE 1 - TIME LINE The chart below shows a time line that CJP/RTC will follow. It shows the above tasks and the amount of time it will take to complete them. The RFP for Phase 1 gives 12 weeks to complete the Master Plan process, the time line shows that CJP/RTC can finish it within this time. PROPOSED SCOPE OF WORK, PHASE 2 CJP/RTC is concerned with two items of Phase 2: The funds available for project construction and the time to complete the construction drawing bid packet. • 11 118 CONSTRUCTION FUNDS Knowing the existing pathway and after preliminary site evaluation, it seems that the • project might take more than $125,000 to construct. One area of the pathway might take extensive retaining walls to make the trail safe from vehicle traffic. Also other areas might need extensive site grading and possible road relocation to make them safe. Other areas of the pathway also need to have drainage issues resolved. These can be big-ticket items to the budget of a project. If the City would like a macadam (A.C.) surface, this alone might cost $50,000. This would leave $75,000 to spend on grading, drainage, retaining walls, road relocation, and other construction items. With the current state of bidding, CJP/RTC thinks this budget is tight. We would like to structure our scope of work as a phased project for the Lake Pathway Improvement Project. Breaking the construction elements into smaller bid items, that can be let-out over time as funds are available. From CJP/RTC you'll receive a complete set of plans to construct the project, but the bid documents can be let out in a phase manner. One alternative phasing plan might be as follows: 1. Improve and construct drainage facilities. 2. Relocate roadways where needed. 3. Pave pathway (partial). 4. Construct retaining walls. 5. Grade & pave remaining pathway TIME • As a project, once the location of the pathway is determined from the Master Plan, the design and drafting of the construction documents is routine. The only issue with production of the bid documents is the amount of time given in the RFP. It states that four weeks are available for this work and within this there are two plan check submittals. CJP/RTC has developed an alternative time schedule that considers the plan check submittals, but it calls for 6 weeks to complete the packet. Even with this schedule the time line is tight. If the City cannot plan check the sets within one week it will extend the time of completion of the drawings. Notice also that the work is to be "fast tracked". This means that work on the drawings will be continuous even when the drawings are in for plan check. CJP/RTC typically would not Like to design and draft during plan check due to the possible extra revisions time that might occur. PHASE 2 - TIME LINE The chart below shows a time line that CJP/RTC will follow. It provides six weeks to complete the construction bid packet, see above. 12 • 119 • TIME SCHEDULE MASTER PLAN & PATHWAY IMPROVEMENT PROJECT (MILESTONE DATES) ITEM DATE MASTER PLAN 1. Agreement sign & start work March 15, 2001 2. Kick-off meeting March 19, 2001 3. Community Workshop April 5, 2001 4. Goal & objective list meeting with Advisory Team April 12, 2001 5. Present "Draft Master Plan" to Advisory Team May 3, 2001 6. Present revised "Draft Master Plan" to Advisory Team May 10, 2001 7. Present reports & final Master Plan to Park & Rec. Comm. May 24, 2001 8. Present "Adm. Draft Master Plan" to City Council June 12, 2001 CONSTRUCTION DOCUMENTS 9. Start work on pathway project June 13, 2001 10.Submit 50% completed plans for plan check June 27, 2001 11.Submit 90% completed plans for plan check July 11, 2001 12. Submit bid documents to City July 25, 2001 • • 13 120 EXHIBIT B • CONSIDERATION FOR SERVICES Contractor shall be paid as follows: PROPOSED FEE - PHASE 1 CJP Productions, Landscape Architecture and R. Thompson Consulting, Civil Engineers will produce work as specified in the "Request for Proposal" for Phase 1, Atascadero Lake Park Master Plan for a fixed fee of$56,030.00 (fifty-six thousand thirty dollars and .00 cents). The total fee for this Phase 1 shall not exceed $75,000.00. The City agrees to pay CJP/RTC a retainer amount upon the start of master plan design phase the amount of 25% of total fee charged. Billing will be done monthly according to the percentage of work accomplished. FEE ADJUSTMENT METHOD If the City requires services beyond the scope of work stated within this the "Request for Proposal" for Phase 1, Atascadero Lake Park Master Plan, the City agrees to pay for these services per hour at the below stated rates for different type of services. This fee adjustment method applies only to Phase 1 of the proposal. , PROPOSED FEE - PHASE 2 CJP Productions, Landscape Architecture and R. Thompson Consulting, Civil Engineers will produce work as specified in the "Request for Proposal" for Phase 2, Lake Park Improvement Project for a fee as a percentage of actual cost of construction for Phase 2. The percentage multiplier for the cost of construction is 9.5% percent (nine point five percent) for CJP/RTC. This fee is contingent upon the following conditions: 1. Total fee charged, as a percentage, is not to exceed the total cost of construction for Phase 2. 2. Included within this fee will be all reimbursable expenses such as postal expenses, meals, travel, lodging, materials to prepare presentations, reproductions, and printing cost associated with the work to perform Phase 2. 3. This percentage of work fee does not include any work by CJP/RTC after the awarding of contract to build Phase 2. If extra work is required beyond this time, such as project inspection, it will be paid per hour at the below stated rates for different type of services. 4. The City agrees to pay CJP/RTC a retainer amount upon the start of contract document in the amount of 25% of total fee charged. 14 • 121 • 5. Remaining fee amount will be billed monthly according to the percentage of work completed. As an example of the total fee for this work (Phase 2), based on the City Engineers estimated cost of$125,000.00 would be $11,875.00. RATE SCHEDULE FOR KEY PERSONNEL Personnel Description Typical Rate/Hr Landscape Architect $90.00 Principal Engineer (PCE) $90.00 Principal Land Surveyor (office work) $90.00 Principal Land Surveyor (field work) $78.00 Licensed Land Surveyor (office work) $72.00 Licensed Land Surveyor (field work) $65.00 Civil Engineer (CE) $65.00 Senior Office Technician (Surveyor, office work)) $62.50 Field Technician (Surveyor) $65.00 Construction Engineer (CnE) $60.00 Project Designer (PD) $55.00 Office Technician I (Surveyor, office work)) $52.50 Landscape Designer $50.00 • Office Technician II (Surveyor, office work)) $47.50 Engineering Technician 1 (ET1) $45.00 CAD Drafter (CD, Engineer) $40.00 CAD Drafter (Landscape) $40.00 Clerical (Cl) $40.00 Expense Fee Schedule Reimbursable Expenses Fee Blueprints (24x36) $2.50 per sheet Blueprints (18x26) $2.00 per sheet Reproducibles (vellum, mylar, 24x36) $10.00 per sheet Mailing (UPS, Fed Ex, Cal Overnight, etc.) Cost + 15% Facsimile $1.00 per page Photocopies $0.20 per page Other Reproduction Cost + 15% Subcontracted Services Cost + 15% Travel by automobile $0.35 per mile Travel - Other than automobile Cost + 15% If authorized by client, an overtime premium multiplier of 1.5 will be applied to the billing rate of hourly personnel who work overtime in order to meet a deadline which cannot be met during normal working hours. Applicable sales tax will be added to these rates. • 15 122 ITEM NUMBER: C-3 DATE: 03/13/2001 Atascadero City Council City Manager's Office Information Bulletin A. Employee Update Gari Stinebaugh Building Inspector 1I Hired 3/1/2001 Sarah Colvin P/T Relief Zookeeper Resigned 12/31/00 Ron Roper P/T Temporary Computer Tech III Hired 2/28/2001 126