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Agenda Packet 02/27/1996
i * PUBLIC f EW,COPY ATASCADERO CITY COUNCIL 8imm Amy* REGULAR MEETING FEBRUARY 27, -1996 CITY ADMINISTRATION BUILDING 6500 PALMA AVENUE, 4T" FLOOR ROTUNDA Room 7:00 P.M. George Ray George r Harold r David Luna Johnson. Highland Carden Bewley, This agenda is prepared and posted pursuant to the requirements of Govemment code Section 54954.2. By listing a topic on this agenda, the City Council h is'expressed its intent to discuss and act on each item.' In addition to any action identified in the brief general description of each item, the action that may be taken shall include. A referrol to staff with specific requests for information; continuance;specific direction to staff cone ming the policy or mission of the item; discontinuance of consideration; authorization to enter: into negotiations and execute agreements ipertaining to the item; adoption or approval; and, disapprova/. Copies of the staff reports or other documentation relating to each-i err► of business referred to on the agenda are on file in the office of the City Clerk (Room 08) and in the Information Office(Room 103), available for pubic inspection during City Hall business hours. The City Clerk will answer any questions regarding the agenda. In compliance with the Americans with Disabilities Act, if you need sj ecial assistance • to participate)n a City meeting or other services offered by this City,please ontact the City Manager's Office,(805)461-50-10, or the City Clerk's Office, (805) 461-50 4. Norific#t)on at least 48 hours prior to the meeting or time when services are needed wfl assist the City staff in assuring that reasonable arrangements can be made`to provide ac ssibility to the meeting or service. CLOSED'SESSION - 6:30 P.M. (4! Floor Club Rm.): 1. CONFERENCE:WITH LABOR NEGOTIATOR: Agency negotiator: City Manager Employee organizations: Management Mid-Management/Professional; Fire Captains; Firefighters; Atascadero Sergeants Service Oegn.; Atacdcadero Police Officers Assoc.; Atascadero Public Safety Technicians Orgn.; Service, Employees Intl. Union REGULAR SESSION - 7:00 P.M.: (P/ease see Rues of Public Partici ati n back page) CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL PRESENTATIONS: • Proclamation observing March 4, 1996 "DeAnza Day" in Atascader • Proclamation observing March 7, 1996 "Arbor Day" • Presentation of donation from Atascadero Land Preservation SocietN toward the l purchase of Stadium Park (Marjorie Mackey, Chair, ALPS Fundraising Committee) COMMUNITY FORUM: City Attorney: Status report on the Millhollin Mine (verbal) Deputy City Attorney: Status report on the adult book store (verbal) A. CONSENT CALENDAR: All matters listed under Item A, Consent Calendar, are considered to be routine and will be enacted by one motion in the form listed below. There will be no separate discussion on these items. A member of the Council or public may, by request, have any item removed from the Consent Calendar, which shall then be reviewed and acted upon separately after the adoption of the Consent Calendar. 1. CITY COUNCIL MINUTES - February 13, 1996 (City Clerk's recommendation: Approve) 2. CITY TREASURER'S REPORT - January, 1996 (City Treasurer's recommendation: Review & accept) 3. RESOLUTION NO. 14-96 Approving the loan of Wastewater funds to the General Fund (Staff recommendation: Adopt) B. PUBLIC HEARINGS:' 1. ATASCADERO SEXUALLY-ORIENTED BUSINESS ORDINANCE A. Negative Declaration (Staff recommendation: Find to be adequate) B. Ordinance No. 296 - Establishing the Atascadero Sexually-Oriented Business Ordinance by dispersing sexually-oriented businesses and limiting them to specified Zoning districts; providing for licensing and regulation of sexually-'-,'-, oriented businesses and employees; and providing additional health and safety regulations for sexually-oriented businesses (Staff recommendation: Motion to introduce and adopt on first reading by title only) C. Ordinance No. 300 - Amending the Zoning Ordinance text to implement and conform to the provisions of the Atascadero Sexually-Oriented Business Ordinance (ZC 95-005; City of Atascadero) (Staff recommendation: Motion to introduce and adopt on first reading by title only) 2. RESOLUTION NO. 13-96'- Approving the Solid Waste Collection Franchise Agreement with Atascadero Waste Alternatives, Inc. (Staff recommendation: Adopt) S: C. REGULAR BUSINESS: NES 1. REQUEST FOR A RESOLUTION OPPOSING PROPOSITION 199, LIMITS ON MOBILEHOME RENT CONTROL (Staff recommendation: Provide direction) 2 i D. COMMITTEE REPORTS (The following represent standing comm#tees. Informative status reports will be;given, as felt necessary.). 1. S.L.O. Council of Governments/S.L.O. Regional Transit Authority 2. City/School Committee 3. County Water Advisory Board/Nacimiento Water Purveyors Advi ory Group 4. Economic Round Table 5. Finance Committee 6. Air Pollution Control District 7. North County Council 8. Ad Hoc Regional Water Management Committee 9. Integrated Waste Management Authority I E. INDIVIDUAL DETERMINATION AND/OR ACTION: 1. City Council 2. City Attorney 3 City Clerk: Authorize City Clerk to recruit for citizens to serve on the Building & Construction Board of Appeals (two terms expir#ng) 4. City Treasurer 5. City Manager 'r 3 II RULES OF PUBLIC PARTICIPATION: The City Council welcomes and encourages your ideas and comments as a citizen. To increase the effectiveness of your participation, please familiarize yourseff with the following rules of decorum: O Members of the audience mayspeak on any item on the agenda, in the order the item(s) are addressed by the Council, as directed by the Mayor. Items not on the agenda should be submitted during the Community Forum period (see below). O Persons :wishing to'speak should step to the podium and state their name and address, for the official record. O All remarks shall be addressed to Council, as a whole, and not to any individual member thereof. O No person shall be permitted to make slanderous, profane or personal remarks against any elected'official, emissions and staff. O A person may speak for five (5) minutes. O Noone may sea for k and a sec.... time. until everyone wishing to speak has. had Y p Y 9 P a an opportunity to do so, and no one may speak more than twice'on any item. O Council Members may question any speaker; the speaker may respond but, after the allotted time has expired may not initiate further discussion. O The floor will then be closed to public participation and open for Council discussion. I r COMMUNITY FORUM: O The Community Forum period is provided to receive comments from the public on matters other than scheduled agenda items. O A maximum of 30 minutes will be allowed for Community Forum, unless Council authorizes an extension. O State law does not allow the Council to take action on issues not on the agenda; staff may be asked to follow up on such items. "DE ANZA DAY" March 4, 1996 WHEREAS, In the year 1775, His Catholic Majesty the King of Spain ordered his Virrey, don Antonio Bucareli of New Spain, to ensure that his dominions in Alta California be settled by Christian subjects of European descent in order to further the civilization of this province and to protect it from pirates and invaders of other nations; and WHEREAS, The five missions and two presidios already established in Alta California by Rev. Father Junipero Serra and Gobemador don Gaspar Portola in the years since 1769 were in dire need of supplies and a reliable overland route by which these might be delivered from Mexico; and WHEREAS, On October 23, 1775 Coronel Teniente don Juah Bautista de Anza, accompanied by Alferez don Jose Moraga, Father Pedro Font and a company of colonists numbering 240 souls, including 20 soldiers, 29 women and 120 infants and children, leading a great herd of 530 horses, 165 mules and 350 head of cattle,departed from Tubac!in Nueva Galicia—now known as the states of Arizona, and Sonora and Sinaloa in Mexico—to accomplish these goals; and WHEREAS, After a hazardous journey of over 1200 miles across vast deserts and rugged mountains inhabited by hostile peoples, with the loss of only one life and the.addition of four others due to childbirth, Senor de Anza led his party safely to their destination, which in time since has become the-City of San Francisco, California; and WHEREAS, On March 4, 1776, the 112"' day of this epic journey, after traveling a distance Of 10 leagues from the Mission of San Luis Obispo de Tolosa, this company and its great herd of animals encamped for the night at a locationcalled La Asuncion, near a placq they referred to as un atascadero, nearly within the modem city of that name; and WHEREAS, the 10111 Congress of the United States has declared bx an Act of August 15, 1990 that the route of this emigration shall be hereafter known as "The Juan Bautista de Anza National Historic Trail"; and: WHEREAS, It is the wish of the Mayor and City Council of Atascaderoto honor de Anza and his brave companions for their role in the.creation of whatclis.now the great State of California, and further to recognize the contributions made to the advancement and growth oil this part of our nation by these pioneers of Hispanic;origins and their descendants, as well as to acl�nnowledge the effort of the Congress to preserve their history; NOW, THEREFORE, On behalf of the Heritage Trail Fund Amigos Ide Anza of San Luis Obispo County, the date of March 4 is herewith officially declared to be "De Anza Day" in Atascadero. GEORGE P. HIGHLAND, Mayor City of Atascadero, CA Dated: February 27, 1996 PROCLAMATION ARBOR DA Y March 7, 1996 WHEREAS, the Council of the City of Atascadero is proud of the City's street, park and home garden trees, and recognizes the importance of tree care and preservation, and the contribution of such to a cleaner and healthier environment; and WHEREAS, in 1872, J. Sterling Morton proposed to the Nebraska Board of Agriculture that a special day be set aside for the planting of trees; and WHEREAS, this holiday, called "Arbor Day", was first observed with the planting of more than a million trees in the State of Nebraska; and WHEREAS, Arbor Day is now observed throughout the United States and in three other nations; and WHEREAS, trees can reduce the erosion of our topsoil by wind and water, cut heating and cooling costs, moderate the temperature, absorb noise, clean our air and waterways, produce oxygen and provide habitat for wildlife; and WHEREAS, trees are a renewable resource, giving us paper, wood for our homes, fuel for our fires and countless other wood products; and WHEREAS, trees in our city increase property values, enhance the economic vitality of business areas, and beautify our community; and WHEREAS, Atascadero has been recognized as Tree City USA for the past eight years by the National Arbor Day foundation, has received special growth awards for environmental improvement and management of our trees, and desires to continue its tree- planting ways. - NOW, THEREFORE, I, George P. Highland, Mayor of the City of Atascadero, do hereby proclaim March 7, 1996 as ARBOR DAY and urge all residents to recognize the importance trees have in brightening our lives and protecting our environment, and I urge all citizens to plant trees to promote the well-being of this and future generations. GEORGE P. HIGHLAND, Mayor City of Atascadero, CA Dated i Agenda Item: A-1 • Meeting Date: 02/27/96 ATASCADERO CITY COUNCIL FEBRUARY 13, 1996 MINUTES CLOSED SESSION: The City met in Closed Session at 6:30 p.m. for purposes of disqussions pertaining to: 1. CONFERENCE WITH LABOR NEGOTIATOR: Agency negotiator: City Manager Employee organizations: Management; Mid-Management/Professional; Fire Captains; Firefighters; Atascadero Sergeants Service Orgn.; Atascadero Police Officers Assoc.; Atascadero Public Safety Technicians Orgn.; Service Employees Intl. Union Upon motion duly made and seconded, the City Council unanimously agreed to add an urgent item of pending litigation, as follows: 2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION: Name of Case: City of Atascadero v. Orange County I Closed Session was adjourned at 7:00 p.m. It was noted that the Council would continue Closed Session discussions after the regular session duo to time constraints. REGULAR SESSION: The Mayor called the meeting to order at 7:07 p.m. Councilperson Bewley led the Pledge of Allegiance. ROLL CALL: Present: Councilmembers Bewley, Carden, ;Johnson, Luna and Mayor Highland Absent: None Also Present: Rudy Hernandez, City,Treasurer and Ljee Price, City Clerk Staff Present: Andy Takata, City Manager; Steve DeCamp, City Planner; Roy Hanley, Assistant City Attorney; Brady Cherry, Director of Community Services; Sgt. .john Couch, Police Department and John Neil, Assistant City Engineer PRESENTATIONS: • Mayor Highland recognized Jim Edwards, Planning Commissioner, for his service on CC 02/13/96 Page 1 i the City's Economic Round Table and presented him with a plaque. Deputy City Attorney: (1) Status report on the adult book store (verbal) • (2) Status report on the Millhollin Mine (verbal) Roy Hanley reported that Planning Commission had held a public hearing on the proposed permanent ordinance regulating sexually-oriented businesses and noted that with a few minor revisions, the ordinance would be presented to the City Council on February 27'. Staff is recommending that the ordinance be introduced on first reading, he added, as amended. Mr. Hanley also reported that the City Council would conduct an open and public workshop relative to the Millhollin Mine on Wednesday, February 21St. He indicated that representatives from the State Mining and Geology Board would be present to clarify issues. Councilman Luna stated that he would like to see a status report regarding surveying of the mine and a breakdown on the tonnage of material removed over the life of the mine. COMMUNITY FORUM: David Frye, 5079 Rosario, expressed concerns regarding the State's proposal to increase the number of beds at Atascadero State Hospital and reported that he fears an influx of violent sexual offenders being released into the community following incarceration. He asked the City Council to block the State's efforts. DeDe Hoskins and Terry Sherwin, co-chairs of the Atascadero High School Class of 1996 Grad Nite Committee, requested support from the City for the event. Ms., . Hoskins also thanked Councilman Luna for donating his March stipend to the cause. Councilman Luna asked the Council to consider adopting a resolution of support at a future meeting. By mutual consent, staff was directed to bring back said resolution. A. CONSENT CALENDAR: Mayor Highland read the Consent Calendar, as follows: 1. CITY COUNCIL MINUTES - January 9, 1996 (cont`d from 1123/96) (City Clerk's recommendation: Approve) 2. CITY COUNCIL MINUTES - January 23, 1996 (City Clerk's recommendation: Approve) 3. RESOLUTION NO. 06-96 - Authorizing Cooperative Agreement with SLOCOG for a Pavement Management System (Staff recommendation: Adopt) 4. ACCEPTANCE OF SAN GABRIEL ROAD SEWER IMPROVEMENTS (Staff recommendation: Accept) 5. ACCEPTANCE OF SANTA ROSA ROAD SEWER EXTENSION IMPROVEMENTS • (Staff recommendation: Accept) CC 02/13/96 Page 2 t i 6. TENTATIVE PARCEL MAP 95003, 4530 SAN ANSELMO AVE. - Application to divide an existing Colony lot in two (2) separate parcels of 1.5 acres and 2.68 acres for single-family residential (Hull/Daniel J. Stewart & Associates) (Planning Commission recommendation: Approve) 7. RESOLUTION NO. 07-96 - Establishing a no-parking zone on San Andreas at Cristobal (Traffic Committee recommendation: Adopt) 8. RESOLUTION NO. 08-96 - Establishing a no-parking i, zone at 11153 El Camino Real (Traffic Committee recommendation: Adopt) 9. RESOLUTION NO. 10-96 - Authorizing amendment to agreement with North County Septic Service for septage dewatering service concession operation (Staff recommendation: Adopt) Councilman Luna pulled Items #A-3 & 4. Councilman Carden (pulled Item #A-7. MOTION: By Councilman Bewley, seconded by Coujncilman Johnson to approve Items #A-1, 2, 5, 6, 8 & 9; motion passed 5:0 by roll call vote. Re: Item #3. RESOLUTION NO. 06-96 - Authorizing Cooperative Agreement with SLOCOG for a Pavement Management System (Staff recommendation: Adopt) Responding to Councilman Luna's request to clarify intent, John Neil reported that the project will allow staff to inventory roads to determine maintenance needs and prioritize projects. He also explained that North Coast Engineering (contract engineering service) would be purchasing computer software on behalf of the City to complete the project. Public Comments: Eric Greening, 7365 Valle Avenue, asked if this was a pilot project and what kind of track record exists in other cities. Steve Devencenzi, San Luis Obispo Council of Governments,, explained that the programs have been tested and are common to other cities in the County. MOTION: By Councilman Luna, seconded by Councilman Carden to approve Resolution No. 06-96; motion carried 5:0 by roll call vote. Re: 4. ACCEPTANCE OF SAN GABRIEL ROAD SEWER IMPROVEMENTS (Staff recommendation: Accept) Councilman Luna requested assurances that pipe presently exposed will be properly covered. John Neil reported that the contractor intends and staff will ensure that necessary follow-through is completed. He added',that the road will be • brought back up to City standards and mentioned that the contractor is obligated to maintain the improvements for one year after the work has ?been completed. CC 02/13/96 Page 3 i Public Comments: is { Matt Depew, 9555 Carmelita Avenue, cautioned that the road will cave in if a large truck is driven over it. He noted that his road, as a result of culvert installation for the 3-F Meadows residential area, is not smooth and there are problems because of water leaks. He urged the City to take responsibility for street maintenance and not leave things entirely up to the contractor. ---end of testimony--- MOTION: By Councilman Luna, seconded by Councilman Carden to accept the improvements; motion passed 5.0 by roll call vote. Re: Item #A-7. RESOLUTION NO. 07-96 - Establishing a no-parking zone on San Andreas at Cristobal (Traffic Committee recommendation: Adopt) Councilman Carden asked if this no-parking area was requested by a residence, pointed out that this is the only area on the street where there is curb, gutter and sidewalk and asked why this action was being recommended. Councilman Luna, Traffic Committee member, reported that the major problem is that the street is narrow and a traffic hazard exists because vehicles turning left must enter the other lane to do so when cars are parked on the street. MOTION: By Councilman Carden, seconded by Councilman Luna to adopt Resolution No. 07-96; motion passed unanimously by roll call vote. B. PUBLIC HEARINGS: 1. HIGHWAY 101, CUESTA GRADE IMPROVEMENTS (Staff recommendation: Receive presentation and public comment, recommend preferred alternative) Steve Devencenzi, San Luis Obispo Council of Governments (COG), provided introductory remarks and explained that he was asking the City Council to endorse one of the four design options presented by CalTrans. He emphasized that California Transportation Commission (CTC) policies do not allow taking any of the money programmed for this project and allocating them to other projects. In addition, he explained that the public comment period will remain open until March 8th Greg Albright, CalTrans, defined the project purpose and reviewed specific alternatives and related costs. Council questions followed. Responding to Council inquiry, Steve Devencenzi reported that COG staff is preliminarily recommending Alternative #4, or, as an option, Alternative #3 plus the grading necessary for future installation of the additional southbound lane. He emphasized, however, that cost savings and reduction in environmental impacts would be minor if the latter is selected. Public Comments: CC 02/13/96 Page 4 I i Ile Darlene Reynolds, Old Santa Rosa Road resident, expressed concerns about the design and how it will impact north bound traffic. She noted that she hopes there is enough money to complete the project properly. Eric Greening, Citizens Transportation Advisory Committee CTAC), clarified that CTAC has not yet made a recommendation and cautioned against approving the most expensive option simply because the money has been authorized. He pointed out that there are still questions that need answering and urged the Council to wait an additional two weeks until after COG makes it formal recommendation on or before March 8th. In addition, Mr. Greening also expressed concern about an agenda item scheduled for the CTC's meelting of February 21" and noted that he feared action before there's ample time for input. t Jerry Clay, 7285 Sycamore Road, recommended that the jab be done right and that the issue of safety be the ultimate reason for any decision on the design. ---end of testimony--- Jose Fonte, CalTrans, responded to Mr. Greenin 's concerns' regarding the CTC's p Greening 's 21" meeting and reported that the only relative agenda item is CalTrans' request to delay the construction until 1999. Mr. Greening asked if the delay would change the priority. Greg Albright clarified that the project's priority will remain the same, however, the recommendation to delay is 'being made because the money is not there to do it in 1997 and CalTrans is not far enough along in the process to begin construction next year. MOTION: By Councilman Luna, seconded by Councilman Johnson to support Alternative #4; motion passed 5:0. 2. RESOLUTION NO. 11-96 - Approving the formation of Assessment District No. 9 (San Gabriel Rd. - Cease & Desist Area "G") (Staff recommendation: Adopt) Mark Markwort provided the staff report and recommendation to adopt. Public Comments: l Matt Depew asked if the project was complete and signed off. John Neil reported j that while there had been significant trench failure during the,construction, efforts are being taken to rectify the situation and finalize the project, j Mary Silveria, 9560 Carmelita, asserted that she would like proof that the sewer lines will not sink and settle. John Neil assured her that there had not been any disturbance below the pipe. Mr. Depew, speaking once more, commented that he hopes that before the project is signed off, the contractor will clean up the gravel and chip seal materials left at the sight. John Neil indicated that the clean-up would be done. . ---end of testimony--- CC 02/13/95 Page 5 Councilman Johnson asked if any provision has been made for collecting delinquent payments. Mark Markwort reported that this assessment becomes a part of the property tax and if not paid, foreclosure will occur. Roy Hanley confirmed that there are provisions for collection. Andy Takata mentioned that the City Council, in a former action, waived the annexation fee of $850 if connection is made within two years. MOTION: By Councilman Carden, seconded by Councilman Bewley to adopt Resolution No. 11-96; motion carried unanimously by roll call vote. 3. RESOLUTION NO. 12-96 - Approving the formation of Assessment District No. 10 (Santa Rosa Rd. - Portion of Cease & Desist Area "F") (Staff recommendation: Adopt) Mark Markwort provided the staff report and recommendation to approve. Councilman Luna asked if this was the last of the Cease & Desist areas. Mr. z Markwort confirmed that it was. There was no public comment. MOTION: By Councilman Luna, seconded by Councilman Johnson to adapt Resolution No. 12-96; motion carried 5.0 by roll call vote. C. REGULAR BUSINESS: 1. PROPOSAL TO NAME THE CITY ADMINISTRATION BUILDING IN MEMORY OF E.G. LEWIS (Staff recommendation: No change to Admin. Bldg./Name downtown area • City facilities & Chamber "E.G. Lewis Civic Center") Brady Cherry provided the staff report and recommendation. He explained that the area being proposed for inclusion in the "E.G. Lewis Civic Center" involves the City Administration Building, the Chamber of Commerce building, the Recreation Center, Sunken Gardens and Fire Station #1 . He noted that few changes would be required with the exception of a new sign to be sponsored by the Historical Society and possible future changes in City stationery. Public Comments: Jerry Clay noted that he had no problem with the recommendation, but would like to see the City put up an appropriate sign on the Administration Building recognizing it as the Veterans' Memorial Building. He added that he would be willing to work with the Historical Society and others in an effort to raise the necessary funds. Ray Jansen, 6655 Country Club Drive, commented that it will take more than one sign to set the entire area off. Brady Cherry agreed but noted that the sign coupled with stationery would begin to promote the name. Andy Takata suggested that the Historical Society consider constructing a display outlining the civic center in the museum. MOTION: By Councilman Carden, seconded by Councilman Bewley to • maintain the status quo; motion failed 2:3 (Johnson, Luna and Highland CC 02/13/96 Page 6 voting in opposition). • MOTION: By Councilman Luna, seconded by Councilman Johnson to adopt the staff recommendation; motion passed 3.2 (Bewley and Carden voting in opposition). COMMITTEE REPORTS (The following 9 represent standing committees. Informative status reports will be given, as felt necessary.): 1. S.L.O. Council of Governments (COG)/S.L.O. Regiona[ Transit Authority - Councilman Carden provided a brief report of the meeting of February 6tn Mayor Highland reported on the COG sponsored meeting regarding LafCO held February 3`d 2. Nacimiento Water Purveyors Advisory Group - Mayor Highland reported that the Nacimiento Water Project is moving forward and explained that the next step will be the preparation of an environmental impact report. He noted that a special meeting would be held the following day to approve the work, but stated that he would not attend. Atascadero Mutual Water Company is the voting member, he added, and their representative will be present. 3. Air Pollution Control District - Mayor Highland briefly reported on the last meeting. 4. North County Council - Mayor Highland commented that the Executive Committee meeting scheduled for February 15" had been canceled. 6. Ad Hoc Regional Water Management Committee - Mayor Highland reported that that the committee met on February 1 St at which time the group reviewed data gathered from each North County water users, including the City of San Luis Obispo. E. INDIVIDUAL DETERMINATION AND/OR ACTION: 1. City Council Mayor Highland announced that the seven city councils of the County will meet on April 25" (changed from April 11th). He also requested two volunteers from the Council to sit in with staff and representatives from the State Mining and Geology Board on the morning of the 21' and before the open public meeting beginning at 12:30 p.m. Councilmembers Luna and Johnson volunteered. Mayor Highland indicated he would serve as an alternate. Councilmembers Carden and Bewley reported that they would not attend the special meeting ':due to employment commitments. 2. City Clerk Lee Price reported that the Commission on State Mandates has accepted the test claim submitted by the City relative to costs associated with the notice to voters the Clerk's Office was required to send after the Council found it necessary to move the municipal election date. The City Clerk mentioned that she would appear on behalf of the City at the hearing before the Commission on June 27' C0 02/13/96 Page 7 and mentioned that the Commission will accept testimony and other input. Councilman Luna suggested that the City Council adopt a resolution supporting the • approval of the test claim. There was unanimous consent to adopt said resolution and staff was directed to bring the matter back at a future meeting. 3. City Manager Andy Takata provided an overview of the next meeting's agenda. ADJOURN: The City Council adjourned to the continued Closed Session at 9:07 p.m. At 9:27 p.m. the Closed Session was adjourned. The City Council gave direction to the City Manager. THE NEXT MEETING OF THE CITY COUNCIL WILL BE WEDNESDAY, FEBRUARY 21ST AT 12:30 P.M. FOR PURPOSES OF CONDUCTING AN OPEN AND PUBLIC WORKSHOP RELATIVE TO ISSUES SURROUNDING THE MILLHOLLIN QUARRY. MINUTES O D ND PREPARED BY: LEE ICE, C.M. . CITY CLERK CC 02/13/96 Page 8 REPORT TO CITY COUNCIL CITY OF ATASCADERO Agenda Item; A-2 Through: Rudy Hernandez, City Treasurer Meetin4 Date:2/27/96 From: Brad Whitty, Finance Director SUBJECT: Treasurer' s Report - January, 1996 RECOMMENDATION• Council review and accept. Attachment: Treasurer's Report, January, 1996 a 000001 CITY OF ATASCADERO TREASURER'S REPORT FOR THE MONTH OF JANUARY, 1996 GENERAL FISCAL ACCOUNT INVESTMENTS AGENT TOTAL BEGIN. BALANCE 424,508 5,376,313 575,767 6,376,588 RECEIPTS 1,099,438 66,566 0 1,166,004 DISBURSEMENTS (935,854) 0 (31,322) (967,176) TRANSFERSIN 0 0 0 0 TRANSFERS OUT 0 0 0 0 OTHERS 0 35,000 0 35,000 ENDING BALANCE 588,092 5,477,879 544,445 6,610,416 DEPOSITS IN TRANSIT 63,887 CHECKS OUTSTANDING (273,017) ADJUSTMENTS (4,033) ADJUSTED TREASURER'S BALANCE $6,397,263 CI F ATASCADERO � �\. — - HE AND City Treasu i 000002 ALL FUNDS-GENERAL ACCOUNTANVESTMENT RESERVED UNRESERVED CASH (1) CASH(2) FUNDS General Fund Pooled Cash 35,000 $345,736 Gas Tax Fund Pooled Cash 43,658 Development Fee Pooled Cash 5,288 Donations Pooled Cash 2,478 A.D.#4-Reserve Pooled Cash 43,013 0 Zoo Enterprise Pooled Cash -24,812 Camino Real Reserve -4,685 92 St A.D.Resrv.Pooled Cash 45 Payroll Trust Pooled Cash -12,375 TRAN Repayment Pooled Cash 633,625 94 CDBG Pooled Cash 21,711 93 STBG-688 Pooled Cash 12,533 95 CDBG Block Grant 15,507 93 EDBG-268 Pooled Cash 990 COPS Fast Grant Pooled Cash -7,900 Dial-A-Ride Pooled Cash 136,811 Wastewater Fund Pooled Cash 1,596,646 Lake Park Pavil.Pooled Cash -32,424 Aquatics Pooled Cash -19,196 Recreation Pooled Cash -84,790 Tree Plant Fund Pooled Cash 28,874 Tree Assn.Fund Pooled Cash -239 Sidewalk Trust Pooled Cash 41,781 Emergency Services Pooled Cash -12,171 Police Training Pooled Cash -6,802 Weed Abatement Pooled Cash 34,336 AD.#3 Redemptn.Pooled Cash 10,976 A.D.#4 Redemptn.Pooled Cash 45,664 A.D.#5 Redemptn.Pooled Cash -2,849 Camino Real Redempt.Pooled Cash 121,192 92 Street A.D.Redemptn.Pooled Cash 43,766 Santa Ana A.D.#7 -938 89 COP Debt Svc.Pooled Cash 2,448 Capital Project Pooled Cash -57,530 Pol.Dev.Fees Pooled Cash 14,178 Fire Dev.Fees Pooled Cash 60,792 P&R Dev.Fees Pooled Cash 95,999 Drain.Dev.Fees Pooled Cash 341,069 Amapoa-Tec.Fee Pooled Cash 208,947 Public Works Pooled Cash 25,209 St.Main.Dist.Pooled Cash 42,546 TDA Non-Transit Pooled Cam 34,475 Sewer Facilities Capital 1,978,511 Camino Real Const.Pooled Cash 15,926 Las Encmas Const.Pooled Cash 16,429 3-F Meadows Const.Pooled Cash 13,332 Santa Rosa A.D.#7 Pooled Cash 50,027 TOTAL ALL FUNDS $974,836 $4,877,972 CASH WITH FISCAL AGENT Camino Real Resr.Cash 202,766 92 St.AD.Resvr.Cash 45,685 Wastewater Fund Cash 39,892 Camino Real Redem.Cash 33 92 St.AD,Redm.Cash 115 89 COP Debt Serv.Cash 255,954 TOTAL WITH FISCAL AGENT $544,445 TOTAL OF ALL CASH 6,397,253 000003 INVESTMENTS TIME DEPOSITS CERTIFICATES OF DEPOSIT, SAVINGS, AND LOCAL AGENCY INVESTMENT FUND 1/31/96 INTEREST TIME DEPOSITS: AMOUNT RECEIVED Orange County Investment Pool/TRAM $ -0- $1, 609 (6) Orange County Investment Pool -0- 51, 206 (6) Santa Lucia Bank C.D. 35, 000 0 Local Agency Investment Fund - Reg. 4, 809, 254 210, 156 Local Agency Investment Fund - TRAN 633, 625 (3) TOTAL TIME DEPOSITS $5, 477, 879 262, 971 Mid-State Interest Received 6, 321 TOTAL INTEREST RECEIVED $269, 292 (5) Notes: (1) Reserved Fund Cash is specified for City debt service. (2) Unreserved Fund cash can be used for normal operations of the City. (3) The City must repay a $1,210, 000. The City must set aside $633, 625 in January and will again in May to repay the TRAN due on July 3, 1996. (4) January, 1996 interest yields were as follows: Orange County Not available LAIF 5.70% Mid-State 2 .42% (5) This is actual amount deposited to City accounts and does not reflect interest amounts accrued but not .received. Also not included above are interest amounts earned in Fiscal Agent or County accounts, which are used for bond retirement purposes. (6) On December 6th 1994, Orange County filed a Chapter 9 bankruptcy with the courts. The City recognized a receivable of $1, 155,283. 04 against the OCIP for the 1994-95 fiscal year. The City is attempting to recover the principal plus interest through a lawsuit filed against the OCIP. The interest received above is post-petition interest for the period from December 1, 1994 through July 20, 1995. 000004 REPORT TO CITY COUNCIL Meeting Date: 2/27/96 r CITY OF ATASCADERO Agenda!Item: A-3 Through: Andy Takata, City Manager From Brad Whitty, Finance Director SUBJECT: Authorization through Resolution to loan Wastewater funds to cover negative cash balances. RECOMMENDATION: Staff recommends adoption of Resolution No. 14-96 approving interfund transfers and a loan of Wastewater Funds to the General Fund for negative cash balance coverage in various funds as shown on Exhibit A. BACKGROUND: Various City funds have been operating in deficit positions for many Years . When a fund operates in a deficit position, it essentially is spending another fund's cash in order to cover operations. Funds can receive cash to cover these cash deficit situations in two different manners: 1. Interfund Transfers represent a permanent gift" of funds from one fund to another fund and are not expected to be paid 11 back. Transfers are treated similar to expenditures in the giving fund and revenues in the receiving fund and are authorized by the City Council as part of the budget. 2. Interfund Loans which represent a temporary loan of funds from one fund to another fund. Interfund loans (or Due To/Due From) are expected to be paid back to the fund loaning the money. The borrowing funds should pay the loaning funds interest on the loaned balance. The City currently has several fund which are in a deficit situations and need cash. The Council must decide which funds to give or transfer money to and voich funds to loan money to. The Council must keep in mind that some funds have a consistent pattern of spending more money than they receive and that these funds currently do not appear to have the ability to pay back interfund loans. '00000.5 DISCUSSION: Exhibit A attached to this report illustrates which funds have had to borrow at June 30, 1995. The format is similar to the report that was presented to council at the October 10 th council meeting. You will note that most of the borrowed monies are flowing through the General Fund. The purpose is two fold. First, the General Fund is ultimately responsible for all other funds in the City when they cannot pay their debts or dissolves because the fund is no longer needed. Secondly, it is more efficient to calculate interest charges and administer the loans using one fund, rather than a dozen funds. FISCAL IMPACT: The General Fund does not have the ability to cover the deficit cash balances in other funds as well as itself at June 30, 1995. Therefore, the General Fund must borrow cash from the Wastewater Fund. This loan will need to be repaid on a semi-annual basis, within a reasonable period of time, and at an interest rate that the Wastewater Fund could reasonably expect to earn on those funds. The Wastewater Fund currently earns 5.70% at the Local Agency Investment Fund (LAIF) in Sacramento. The General Fund should make principal and interest(P&I) payments commencing July 1995 with the loan being completed within five years of the loan date. Presently, the P&I payments would be approximately $109,271.32 semi-annually. Repayment of the loan could be derived from future revenues pledged to pay back the loan as well as expenditure cuts. Furthermore, the funds that have borrowed from the General Fund will be expected to pay back their portion of the Principal & Interest. Should the General Fund or the other funds not have enough sources to make a payment on the loan, then the interest will be rolled into the new principal until payment is made. The City Council will be given a review of interfund loans and repayment schedules on an annual basis during budget hearings. Note that this loan was not a budgeted item in the 1995-96 budget and line item expenditures will need to be created for the interfund transfers. Encl: Attachment A: Schedule of Interfund loans at June 30, 1995. Resolution 14-96 000100f; RESOLUTION NO. 14-96 A RESOLUTION OF THE ATASCADERO CITY COUNCIL APPROVING INTERFUND TRANSFERS BETWEEN FUNDS ANIS A LOAN OF WASTEWATER FUNDS TO THE GENERAL FUND FOR DEFICIT CASH BALANCES AT JUNE 30, 1995 WHEREAS, various City funds have accumulated deficit cash balances through the years; and WHEREAS, the General Fund has covered itself and other fund's deficit cash by borrowing from the Wastewater Fund to maintain operations as shown in Exhibit A; and WHEREAS, the interest rate shall be equal to the rate of return on the City's investments; and WHEREAS, the pay back period shall not exceed five years, with principal and interest payments made semi-annually, with a beginning principal of$9319,282.68; and WHEREAS, the City Council shall review the interfund loans at least on an annual basis. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Atascadero does hereby approve the allocation of funds to cover deficit cash balances at June 30, 1995. On motion by Councilmember_, seconded by Councilmember' , the foregoing resolution is hereby adopted in its entirety on the following roll call vote: AYES: NOES: ABSENT: ADOPTED: ATTEST: CITY OF ATASCADER0 By: LEE PRICE, City Clerk GEORGE P. HIGHLAND, Mayor APPROVED AS TO FORM: 00000'7 t S IA CO C07 S ym Cm O �jO) a N � O rz S S SS S S O SS S g m ti 8 CrA SCO p O S N Op N pp OO OOO � OOOO � OO O rh . CO O� ` N 00 w N 1G0 M M0MM Nc Np p � gWM � M V C O�O .- CO W ¢ MM COO CO N IpppNAppp � M O OD (D �(CR Ci dN' Ifp�O� IpO� ti N N r S N �t I� VN'_ M m V M V' N IA N M W C00 M M S y C O J a C M N C PC C14 t- o E 00 rl- 2 § Cpl� M LL CA f7 M M m ^ CO 7 0 OOD OOD n M MM cy NN 10 N t0 O CO O 0) o r CA O r O N�p OD O r r r CO N O IA &N _ (O N e- S O N IA CO r CR Ci O O q a. V' a0 I� q M N f'? e. V; (O O N M M CO ao IA 1`r I� N f` r (V CrN� O 0 V CV O pp cAp Cp In ppp C(,70� CO Crp� ttp� to COr�� p� I0 IOA Capp Ccp� CV O ��Ap N a0 N m M M N O O t0 V~_ N r CA a0 N .r- GO V' -V t0 N IA VN_I�t0 tp M N 'd I!> O N ^ OOi M M N all CA O pp O v tb N b IA Cr� r N IA CD 1n N O CO CD M Co- p p ap V' (0 f0.In O r Q (O �C7 d• v M C v v (COO v lh ...M ,M M O .�...M O (v v co N N� 'V' V' CO r O M .M.�CO C W pp p O cr 3 � O c yl�l (00 S C � � p 7 O d m O O O_ C y to N p CC 1� W f0 AOD M M n S CO Obi N O ti O N LO CCCOO� n N Cop09 oOp (Op � S Carpo V' Cn0 � Off M Ip r co co aCMS _ VN' CO I(pO� CV ppMp� CsMp� 0—) -co aC0 ItAp stip Crpp N 1n n m M E N O rd_01 O O O § Oaf W N § CO N co O COO `C: c6 � �p �� top M N CD tl�fp 1f�0 IM Ips M oQ rp Vr' co I�Ap O N tC[COO� .r- CN M M Nq v a0 CA 8 W v v 2 m �'N M v v l'7 r to C'�0 6� v M M CO N COO, Obi CA p Q CO a- W C `- m 0 c O C fmn N U 0 00 .2 c m m -0 We 2 Z o C m lal y y ami LL 0 2 � 2 a m a) CL 2 c � a c � v o y V o c p IS LL Z c a �i m c E 2 oS R E u1 ani v LL LL g R c ami C� U U Q F- c .ELL Q a (9 o c '—° 2 c m 0 Ip r m m m LL ti �i ,° a y m U_ m y �° o y 3 m m v :: c F- �j — tJ U U �i d Fi a F- o F� •� o me E c cco S o 'c Y c �° a m m c o Ii c v o = aa) F' m ras` O cL 03 oZhVC9Q a •� �, a ¢ ° � � I a a ad E c ogZ toLLI K m to �i o � gUw m< mY o �i div m — 06cjci0 a0 m a a U yLL c uj C9c9aa 'rli iai- := wok _j ¢mH �`- ioLLICL ¢ ¢ ¢ Oioaliao < ILCf) cnw � dicnU) S S S 0 0 0 0 0 0 11 U, 0 O O O N N N N N N Cm 98 M M C'9 CM M M C V' �f' 1A M tU i� O i� n a0 00a0 8 E; 00000S V 0005 EXHIBIT A - Part 2 Wastewater Interfund Loans at 6130/95 001 General Fund $219,372.86 015 Zoo Operations 121,474.63 102 1994 CDBG 11,146.04 120 EDBG-268 1,475.27 200 Dial-A-Ride 49,168.52 203 Lake Pavilion 33,208.76 204 Aquatics 4,731.84 205 Recreation 58,996.30 303 Tree Association 261.06 310 Police Training 5,468.87 405 Chandler Ranch 2,904.97 452 89 COP Debt Service 35,239.38 550 Police Impact Fees 190,424.42 575 Fire Impact Fees 68,559.68 600 Parks Impact Fees 136,850.08 Total General Fund Borrowing $939,282.68 Notes: * The $11,146.04 is a short term borrowing because the City had not been reimbursed by the County at June 30th. The General Fund borrows the entire amount from Wastewater and then loans or transfers amount to the other funds in the amounts shown above. 000009 REPORT TO CITY COUNCIL CITY OF ATASCADERO Item Not B-1 (A-C) Through: Andy Takata, City Manager MeetingDate: 2-27-96 File NO ZC 95-005 From: 0/steven L. DeCamp, City Planner SUBJECT: 1 . Consideration of the draft"Atascadero Sexually Oriented Business Ordinance" and, 2 . Amendment of the City' s Zoning Ordinance to implement the Atascadero Sexually Oriented Business Ordinance. RECOMMENDATION• 1 . Find that the Negative Declaration prepared for the recommended actions is adequate. 2 . Approve Ordinance #296 (Atascadero Sexually Oriented • Business Ordinance) on first reading by title only. 3 . Approve Ordinance 1300 amending the Zoning Ordinance to implement Ordinance 1296 on first reading by title only. BACKGROUND: On February 6, 1996 the Planning Commission held a {public hearing on the subject of the draft "Atascadero Sexually Oriented Business Ordinance" and related amendments to the Zoning Ordinance necessary to effectively implement the new ordinance. After very limited public testimony and lengthy discussion amongst themselves, the Commission moved to recommend City Council passage of the two draft ordinances . ANALYSIS• The recommended ordinances will give the City adequate, and legally defensible, regulatory control of the location and operation of sexually oriented businesses . ATTACHMENTS: Exhibit A - Planning Commission Staff Report Exhibit B - Background Information Received Exhibit C - Zoning Ordinance Maps Exhibit D - Deputy City Attorney Memorandum 000010 Exhibit A CITY OF ATASCADERO Item: B. 3 STAFF REPORT FOR: Planning Commission MEETING DATE: 2-6-96 BY: WSteven L. Decamp, City Planner FILE NO: ZC 95-005 SUBJECT: 1 . Consideration of the draft "Atascadero Sexually Oriented Business Ordinance" regulating the location and operation of adult businesses within Atascadero. 2 . Amendment of the City' s Zoning Ordinance to include provisions implementing the Atascadero Sexually Oriented Business Ordinance. RECOMMENDATION: The Commission should recommend that the City Council: 1. Find that the Negative Declaration prepared fpr the recommended actions is adequate. 2 . Approve the attached draft "Atascadero Sexually Oriented Business Ordinance. " 3 . Approve the attached draft ordinance amending the Atascadero Zoning Ordinance. SITUATION AND FACTS: 1. Applicant. . . . . . . . . . . . . . . . . . . .City of Atascadero 2 . Representative. . . . . . . . . . . . . . .Roy Hanley, Deputy City Attorney 3 . Environmental Status. . . . . . . . .Negative Declaration posted February 22, 1996 BACKGROUND: Because the City does not have an ordinance regulating adult businesses, an interim adult business ordinance was: adopted on August 16 , 1995 . Since that time, staff has compiled and analyzed a significant body of information relative' to both the effects and regulation of adult oriented businesses', in other jurisdictions. The ordinances currently before the Commission will replace the interim ordinance with permanent standards and 000012 2 regulations governing the location and operation of adult sexually oriented businesses in Atascadero. ANALYSIS: Any ordinances adopted by the City must respond to two seemingly divergent concerns. First, a significant segment of this community has objected to the establishment of any adult oriented business within the City of Atascadero. Testimony has been presented citing numerous studies supporting their conclusions that adult businesses can lead to increases in crime, increased incidence of blight, and a lowering of property values . The City's second concern, however, is that there exists a substantial body of constitutional and case law protecting and requiring a reasonable avenue for expression for legal adult material . The ordinances now before the Commission attempt to reach a legally defensible balance between these competing interests . Although the evidence at hand suggests that the deleterious effects of adult businesses are such that a total ban is warranted, the community must protect the constitutional right of adult businesses to exist. If the City Council adopts an ordinance which the courts subsequently find does not sufficiently protect that constitutional right, the City and its officials could be found to be liable. If the courts find such an ordinance to be invalid, adult business could again be free to locate in areas of the City, such as near schools or parks, that are undesirable. Two ordinances are before the Commission, and ultimately the Council, for consideration. The first is the "Atascadero Sexually Oriented Business Ordinance" which will regulate the location and operation of adult businesses (see Exhibit C) . This is a separate ordinance and is not an amendment or revision of the City's Zoning Ordinance. The second ordinance before the Commission amends various portions of the Zoning Ordinance to implement and accommodate the Atascadero Sexually Oriented Business Ordinance (see Exhibit D) . Together, these two ordinances should provide an adequate legal basis for regulating adult businesses to the maximum extent allowed by State law. Information Received As indicated above, the City has obtained and reviewed a substantial body of information relative to the regulation of adult businesses. In addition to the public testimony received by the City Council prior to adopting the interim ordinance, staff has obtained various other studies, ordinances, legal opinions, and court documents relative to adult business regulation. 000013 A list of the documents obtained by the City is included as 3 Exhibit A to this report. These documents are available for public review in the Community Development Department office. Legal Framework The California Legislature has defined what constitutes illegal pornography. Specifically "obscene matter" and "harmful matter" are defined by the Penal Code. Because the State has preempted local authority to define pornography, the City is 'left with only its land use authority to regulate, but not prohibit, adult businesses. California courts have further limited a city' s ability to regulate adult businesses. A city may, for example, limit adult businesses to certain areas of the city, and may require a certain distance to exist between adult businesses and other sensitive uses such as schools , parks or churches . The city may not , however, eliminate all potential locations for adult businesses or limit them to only a few impracticable locations. The courts have addresses the issue of available land area for adult businesses in several cases. In the case of `'Walnut Properties v City of Whittier (9th Cir. 1988) 861 'F.2d 1102 , the court held that the City of Whittier's ordinance was invalid because less than 1 . 4% of its total land area, or 99 acres, was left available for adult businesses. In the case of Renton v. Playtime Theaters (1986) U.S. 41, the U.S. Supreme Court held the ordinance to be constitutional where 5% of the City's total land area was left available for adult business locations . In a recent case in Los Angeles [Topanga Press v. City of Los Angeles (9th Cir. 1993 ) 93 Daily Journal D.A.R. 35851 the ordinance was found to be invalid where approximately 100 adult businesses were required to relocate to specified areas . Although the Los Angeles ordinance defined approximately 11, 613 acres of land as being available for adult businesses, the court found that only 120 sites were physically or practically available for such uses. The court found that land that was "definitionally" but not practically available (e.g. tank farms, landing strips, etc. ) decreased the number of sites to an unreasonably small number. Valid Ordinance Requirements Through their decisions, the courts have shown that; the regulation of adult business locations through zoning is legally permissible if: a. the ordinance contains clear and valid definitions; and b. the ordinance is based on evidence of adverse secondary effects of such businesses; and; 000014 4 C. the ordinance does not operate as a "prior restraint" on freedom of speech; and d. sufficient area is left available in the city for location of these businesses . The Proposed Ordinances The proposed Atascadero Sexually Oriented Business Ordinance allows adult business to be located in most of the commercially and industrially zoned areas within the City. Such uses are allowed in the CR (Commercial Retail) , CS (Commercial Service) , CP (Commercial Professional) , I (Industrial) , and IP (Industrial Park) zoning districts. Because of the City's ongoing efforts to encourage redevelopment and revitalization of the downtown area, adult businesses are not allowed in the D (Downtown) zoning districts where their existence could be potentially adverse to such revitalization efforts. Likewise, adult businesses are not allowed in the CT (Commercial Tourist) zone which was established to cater to the needs of the traveling public (i. e. , gas, food and lodging) . Finally, adult businesses are not allowed in the CN (Commercial Neighborhood) zoning districts because this zone was established to service the limited shopping and service needs of the immediately surrounding residential areas. It should be noted that sexually oriented businesses would be allowed as "Home Occupations" where all other applicable regulations can be satisfied (e.g. , retail sales are prohibited) . In order to avoid the "skid row" effect caused by a concentration of sexually oriented businesses, the proposed ordinance requires that there be a minimum of 1000 ' feet between any two such businesses. There must also be 1000 ' between any church, school, park, or public building and the location of any new sexually oriented business to avoid potentially deleterious impacts on those sensitive uses. Even with the prohibitions noted above, approximately 18% of the City' s commercially and industrially zoned land is available for adult uses as defined in the draft ordinance. Coupled with the fact that sexually oriented businesses can potentially be approved as home occupations should leave adequate land area available for adult businesses to avoid any detrimental court finding regarding the adequacy and suitability of the available land area. The definitions contained in the proposed Sexually Oriented Business Ordinance have been recognized by several courts thus satisfying one of the criteria noted above. It is recommended that these definitions be included in the Zoning Ordinance, by reference, for ease in administering and implementing the Sexually Oriented Business Ordinance. This is necessary because the term "sexually oriented business" will be added to the list of allowed uses in the zoning districts identified previously. 000015 Evidence of adverse secondary effects, as required' as a test of 5 validity by the courts can be found in the background material referenced in Exhibit A of this report . Indeed, it is the evidence of a "skid row" effect caused by a concentration of adult uses that resulted in the recommendation that such uses be dispersed throughout the City' s commercial and industrial zones rather than consolidated in one relatively small area. A concentration of sexually oriented uses may, in fact, act as a maanet for prostitution and crime according to a report prepared by the Minnesota Attorney General 's Working Group on the Regulation of Sexually Oriented Businesses . That report also indicates that such businesses can act to impede neighborhood revitalization which finding led to the recommendation that new adult businesses not be allowed to locate in the Downtown zoning districts . Some court decisions have considered discretionary permit rec_xuirements (conditional use permits) to be a "prior restraint" on protected speech activity which violates the first amendment of the Constitution. Because of these holdings, the proposed Sexually Oriented Business Ordinance does not require that new adult businesses be approved by conditional use permit in the commercial and industrial zoning districts where such uses are allowed.. It is further recommended that the appropriate sections of the City' s Zoning Ordinance be amended to include "sexually Oriented Business" as an allowed use subject to the specific development standards contained in the Atascadero Sexually Oriented Business Ordinance. The final test of ordinance validity is to show that sufficient alternative locations for adult businesses are provided. The City currently has approximately 383 acres of commercially and industrially zoned land. When the prohibited areas discussed above are withdrawn from the inventory, approximately 68 acres, or 180 of the appropriately zoned land remains available for the location of new sexually oriented businesses . Although this is less than the 5% city-wide standard established in the Renton case, the difference is achieved through the additional consideration of "home occupations" in the residential areas . It should be noted that the inventory of available sites will be reduced with the location of each new adult business. Each new business will cause a 1000 ' radius prohibition zone to be created. It should be further noted that adult businesses will be allowed in established shopping centers and malls free of the distance requirements if certain design requirements can be met . The Atascadero Sexually Oriented Business Ordinance provides for an amortization period for any legally established adult business that is rendered nonconforming by the adoption of this ordinance. Any such business will be allowed to continue to operate for a period of five (5) years. After that period of time, the business must either relocate to an allowed location or request a maximum two (2) year extension. Such an extension can only be 000016 6 granted by the Planning Commission upon a convincing showing of extreme financial hardship. "Extreme financial hardship" is defined by the ordinance as the recovery of the initial financial investment in the nonconforming use. CONCLUSIONS: The proposed Atascadero Sexually Oriented Business Ordinance and the implementing amendments proposed for the City' s Zoning Ordinance achieve an appropriate balance between the community's right to regulate land use and a business owner's constitutional onstituticnal right of free speech. This ordinance will further provide a procedure for amortizing any investment in a lawful adult business use which is rendered nonconforming by the adoption of the proposed ordinance. ATTACHMENTS: Exhibit A - Background Information Received Exhibit B - Zoning/Business Location Study Pups Exhibit C - Draft Sexually Oriented Business Ordinance Exhibit D - Draft Zoning Ordinance Amendment Ordinance 00001'7 Exhibit B BACKGROUND INFORAATION RECEIVED The background information reviewed in the prepatation of the draft Sexually Oriented Business Ordinance includes but is no limited to the following: 1. People v. Superior Court (Lucerol, 49 Cal. 3d 14, 259 Gal.Rtpr. 740 (1989) (accepts "substantial portion" and "substantial part' to define what makes a business an adult business). 2. City of Renton v. Playtime Theaters, Inc., 106 S.Ct. 925, 89 LEd.2d 29 (1986). 3. City of National City v. Weiner, 3 CalAth 832 (1992) (4.5 acres potential availability in 8.6 square mile city provided sufficient alternative locations, per U.S. Supreme Court). 4. S_DJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir, 1988) (not required that alternative locations be commercially viable). 5. J. Haag and S. Mattas, "Regulating Adult Businesses," Western Citv, December, 1992. 6. Staff Report, Whittier City Planning Commission (April',9, 1984) (includes Los Angeles County and Detroit studies). 7. Ordinance and City Council Staff Report, City of San Jose (April, 1987). 8. Ordinance and City Council Staff Report, City of Novato (November, 1984). 9. Attorney General's Commission on Pornography, "Final'Report" (July 1986). 10. Minnesota Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, "Report" (June 6, 1989). 11. Letters and materials submitted by members of the community in response to request for input on appropriate location of adult businesses. 12. Berg v. Health and Hospital Corporation of Marion County, Indiana, 865 F.2d 797 (7th Cir. 1989). 13. 11126 Baltimore Boulevard v. Prince George's County, Maryland 886 F.2d 1415 (4th Cir. 1989). 14. Acorn Investments. Inc. v. City of Seattle, 887 F.2d 219 (9th Cir. 1989). 15. Summary of Land Use Studies: research conducted at 13 cities. 16. List of case (11) regarding pornography and their case history. 17. City of Lancaster's Adult Business Ordinance No. 619. 18. City of Seattle's report on Zoning Control for Adult Theaters. 19. City of Los Angeles's Study of Effects of Adult Entertainment includes: a. Boston's Approach b. Detroit's Approach c. Changes in Valuation of Commercial and Residential Land d. Appraiser's Questionnaire e. Police Department Study of Hollywood f. Survey of Reported Crime 0000IS 20. City of Pittsburgh, hearing on location of adult businesses. 21. City of Milwaukee, background report on pornography includes: Boston's Ordinance, Detroit's Ordinance and court cases. 22. District of Columbia, Zoning Regulations to Sexually Oriented Businesses. 23. Amarillo, TX, report on Regulating Adult Entertainment. 24. -Austin, TX, report on Adult Oriented Businesses includes: Real Estate Impact. 25. City of Houston, regulation of sexually oriented businesses. 26. City of Las Vegas, commission hearing includes: affidavits. 27. City of Nashville, report on Adult Entertainment Activities. 28. City of San Jose, Skid Row Ordinance. 29. Summary of the Final Report of the Attorney General's Commission on Pornography (1986). 30. Time, Place and Manner Regulations of Business Activity (Problems of Peep Booths). 31. Information that has been collected from the National Family Legal Foundation includes: a. A Supreme Court case from South Carolina holding an adult business ordinance valid. b. A 1989 report from the Attorney General's working group on the regulation of sexually oriented businesses from Minnesota. 32. Information from Protect the Children Resource Center includes copies of reports on secondary effects of adult oriented businesses on the community. 000019 ♦ .-'� : ms's►` ,► �\ �I�1 WAF'41q IF iii %;�•,, l���! << AW � ® � 1 111`•. �. �`''�1"�.�.�' '�•��.` � `� a �♦ 11�♦ ® �i7%• ��•!'`FS �::�'� 9-1 P,IMF ,� � ®�;��Z .1�ISE® `l� �� 1I►� � �`��►.'�'�♦��{��� ��+ deo ® 44W W, it,�e,�`°�'a��u�t���j//�'' �•��,,,// 'r Osseo gig WAN-w ♦ "° f Il/lop®gip-r''//�/���! E` '! /� �. > , ♦'� ®mom low Wglum ua, ` O�� ♦rte ft—owl FAWNS �IB� ;►teff, Nb so �' Lc�•� 1, � Ire �-� �� �� .�: �or►� � � - Uri 1 .�•I t Simi XIS o�®e b WIM U PM low � d r sa ♦ �'' ', ------- VIA, i II - � IIi _ • • e e - • ee � • • e 111 _ • e - • • - • _ • • �. � i 1� A a ,1- WA INMe 00 AV 414 -nb4 vv/ woo om o< litMill PA r���6 j;{ � ��►'` � _ i������I�� �� v WIP mdddi* lam lK .�- t no , ire®�� ��� °�► ����e��` �j�I��I�1� ��`e` sed '�41 ���,� ♦f r ��Q�O 6s r w�igt 18F,' I�sr sot ow os �'' �1�i►/t�siti fit♦ �� � &�� .;' , � ���� ��� � ��fP ®4����s L Lau Weir Z.-A IP F gar Air lip NO �: tae•.w �� �®4i ,oma��. � � •adr♦��� ►e,�„ Qi �� �►�� , 111 _ • • • • - - • 111 . • . ♦• - • _ ♦- Exhibit D MEMORANDUM is TO: Atascadero City Council, Andrew Takata, City Manager and Steve DeCamp, City Planner FROM: Roy A. Hanley, Deputy City Attorney DATE: February 15, 1996 SUBJECT: Revised Adult Business Ordinance Attached is a copy of the Adult Business Ordinance as revised after!the Planning Commission meeting of February 6, 1996. There is little to add to earlier reports you have received copies of. Since the last report, the most recent Ninth Circuit Court of Appeals ruling has upheld certain similar adult business restrictions".on method of operation and held that the mere fact that these types of restrictions',may make adult businesses less profitable does not make the ordinance unconstitutional. The Planning Commission voted to change the rules of operation to:,fforbid minors from being allowed into the premises. The decision was made because [was not aware, at the time, of any Supreme Court ruling that forbade such a provisiop. The Planning Commission decided to include such a provision and include a "savings" clause so that even in the eventuality that such a provision was ruled unconstitutional the remainder of the ordinance would still be in effect. I promised the Planning Commission that I would research that particular issue. I have researched the issue and, unfortunately, there is a clear United States Supreme Court ruling to the effect that:we cannot forbid minors from being inside the premises as long as they are accompanied by an adult. For that reason, I have not included that change in the ordinance that is before you. You would be free to have the change included, this would simply change the relative section to read that minors are prohibited from being on the premises. My recommendation is not to do so. To do so would certainly create a test case and the City would be attempting to create new law and overturn the United (States Supreme Court precedence. This would be an expensive, arduous, and not very fruitful process. Earlier reports that I have made to the Planning Commission have failed to make clear which areas of the ordinance have wide discretion for policy changes and which ones I think are relatively important to leave intact. I think we should leave intact the "Whereas" clauses. We can make additions, but we should not remove any of the ones included. In the definitional sections, the provisions defining percentage of total floor area, the specified sexual activities, specified anatomical areas and most of the definitions from C through R, have met the test of litigation and should not be tampered with without risking litigation. The definitions contained in Section 2 A do provide wide latitude for policy making. None of the businesses are]egally required to be defined as a sexually oriented business. For instance, an ordinance is not required to apply to cabarets simply because it does apply to motels. The council is free to 000024 r February 15, 1996 Page Two make policy decisions as to which of the businesses defined as sexually oriented businesses should remain in the ordinance, and which may be removed for whatever policy reasons the council deems fit. If the council can think of other types of businesses which can be so defined that are not mentioned we might be able to include. others as well. The council is not required to,have regulations governing the operation of sexually oriented businesses. The council can have those portions of the ordinance defining legal location without having any regulations whatsoever. The regulations of the business, so long as they are reasonably related to the secondary effects, and so long as we have adequate evidence in the records supporting any regulation, can be modified, deleted, or added as council determines is the best policy for the city. The business permit requirements do not have to be in the ordinance for the locational requirements to apply. The council could decide to simply remove the extra permit requirements and have the adult business ordinance treated like any other business license. That is, when the operator applied for a business license, the staff member would check and see if it met the definition of a sexually oriented business, and if so check the location. If the location was not proper, no license would be issued. 1f the location was proper, a license would be issued. The model ordinances suggest a much more burdensome investigatory procedure for adult businesses. My personal recommendation, as reflected in the ordinance before you, is not to go that far. To the extent that any of the permit requirements are determined by a court to have been :- developed for the purpose of making adult businesses more difficult to run than other businesses, the city will-run afoul of the Constitution. ,You will note in Section.10 that the ordinance, as drafted, does place a burden on city staff for everybody to conduct an investigation. If these, and similar provisions were removed, then it would be much less burdensome on the staff to decide whether or not to issue a permit i.e., the business license would be issued based upon the legality of the location. The council should weigh the burden of the permitting and investigation process against the likelihood that there would be any benefit gained to the city by this process. A problematical portion of the ordinance is Section 12. The legal justification for an annual permit fee is the increased burden on the city of the business license for a sexually oriented business. To the extent that we reduce the burden on the city of the investigatory process, etc., the amount of the fee, if any should be reviewed carefully. The regulations of Section 18 are justifiable under the law, but not required. The city is free to decide whether or not to add such regulations. Regulations similar to these are the ones that were approved in the most recent Ninth Circuit case. If the council wants my personal opinion on any of the policy issues, I would be glad to give it. I have, however, attempted to leave any personal views out of the drafting of this ordinance and have attempted to place in front of the council an ordinance with the widest legally permissible application, both in terms of location and in terms of regulation of the secondary effects of sexually oriented businesses. 000025 Exhibit E CITY OF,ATASCADERO ENVIRONMENTAL COORDINATOR NEGATIVE ]DECLARATION COMMUNITY DEVELOPMENT DEPT. 6500 PALMA AVE. ATASCADERO, CA' 93422 (805) 461-5035 APPLICANT: rr i T-f OF A i ASS oj>i��zo 6s-ryc (7&-(KA Ave-, �► a��ti s cA 93-+7-z-- PROJECT 3-+2.z_PROJECT TITLE: (�lkt_-Y ('t--D ��1 N �� illl� l PROJECT LOCATION: �t!•f _W 0,� PROJECT DESCRIPTION: yj 0,r 7-1 v/J © �ql) OI'L_P 1p tqN C.,� jeeT 4- uc /d l L Ga�i�f1 APO Off iii I o At 0f FINDINGS: 1. The project does not have the potential to degrade the environment. 2. The project will not achieve short-term to the disadvantage of long-term environmental goals. 3. The project does not have impacts which are individually limited,but comulatively considerable. 4. The project will not cause substantial adverse effects on human beings either directly or indirectly. DETERMINATION: Based on the above findings, and the information contained in the initial study(made a part hereof by refer- ence and on file in the Community Development Department),it has been determined that the above project will not have an adverse impact on the environment. Henry Engen Community Development Director Date Posted: /. Z Z (� Date Adopted: CDD„-89 000026 Exhibit F i ORDINANCE NO. 296 AN ORDINANCE OF THE CITY OF ATASCADERO ESTABLISHING THE ATASCADERO SEXUALLY ORIENTED BUSINESS ORDINANCE BY DISPERSING SEXUAL ORIENTED BUSINESSES AND LIMITING THEM O SPECIFIED ZONING DISTRICTS; PROVIDING OR% 10ENSING AND. REGULATION OF S UALLY IENTED BUSINESSES AND EMPLOY S; ,y'AND PRPVIDING ADDITIONAL HEALTH AI�6` ,.ciAFETY REG TIONS FOR SEXUALLY ORIENTErYBUSINESSES /// WHEREAS, sexu ly oriented businesses in the,iicorporated area of the City of Atascadero requirespecia supervision from public"safety and health agencies of the County in order to protect an preserve the health; aafety and welfare of the patrons of such businesses as well as citizens of the City; and WHEREAS, the City Council and staff hie conducted an extensive review of land use studies concerning the secondary.,effects of sexually oriented businesses in other cities including, but not limited to, Gaide,Ki Grove, California (1991); Phoenix, Arizona (1986); Minneapolis, Minnesota (1980) iouston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); City 0't ' Angeles, California (1977); Cleveland, Ohio (1977); Austin, Texas (1986); Se ,, e, Washington (1989); Oklahoma City (1986); Beaumont, Texas ( 1982); Pleasantoh, California (19,95) and Whittier, California (1978); have conducted its own meetings iris olving real estate appraisers, commercial businesses, residential owners, and parents Atascadero ; and WHEREAS, from review of other cities' studied and their own contacts with and testimony from its citizens there is convincing documented evidencethatsexually oriented businesses, because of their very nature, have a delatr rious effect on both existing businesses around them and the surrounding residential as adjacent to them, causing among other adverse econdary effects, increased crime and downgrading of property values; and WHEREA it is recognized that sexually oriented businesses, due to their nature, have serious ob fictional operational characteristics, particularly when they are operating in close proxirryi(y to each other, thereby contributing to crnrr e-,lower property values, urban blight and dngrading of the quality of life in the adjacent area-\ and 00002'7 ORDINANCE NO. 296 i AN ORDINANCE OF THE CITY OF ATASCADERO ESTABLISHING THE ATASCADERO SEXUALLY ORIENTED BUSINESS ORDINANCE BY DISPERSING SEXUALLY ORIENTED BUSINESSES AND LIMITING THEM TO SPECIFIED ZONING DISTRICTS; PROVIDING FOR LICENSING AND REGULATION OF SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES; AND PROVIDING ADDITIONAL HEALTH AND SAFETY REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES WHEREAS, sexually oriented businesses in the incorporated area of the City of Atascadero require special supervision from public safety and health agencies of the County in order to protect and preserve the health, safety and welfare of the patrons of such businesses as well as citizens of the City; and WHEREAS, the City Council and staff have conducted an extensive review of land use studies concerning the secondary effects of sexually oriented:businesses in other cities including, but not limited to, Garden Grove, California (1991); Phoenix, Arizona (1986); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana • (1984); Amarillo, Texas (1977); City of Los Angeles, California (1977); Cleveland, Ohio (1977); Austin, Texas (1986); Seattle, Washington (1989); Oklahoma City (1986); Beaumont, Texas ( 1982); Pleasanton, California (1995) and Whittier, California (1978); have conducted its own meetings involving real estate appraisers, commercial businesses, residential owners, and parents in Atascadero ; and WHEREAS, from review of other cities' studies and their own contacts with and testimony from its citizens there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both existing businesses around them and the surrounding residential areas adjacent to them, causing among other adverse secondary effects, increased crime and downgrading of property values; and WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have serious objectional operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in the adjacent area; and WHEREAS, the City Council finds that sexually oriented businesses commonly involve or contribute to unlawful sexual activities including prostitution, sexual liaison of casual nature; and 1 WHEREAS, increased crime and unhealthful conduct tend to accompany, i concentrate around and be aggravated by sexually oriented businesses including but not limited to prostitution, pandering, exposing minors to harmful materials, possession and distribution of obscene materials and child pornography, possession and sale of controlled substances and violent crimes against persons and property; and WHEREAS, concern over sexually transmitted diseases, including AIDS, is a legitimate health concern of the City which demands reasonable regulations of sexually oriented business in order to protect the health and well being of the citizens; and WHEREAS, the City Council has considered in part, each of the following matters: (a) areas within close walking distance of single and multiple family dwellings should be free of sexually oriented business uses: (b) areas where children could be expected to walk, patronize, or frequent to be free of sexually oriented business uses; (c) sexually oriented business uses should be located in areas of the City which are not in close proximity to residential uses, churches, parks, or other public facilities and schools; (d) the image of the City of Atascadero as a pleasant attractive place to reside will be adversely affected by the presence of sexually oriented business uses in close proximity to residential land uses, churches, parks and other public facilities, and schools; (e) sexually oriented business land use should be regulated by zoning to separate it from other dissimilar' uses just as any other land use should be separated from uses with characteristics different from itself; (f) residents of the City of Atascadero and persons who are non-residents but use the City for shopping and other commercial needs will move from the community or shop elsewhere if sexually oriented businesses land uses are allowed to locate in close proximity to residential uses, churches, parks, and other public facilities, and schools; (g) merchants in the commercial area of the City are concerned about the adverse impact and the character and quality of the City in the event that sexually oriented business land uses are located within close proximity to residential uses, churches, parks, and other public facilities, and schools, and that such locations will reduce retail trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the City; and that such adverse affect on property values and business would cause the loss to some commercial districts within the City leading to further deterioration of the commercial quality of the City, and (h) no evidence has been presented to show that location of sexually oriented businesses within the City will improve the commercial viability or quality of life of the community; and WHEREAS, zoning, licensing and other police power regulations are legitimate reasonable means of accountability to insure the operator of sexually oriented businesses comply with reasonable regulations and are located in places which minimize the adverse secondary effects which naturally accompany the operation; and WHEREAS, the City recognizes the possible harmful effects on children and minors exposed to the effects of such businesses and the deterioration of respect for family 2 • values, and the avoidance of such businesses which necessitate children walking through or visiting in the immediate neighborhood of such businesses; and WHEREAS, the City Council finds that there would be a deterioration in the quality of businesses which chose to operate in and around such sexually oriented businesses; and WHEREAS, the City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and the character of surrounding neighborhoods and businesses,i deter the spread of urban blight and protect against the threat to health from the spread of communicable and social diseases; and WHEREAS, the City Council recognizes that the exceptions, where sexually oriented businesses are permitted to be established without regard to distance regulations, are either inward looking configurations, or those isolated from direct view from public streets, parks, schools, boys' clubs, girls' clubs, or similar youth organizations, public buildings, religious institutions or residential districts or uses. This configuration reduces the adverse secondary effects associated with sexually oriented businesses by segregating such businesses away from the aforementioned sensitive uses, and placing them in a-location where they do not effect the public health, safety, and moral climate of the community as a whole. It decreases the problems of harassment of neighborhood adults and children, littering of sexually explicit reading material and paraphernalia, loitering, and visual blight. In addition, this promotes the City's interests by shifting part of the regulatory burden to the private sector. A shopping center or resort complex has its own signage, paint and landscaping restrictions, as well as hours of operation, parking, and security. The City is relieved from some of the regulatory burden while protecting the City's commercial tax base; and WHEREAS, the City Council has considered the decisions of the United States Supreme Court regarding local regulation of sexually 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); and Barnes v. Glen Theater, 501 U.S. 560 (1991); and City of National City v. Wiener, et al. , 3 CalAth 832 (1993). Topanga Press, Inc. et al. v. City of Los Angeles, 939 F. 2d 1524 (1993); and WHEREAS, the City Council has determined that locational criteria alone do not adequately protect health, safety and general welfare of the people of Atascadero and thus certain requirements with respect to the ownership and operations of sexually oriented businesses is in the public interest. 1P 3 WHEREAS, the City Council consistent with sale and consumption of alcohol and outside advertising limitations further finds that restricted hours of operation will further prevent the adverse secondary effects of sexually oriented business; WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the adverse secondary effects of sexually oriented businesses; the City's interest in regulation of sexually oriented business establishments is unrelated to the suppressing of free expression. WHEREAS, experience in other cities indicates that a permitted concentration of adult entertainment establishments and their proliferation throughout the community would be inconsistent with the community goals of the City's General Plan. WHEREAS, the adoption of an adult entertainment ordinance will aid in preserving the quality of the community that permits Atascadero to continue as a "colony" of fine homes with a quality business environment. WHEREAS, the image and vitality of the City of Atascadero as a pleasant and attractive place to reside and do business will be adversely affected by the presence of sexually oriented land uses in close proximity to residential land uses, churches, parks and other public facilities, schools, and certain commercial zones. WHEREAS, regulation of sexually oriented business land uses should be developed to prevent deterioration and\or degradation of the community before the problem exists, rather than in response to an existing problem. WHEREAS, no evidence has been presented to show that location of sexually oriented business land uses within the City will improve the commercial viability of the community. WHEREAS, a reasonable regulation of the location of sexually oriented land uses will provide for the protection of the image of the community and its property values, and protect the residents of the community from the adverse effects of such sexually oriented land uses, while providing to those who desire to patronize such businesses, an opportunity in areas within the City which are appropriate for location of such land uses. NOW THEREFORE, The City Council of the City of Atascadero does ordain as follows: SECTION 1. PURPOSE AND INTENT. It is the purpose and intent of this Ordinance to regulate sexually oriented 4 businesses to promote the health, safety, morals, and general welfare of the citizens of the City and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of sexually oriented businesses within the City, thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. 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 sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. SECTION 2. DEFINITIONS. For the purposes of this division, certain terms and words are defined as follows: A. "Sexually oriented businesses" are those businesses defined as follows: 1. "Adult arcade" means an establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), for viewing by five or fewer persons each, are regularly used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of"specified sexual activities" or "specified anatomical areas". 2. "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store" means a commercial establishment which devotes more than 25% of the total floor area used for display, sale or rental to display, sell or rent, for any form of consideration any of or combination of the following: a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), which are distinguished by 'their emphasis on depiction or description of "specified sexual activities" or "specified anatomical areas," or defined as obscene matter or harmful matter by California Penal Code Sections 311, or 313, 5 or their respective successor sections; b. Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others. c. An establishment may have other principal business purposes that do not involve the offering for sale rental or viewing of materials depicting or describing "specified sexual activities" or "specified anatomical areas", and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as it meets the 25% threshold as described in 2 (a) and (b) above. 3. "Adult cabaret" means a nightclub, bar, restaurant "bottle club", or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features: (a) persons who appear nude or in a state of nudity or seminude; (b) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities", or (c) films, motion pictures, video cassettes, slides, or other photographic reproductions, (including but not by way of limitation any machine or device that produces images by use.of computer software, optical discs, compact discs or similar method), which are characterized by the depiction or description of " specified sexual activities" or "specified anatomical areas". An adult cabaret is a sexually oriented business. 4. "Adult motel means a motel, hotel or similar commercial establishment which: (a) offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions a substantial portion of the total presentation time of which is characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television, or (b) offers a sleeping room for rent for a period of time less than ten (10) hours; or (c) allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten (10) hours. An adult motel is a sexually oriented business. 5. "Adult motion picture theater" means a commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions 6 (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), which are characterized by the depiction or description of"specified sexual activities" or "specified anatomical areas" are regularly shown for any form of consideration. Use is regular when the specified presentations constitute a substantial part of the theater's revenues. An adult motion picture theater is a sexually oriented business. 6. "Adult Theater"means a theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by exposure of"specified anatomical areas" or by "specified sexual activities." Such activity is regularly featured when the specified activity appearances, or performances, or any combination thereof, constitute a substantial part of all the theater's activities, appearances, or performances. An adult theater is a sexually oriented business. 7. "Massage parlor" means any place where, for any form of consideration or - gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment manipulation of the human body which occurs as a part of or in connection with "specified sexual activities", or where any person providing such treatment, manipulation, or service related thereto, exposes his or her "specified anatomical areas". • 8. "Nude Model Studio" means any place where a person, who regularly appears in a state of nudity or displays "specified anatomical areas" is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other parsons. A nude model studio is a sexually oriented business. 9. "Sexual encounter establishment" means a business or commercial establishment, that as one of its primary business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of"specified sexual activities" or the exposure of "specified anatomical areas" or activities when one or more of the persons is in a state of nudity or semi-nude. The definition of sexually oriented businesses shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy. A sexual encounter establishment is a sexually oriented business. B . "Employee" means a person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business. 7 C. "Establishment" means and includes any of the following: 1. The opening or commencement of any such business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any of the sexually oriented businesses defined in this chapter; 3. The addition of any of the sexually oriented businesses defined in this chapter to any other existing sexually oriented business; or 4. Addition of sexually oriented business to an existing business if the addition results in enlarging the place of business. Enlargement means an increase in the size of the building or area in which the business is conducted by either construction or use of an adjacent building or any position thereof, whether located on the same or an adjacent lot. 5. The relocation of any such sexually oriented business. D . "Nudity or State of Nudity" means: (a) the appearance of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or (b) a state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast. 0 E. "Operator" means and includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises. F. "Permitted or Licensed Premises" means any premises that requires a license and/or permit and that is classified as a sexually oriented business. G . "Permittee and/or Licensee " means a person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license. H. 'Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity. I. "Public building" means any building owned, leased or held by the United States, the state, the county, the city, any special district, school district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes. 8 J. "Public park" or "recreation area" means public land which has been designated . for park or recreational activities including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, open space, wilderness areas, or similar public land within the city which is under the control, operation, or management of the city park and recreation authorities. K . 'Religious institution" means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. L. 'Residential District or Use" means a single family, duplex, ,townhouse, multiple family, or mobile park or subdivision and campground as defined in the Municipal Code. M. "School' means any public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a school • N. "Semi-Nude" means a state of dress in which clothing covers no more than the genitals, pubic, region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. 0 . "Sexually Oriented Business" means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor, sexual encounter establishment, or nude model studio. P. "Specified Anatomical Areas," as used in this division means and includes any of the following: 1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Q . "Specified Sexual Activities," as used in this Division, means;and includes any of the following: 9 1. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts; i 2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; 3. Masturbation, actual or simulated; or 4. Human genitals in a state of sexual stimulation, arousal or tumescence; 5. Excretory functions as part of or in connection with any of the activities set forth in subdivisions (1) through (4) of this subsection. R. "Substantial Enlargement of a Sexually Oriented Business means increase in the floor areas occupied by the business by more than 15%, as the floor areas exist on the effective date of this ordinance. SECTION 3. ESTABLISHMENT AND CLASSIFICATION OF BUSINESSES REGULATED. A. The establishment of a sexually oriented business shall be permitted only in the CS (Commercial Services) and I (Industrial) zones, and shall be subject to the following restrictions. No person shall cause or permit the establishment of any of • the following sexually oriented businesses, as defined above, within 1,000 feet of another such business or within 1,000 feet of any religious institution, school, boys' club, girls' club, or similar existing youth organization, or public park or public building. 1. adult arcade 2. adult bookstore, adult novelty store or adult video store 3. adult cabaret 4. adult motel 5. adult motion picture theater 6. adult theater 7. massage parlor 8. sexual encounter establishment or 9. nude model studio. B. Nothing in this Section prohibits the location of sexually oriented businesses within retail shopping centers in all zones and within zones wherein such activities will have their only frontage upon enclosed malls or malls isolated from direct view from public streets, parks, schools, religious institutions, boys' clubs, girls' clubs, or similar existing youth organization, public buildings or residential districts or uses 10 • without regard to the distance requirements of subsection A. above. C. Nothing in this Section prohibits the locaticn of a home occupation that otherwise complies with the Atascadero Municipal Code. D. No sexually oriented business shall be established within the Downtown Zone 1 (Pedestrian Commercial Zone), Downtown Zone 2 , (Downtown Commercial Zone), Downtown Zone 3 (Restaurant and EntertainmentZone) or Downtown Zone 4 (Commercial Zone). SECTION 4. MEASUREMENT OF DISTANCE. As regarding Section 3, paragraph A., distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any sexually oriented business and any religious institution, public or private elementary or secondary school, boys club, girls club, or similar existing youth organization, or public park or public building or any properties zoned for residential use or used for residential purposes shall also be measured in a straight line, without regard to intervening structures or objects from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted, to the nearest property line of the premises of a religious institution, public or private elementary or secondary school, boys club, girls club, or similar existing youth organization, or public park or public building or any properties zoned for residential use or used for residential purposes. SECTION 5. LOCATION OF SEXUALLY ORIENTED BUSINESSES. The City of Atascadero's Zoning Ordinance hereby requires that sexually oriented businesses shall be permitted only as provided in Section 3 in which such use is listed as permissible. Permits for sexually oriented businesses shall be required and governed by the procedures and policies specified in Section 8 et. seq. of this division. In addition, any sexually oriented business shall be subject to the following restrictions: 1. The person commits a misdemeanor, if he operates or causes to be operated a sexually oriented business except as provided in Section 3. 2. The person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within 1,000 feet of: (a) any religious institution; (b) any school; (c) a public park adjacent to any residential district; (d) a boys club, girls club, or similar existing youth organization, except as provided in Section 3. B. 11 3. A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within 1,000 feet of another such business, which will include, any adult arcade, adult book store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor or any sexual encounter establishment, except as provided in Section 3. B. 4. A person commits a misdemeanor if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business within the same building, structure, or portion thereof, except as provided in Section 3.B., or causes the substantial enlargement of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business. 5. It is a defense to prosecution under this section if a person appearing in a state of nudity did so in a modeling class operated: a. by a proprietary school, licensed by the State of California; a college, junior college, or university supported entirely or partly by taxation; b. by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or c. in a structure: (1) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (2) where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and (3) where no more than one nude model is on the premises at any one time. SECTION 6. REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES. A. Any sexually oriented businesses lawfully operating on, the effective date of this 12 • ordinance that is in violation of Sections 3 and 5 of this divisinn, shall be deemed a non-conforming use. A non-conforming use will be permitted to continue for a period of five years, with a possible extension of two years,to be granted by the Planning Commission only upon a convincing showing of extreme financial hardship which is defined as the recovery of the initial financial investment in the nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such non conforming uses shall not be increased, enlarged, extended or altered except ito a conforming use. If two (2)or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented ;business which was first established and continually operating at the particular location is the conforming use and the later established business(es) is non-conforming, except as provided in Section 3.13. B. A sexually oriented business lawfully operating as conforming use is not rendered a non-conforming use by the location, subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within 1,000 feet of the sexually oriented business. This provision applies only to the renewal of ' valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. C. An establishment subject to the provision of this section shall apply for the Y 1 permit provided for by Section 10 within thirty (30) days of the effective date of this ordinance. Any establishment, existing prior to the effective date of this ordinance, shall comply with the regulations pertaining to Sections 20, 22 and 30, within sixty (60) days of the effective date of this ordinance, and all other applicable permit regulations within thirty (30) days of the effective date of this ordinance. SECTION 7. INJUNCTION A person who operates or causes to be operated a sexually oriented business without having a valid permit due to locational restrictions is subject to a suit for injunction as well as prosecution for the criminal violation. Such violation shall be punishable by a fine of $1,000. 00 and/or thirty (30) days imprisonment, and if an injunction must be sought, attorneys fees and costs will be assessed at the discretionof the Court against the sexually oriented business, 13 SECTION 8. SEXUALLY ORIENTED BUSINESS PERMIT: PURPOSE • AND INTENT. It is the purpose of this ordinance to regulate sexually oriented businesses to promote the health, safety, morals and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent deleterious effects of sexually oriented businesses within 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 sexually oriented materials. Similarly, it is not the intent nor effect of this Ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this Ordinance to in any way condone or legitimize the distribution of obscene or harmful to minors' material. SECTION 9. PERMIT REQUIRED A. No sexually oriented business shall be permitted to operate without a valid sexually oriented business permit issued by the City for the particular type of business. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business without said permit. B. The City Manager or his/her designee is responsible for granting, denying, revoking, renewing,suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses. The City Manager or his/her designee is also responsible for ascertaining whether a proposed sexually oriented business for which a permit is being applied for complies with all locational requirements of Sections 3, S, and 6 of this Ordinance, all applicable zoning laws and/or regulations now in effect or as amended or enacted subsequent to the effective date of this Ordinance in the City and the City Comprehensive Plan. C. An application for a permit must be made on a form provided by the City. Any person desiring to operate a sexually oriented business shall file with the.City an original and two copies of a sworn permit application on the standard application form supplied by the City or designee. D. The completed application shall contain the following information and shall be accompanied by the following documents: 1. If the applicant is: a. an individual, the individual shall state his/her legal name and any 14 aliases and submit satisfactory proof that he/she is eighteen years of age; b. a partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any; c. a corporation, the corporation shall state 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, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process. 2. If the applicant intends to operate the sexually oriented business under a name other than that of the applicant; he must state 1) the sexuallyoriented business's fictitious name. 3. The single classification of permit for which the applicant is filing. 4. The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s), if any. 5. The applicant's mailing addresses and residential address. 6. A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to scale or drawn with marked dimensions of the interior of the premises. 7. If a person who wishes to operate a sexually oriented business is an individual, he/she must sign the application for a permit as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten percent (10%) or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity which wishes to operate such a business, each individual having a ten percent (10%) or greater interest in the corporation must sign the application for a permit as applicant. 8. If a person wishes to operate a sexually oriented business which shall exhibit on the premises films, video cassettes, or other video reproductions which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements stated at Section 20 et. seq. 4P15 G . Applicants for a permit under this Section shall have a continuing duty to promptly • supplement application information required by this Section in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change, by supplementing the application on file with the City Manager or his/her designee, shall be grounds for suspension of a permit. H. In the event that the City Manager or his/her designee determines or learns at any time that the applicant has improperly completed the application for a proposed sexually oriented business, he/she shall promptly notify the applicant of such fact and allow the applicant ten (10) days to properly complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.) 1. The premises must be inspected and found to be in compliance with health, fire and building codes and laws. J. The applicant shall be required to pay a non-refundable application fee of one hundred dollars ($100. 00) at the time of filing an application under this Section of this Ordinance. K . Prior to obtaining any permit or license to operate any sexually oriented business defined in this Ordinance, and as part of any application for a permit under this Section, the applicant shall obtain from the City or its designee a certification that the proposed location of such business complies with the locational requirements of Section 5 and 6 of this Ordinance. L. The fact that a person possesses other types of State or City permits and/or licenses does not exempt him/her from the requirement of obtaining a sexually oriented business permit. SECTION 10. INVESTIGATION AND APPLICATION. A . 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 and shall immediately thereafter send photocopies of the application to any other City agencies responsible for enforcement of health, fire and building codes and laws. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually oriented business in accordance with its responsibilities under law and as set forth in this Ordinance. Said investigation shall be completed within twenty (20) days of receipt of the application by the City or its designee. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its 16 • approval or disapproval of the application, date it, sign it, ;and, in the event it disapproves, state the reasons therefor. B. A department or agency shall disapprove an application if it finals that the proposed sexually oriented business will be in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the City. Auer its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the City or its designee. SECTION 11. ISSUANCE OF PERMIT. A . The City Manager or his/her designee, shall grant or deny an application for a permit within thirty (30) days from the date of its proper filing.;„Upon the expiration of the thirtieth (30th) day, unless the applicant requests and is granted a reasonable extension of time, the applicant shall be permitted to begin operating the business for which the permit is sought, unless and until the City or its designee, notifies the applicant of a denial of the application and states the reasons(s) for that denial. B . Grant of Application for Permit 1. The City Manager or his/her designee, shall grant the application unless one or more of the criteria set forth in Section C below is present. 2. The permit, if granted, shall state on its face the name of the or erson persons P to whom it is granted, the expiration date, and the address of the sexually oriented business. C. Denial of Application for Permit 1. The City Manager or his/her designee, shall deny the application for any of the following reasons: a. An applicant is under eighteen years of age. b. An applicant has failed to provide information required by this Section or permit application for the issuance of the permit or has falsely answered a question or request for information on the application form. c. The premises to be used for the sexually oriented business have not been approved as being in compliance with health, fire and building codes by the department or agency responsible:under law for investigating said compliance. 17 d. The application or permit fees required by this Ordinance have not been paid. e. An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this Ordinance including but not limited to the zoning locational requirements for a sexually oriented business under Sections 3, 5, and 6. f. The granting of the application would violate a statute, ordinance, or court order. 2. If the City Manager or his/her designee, denies the application, he/she shall notify the applicant of the denial and state the reasons(s) for the denial. 3. If a person applies for a permit for a particular location within a period of twelve (12) months from the date of denial of a previous application for a permit at the location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial, the application shall be denied. SECTION 12. ANNUAL PERMIT FEE The annual fee for a sexually oriented business permit is Eight Hundred Fifty Dollars ($850.00). SECTION 13. INSPECTION A. An applicant or permittee shall permit representatives of the Code Enforcement Office, the County Health Department, and the Fire Department to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business. B . It shall be unlawful and a person who operates a sexually oriented business regardless of whether or not a permit has been issued for said business under this Ordinance, or his/her agent or employee commits a misdemeanor if he/she refuses to permit such lawful inspection of the premises at any time that it is occupied or open for business. SECTION 14. EXPIRATION OF PERMIT. A. Each permit shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in Section 11 (for renewals, filing of original survey shall be sufficient) of this Ordinance. Application for renewal shall it 18 be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the permit will not be affected. SECTION 15. REVOCATION OF PERMIT. A . The City Manager or his/her designee shall revoke a permit if a cause of suspension in Section 15. of this Ordinance occurs and tine permit has been suspended within the preceding twelve (12) months. B . The City Manager or his/her designee, shall revoke a permit upon determining that: 1. A permittee gave false or misleading information in the material submitted during the application enhance the applicant's opportunity for obtaining a permit; or 2. A permittee or an employee has knowingly allowed ",possession, use or sale of controlled substances in or on the premises; or 3. A permittee or an employee has knowingly allowed; prostitution on the premises; or 4. A permittee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or any other specified sexual activities to occur in or on the permitted premises. C. When the City Manager or his/her designee, revokes a permit, the revocation shall continue for one (1) year and the permittee shall not be issued a sexually oriented business permit for one (1) year from the date revocation became effective. If, subsequent to revocation,the City Manager or his/her designee finds that the basis for revocation under Section 15 of this Ordinance has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the date revogation became effective. If the permit was revoked under Section 15 of this Ordinance, an applicant may not be granted another permit until the number of years required under Section 16. have elapsed. SECTION 16. REVIEW OF PERMIT DENIAL, SUSPENSION OR REVOCATION. After denial of an application, or denial of a renewal of an application, or suspension or revocation of a permit, the applicant or permittee may seek prompt review of such 19 administrative action through the City Council or special City Review Board if one is established by the City. SECTION 17. TRANSFER OF PERMIT. A. A permittee shall not operate a sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit. B . A permittee shall not transfer his permit to another location. C . Any attempt to transfer a permit either directly or indirectly in violation of this Section is hereby declared void and the permit shall be deemed revoked. SECTION 18. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS IN VIDEO BOOTHS. A. A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel/hotel and regardless of whether or not a permit has been issued to said business under this Ordinance, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following . requirements: 1. Upon application for a sexually oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area with no dimension greater than eight (8) feet. The diagram shall also designate the place at which this permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus or minus six (6) inches. The City Manager or his/her designee, may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. 2. The application shall be sworn to be true and correct by the applicant. 20 3. No alteration in the configuration or location of a manager's station may be made • without the prior approval of the City or its designee. 4. It is the duty of the owners and operator of the premises to insure that at least one employee is on duty and situated at each manger's station at all times that any patron is present inside the premises. 5. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises have two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. 6. It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises to insure that the view area specified in Subsection 5 remains unobstructed by any doors, walls, merchandise, display racks or other materials or person at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection a. of this Section. 7. No viewing room may be occupied by more than one person at any one time. No holes, commonly known as"glory holes," shall be allowed in the walls or partitions which separate each viewing room from an adjoining viewingl,room or restroom. 8. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination of not less than two (2.0) foot candle as measured at the floor level. 9. It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present on the premises to insure that the illumination described above is maintained at all times that any patron is present on the premises. B. A person having a duty under Section 9 "a" (1) - (9) commits a misdemeanor if he/she knowingly fails to fulfill that duty. 21 SECTION 19. PROHIBITIONS REGARDING MINORS AND SEXUALLY ORIENTED BUSINESSES. A person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and knowingly or with reasonable cause to know, permit, suffer, or allow: A. Admittance of a person under eighteen (18) years of age to the business premises unless accompanied by a parent or guardian; B. A person under eighteen (18) years of age to remain at the business premises unless accompanied by a parent or guardian; C. A person under eighteen (18) years of age to purchase goods or services at the business premises without the specific consent of a parent or guardian; or D. A person who is under eighteen (18) years of age to work at the business premises as an employee. SECTION 20. ADVERTISING AND LIGHTING REGULATIONS. A. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and advertises the presentation of any activity prohibited by any applicable State statute or local ordinance. B. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and displays or otherwise exhibits any materials depicting, describing, or relating to specified sexual activities or specified anatomical areas from any public property or way outside the building area of the business. This provisions shall apply to any display, decoration, sign, show window, or other opening. This prohibition shall not extend to advertising of the existence or location of such sexually oriented business. C. The permittee shall not allow any portion of the interior premises to be visible from outside the premises. D. All off-street parking areas and premise entries of the sexually oriented business 22 shall be illuminated from dusk to closing hours of operation with a lighting system Mwhich provides an average maintained horizontal illumination of one (1.0) foot candle of light on the parking surface and/or walkways. This 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 premise. E. Nothing contained in this Section of the Ordinance shall relieve the operator(s) of a sexually oriented business from complying with the requirements of the City of commonly known as the Sexually Oriented Business Ordinance, as it may be amended from time to time, or any subsequently enacted City ordinances or regulations, nor shall anything contained herein relieve a sexually oriented business from complying with other development, performance, design, and signage requirements of the Zone in which they are located. SECTION 21. HOURS OF OPERATION. A. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and allows such business to remain open for business, or to permit any emplioyee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 6:00 a.m. of any particular day. B. It shall be unlawful and a person commits a misdemeanor if, working as an employee of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, said employee engages in a performance, solicits a performance, makes a sale, solicit$ a sale, provides a service, or solicits a service between the hours of 2:00 a.m. and 6:00 a.m. of any particular day. SECTION 22. NUDITY AT SEXUALLY ORIENTED BUSINESSES PROHIBITED. A. The United States Supreme Court decision in Barnes v. Gl@n Theater, Inc., 501 U.S. 560, 111 (1991) which upheld the rights of cities to prohibit live public exposure of a person'(s) private parts, specifically applies I,to sexually oriented businesses (regardless of whether or not a permit has been issued to said businesses under this Ordinance), including said businesses where no alcoholic beverages are sold, served, or consumed at the premises. 23 B . Public nudity is prohibited within the City of Atascadero including any sexually oriented business.Any sexually oriented business which is found in violation of this section shall have its permit suspended pursuant to the provisions of Section 15. SECTION 23. ADDITIONAL CRIMINAL PROHIBITIONS FOR THE OPERATION OF A SEXUALLY ORIENTED BUSINESS WITHOUT A VALID PERMIT. A. In addition to the criminal provisions found at other sections of this Ordinance, the following additional criminal provisions shall also apply to sexually oriented businesses. B. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and said person knows or should know that: 1. The business does not have a sexually oriented business permit under this Ordinance for any applicable classification; 2. The business has a permit which has been revoked; or 3. The business has a permit which has expired. SECTION 24. EXEMPTIONS. A. It is a defense to prosecution for any violation of this Ordinance that a person appearing in a state of nudity did so in a modeling class operated: 1. By a college, junior college, or university supported entirely or partly by taxation; 2. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or: 3. Ina structure: a. Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and 24 It b. Where, in order to participate in a class a student must • enroll at least three days in advance of the class; and c. Where no more than one nude model is on the premises at any one time. SECTION 25. CRIMINAL PENALTIES AND ADDITIONAL LEGAL, EQUITABLE, AND INJUNCTIVE RELIEF. A . In addition to whatever penalties are applicable under the California Penal Code, if any person fails or refuses to obey or comply with or violaters any of the criminal provisions of this Ordinance, such person upon conviction of such offense, shall be guilty of a misdemeanor and shall be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment not to exceed sixty (60) days in the City jail, or both, in the discretion of the Court. Each violation or noncompliance shall be considered a separate and distinct offense. Further, each day of continued violation or non-compliance shall be considered as a separate offense. B. Nothing herein contained shall prevent or restrict the City from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or non-compliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at law for damages. C. All remedies and penalties provided for in this Section shall be cumulative and independently available to the City and the City shall be authorized to pursue any and all remedies set forth in this Section to the full extent allowed by law. D. The owners, operators and managers of premises which constitute a sexually oriented business are responsible for compliance with this Code. SECTION 26. SEVERABILITY If any section, subsection or clause of this ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections 25 and clauses shall not be affected thereby and shall remain in effect. The foregoing ordinance approved and adopted at a meeting of the City Council held on , 19_, by the following vote: AYES: NOES: ABSTENTIONS: ATTEST: BY: Lee Price, City Clerk BY: BY: George Highland, Mayor Andrew Takata, City Manager APPROVED AS TO FORM AND CONTENT: BY: Roy A. Hanley, Deputy City Attorney 26 and clauses shall not be affected thereby and shall remain in effect: The foregoing ordinance approved and adopted at a meeting of the City Council P 9 held on , 19_, by the following vote: AYES: NOES: ABSTENTIONS: ATTEST: BY: Lee Price, City Clerk BY: BY: George Highland, Mayor Andrew Takata, City Manager APPROVED AS TO FORM AND CONTENT: BY: Roy A. Hanley, Deputy City Attorney 26 000052 Exhibit G DRAFT ORDINANCE NO. 300 AN ORDINANCE OF THE COUNCIL OF THE CITY OF AMENDING THE ZONING ORDINANCE TEXT TO IMPLEMENT AND CONFORM TO THE PROVISIONS OF THE ATASCADERO SEXUALLY ORIENTED BUSINESS ORDINANCE (ZC 95-005; City of Atascadero) WHEREAS, the proposed Zoning Ordinance text amendments are consistent with the General Plan as required by Section 65860 of the California Government Code; and WHEREAS, the proposed amendments are in conformance with Section 65800 et seq. of the California Government Code concerning zoning regulations; and WHEREAS, the proposed amendments will not have a significant adverse impact upon the environment. The Negative Declaration prepared for the project is adequate; and WHEREAS, the Atascadero Planning Commission held a public hearing on February 6, 1996 and has recommended approval of Zone Change 95-005. NOW, THEREFORE, the Council of the City of Atascadero does ordain as follows : Section 1 . Council Findings. 1 . The proposals are compatible with the surrounding land use and zoning. 2 . The proposals are consistent with the General Plan Land Use Element and other elements contained in the General Plan, and specifically, policies pertaining to downtown development and revitalization as expressed in the General Plan Downtown Element . 3 . The proposals will not result in any significant adverse environmental impacts . The Negative Declaration prepared for the project is adequate. 000053 Ordinance No. 300 Section 2 . Zoning Text . The Zoning Ordinance text is hereby amended as folows : 1 . Section 9-3 . 212 (Commercial Professional Zone Allowable Uses) is amended by the addition of : (z) Sexually Oriented Businesses (see Orrdinance# 296) 2 . Section 9-3 .222 (Commercial Retail Zone Allowable Uses) is amended by the addition of: (11) Sexually Oriented Businesses (see Ordinance# 296) 3 . Section 9-3 .232 (Commercial Service Zone Allowable Uses) is amended by the addition of : (o) Sexually Oriented Businesses (see Ordinance# 296) 4 . Section 9-3 .302 (Industrial Park Zone Allowable Uses) is amended by the addition of: (z) Sexually Oriented Businesses (see Ordinance# 296) 5 . Section 9-3 .312 (Industrial Zone Allowable Uses) is amended by the addition of: (j ) Sexually Oriented Businesses (see Ordinance# 296) 6 . Section 9-3 . 701 (Land Use Definitions) is amended by the addition of: Sexually Oriented Business : Any business defined by the Atascadero Sexually Oriented Business Ordinance as an Adult Arcade, Adult Bookstore, Adult Novelty Store, Adult Video Store, Adult Cabaret, Adult Motel, Adult Motion Picture Theater, Adult Theater, Massage Parlor, Sexual Encounter Establishment, or Nude Model Studio is a sexually oriented business . Section 3 . Publication. The City Clerk shall cause this ordinance to be published once within fifteen (15) days after its passage in';, the Atascadero News, a newspaper of general circulation, printed, published, and circulated in the City in accordance with Section 36933 of the Government Code; shall certify the adopting and posting of this ordinance and shall cause this ordinance and this certification together with proof of posting to be entered into the Book of Ordinances of the City. 000054 Ordinance No. 300 Section 4 . Effective Date. This ordinance shall go into effect and be in full force and effect at 12 : 01 a.m. on the 31st day after its passage. On motion by and seconded by the foregoing Ordinance is approved by the following role call vote: AYES : NOES : ABSENT: DATE ADOPTED: By: GEORGE HIGHLAND, Mayor ATTEST: LEE PRICE, City Clerk APPROVED AS TO FORM: ARTTHER R. MONTANDON, City Attorney PREPARED BY: STEVEN L. DeCAMP, City Planner 000055 PLANN''ING COMMISSION MINUTES EXCERPTS EXHIBIT "H" Planning Commission Meeting, February 6, 1996 ACTION: 2 . Approve e Conditional Use Permit # 03 based on the Findings co ained in Attachment and ' subject to the Conditions of A oval, as amend contained in Attachment H. Motion: Johnson Second: Wallace AYES : Johnson allace, Hageman, Zim man, Edwards NOES : N e ABSE Bowen, Sauter OTION PASSED: 5-0 SUBJECT: B. HEARINGS, APPEARANCES AND REPORTS - 3 . ADULT ENTERTAINMENT ORDINANCE: Consider a recommendation to the City Council regarding adoption of amendments to the City' s Zoning Ordinance regulating the location and operation of adult businesses . STAFF RECOMMENDATION: (DeCamp) Staff recommends the following actions : 1 . Find the Negative Declaration prepared for the project adequate . 2 . Approve the attached draft "Atascadero Sexually Oriented Business Ordinance . " 3 . Approve the attached draft ordinance amending the Atascadero Zoning Ordinance . TESTIMONY: Rush Kolmeine, P. O. Box 1990 , asked for a more specific definition of "emphasis . " Mr. Hanley explained that "emphasis" is indicated when at least 25% of the floor space or percentage of the business is devoted to specified activities or products . (Page 6 of 10) 000056 Planning Commission Meeting, February 6, 1996 The Commission: At this point, the Commission began making specific suggestions to revise the Atascadero Sexually Oriented Business Zoning Ordinance : Section 2 . Definitions Add "computer software and computer generated images" to A. 1, A. 2 .a, A. 3 , A.4 , A. 5, and A. 6, as well as in any other definitions as deemed necessary by staff . A. 7 : Delete the last sentence, "The definition of sexually oriented businesses shall not . . . program. " Section 5 . Location of Sexually Oriented Businesses 5 . 2 : Delete (c) and (e) . Section 16 . Judicial Review of Permit Denial Suspension or Revocation. Delete "Judicial" from the section title . Delete the last sentence, "If the denial, suspension the Court . " ACTION: Modify the draft as indicated above. Motion: Johnson Second: Wallace AYES : Johnson, Wallace, Hageman, Zimmerman, Edwards NOES : None ABSENT: Bowen, Sauter MOTION PASSED: 5-0 Section 19 . Prohibitions Regarding Minors and Sexually Oriented Businesses . Delete the end of the sentence, "unless accompanied by a parent or guardian. " Delete B, C, D. (Page 7 of 10) 000057 Planning Commission Meeting, February 6, 1996 ACTION: Modify Section 19 of the draft, as indicated above . Motion: Zimmerman Second: Johnson AYES : Zimmerman, Johnson, Wallace, Hageman,! Edwards NOES : None ABSENT: Bowen, Sauter MOTION PASSED: 5-0 ACTION: 1 . Find the Negative Declaration prepared for the project adequate. Motion: Johnson Second: Wallace AYES : Johnson, Wallace, Hageman, Zimmerman, , Edwards NOES : None ABSENT: Bowen, Sauter MOTION PASSED: 5-0 ACTION: 2 . Approve the attached draft "Atascadero Sexually Oriented Business Ordinance" with amendments indicated above. Motion: Johnson Second: Wallace AYES : Johnson, Wallace, Hageman, Zimmerman, ; Edwards NOES : None ABSENT: Bowen, Sauter MOTION PASSED: 5-0 (Page 8 of 10) 000058 Planning Commission Meeting, February 6, 1996 ACTION: 3 . Approve the attached draft ordinance amending the Atascadero Zoning Ordinance. Motion: Johnson Second: Wallace AYES: Johnson, Wallace, Hageman, Zimmerman, Edwards NOES : None ABSENT: Bowen, Sauter MOTION PASSED: 5-0 ACTION: Motion to extend the meeting beyond 11 : 00 p.m. Motion: Johnson Second: Wallace AYES : Johnson, Wallace, Hageman, Zimmerman, Edwards NOES : None ABSENT: Bowen, Sauter MOTION PASSED: 5-0 (Page 9 of 10) 000059 CITY OF ATASCADERO PLANNING COMMISSION 2/6/96 ACTION MINUTES SUBJECT: C. INDIVIDUAL COMMENT Planning Commission: Commissioner Wallace commended Mr. Hanley for the legal work done in pulling the ordinance together. Commissioner Hageman thanked and commended Mr. Hanley for an excellent ordinance. She asked when the ordinance would be presented to the City Council . Mr. Hanley indicated that it would be presented three weeks from tonight . Commissioner Johnson complimented staff on the excellent job that was done in developing the drafts reviewed tonight . Commissioner Zimmerman agreed that it was an excellent ordinance. He expressed that he is very uncomfortable with the home Occupations, but he does not see any way around it . Commissioner Edwards thanked all the commissioners for their kindness to him, as a new Chairman, during the meeting. He expressed concern about modeling studios being considered sexually oriented businesses . He feels that if they are done the way they are supposed to be done, they are artist ' s studios . City Planner: None. Economic Round Table Report: None. MEETING ADJOURNED: 11 : 14 p.m. Minutes Prepared by: Pat Glakeler Secretarial Preference (Page 10 of 10) 000060 REPORT TO CITY COUNCIL Meeting jDate: 02/27/96 40 CITY OF ATASCADERO Agenda Item: B-2 Through: Andy Takata, City Manager From: Brad Whitty, Finance Direetor� SUBJECT: Solid Waste Collection Franchise Agreement RECOMMENDATION: 1. Staff requests City Council to select either Sodion 3 or 3A to incorporate into the agreement. 2. Staff recommends City Council adopt ;Resolution 13-96, authorizing execution of new franchise agreement with Atascadero Waste Alternatives, Inc., the successor in interest to Wil-Mar Disposal Company, Inc. BACKGROUND: ® Wil-Mar has been operating under the current solid waste agreement since October 1991. The only change since that time was a three year extension filed by Wil-Mar and passed by council with Resolution 19-95. The franchisee approached the City to discuss changes to the agredment in December 1995. The discussion section that follows will highlight the majorl changes than are proposed in the agreement. DISCUSSION: .The first change will be a new franchisee named Atascadero Waste Alternatives, Inc., which is the successor in interest to Wil-Mar Disposal Company, Inc.. Section 3 Extension of Term , offers the same requirements as the previous agreement whilo Section 3A allows the agreement to automatically extend by one year unless either partyotifies the other at least three months in advance. The term of the new agreement i� for seven years beginning March 1, 1996 and ending March 1, 2003. The current agreement terminates October 1, 2001. Section 6 of the franchise agreement is changed as follows. The monthly service rate shall be charged over a four (4) week cycle and billed every eight (8) weeps. This will create one additional bill measurement period for a total of 13 versus the current 12. 000061 Solid Waste Franchise Agreement, continued Additionally, bills will be generated approximately every other month versus the current monthly billing. The section also calls for the billing rates to be adjusted annually on March 15t based on the Consumer Price Index for the Los Angeles-Riverside-Anaheim area for All Urban Consumers measured from October to October of any given year. Currently, the rates will be adjusted by 1.2% with adoption of this agreement. Current Wil-Mar rates are attached as Exhibit D. The adjustment is capped at 5%annually. The tipping fee remains separate from the rate base for purposes of calculating the tipping fees portion of the charges. Additional language has been added to cover tipping fee adjustments when the fees are measured by weight rather than volume. The fee adjustment when measured by volume remains the same. Section 12 of the agreement adds language that assignment of an obligation to a corporate entity in which the Franchisee holds a majority interest shall not be considered an assignment requiring the consent of council. Furthermore, a transfer of 25% or more of corporate share shall be considered an assignment requiring consent of the City Council. Sections 13 and 14 in the agreement are new sections. Section 13 discusses the City's and Franchisee's rights to determine direction to the appropriate landfill Section 14 provides the franchisee the right to an extraordinary review of rates if circumstances arise that would cause economic hardship on the franchisee that is beyond the franchisee's control. FISCAL IMPACT: The new franchise agreement has the potential to provide additional franchise fees to the City through the addition of one additional measurement cycle and by annually adjusting rates to the CPI. Enc. Exhibit A-Solid Waste franchise Agreement dated October 8, 1991. Exhibit B - Proposed Solid Waste Agreement Exhibit C -Consumer Price Index-October 1995 Exhibit D -Current Wil-Mar Rates Resolution 13-96 000062 { EXHIBI" A SOLID WASTE COLLECTION FRANCHISE AGREEME]tT THIS FRANCHISE AGREEMENT, made and entered into this 8th day of October , 1991 , by and between the CITY OF ATASCADERO, a political subdivision of the State of California, hereinafter called "City" , and WIL-MAR DISPOSAL COMPANY, INC. , a California corporation, hereinafter called "Franchisee" . witnesseth For and in consideration of the payments to be made by Franchisee to City, and in further consideration of the full and faithful performance by Franchisee of all terms , covenants , and conditions of this Agreement , as well as complete compliance with the laws of the State of California and all pertinent present and future ordinances and resolutions of the City; It is mutually agreed as follows: 1 . Scope of Work. Franchisee shall provide all labor , materials , tools , and equipment necessary to perform all work required to collect and haul all solid waste , and curbside recyclables from locations within City in accordance with this Agreement . 2 . Term. The term of this Agreement shall be for a period of seven (7) years from October 1 , 1991 . 3 . Extension of Term. If Franchisee has faithfully performed under the terms and conditions of this Agreement for any period of three (3) years , Franchisee may request the City Council to extend the term of this agreement for an additional three (3 ) 1 000063 f years . The granting of an extension shall be discretionary with the City. In no event shall any extended term exceed seven (T) years . 4 . Termination of Azreement . Notwithstanding any other provision of this Agreement to the contrary, this Agreement may be terminated in any of the following ways: (a) Pursuant to specific provisions of this Agreement providing for such termination; and/or (b) upon mutual written agreement of the parties hereto; (c) By operation of law; and/or (d) As a result of a material breach of this Agreement by either party. 5 . Franchise Fee. During the term of this Agreement , Franchisee shall pay to City a sum equal to five percent (5A) of Franchisee' s gross receipts derived from its franchised solid waste collection operations conducted within the City pursuant to this Agreement . For the purpose of this Agreement , "Gross Receipts" shall mean any and all forms of compensation and funds , including but not limited to cash, check or credit card, actually received by Franchisee from any person arising out of the Franchisee' s franchised operations conducted within the City pursuant to this Agreement. The Franchise Fee small be paid to City by Franchisee monthly on the fifteenth ( 15th) calendar day of each month during the term hereof . 6 . Charxes. Franchisee shall be permitted to make such charges for its Services as are approved by the City Council in the 2 000064 time and manner set forth in Chapter 6, §4. 14 of the Code. Yo charge shall be made by the Franchisee except in complete compliance with the charges as approved by the City Council except those charges allowed pursuant to Subsection (a) through ( i ) of this Section 6 . (a) For each S1 .00/yard increase in the Landfill tipping fee, monthly residential and commercial refuse collection rates shall be increased according to the following formula: annual yard/prior 12 months % of FRANCHISEE' s revenue for each annual revenue/prior 12 months - S1 .00/yard tipping fee increase approved tipping fee % increase current amount of increase increase/yard - multiplier x rate - tobe added to monthly rate Residential rates shall be rounded to the nearest S .03 and shall exclude the curbside recycling portion of refuse collection rate in applying the above formula; however, said surcharge shall be added to the rate determined by ,lapplying the formula. Commercial rates shall be rounded to the nearest 81 .00 or such other amount as may be mutually agreed upon by the City and Franchisee. (An example of the determination of rates according to this formula is provided in subparagraph 9 below. ) (b) Refuse collection rate increases of less than 51 . 00/month shall be pro-rated accordingly, provided, however , that said pro-ration shall be in minimum increments of S .25/month. Increments of less than S . 25/month shall be accumulative. (c) Said . increases in residential and commercial refuse collection rates shall be effective on the first 3 000065 billing cycle following the effective date of the increase in the tipping fees at the Landfill serving Franchisee. Residential accounts are billed on a monthly basis . Commercial accounts are billed on a monthly basis . (d) City reserves the right to review the basis for said tipping fee increases approved by the Board of Supervisors . (e) Franchisee shall provide to City a copy of the Landfill ' s request for an increase in the tipping fees no later than 5 days following receipt of said request to the County of San Luis Obispo. (f) Franchisee shall notify City of action taken by the Board of Supervisors regarding said request within 5 days following said action, (g) Franchisee shall provide notice as soon as possible to its residential and commercial customers of said increases prior to the effective date of said increases . . (h) The updated rate schedule shall be submitted to the City Council as an information item. ( i ) EXAMPLE: 67 380(Annual Yards) 3 .6% (Percentage x $1 . 50 1 , 870 ,496(Annual Revenue) - of Contractor revenue per $1.00/yard tipping fee .054 (' increase $6. 50 (present rate _ 5 .35 (amount multiplier) x residential collec- - rounded to tion for I can) nearest S . 05) NEW RATE = 56 .50 + 5 .35 + (Recycling & Greenwaste) 4 000066 7 . Filing of Statements . Audits . Franchisee shall , on or before the fifteenth ( 15th) day of each calendar month occurring during the term hereof , file with the Director of Finance of the City a verified Statement of Gross Receipts ( "Statement" ) actually received by Franchisee during the immediate preceding calendar month. Each such Statement shall be verified on behalf of Franchisee by a person designated for such purpose by the Franchisee. The City shall have the right to inspect„ review, and audit , at any reasonable time, upon not less than twenty-four (24) hours written notice to Franchisee , any and all of the Franchisee' s books or records to determine the accuracy of the contents of any Statement . The City shall also have the right to order an audit , conducted by a qualified independent auditor selected by City, of the Franchisee ' s books and records to determine the accuracy of the Statements filed with the City. If any City ordered audit discloses an understated amount of Gross Receipts on arty Statement , equaling three percent (3A) or more during any reporting period, the cost of the audit shall be borne exclusively by the Franchisee; in all other cases such audit costs shall be borne by the City. -°1 S . Compliance with Applicable Law_. Franchisee, in performance of its duties pursuant to the provisions of this Agreement , shall comply with all applicable laws, including, but not limited to: the Atascadero Municipal Code; and Regulations adopted by the City Manager or City Council pursuant to State and Federal Law. The provisions of the Atascadero Municipal Code, as they now exist or may hereafter be adopted and/or ankended, shall be deemed to be a part of this Agreement as if set forth herein in 5 00006'7 full . Franchisee shall , at all times during the term or terms of the Agreement pay all sums required as and for Business License Taxes due pursuant to the provisions of the Code. 9 . Services . Franchisee agrees that during the term of this Agreement Franchisee will provide the services , as described in the Code, the Regulations and this Agreement , including the collection and disposal of all solid waste and curbside recyclables generated within the City by its customers , in the time and manner set forth in this Agreement , the Code and the Regulations . At such mandatory solid waste e adopt m y shall b p time as City Y ordinance collection, Franchisee shall provide services as herein described to all those residents affected by such an ordinance. 10. administration of Contract . (a) Responsible City Officer . The City Manager of City is hereby designated as the City Officer responsible for the administration of this Agreement . The Franchisee shall obey al lawful orders , directions and instructions issued by the City Manager with reference to the provisions of this Agreement . (b) Responsible Franchisee Employee. The Franchisee shall , in writing, contemporaneously with the execution of this Agreement , designate a qualified person who shall be the responsible officer or employee of Franchisee for the purpose of administration of this agreement . Such person shall be authorized by Franchisee to act on behalf of Franchisee, including, but not limited to, accepting all notices given by the City with reference to this Agreement . 6 000068 (c) Interpretations . Orders. If at any time during the term of this Agreement the City Manager issues to Franchisee any written interpretation of this Agreement or any order , instruction, or direction relating to the ' Franchisee ' s services provided pursuant to this Agreement (collectively "Order" ) , which Franchisee believes is improper or not within the scope of its duties imposed pursuant to this Agreement , Franchisee may, within ten (10) consecutive working days following service upon Franchisee of the City Manager ' s Order, have the right of appeal to the City Council with reference to the issuance of such Order . The City Clerk upon receipt of such a request for review by the Franchisee shall place the matter on the next most convenient agenda of the City Council for consideration. The Franchisee shall be given not less than ten (10) consecutive working days notice by the City Clerk of the time and place of the hearing upon its request for review of the City Manager ' s Order . The City Council at the time of such hearing shall permit the Franchisee and any other interested person, a reasonable opportunity to be heard on the question of the appropriateness of the City Manager ' s Order . Thereafter , based upon its review, the City Council shall affirm, modify, or disaffirm the City Manager ' s Order . The City Council ' s decision shall be final and conclusive . 11 . Recyclinar Plans . The Franchisee, in the performance- of its obligation pursuant to this Agreement , shall comply with any and all provisions of any recycling plan or plans '- or programs ( collectively "Pian" ) issued by the City during the term or terms of this .agreement . 7 000069 12 . assignment_. The Franchisee shall not assign any of its obligations imposed pursuant to the provisions of this .agreement without the prior written consent of the City Council of City expressed by resolution. The consent of the City Council shall not be unreasonably withheld, provided that in determining whether or not to consent to such assignment , the City Council may consider all relevant factors relating thereto , including, but not limited to, -the qualifications , experience and financial responsibility of the prospective assignee. 13 . Exclusivity. This agreement is intended by the parties , to the extent permitted by law, to designate the Franchisee as the exclusive Franchisee for the purpose of providing, on an exclusive basis, the services provided herein to the owners and/or occupants of all real property located within the City. 14 . Temoorary Default by Franchisee.-- Costs . Liquidated Damazes . Termination_. ' (a) Temporary Default . If Franchisee, for any reason, ceases to perform the services in accordance with the provisions of this Agreement and the Code, the City Manager may take the steps necessary to temporarily provide the services by City or other entities engaged by the City Manager. The City shall be entitled to provide such services and thereafter charge the- Franchisee for the costs of such services, including, but not limited to , administrative overhead, determined in accordance with City' s standard accounting practices . 8 0000'70 (b) Liquidated Damaees . In the event Franchisee ceases to provide the services, the Franchisee shall pay to City a sum, and for liquidated damages , in an amount equal to the Franchisee' s average daily gross receipts for each calendar day during which City is required to perform such services pursuant to this Section 14 . The parties agree and acknowledge that in the event of such default by Franchisee, the actual damages to the City, as a result of such default , in addition to the out-of-pocket cost to City of providing the services , would be difficult , if not impossible, to ascertain, and therefore the parties have negotiated this liquidated damage provision and have agreed that a sum equal to the Franchisee' s average daily gross receipts per calendar day for each day during which such default occurs , represents a reasonable sum to be paid by Franchisee to City as and for liquidated damages for each day of such temporary default for a period not in excess of thirty (30) consecutive calendar days . The parties have agreed upon the foregoing as a liquidated damage provision, and not as a penalty. "Average daily gross receipts" shall be determined for the purpose of this section based upon the total amount of Franchisee' s Gross Receipts for the three (3) calendar months immediately preceding the calendar month during which Franchisee ceases to provide the services , divided by the number of calendar days included in such three-month period. (c) Termination. If such a period of temporary default continues for more than thirty (30) consecutive calendar days , City shall have the right to germinate this Agreement forthwith, and in addition to damages and costs . it is 9 0000,71 entitled to pursuant to subsections (a) and (b) of this Section 14 , City shall be entitled to its actual damages resulting from such breach by Franchisee occurring after termination by City including, but not limited to , all costs incurred by City in obtaining a new Franchisee; all costs incurred in providing the services after the effective date of the termination until a new exclusive Franchise :agreement has been executed and is in full force and effect; all increased costs of services during the remaining term of this Agreement as of the date of its termination; and all City administrative overhead costs incurred as a result of such termination, including, but not limited to , fees for City' s attorney' s services . Upon receipt of invoice for such Costs , the Franchisee shall pay the same within a period of ten ( 10) days . 15 . City Facilities . Franchisee, at its sole expense, shall collect solid waste from the City facilities enumerated and described on Exhibit A, attached hereto and incorporated 'herein by this reference. 16 . City-Wide Special Events . Franchisee, at its sole expense, shall provide such equipment and services as deemed necessary by the City Manager for one (1) City-Wide City sponsored Solid Waste Collection special event per year. Such equipment and services shall consist of , but not be limited to , recycling bins , roll-offs , extra receptacles , and bins as determined by the City Manager to be necessary. The locations and the specific day upon which the special event shall take place shall be established by the City Manager . 10 0000'72 17 . Franchisee Employees . Conduct . (a) Franchisee shall require all employees to wear clean, neat , presentable uniforms . (b) The Franchisee shall perform the services in a manner which will cause the least possible interference with or annoyance to the public. All Franchisee' s employees shall be instructed to be courteous and responsive to the public. 18 . Local Offices and Telephone Service.' Franchisee shall , at all times during the term hereof, maintain a local office . Franchisee shall maintain the office open and available at all times , Mondays through Fridays , holidays excluded, between the hours of 9 :30 a.m. to 4 :30 p.m. 19. Conduct of Services . The Franchisee shall conduct is operations hereunder in such a manner so as to cause as little inconvenience as is possible to the public, and to that end the following rules shall be observed: ( a) all services shall be conducted between 6 :30 a.m. and 7 :00 P.M. in residential areas and 6:00 a.m. and 9 :00 p.m. in commercial areas . (b) After a solid waste receptacle has been emptied into a solid waste truck it shall be replaced in an upright position at the place where presented for collection, as prescribed by the Code and this agreement; and (c) Solid waste receptacles shall not be thrown from a truck to the ground, but placed on the ground in a manner that will prevent damage to the receptacles. The Franchisee shall take all steps necessary to ensure that the receptacles are 11 0000'73 treated by its employees and agents in a reasonable manner so as to prevent damage and destruction thereto; and (d) Franchisee shall cause all spills of solid waste occurring during the collection process to be cleaned up , forthwith, by its employees . 20 . Complaint Procedure. Franchisee shall be obligated to take all steps reasonably necessary and required to satisfy customer service complaints . Franchisee shall maintain a complaint log, in a form approved by the City Manager . Where a particular complaint cannot be amicably resolved, the matter may be referred by the Franchisee or by this customer to the City Manager . The shall take such steps as may be or his designee, City Manager , necessary to conduct an adequate investigation of the circumstances surrounding such complaint , and based thereon resolve the dispute. The City Manager ' s decision with reference thereto shalt be binding upon the parties to the dispute and shall be final and conclusive . 21 . Status of Franchisee. Franchisee, for all purposes-, shall be deemed to be an independent contractor and shall conduct its operations pursuant to the provisions of this Agreement in that said capacity. 22. Insurance Coverage. With respect to performance of work under this agreement , Franchisee shall maintain, at all times during the term hereof , insurance as described below: (a) Workers ' compensation insurance with statutory limits , and employer ' s liability insurance with limits as approved by City per accident ; and (b) Comprehensive general liability insurance 12 000074 r with a combined single limit not less than an amount , approved by the City Manaoec , per occurrence. Such insurance shall include products/completed operations liability, broad form property damage coverage , and explosion and collapse and underground hazard coverage. Such insurance shall : ( i ) name as insureds City, its appointed and elected officials , officers , employees and agents; ( ii ) be primary with respect to any insurance or self-insurance programs maintained by the City; ( iii ) contain standard cross' liability provisions; and (c) Comprehensive vehicle liabili',ty insurance with a combines single limit not less than an amountapproved by the City Manager , per occurrence. Such insurance shall include coverage for owned, hired, and non-owned vehicles. The City Manager shall have the right of approval of insurance carriers issuing policies pursuant to this Agreement ; Franchisee shall file with the City Clerk properly executed certificates of insurance in a form approved by the City Attorney of City, contemporaneously with execution of this Agreement . Certificates shall clearly evidence the existence of all coverage required above and shall provide that the coverage shall not be terminated or materially altered except after at least thirty (30) days prior written notice to City. Franchisee shall ;, replace such certificates for policies expiring prior to the termination or expiration of this Agreement . 13 0000'75 If Franchisee, for any reason, fails to maintain insurance coverage required pursuant to this Agreement , the same shall be deemed a material breach of contract . City, at its sole option, may forthwith terminate this Agreement and obtain all damages from the Franchisee resulting from said breach. Alternatively, City may purchase such required insurance coverage on behalf of Franchisee and, upon notice, Franchisee shall forthwith reimburse city for all costs for obtaining such coverage, including all premium costs advanced by City for such insurance coverage . 23 . Performance Bond. Franchisee, at its sole expense , shall furnish to City, at all times during the term of this Agreement , a Performance Bond to assure the faithful performance of Franchisee' s obligations under this Agreement . Such bond shall be executed by a surety company licensed to do business in the State of California and approved by the City. Such bond shall be issued in a form approved by the City and shall be ire -the penal sum of Fifty Thousand Dollars ($501000.00) . 24 . Indemnity. Notwithstanding the existence of insurance coverage required of Franchisee pursuant to this Agreement , Franchisee shall save, keep, indemnify, hold harmless , and defend City and its respective appointed and elected officials, officers , employees, and agents ("Indemnified Parties" ) , from any and all claims, demands or judgment , in favor of any person, for injury to, or the death of , any person, and/or damage to real or personal property, including all costs and expenses incurred in the defense thereof , occurring or arising out of the performance by 14 0000'76 Franchisee, its officers , agents , employees , including but not d to , limL to its City approved assignees or subcontractors (hereinafter collectively "Franchisee") , of the services required of Franchisee pursuant to this Agreement , occasioned by any act or omission to act where a duty to act exists , by the Franchisee, including, but not limited to , any such liability imposed by reason of any infringement or alleged infringement or rights of any person in consequence of the use in the performance by Franchisee or the work hereunder , or any article, material , or supplies used or installed pursuant to this Agreement ; and any such liability arising under or pursuant to any federal , state or local law. 25 . Replacement Vehicles . The City Manager may instruct the Franchisee to cease using, and Franchisee shall not use, any motor vehicle in the performance of services hereunder :which the City Manager reasonably believes is unsafe or which does not comply with the provisions of this Agreement or any applicable law. 26 . Vehicle inventory. Franchisee shall annually furnish the City Manager with an inventory of vehicles used by the Franchisee in the performance of services hereunder , and shall update the inventory as changes in equipment are made. Such inventory shall include the type and capacity of each vehicle, the number of vehicles and in the case of vehiclesacquired by Franchisee after the commencement of this Agreements, the date of acquisition. 27 . Status of Solid Waste and Curbside Recyclables . All solid waste and curbside recyclables collected pursuant to this Agreement shall be deemed to the be the property of the Franchisee 15 0000'7'7 as of the time the same is placed for collection by the owner and/or occupant of the Lot upon which the same was generated, unless otherwise determined by the City Council , at its sole discretion. 28 . Attorney' s Fees . Should litigation, including arbitration, be reasonably required to enforce any of the provisions of this agreement , the prevailing party in such litigation shall be entitled to receive an award of attorney' s fees in such amount as may be set in the discretion of the court . 29 . `iotices . Notice given pursuant to this Agreement shall be in writing, and shall be given by personal service upon the party to be ratified, or by United States Postal Service or its lawful successor , postage prepaid, addressed as follows : To City: City Manager City of Atascadero 6500 Palma Avenue atascadero, CA 93422 To Franchisee: Wil-Mar Disposal Company, Inc. P .O. Box 1199 atascadero , CA 93423 Notice shall be deemed to have been given hereunder as of the date of personal service, or two (2) consecutive calendar days following the date of _deposit of the same in the custody of the United States Postal Service. 30 . Debts to City Interest . Collection. Any sum due to City from Franchisee pursuant to the provisions of this Agreement, shall be due and payable as is provided in this agreement or as established by the City Manager . All sums due to City from 16 0000'78 Franchisee shall bear interest at twelve percent ( 1�%) as of the due date of the indebtedness . Notwithstanding the foregoing, no interest rate shall exceed the maximum permitted by law. 31 . Annexation of Territory. In the eventterritory is annexed to the City, and if immediately prior to such annexation, solid waste collection services were provided by a solid waste collector , other than Franchisee, authorized to perform such services by the local agency having jurisdiction. over such territory prior to annexation, then such authorized solid waste collector may continue to provide solid waste collection service in the territory for up to three (3) years from I the date of annexation. Under such circumstances , the annexed territory shall not be deemed a portion of the City for the purpose of this Agreement until the expiration of the three (3) years . If the solid waste collector authorized to perform collection services prior to annexation is the Franchisee, then such territory shall be deemed a part of the City for the purpose of this .agreement . . 32 . Law to Govern. It is understood and agreed by the parties hereto, that the laws of the State of California shall govern the rights , obligations, duties and liabilities of the parties to this agreement . 33 . Bindinir Effect on airreement . This agreement shall be binding upon the parties hereto and upon all of their lawful successors in interest . 34 . Location of New Facility. Franchisee shall seek advice and consent of the City Manager prior to consummation of a purchase or lease of real property to be used for a recycling 17 000079 facility or other solid waste facility. 35 . Entirety. The parties agree that this agreement represents the full and entire Agreement between the parties hereto with respect to matters covered herein. 36 . Novation. As of the effective date of this Agreement , all prior Agreements for collection of solid waste existing between the parties hereto shall be deemed terminated and of no further force or effect . This novation clause shall not have effect of terminating or affecting any claim either party hereto may have against the other, or against any third person, pursuant to any such prior Agreement . 37 . Survivability. rotwithstanding the termination of this Agreement pursuant to the provisions hereof , and/or the provisions of applicable law, the right of the parties hereto to prosecute legal claims against each other and against third parties shall survive such termination and shall not be affected by such termination. - 38. Effective Date. The Effective Date of this Agreement shall be October S , 1991 . The parties hereto have caused this Agreement to be executed by their respective authorized representatives . 18 000080 CITY OF ATASCADERO WIL-NAR DISPOSAL COMPA.NY, INC. F. ALDEDT r SHIERS Mayor WILLIA.H GIBBS , President /6 MIN.-NIE GARIBALDI , Secretary- Treasurer APPROVED AS TO CONTENT: J ATTEST: RAY WINIWR , City Manager � � AUL APPROVED AS TO FOP-q: LEE RABOIN City Clerk kr%a% �L . a C�'4�A ART R. ity Attorney 19 000081 rviiIBIT 13 SOLID WASTE COLLECTION FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT, made and entered into this 1st day of March, 1996, by and between the CITY OF ATASCADERO, a political subdivision of the State of California, hereinafter called "City and ATASCADERO WASTE ALTERNATIVES, INC. , a California Corporation, the successor in interest to WIL-MAR DISPOSAL COMPANY, INC. , a California Corporation, hereinafter called "Franchisee" . Witnesseth For and in consideration of the payments to be made by Franchisee to City, and in further consideration of the full and faithful performance by Franchisee of all terms, covenants, and conditions of this agreement, as well as complete compliance with the laws of the State of California and all pertinent present and future ordinances and resolutions of the City; It is mutually agreed as follows : 1 . Scope of Work. Franchisee shall provide all labor, materials, tools, and equipment necessary to perform all work required to collect and haul solid waste and curbside recyclables from locations within the City in accordance with this Agreement . (a) Collection and hauling of non-putrescible demolition and construction wastes shall be excepted from the scope of work as described above. 2 . Term. The term of this agreement, originally entered into for a period of seven (7) years from October 1, 1991, and thereafter extended for a period of three (3) years, shall continue for seven (7) years from March 1, 1996 . 3 . Extension of Term. If Franchisee has faithfully performed under the terms and conditions of this Agreement for any period of three (3) years, Franchisee may request the City Council to extend the terms of this agreement for an additional three (3) years . The granting of an extension shall be discretionary with the City. In no event shall any extended term exceed seven (7) years . OR 3A. Extension of Term: On the first day of March of each year, commencing March 1, 1997, the term of this Agreement shall be extended for one (1) year, unless one of the following conditions shall occur: 1 000082 a. City shall notify Franchisee at least three (3 ) months prior to March 1 of its intent to reexamine the term of the Agreement, or b. Franchisee shall notify City at least three (3 ) months prior to March 1 of its intent to request reexamination of the term of the Agreement . 4 . Termination of Agreement . Notwithstanding any other provision of this Agreement to the contrary, this Agreement may be terminated in any of the following ways : (a) Pursuant to specific provisions of this Agreement providing for such termination, and/or (b) Upon mutual written agreement of the parties hereto; (c) By operation of law; and/or (d) As a result of a material breach of this Agreement by either party. 5 . Franchise Fee . During the term of this Agreement, Franchisee shall pay to the City a sum equal to five percent (5%) of Franchisee' s gross receipts derived from its franchised solid waste collection operations conducted within the City pursuant to this Agreement . For the purpose of this Agreement, "gross receipts". shall mean any and all forms of compensation and funds, including but not limited to cash, check or credit card, actually received by Franchisee from any person arising ', out of the Franchisee' s franchised operations conducted within the City pursuant to this Agreement . The Franchise Fee shall be paid to City by Franchisee monthly on the fifteenth (15th) calendar day of each month during the term hereof. Upon notice to Franchisee given three (3) months in advance, City may change the franchise fee percentage. 6 . Charges . Franchisee shall be permitted to make such charges for its Services as hereinafter provided: A. Residential and Commercial Charges (i) Rates shall be adjusted annually according to the CPI commencing March 1, 1996 . Commencing March' 1, 1996, the current monthly service rate shall be charged for a ;four (4) week cycle, and shall be billed every eight (8) weeks . The CPI adjustment to be applied shall be the annual change in the United States Department of Labor Consumer Price Index for Los Angeles-Anaheim-Riverside, All Urban Consumers, hereinafter and hereinabove referred to as CPI, measured October to October applied as a percentage of the above referenced rates . In no event shall the annual adjustment exceed five percent (5%) . Such rate base shall not be changed by any future 2 000083 tipping fee adjustments . (ii) Residential rates shall be rounded to the nearest $ . 05 and shall exclude the curbside recycling portion of refuse collection rate in applying the above formula; however, said surcharge shall be added to the rate determined by applying the formula. Commercial rates shall be rounded to the nearest $1 . 00 or such other amount as may be mutually agreed upon by the City and Franchisee . (iii) Said adjustment in 'residential and commercial refuse collection rates shall be effective on the first billing cycle following the effective date of the adjustment . Residential accounts are billed every eight (8) weeks . Commercial accounts are billed every four (4) weeks . (iv) Franchisee shall provide notice as soon as possible to its residential and commercial customers of rate adjustments at least one (1) month prior to the effective date of said adjustment . (v) The updated rate schedule shall be submitted to the City as an information- item at least one (1) month prior to implementing the rate change. B. Tipping Fee Adjustments . (i) Weight : In the event landfill tipping fees are determined by weight, then for each $1 .00/ton change in the landfill tipping fee, residential and commercial refuse collection rates shall be adjusted according to the following formula: annual ton/prier 12 months % of FRANCHISEE' S revenue for annual revenue/prior 12 months = $1 . 00/ton tipping fee change approved tipping fee % of change current adjustment to increase or = multiplier x rate = add or subtract decrease per ton from rate (ii) Volume: In the event landfill tipping fees are determined by volume, then for each $1. 00/yard change in the landfill tipping fee, residential and commercial refuse collection rates shall be adjusted according to the following formula: annual yard/prior 12 months % of FRANCHISEE' S revenue for annual revenue/prior 12 months = $1 . 00/yard tipping fee change approved tipping fee o of change current adjustment to increase or multiplier x rate - add or subtract decrease per yard from rate 3 000084 (iii) City reserves the right to review the basis for tipping fee adjustments approved by the Board of Supervisors or other governing body. Uv) Franchisee shall provide to City a copy of a Landfill' s request for a change in the tipping fees no later than five (5) days following receipt of knowledge by Franchisee of request to the County of San Luis Obispo or any other governing body. (v) Franchisee shall notify City of action taken by the Board of Supervisors or any other governing body regarding said request within five (5) days following Franchisee' s receipt of knowledge of said action. 7 . Filing of Statements. Audits . Franchisee shall, on or before the fifteenth (15th) day of each calendar month occurring during the term hereof, file with the Director of Finance of the City a verified Statement of Gross Receipts ( "Statement" ) actually received by Franchisee during the immediate preceding calendar month. Each such Statement shall be verified on behalf of the Franchisee by a person designated for such purpose by the Franchisee. The City shall have the right to inspect, review, and audit, at any reasonable time, upon not less than twenty-four (24) hours written notice to Franchisee, any and all of the Franchisee' s books or records to determine the accuracy of the contents of any Statement . The City shall also have the right to order an audit, conducted by a qualified independent auditor selected by the City, of the Franchisee' s books and records to determine tl�e accuracy of the Statements filed with the City. If any City ordered audit discloses an understated amount of Gross Receipts on any Statement, equaling three percent (30) or more during any reporting period, the cost of the audit shall be borne exclusively by the Franchisee, in all other cases such audit costs shall be borne by the City. 8 . Compliance with Applicable law. Franchisee, in performance of its duties pursuant to the provisions of this Agreement, shall comply with all applicable laws, including, but not limited to: the Atascadero Municipal Code, and Regulations adopted by the City Manager of City Council pursuant to State and Federal. Law. The provisions of the Atascadero Municipal Code, as they now exist or may hereafter be adopted and/or amended, shall be deemed to be a part of this Agreement as if set forth herein in full . Franchisee shall, at all times during the term or terms of the Agreement pay all sums required as and for Business License Taxes due pursuant to the provisions of the code. 9 . Services . Franchisee agrees that during the term of this Agreement Franchisee will provide the services, as described in the 4 000085 Code, the Regulations, and this Agreement, including the collection and disposal of all solid waste and curbside recyclables generated within the City by its customers, excepting only those functions set forth at 1 (a) above, in the time and manner set forth in this Agreement, the Code, and the Regulations . 10 . Administration of Contract . (a) Responsible City Officer. The City Manager of City is hereby designated as the City Officer responsible for the administration of this Agreement . The Franchisee shall obey all lawful orders, directions, and instructions issued by the City Manager with reference to the provisions of this Agreement . (b) Responsible Franchisee Employee. The Franchisee shall, in writing, contemporaneously with the execution of this Agreement, designate a qualified person who shall be the responsible officer or employee of Franchisee for the purpose of administration of this Agreement . Such person shall be authorized by Franchisee to act on behalf of Franchisee, including, but not limited to, accepting all notices given by the City with reference to this Agreement . (c) Interpretations . Orders . If at any time during the term of this Agreement the City Manager issues to Franchisee any written interpretation of this Agreement or any order, instruction, or direction relating to the Franchisee' s services provided pursuant to this Agreement (collectively "Order") , which Franchisee believes is improper or not within the scope of its duties imposed pursuant to this Agreement, Franchisee may, within ten (10) consecutive working days following service upon Franchisee of the City Manager' s Order, have the right of appeal to the City Council with reference to the issuance of such order. The City Clerk upon receipt of such a request for review by the Franchisee shall place the matter on the next most convenient agenda of the City Council for consideration. The Franchisee shall be given not less than ten (10) consecutive working days notice by the City Clerk of the time and place of the hearing upon its request for review of the City Manager' s Order. The City Council at the time of such hearing shall permit the Franchisee and any other interested person, a reasonable opportunity to be heard on the question of the appropriateness of the City Manager' s Order. Thereafter, based upon its review, the City Council shall affirm, modify, or disaffirm the City Manager' s Order. The City Council' s decision shall be final and conclusive . 11 . Recycling Plans . The Franchisee, in the performance of its obligation pursuant to this Agreement, shall comply with any and all provisions of any recycling plan or plans or programs (collectively "Plan" ) adopted by the City during the term or terms of this Agreement . 5 000086 12 . Assignment . The Franchisee shall not assign any of its obligations imposed pursuant to the provisions of this Agreement without the prior written consent of the City Council of City expressed by resolution. The consent of the City Council shall not be unreasonably withheld, provided that in determining whether or not to consent to such assignment, the City Council may consider all relevant factors relating thereto, including, but not limited to, the qualifications, experience, and financial responsibility of the prospective assignee. Assignment of an obligation to a corporate entity in which the Franchisee holds a majority control shall not be considered an assignment requiring written consent of the City Council . Transfer of twenty-five percent (251-0 or more of shares of corporate Franchisee shall be considered an assignment requiring prior consent of the City Council . 13 . Direction to Landfill . After due consideration of all relevant factors, the City Council may request Franchisee to utilize a specific legally permitted landfill . In the event the City Council makes such a request, expressed by resolution, Franchisee shall give great weight to the City Council' s request . Franchisee shall indemnify and hold City harmless as a result of such request if City is found to be an arranger pursuant to State or Federal law. 14 . Extraordinary Review. In the event extraordinary circumstances arise which would cause economic hardship to Franchisee, a special request can be made for a rate review. In such case, Franchisee shall present information substantiating the need for extraordinary relief. In the event that rates are approved based upon extraordinary need, Franchisee may be required periodically to submit evidence that the reason for extraordinary relief provided '',continues to exist . 15 . Exclusivity. This Agreement is intended by the parties, to the extent permitted by law, to designate the Franchisee as the exclusive Franchisee for the purpose of providing, on an exclusive basis, the services provided herein to the owners and/or occupants of all real property located within the City. 16 . Temporary Default by Franchisee. Costs . Liquidated Damages . Termination. (a) Temporary Default . If Franchisee, for any reason, ceases to perform the services in accordance with the provisions of this Agreement and the Code, the City Manager may take the steps necessary to temporarily provide the services by City or other entities engaged by the City Manager. The City shall be entitled 6 � 00008'7 to provide such services and thereafter charge the Franchisee for the costs of such services, including, but not limited to, administrative overhead, determined in accordance with City' s standard accounting practices . (b) Liquidated Damages. In the event Franchisee ceases to provide the services, the Franchisee shall pay to City a sum, as and for liquidated damages, in an amount equal to the Franchisee' s average daily gross receipts for each calendar day during which City is required to perform such services pursuant to this Section 16 . The parties agree and acknowledge that in the event of such default by Franchisee, the actual damages to the City, as a result of such default, in addition to the out-of-pocket cost to City of providing the services, would be difficult, if not impossible, to ascertain, and therefore the parties have negotiated this liquidated damage provision and have agreed that a sum equal to the Franchisee' s average daily gross receipts per calendar day for each day during which such default occurs, represents a reasonable sum to be paid by Franchisee to City as and for liquidated damages for each day of such temporary default for a period not in excess of thirty (30) consecutive calendar days. The parties have agreed upon the foregoing as a liquidated damage provision, and not as a penalty. "Average daily gross receipts" shall be determined for the purpose of this section based upon the total amount of Franchisee' s Gross Receipts for the three (3) calendar months immediately preceding the calendar month during which Franchisee ceases to provide the services, divided by the number of calendar days included in such three-month period. (c) Termination. If such a period of temporary default continues for more than thirty (30) consecutive calendar days, City shall have the right to terminate this Agreement forthwith, and in addition to damages and costs it is entitled to, pursuant to subsections (a) and (b) of this Section 16, City shall be entitled to its actual damages resulting from such breach by Franchisee occurring after termination by City including, but not limited to, all costs incurred by City in obtaining a new Franchisee; all costs incurred in providing the services after the effective date of the termination until a new exclusive Franchise Agreement has been executed and is in full force and effect; all increased costs of services during the remaining term of this Agreement as of the date of its termination; and all City administrative overhead costs incurred as a result of such termination, including, but not limited to, fees for City' s attorney' s services . Upon receipt of invoice for such Costs, the Franchisee shall pay the same within a period of ten (10) days . 17 . City Facilities . Franchisee, at its sole expense, shall collect solid waste from the City facilities enumerated and described on Exhibit A, attached hereto and incorporated herein by this reference, excepting therefrom the collection of non- putrescible demolition and construction waste. 7 000088 18 . City-Wide Special Events . Franchisee, at its sole expense, shall provide such equipment and services as deemed necessary by the City Manager for one (1) City-Wide City sponsored Solid Waste Collection special event per year. Such equipment and services shall consist of, but not be limited to, recycling bins, roll-offs, extra receptacles, and bins as determined by the City Manager to be necessary. The locations and the specific day upon which the special event shall take place shall be established by the City Manager. 19 . Franchisee Employees . Conduct . (a) Franchisee shall require all employees to wear clean, neat, presentable uniforms. (b) The Franchisee shall perform the services in a manner which will cause the least possible interference with or annoyance to the public. All Franchisee' s employees shall be instructed to be courteous and responsive to the public. 20 . Local Offices and Telephone Service . Franchisee shall, at all times during the term hereof, maintain a local office . Franchisee shall maintain the office open and available at all times, Mondays through Fridays, holidays excluded,', between the hours of 9 :30 a.m. to 4 :30 p.m. 21 . Conduct of Services . The Franchisee shall conduct its operations hereunder in such a manner so as to cause as little inconvenience as is possible to the public, and to that end, the following rules shall be observed: (a) All services shall be conducted between 6 :30 a.m. and 7 : 00 p.m. in residential areas and 6 :00 a.m. and 9 :00 p.m. in commercial areas . (b) After a solid waste receptacle has been emptied into a solid waste truck, it shall be replaced in an upright position at the place where presented for collection, as prescribed by the Code and this Agreement; and (c) Solid waste receptacles shall not be 'thrown from a truck to the ground, but placed on the ground in a manner that will prevent damage to the receptacles . The Franchisee shall take all steps necessary to ensure that the receptacles are treated by its employees and agents in a reasonable manner so as to prevent damage and destruction thereto; and (d) Franchisee shall cause all spills of solid waste occurring during the collection process to be cleaned up, forthwith, by its employees . 22 . Complaint Procedure. Franchisee shall be `obligated to 8 0100089 take all steps reasonably necessary and required to satisfy customer service complaints . Franchisee shall maintain a complaint log, in a form approved by the City Manager. Where a particular complaint cannot be amicably resolved, the matter may be referred by the Franchisee or by this customer to the City Manager. The City Manager, or his designee, shall take such steps as may be necessary to conduct an adequate investigation of the circumstances surrounding such complaint, and based thereon, resolve the dispute. The City Manager' s decision with reference thereto shall be binding upon the parties to the dispute and shall be final and conclusive . 23 . Status of Franchisee . Franchisee, for all purposes, shall be deemed to be an independent contractor and shall conduct its operations pursuant to the provisions of this Agreement in that said capacity. 24 . Insurance Coverage. With respect to performance of work under this Agreement, Franchisee shall maintain, at all times during the term hereof, insurance as described below: (a) Workers' Compensation insurance with statutory limits, and employer' s liability insurance with limits as approved by City per accident; and (b) Comprehensive general liability insurance with a combined single limit not less than an amount approved by the City Manager, per occurrence . Such insurance shall include products/completed operations liability, broad form property damage coverage, and explosion and collapse and underground hazard coverage. Such insurance shall : (i) name as insureds City, its appointed and elected officials, officers, employees and agents; (ii) be primary with respect to any insurance or self-insurance programs maintained by the City; (iii) contain standard cross liability provisions; and (c) Comprehensive vehicle liability insurance with a combined single limit not less than an amount approved by the City Manager, per occurrence . Such insurance shall include coverage for owned, hired, and non-owned vehicles . The City Manager shall have the right of approval of insurance carriers issuing policies pursuant to this Agreement . Franchisee shall file with the City Clerk properly executed certificates of insurance in a form approved by the City Attorney of City, contemporaneously with execution of this Agreement . Certificates shall clearly evidence the existence of all coverage required above and shall provide that the coverage shall not be terminated or materially altered except after at least thirty (30) days prior written notice to City. Franchise shall replace such certificates for policies expiring prior to the termination or expiration of this Agreement . 9 000090 If Franchisee, for any reason, fails to maintain insurance coverage required pursuant to this Agreement, the same shall deemed a material breach of contract . City, at its soleoption, may forthwith terminate this Agreement and obtain all damages from the Franchisee resulting from said breach. Alternatively, City may purchase such required insurance coverage on behalf of Franchisee and, upon notice, Franchisee shall forthwith reimburse City for all costs for obtaining such coverage, including all premium costs advanced by City for such insurance coverage . 25 . Performance Bond. Franchisee, at its sole expense, shall furnish to City, at all times during the term of this' Agreement, a Performance Bond to assure the faithful performance of; Franchisee' s obligations under this Agreement . Such bond shall be executed by a surety company licensed to do business in the State of California and approved by the City. Such bond shall be issued in a form approved by the City and shall be in the penal sum of Fifty Thousand Dollars ($50, 000 . 00) . 26 . Indemnity. Notwithstanding the existence, of insurance coverage required of Franchisee pursuant to thilis Agreement, Franchisee shall save, keep, indemnify, hold harmless, and defend City and its respective appointed and elected officials, officers, employees, and agents ( "Indemnified Parties" ) , from any and all claims, demands or judgment, in favor of any person, for injury to, or the death of, any person, and/or damage to real or personal property, including all costs and expenses incurred in the defense thereof, occurring or arising out of the performance by Franchisee, its officers, agents, employees, including but not limited to, its City approved assignees or subcontractors (hereinafter collectively "Franchisee" ) , of the services required of Franchisee pursuant to this Agreement, occasioned by any act or omission to act where a duty to act exists, by the Franchisee, including, but not limited to, any such liability imposed by reason of any infringement or alleged infringement or rights of any person in consequence of the use in the performance by Franchisee or the work hereunder, or any article, material, or supplies used or installed pursuant to this Agreement; and any such liability arising under or pursuant to any federal, state or local law. 27 . Replacement Vehicles . The City Manager may instruct the Franchisee to cease using, and Franchisee shall not use, any motor vehicle in the performance of services hereunder which the City Manager reasonably believes is unsafe or which does not comply with the provisions of this Agreement or any applicable Law. 28 . Vehicle Inventory. Franchisee shall annually furnish the City Manager with an inventory of vehicles used by the Franchisee in the performance of services hereunder, and shall update the inventory as changes in equipment are made. Such inventory shall include the type and capacity of each vehicle, the number of vehicles and in the case of vehicles acquired by Franchisee after 10 000091 the commencement of this Agreement, the date of acquisition. 29 . Status of Solid Waste and Curbside Recyclables . All solid waste and curbside recyclables collected pursuant to this Agreement shall be deemed to be the property of the Franchisee as of the time the same is placed for collection by the owner and/or occupant of the Lot upon which the same was generated, unless otherwise determined by the City Council, at its sole discretion. 30 . Attorney' s Fees . Should litigation, including arbitration, be reasonably required to enforce any of the provisions of this Agreement, the prevailing party in such litigation shall be entitled to receive an award of attorney' s fees in such amount as may be set in the discretion of the court . 31 . Notices . Notice given pursuant to this Agreement shall be in writing, and shall be given by personal service upon the party to be ratified, or by United States Postal Service or its lawful successor, postage prepaid, addressed as follows : To City: City Manager City of Atascadero 6500 Palma Avenue Atascadero, CA 93422 To Franchisee: Atascadero Waste Alternatives, Inc . 5835 Traffic Way Atascadero, CA 93422 Notice shall be deemed to have been given hereunder as of the date of personal service, or two (2) consecutive calendar days following the date of deposit of the same in the custody- of the United States Postal Service. 32 . Debt to City. Interest . Collection. Any sum due to City from Franchisee pursuant to the provisions of this Agreement shall be due and payable as is provided in this Agreement or as established by the City Manager. All sums due to City from Franchisee shall bear interest at twelve percent (12%) as of the due date of the indebtedness. Notwithstanding the foregoing, no interest rate shall exceed the maximum permitted by law. 33 . Annexation of Territory. In the event territory is annexed to the City, and if immediately prior to such annexation, solid waste collection services were provided by a solid waste collector, other than Franchisee, authorized to perform such services by the local agency having jurisdiction over such territory prior to annexation, then such authorized solid waste collector may continue to provide solid waste collection service in the territory for up to three (3) years from the date of annexation. Under such circumstances, the annexed territory shall not be deemed a portion of the City for the purpose of this 11 000092 Agreement until the expiration of the three (3) years . If the solid waste collector authorized to perform collection services prior to annexation is the Franchisee, then such territory shall be deemed a part of the City for the purpose of this Agreement . 34 . Law to Govern. It is understood and agreed by the parties hereto, that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement . 35 . Binding Effect on Agreement . This Agreement shall be binding upon the parties hereto and upon all of ' their lawful successors in interest . 36 . Location of New Facility. Franchisee shall seek advice and consent of the City Manager prior to consummation of a purchase or lease of real property to be used for a recycling facility or other solid waste facility. 37 . Entirety. The parties agree that this Agreement represents the full and entire Agreement between the parties hereto with respect to matters covered herein. 38 . Novation. As of the effective date of this Agreement, all prior Agreements for-collection of solid waste existing between the parties hereto shall be deemed terminated and sof no further force or effect . This novation clause shall not have effect of terminating or affecting any claim either party hereto may have against the other, or against any third person, pursuant to any such prior Agreement . 39 . Survivability. Notwithstanding the termination of this Agreement pursuant to the provisions hereof, and/or the provisions of applicable law, the right of the parties hereto to prosecute legal claims against each other and against third ,!parties shall survive such termination and shall not be affected by such termination. 40 . Effective Date. The Effective Date of this Agreement shall be , 19 The parties hereto have caused this Agreement to be executed by their respective authorized representatives . CITY OF ATASCADERO ATASCADERO WASTE !ALTERNATIVES, INC. Mayor THOMAS R. WALTERS, President 12 000093 EXIT 13 IT 0 CONSUMER PRICE INDEXES PACIFIC CITIES AND U. S. CITY AVFAND C-17. SEIU LOCAL 817 BUD MA MIKE MC CAIN PSTO C HALE PSTO Nr�GMENT/PROF ALL ITEMS INDEXES STEWS DE CAMP ASSO (1982-84:100 unless oth6rWiae noted) STEVE CHERRY APOA _ E OCTOBER 1995 BRAID wHITTY FIRE CAPTAINS R C ART MONTANDON I FIRE FIGHTERS 2 9 1995 ALL URRAN CONS07QRs I MMU Wass sAR3 M AND CL:RICAL WOR�Ra PERCENT CHANOR I PRRCMM C==Z Year I Honth I Tsar i Month xormptsp�QNNEL OCT. BE�PT OCT. SEPPTTd OCT. OCT.ing ending i OCT. 9 OCT. BOCT. endingT. OCT. 1994 1995 1995 L995 1995 1995 1 1996 1195 1995 1995 1995 1995 V. B. City Average............. 149.5 151.2 153.7 2.5 2.8 0.3 1 147.0 150.6 151.0 2.5 2.7 0.3 (1967-100)................ 448.0 659.0 460.3 - - - 1 637.8 44*.5 449.6 - - Los Angeles-Anahoin-Riverside.. 153.6 156.6 155.2 1.2 1.2 0.4 1 1 .0 44 14 3. 169.9 1.4 1.3 0.4 (1967.100)................-I33 ��5Z:' 451.4 - - - 348 .o Ban arancisco-Oakland-San Jose,. 149.4 152.3 152.6 1.9 2.1 0.2 1 147.0 150.0 150.2 2.0 2.2 0.1 (1967-100)................ 659.3 468.4 469.1 - - - 1 447.7 4546.6 457.3 - - - I Wort 151.0 154.1 154.6 2.3 2.4 0.3 1 148.1 151.0 ISI-6 2.2 2.4 0.6 (Dec. 1977 - 100) ........ 244.1 249.1 249.9 - - - 1 238.3 243.0 243.8 - - - West - A. 152•.1 154.5'. 154.9 1.8 1.6 0.3 1 147.6 140.9 150.4 1.8 1.9 0.3 (Dec. 1977 - 100) ........ 248.0 251.9 252.6 - - - 1 239.0 243.7 243.5 - - West - C 152.7 157.6 157.9 3.5 3.4 0.2 1 150.0 154.5 154.8 3.3 3.2 0.2 (Dec. 1977 - 100) ........ 236.9 244.4 244.9 - - - 1 231.4 234-2 236.1 - - _ I Size classess A - 1,250,000 and over, 9 - Hot available for West, C - 50,000 to 330,000, a - Not available for West. Relaass data Novosber 15, 1995. For more information call (415) 975-4350. CPI 24 hour hotline, numbers for the Pacific citiu are a follows$ Anchorage (907) 271-2770 Los Angeles (310) 235-6884 Ban Diego (619) 557-6538 • Ban Jose (409) 535-5403. Honolulu (808) 541-2606 Portland (503)231-2045 Ban Francisco (415) 975-4406 Boactle (206) 553-0645 04D San Jose hotline is temporarily out of Service. 000095 r°CIIBIT D Wil-Mar Disposal Co., Inc Service Rates For The City Of Atascadero Effective March 1. 1994 Approved Rate 311194 Type Of Service. Residential- 32 Gal Service 9.75 60 Gal Service 18.75 90 Gal Service 24.85 Bag (average) 3.45 Commercial: 1.0 Yd- 1 p/u per wk 50.80 1.0 Yd -2 plu per wk 93.55 1.5 Yd- 1 plu per wk 59.35 1.5 Yd -2 p/u per wk 110.40 1.5 Yd - 3 p/u per wk 161.45 2.0 Yd- 1 p/u per wk 67.75 2.0 Yd -2 p/u per wk 127.25 2.0 Yd - 3 p/u per wk 188.85 2.0 Yd -4 p/u per wk 246.35 3.0 Yd - 1 p/u per wk 84.40 3.0 Yd - 2 p/u per wk 160.75 3.0 Yd - 3 p/u per wk 237.00 3.0 Yd - 5 p/u per wk 389.50 3.0 Yd -8 p/u per wk 465.90 4.0 Yd - 1 plu per wk 101.35 4.0 Yd- 2 plu per wk 195.80 4.0 Yd - 3 p/u per wk 287.70 4.0 Yd-4 p/u per wk 380.90 4.0 Yd - 5 p/u per wk 474.10 4.0 Yd -6 p/u per wk 587.25 6.0 Yd - 1 p/u per wk 130.05 6.0 Yd - 2 p/u per wk 252.15 6.0 Yd - 3 p/u per wk 374.25 000096 RESOLUTION NO. 13-96 A RESOLUTION OF THE ATASCADERO CITY COUNCIL APPROVING THE SOLID WASTE FRANCHISE AGREEMENT WITH ATASCADERO WASTE ALTERNATIVES, INC. WHEREAS, Chapter 6-4.13 of the City Code requires any person or firm operating a solid waste collection service within the City to execute a Franchise Agreement with the City; and WHEREAS, it is in the public interest that an agreement be executed to assure solid waste collection service with the City; and WHEREAS, the Atascadero Waste Alternatives, Inc., the successor in interest to Wil-Mar Disposal Company, Inc. has developed a new solid waste franchise agreement; WHEREAS, the City Council has been presented copies of the new franchise agreement and staff report discussing said agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Atascadero as follows: 1. The mayor and City Manager are hereby authorized and directed to execute the Solid Waste Collection Franchise Agreement, attached hereto. 2. The City Manager is hereby authorized to administer said agreement on behalf of the City. On motion by Councilmember , seconded by Councilmember , the foregoing resolution is hereby adopted in its entirety on the following roll call vote: AYES: NOES: ABSENT: ADOPTED: 00009'7 Resolution 13-96, continued ATTEST: CITY OF ATASCADERO By: LEE PRICE, City Clerk GEORGE P. HIGHLAND, Mayor APPROVED AS TO FORM: ARTHER R. MONTANDON, City Attomey 000098 REPORT TO CITY COUNCIL Meeting Date: 02/27/96 CITY OF ATASCADERO Agenda Item : C-1 From: Andrew J. Takata, City Manager SUBJECT: Request from Rancho Del Bordo Mobilehome Estates Community Association to formally oppose Proposition 199 (Limits on Mobilehome Rent Control). RECOMMENDATION: Staff requests direction and offers the following options: (1) Direct staff to bring back a resolution opposing Proposition 1199, or (2) Take no action. BACKGROUND: John J. McGoff, President of the Rancho Del Bordo Mobilehome Estates Community Association has requested that the City Council, by resolution, express opposition to Proposition 199, which will appear on the March Wh statewide ballot. Upon receipt of Mr. McGoff's correspondence, staff copied each member of Council with his letter, a copy of the proposed legislation and a request to indicate interestjin this matter. Councilmember George Luna has expressed interest in addressing this issue at the Council level. Attachments: Mr. McGoff's Letter of 1/25/96 Proposition 199 000099 L ' vtutl Rancho Del Bordo Community TAI`S 25 Iqq(p 1 � ioo2S El Camino Real, #78 Atascadero, CA 93422 ATASCADERC CITY n:CFI: January 25, 1996 Phone: 461-1125 ; 1 Mr. Andy Takata - -City Manager City of Atascadero 65oo Palma Avenue Atascadero, CA 93422 Dear Mr. Takata: I am writing to you as the President of the Rancho Del Bordo Mobilehome Estates Community Association. We are a community of 126 homes,the largest in the City of Atascadero.Mobilehome owners throughout California are facing a threat to our life styles,the most serious of which could be the loss of one's home through Predatory practices of park owners. The epitimization of this threat is manifested in Proposition 199 which will appear on the March 1996 ballot.The City of Atascadero,through a resolution of it's Council mast express opposition to this fraud upon the voters of this city, which not only abolishes all existing mobilehome ordinances,but also transfers power to Sacramento which properly belongs in a community. Currently,the City and County of San Luis Obispo have rent stabilization ordinances., in place since the 196Ws. These ordinances not only helped to 0 stabilize rents,but also assisted the City/County to meet their goals for affordable housing. ioo Other cities and counties have similar ordinances. These have been attacked by park owners ,city by city,county by county,without success. Prop 199 is the avenue these park- owners are pursuing to satisfy their current trend toward"rent gouging". Although California law currently provides some protection to mobilehome residents from unlawful eviction,unfair leases or other unfair business Practices by park owners,state law is completely silent on the issue of how mach rent a park owner may charge. It is left to local jurisdictions,such as counties, cities and towns,to fill the gap. Given this and others facts,it is critical that local control be retained and any effort to usurp authority in any matter affecting its citizens,be strongly opposed. We request consideration by the council of a resolution urging a No vote on Proposition 199. Sincerel d Jo cGoff president.RDBMSEA 000,100 l (1 !9 9 Limits on Mobilehome Rent Control. ` Low-Income Rental Assistance. Initiative Statute. Official Title and Summary Prepared by the Attorney General LBUTS ON MOBILEHOME RENT CONTROL. LOW-INCOME RENTAL ASSISTANCE.IN LATIVE STATUTE. • Phases out local rent control laws on mobilehomes. Prohibits new state and local rent control laws. • Limits existing local rent control laws to current spaces. Prohibits controls on rent increases smaller than annual cost-of-living increase; eliminates controls on rent,for space when tenancy or unit ownership changes. • Requires park owners to provide subsidy of 10% of monthly rent for ?very low-income tenants if fewer than 10% of existing spaces are subject to rent control and if subsidy will not subject more- than 10%of spaces to rent control or subsidy. Summary of Legislative Analyst's - Estimate of Net State and Local Government Fiscal Impact: • Future savings to local agencies totaling statewide at least several million dollars annually. 36 000101 P96 Al Analysis by the Legislative Analyst Background - . : would allow park owners to increase rents at. rates About 500,000 California: households live. in slightly higher than allowed under existing laws. mobilehomes. Mobilehomes differ from traditional The measure also: 0 single-family homes in that they are built in factories •-Prevents local government from making new law and then moved to the place where the household wishes that control mobilehome rents. to live. • Overturns any state law restricting mobilehome Most mobilehome owners have placed their homes on rents. land that is rented from a mobilehome park owner. Once Requires any future. state law controlling placed in a park,mobilehomes are difficult and expensive mobilehome rents to be approved by the voters: to move.As a result, when mobilehome owners wish to Rent Discounts_ The measure requires mobilehome leave a park, they typically sell their home to someone park owners to provide 10 percent rent discounts to ` else,rather than move the mobilehome: mobilehome owners with"very-low"income. The level of w 1 Local Rent Control Laws.. About 100 cities and income considered"very-low"is defined by state law and counties have laws restricting the amount of,rent varies by county.-For example, two people with incomes mobilehome park owners may charge people who live in of less than $13,850 a year in Fresno County are their park. These laws typically limit rent increases considered to have "very-low"income, whereas in Los to rates equal to—or less than—inflation.. Some Angeles County,_ the comparable amount is about communities, however, allow.additional rent.increases $20,500.' Park. owners would have to provide these when a mobilehome is sold,transferred, or sublet. Local discounts for up to 10 percent of the spaces in the park. rent control laws apply to nearly 150,000 mobilehomes in (Mobilehome park spaces still subject to rent control,. California. however, would count toward the 10 - percent requirement.)Park owners could end a rent discount for Proposalvarious reasons,such as if the mobilehome owner is six This measure phases out mobilehome rent control laws days late with a rent.payment or violates park rules.-In and prohibits local government from enacting: new these cases, a mobilehome owner could reapply for mobilehome rent control laws..The measure also requires assistance in one year. mobilehome park owners to provide rent discounts to Fiscal Effect very-low income mobilehome owners. _ - Rent Control. The measure makes two major In the near term,local agencies with rent control laws changes to existing local mobilehome rent control laws. would experience.increased. costs to administer First, .the measure would eliminate—over time—all phase-out of rent control. In some communities, th existing rent restrictions on mobilehomes.Specifically, increased costs-would be offset by decreased costs to rent restrictions on a mobilehome park space would be oversee mobilehome park rent increases.Any short-term elimins d'when a mobilehome owner sells,transfers,or net costs—or savings=would vary by community,but are sublets the home. It would take many years before all not likely to be significant. spaces in a park were exempt from rent control. In-the long..term, after-all mobilehome park spaces Second, the measure modifies the laws controlling were exempt from rent control, local agency costs to rents on mobilehomes that remain subject to rent control. administer rent control laws would be eliminated. The Specifically, these laws couldnot restrict annual rent extent of these-local agency savings statewide probably increases to below the rate of inflation. This.provision - would total at least several million dollars annually. For the test of Proposition 19W see pages 62 Pss 000102 37 1991Limits on Mobilehome Rent Control. Low-Income Rental Assistance. Initiative Statute. Argument in Favor of Proposition 199 TAXPAYER GROUPS, SENIOR CITIZENS, HOUSING rent regulations inflate mobilohome re-sale prices: ADVOCATES AND MOBILEHOME TENANTS ALL URGE A Proposition 199 requires rent reductions for those truly in "YES"VOTE FOR PROPOSITION 199. need, and requires park owners to privately finance these PROPOSITION 199 WILL HELP STOP THE DECLINE OF reductions.There is no cost to taxpayers. AFFORDABLE HOUSING IN CALIFORNIA. PROPOSITION 199 WILL SAVE SEVERAL MILLION PER Affordable mobilehome housing is rapidly disappearing in YEAR FOR LOCAL GOVERNMENT_ California.Over 600 mobilehome parks have closed since 1981. California:taxpayers have'shelled out tens of millions for In the last five years, only a handful opened in jurisdictions attorneys and bureaucrats to administer the hodgepodge of 102 with rent regulations. different mobilehome rent regulations throughout California- This dramatic decline is the result of local rent regulations And the bill keeps going up with taxpayers spending:several that drive up the cost of mobilehome housing while million more each year to administer these regulation discouraging maintenance and new.construction. UCLA economist Dr. Werner Hirsch, a national expert on tax dollars are better spent on police,fire and public services. . mobilehome housing, says local rent regulations artificially Proposition be will endthis waste. increase the re-sale price of mobilehomes by thousands of LOCAL MOBILEHOME-RENT REGULATION HAS BEEN A dollars,making units less affordable. FAILURE. '_- Contrary to opponents' claims, inflated re-sale prices of mobilehomes, not monthly pad rents, create the biggest Local mobilehome rent regulation- has had precisely the l y pa housing. opposite effect its promoters predicted, increasing housing obstacle to affordable n 3 This is particularly important for seniors,since 80%purchase costs, reducing supply, decreasing.maintenance and creating a i their mobilehomes outright with no mortgage.They then pay costly new level of government bureaucracy only a pad rent,which averages approximately$300 per month PROPOSITION 199 IS A FAIR SOLUTION. statewide. Economists,.housing advocates and taxpayers all recognize PROPOSITION 199 PROTECTS- CURRENT TENANTS, it's time for a change.But opponents argue for continuation of IMPROVES ACCESS. this failed policy,seeking to protect the$330 million windfall in Proposition 199 preserves rent control for current tenants. re-sale value they gained when.local regulations were first No one with rent control will lose it.Market prices take effect adopted. only when current tenantsmoveout. The interests of all Californians for affordable housing and The en c Census Bureau reports the average age of reduced government. bureaucracy, out-weigh the narrow obilebo=-tenants in California is only 46 years old. Many interests of this small group. VOTE YES ON PROPOSITION younger families looking to mobilehomes for affordable housing 199. are denied access because of the effects of local rent regulations. LEWIS IL UHLER By restoring market forces,'Proposition 199 will make President,The Califoo-nia Tax Limitation Committee purchasing a mobilehome more affordable for seniors, young SANDRA L.BUTLER families and others. President,United Seniors Association PROPOSITION 199 PROTECTS THE TRULY NEEDY. VICKIE hL TALLEY Local mobilehome rent regulations apply to all tenants Executive Director,Manufactured Housing within a jurisdiction,whether they need them or not.Poor and Educational 71-ust of Orange,Riverside fixed-income persons are denied affordable housing because and San Bernardino Counties Rebuttal to Argument in Favor of Proposition.199 Proposition 199 will raise rents and phase out rental assistance If Proposition 199 passes,those fees will disappear.There'll be for senior citizens. no new money for public services. The American Association of Retired Persons (AARP), Proposition 199 will wipe out the investments of thousands of California Council of Churches,and California AFL-CIO urge a senior citizen mobilehome owners: "NO"vote.on Proposition 199. It will disrupt senior citize*s'lives. Proposition 199 takes away rent-increase protections from Proposition.199 will cost: mobilehome owners over $300 hundreds of thousands of senior citizen mobilehome owners. million in lost home equity. Don't be fooled. Proposition 199's sponsors are mobilehome park landlords who want to raise rents,not lower them: Proposition 199 won't create one,new unit of affordable housing. Why would mobilehome park landlords spend millions on It will raise rents and make mobilehomes unaffordable. Proposition 199 to reduce rents? Mobilehome park landlprds claim rent control has They can voluntarily lower rents whenever they wish to help discouraged new park construction. California law already the needy! exempts all new mobilehome,parks built since 1990 from local Their "rental assistance" is a smokescreen for huge rent rent regulation. increases. PLEASE VOTE"NO"ON PROPOSITION 199. Proposition 199 won't fund new public services. Mobilehome WILLIAM A.CRAVEN and park owner registration fees pay certain mobilehome rent State Senator,Republican cntrol costs. 0_Park landlords falsely claim Proposition 199 will save money JACK O'CONNELL 0 pay for public services. It won't. Mobilehome and park State Senator,Democrat owners pay fees that fund rent control administration. PATRICIA WHITNEI�WISE Executive Director,California Council of Churches 38 Arguments printed on this page are the opinions of the authors and have not been checked for ae*uraey by any official agency. P96 000103 Limits on Mobilehome Rent Control. Low-Income Rental Assistance. Initiative Statute. 199 Argument Against Proposition 199 PROPOSITION 199 DEVASTATES SENIOR CITIZEN What good is a 10010 discount after rents have risen 50%? MOBILEHOME OWNERS. Few,if any,seniors will get the"subsidy". . Thousands of widows, widowers and other seniors will face Don't be fooled by the fraud. loss of their mobilehomes. Remember the tobacco industry's fraudulent "No Smoking" 400,000 Californians (mostly senior citizens) own initiative? mobilehomes, but not the land they sit on. They rent a small Proposition 199 is just as phony. slice of bare land from a park owner.Unlike apartment tenants, Proposition 199 would wipe out more than .$300 million in they own their homes. Some monthly space rents are higher , seniors'home equity. than Social Security and retirement income. Senior For every$10 rent increase, mobilehome equity is likely to mobilehome owners are trapped-when rents increase. It costs decrease by approximately$1,000. $10,000 to move the mobilehome, and available spaces are Proposition 199 would raise rents, wiping out hundreds of scarce. Homeowners must either pay the rent or lose their millions in seniors'home equity. homes. Mobilehome owners who can't pay escalating space Senior citizens would be irreparably harmed. rents lose their equity and their homes. - PROPOSITION 199 GIVES POWER TO SACRAMENTO PROPOSITION . 199 LETS MOBILEHOME PARK POLITICIANS, AND TAKES IT AWAY FROM LOCAL LANDLORDS RAISE RENTS WITHOUT LIMITS. . VOTERS. Without local rent protections, unlimited rent increases can Proposition 199 phases out over 80 local initiatives and be heaped upon captive homeowners. An 83-year-old Los laws—laws passed by voters and local officials. Angeles widow, faces the loss of her home of 20 years. Since Proposition 199 prohibits local voters from ever passing L.A.County's rent control ordinance expired,her rent has risen to $845 per month, while her Social Security check totals only another mobilehome rent protection law. $783. She faces eviction, repossession of her home, and total It gives the State Legislature all power over mobilehome disruption of her final years. rents. Under Proposition 199, tens of thousands of widows and Don't give more power to Sacramento politicians! seniors will face the loss of their homes. Proposition 199 wouldn't put a single police officer on the A"no"vote on Proposition 199 helps her keep her home. street. The AARP, Legislative Council for Older Americans and Mobilehome rent protections are funded by fees paid by Congress of California Seniors recommend that you vote"no". mobilehome and park owners.They cost taxpayers very little. Please vote no on the"Widows Eviction Initiative". VOTE NO ON PROPOSITION 199. PROPOSITION 199 TAKES AWAY RENTAL ASSISTANCE DAVE HENNESSY FROM SENIORS. President,Golden State Mobilhome Owners Don't be misled. Proposition 199 removes mobilehome rent League(GSMOL) protections. Proposition 199's sponsors are mobilehome park landlords MARY TUCKER who want to raise mobilehome rents without limit, whenever State Legislative Committee Chair, they choose. American Association of Retired Persons(AARP) Proposition 199's so-called"rental assistance"is a farce. It gives a 10% discount on rents park owners alone LOIS WELLINGTON determine. President,Congress of California Seniors Rebuttal to Argument Against Proposition 199 A small special interest group, trying to protect their Statewide,mobilehome tenants pay average space rent of $300 million windfall profit, has resorted to deceptive claims. approximately$300 per month. The victims are tens of thousands of California families denied Average statewide rents equal just 28% of social security affordable housing by ill-conceived rent regulations. income. THE FACTS ABOUT PROPOSITION 199: TAXPAYER GROUPS AGREE: Opponents deceptively claim"thousands of widows and other Position 199 doesn't take control from cities and give it seniors will face loss of their mobilehomes."The truth is: to the state, as'opponents claim. It takes government • Proposition 199 protects,seniors and low income families. completely out of private property rights issues. It maintains rent controls for all current tenants.It 199 eliminates several million per year in • No tenant will be evicted or forced out by Proposition 199. taxpayer-funded bureaucracy, PROPOSITION 199 PROTECTS LOW-INCOME TENANTS: PAUL GANN'S CITIZENS COMMITTEE (SPIRIT OF PROP. 13), CALIFORNIA CHAMBER OF COMMERCE,PARK • Proposition 199 makes a 10% rent reduction available to OWNERS AND CALIFORNIA MOBILEHOME TENANTS approximately 100,000 low-income seniors and families ASSOCIATION AGREE: not now protected. VOTE YES ON PROPOSITION 199 As tenants voluntarily move, Proposition 199 phases-in privately funded rent reductions and restores market forces to BINNIE LANAHAN make mobilehomes more affordable for those seeking them. President,California Mobilehome Tenants Association ACCORDING TO THE U.S.CENSUS BUREAU: SANDRA L.BUTLER • Of 1,000,000 mobilehome tenants in California, only 30% President, United Seniors Association are seniors. Of these, 80%own their homes outright with LEWIS K.UHLER no mortgage. President,California Tax Limitation Committee P96 Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency. 39 000104 Proposition 199: Text of'Proposed Law' This initiative measure is submitted to the people in accordance with the spaces in.the mobilehome park the"crupied with mobilehomes: provisions of Article II,Section.8 of.the Constitution: _. .(2) Only one:rental.assistance subsidy shall apply to any mobilehome space This initiative measure adds sections to the Civil.Code;therefore,,,new, regardless of how many qualifted'tenants who reside ina mobilehome space,so,, pkovisiona proposed-to be added are,printed initalic-type;to indicate that theyare that no,mobilehome space shall be entitled.to more than one 10 percent,discount. new.. from the presubsidy monthly rent level. PROPOSED-LAW,_ (d) "Subsidized rental charge",means the amount.otrent chargeable to the: i fted tenant under.this measure,after deducting the rental assistance subsidy . } CTION L This measure shall be:,known and`may 14 dited:-as the lm fuUy ilehome Fairness and Rental Assistance Act." m the rent otherwise a able to the tenant SEC. 2: FINDINGS AND DECLARATIONS OF-PURPOSh (e) '7bnant"means a homenionerasidefrned in Section 798.9: (a)-The people.of the State of-California find and declare all of the following: 798.44.1. Any qualified tenant may apply.for,and if accepted;shall receive, (1) Some tenants of mobilehome spaces in mobilehome parks in California a4•e directly from the managementof a mobilehome park in which such tenant resides, poor and needy and.are urgently in need of rental assistance,without delays, (L rental assistance subsidy subject to the terms.and ponditions provided for in this expense or red.tape,which state and local government.usually requires for the article.` ; administration of rental assistance programs 798.44.2. :The provision of the rental assistance subsidy shall be the,sole,' •(2) Over 80.local governments are spending millions of dollars annually to ,.responsibility and.obligation of each,,management o f a mobilehome park,and administer and.enforce mobilehome park rent controls for the exclusive benefit of neither the State of California nor ainygovernmental agency shallhave any owners of.;;mobilehomes:which comprise-approximately only-.-5 percent.of. responsibility therefor or exercise any.authority in connection therewith;except as California's housing units with unrestricted controls that are generallynot means Provided in Section 798:44:6 ' tested to the poor;.so that mobilehome owners in mobilehomes with an�average• 798.44.3. (a) Each tenant seeking,to obtain a rental assistance subsid shall value of forty thousand dollars($40,000)to fifty thousand dollars($50,Q00)obtain : Provide the management:with an application,together with competent evince W'. unfair. price::controls in,rent;controlled areas at the expense of:small facts,to.prove the tenant is a•qualifiedl tenant.'This application and evidence may` business-park owners slid all the citizens of California be submitted:at:any time during a*y.calendar year up>to December:l5 for (3) These: unrestricted controls jeopardize the.enstence�o£ affordable consideration of the rental:assistanttesubsidy for the.ensuing.calendar year mobilehome park housing for all: Californians>and;'jeopardize continued commencing January 1:.Threoidence accompanytng the application shall consist employment and.the existence of small'business-park owners in California of ownership and r+esidencyiri the mob�itehome and income andother iafar�rtation (4) Requiting the pmvision;of'direct.eental assistance subsidies-by.requirmg customarily required by the governrilentat agency administenng the housing mobilehome park owners to'provide specified reduced•rents,for-:the poor;together assistance benefits for very low income persons under Section 8 of the United with the limitations on most restrictive features•of rent limitations which have, ~ States'Housing Act:of:1937:(42,U.&C. Sec. 1437) and otherevidence as-is :- adversely affected the availability and supply of suclr affordable mobilehom&�-'reasonably required F1'owever,no:mobilehome park management:shall.make,this - housing, is necessary to:.assure the continued'availability.of'affordable application process more burdensome to the tenant than.would bethe•case if the mobilehome housing to the poor. tenant-were applying for housing assistance benefits-for very low mi come persons (5)The limitation of the rental assistance subsidy:provided in this measure to : under-Section 8 of the United States Housing Act of 1937(42 U.S.C.Sec. 1437): not more than,10 percent of:the spaces in a single mobilehome.park will provide a- (b) (1)Each mobilehome park,management.shall;.promptly upon receipt of the reasonable amount of assistance. needy mobilehome park tenants,without- reasonable specified in,subdivision(4)j evaluate the same and reply- unduly burdening-the property interests of the mobilehome parkowner- to the tenant with notice within la war king.days The reply shall indicate either (b)•It is.therefore the intent of the people of the State of California I enacting 'one of the following: ` this measure to.do all of the following as a matter o£statewide concern: W-Acceptance,in:which:case the amount of the rental assistance subsidy and - (1) Require.,owners of-:mobilehome parks;to= giant;directly, without the presubsidy monthly rent level:shalli then be stated • .,governmental administration,,rental assistance subsidies to not:more than 10 : (B) Rejection;,in which case the basis for the rejection shall also be stated ' percent of their mobilehome space tenants:. (2)Once a qualified tenanthas received'&rental asaistance-subsidyduring any. Require lodal governments to m;n;m»e their mobilehome park rent control. `part of a calendaryear,the rental assissancesubsidy.shaltovntinue until December es.by;allowing:annual-.rent.increases:equal to-'the:cost of living,,and. 31 of thatyear,subjkct•ta earlytermindtian as provided in this article:. e localovernments to phase•out,rent:control administration on,a.. 798:44.4. Notwithstanding any otherpmvision of this article to the contrary: y-space basis;upon the sale;transfer„or sublease ofmobilehomes (a)•(1,t In any jurisdiction in which:mobilehome park rent control.is in effect, (3) Prohibit'.enactment of.any:new mobilehome park:rent control or rent - the management of a.mobilehome park shall be-exempt fronr the rental assistance-,," sta21e�omeo tion law by any.local government or by the State o€California : subsidy:prouisions-of this article if and as long as;more than-l0�percent o f the ( is easure is sot intended;:nor shall'it:beconstrued;:to depriveany paces occupied byrnobilelwmes in the+mobitehomeparkrare covered,byanyfornr mo .owner;tenant,or mobilehome.park owner o€any constitutional:. of mobilehome park rent control rights (2):In.any jurisdiction in which moi7ehome park rent control is in e/fect,if-at -SEC` 3 Article 4.4(commencing with Section 798.44)is-added"to-Chapter 2 5 :any time•fewer than 10,percent oft spaces occupied by mobilehomes in.a• of Part 2 of Division 2:of the Civil Code,to read mobilehome park ai�e crouered by any arm of mobilehome park.rest control,the. management ofa mobilehome park s It be subject'to•this-article and shall be Article 4:4. :Tenant Rental"Assistance required to provide-rental-assistance mubsidyto a qualified-tenant"However,the: 798.44`. Asp used in this article,' the•-following terms have the-following -management of the mobilehome-park shall not be,required ta:provide•the rental' . meant assistance subsidy ifgrantingthe subsidywould result'immore thanl0percentof, (a) Mobilehome park rent control"means any ordinance,rule,,regulation,,or-,_the spacesin.the mobilehome park being covered eitherby any form of mobilehome initiative measure, adopted;by any city; county or_city,and:'county.which- park rentcontra or lh tli-mntal'assrsfanee subsidy provided by this article.The ` establishes--a maximum:amount-that the mamw.efient of a mobilehome park:may priordyforgrianting mntal'asststance'subsidy'shaU begoverned bysubdiuiswrc chargeanytenant,orresident forrerit (b) In.anyjuriadiction in which there�ss;na fornrof-mobilehome.parlrrent (b) "Qualified tenant-means any tenant who,as ofthe'date ofapplica al,and controb in,.effect,�the.,management-ofia mobikhomespark-shalt:be-mquired to, during;anyperiod-while receiving a.rental assistanceesubsrdy,satisftes all.of the provide-therental assistaiu subsidy'plrovidad 'diisFartiderto, tenants followiinngg requu+ements: representing notmore than-lapercent th6spaces then occiipce ilehomes (1):The tenant resides in a mobilehome park iir the,State of Californias .. iii such mobilehomepw•k:?T)ieprwrrtyforgranturgrnntal'assisaanwsubsidy shall M2 'The tenant is m very low.income household`as defined in Section 50105 of begouerned by subdiulsrors{c) Ytir,�>' ; •the:Healtli and Safety Codi. % (c) (1) In circumstances err:.'whica risgrapb��f2x of subdivrston (a) or (3)'The tenantis;not•delinquent with"any rental•payments.has established a subdivision(b)'apply„the managementto mobilehomeparkshalb btregtured-ta legal residencyi inta.mobilehome;and owns and occupies the mobilehomeas then grant:the rental_assistanie subsidjrprgiria'e¢foriri thi�artkle.to dthwqualified i` tenant's ppririeipal-place:o f residznce: 4 tenants'who are first iirtime to Tuive.6een+gnaiited a rental assistance subsidy by- iz (4)-The•tenant,.including all other residents i regularlyr residing!it the- :the management of themobUehome ,:. mobilehome;is in compliance with all rules and regulations of the mobilehome (2) In determining thenumberof u*r9%d—tenants to whickrthe management of park and the tenant's rental agreement.. a•mobilehome park:shall be:required to jprovide rentat assistance underparagraph: (5) 77ie tenant isnot receiving any federal,state,orlocal housing assistance, (2)of subdivision(a);the management f the mobilehome park-shall-determine the,. including, but:not limited t&,i assistance,under Chapter•B'�fcommencing..with number-ofqualifted tenants which°rep iksme'spaces entitkd�to the rental'subsidy,. Section 1404al-of Title 42 of the-United States:Code;the-Housing and Community by subtracting the number of spaces thtWiubject tasome form ofmobi[ihome park Development.Act of 1974(PL.93-383), Chapter 45(commencing.with Sectiorr.. rent control firom the number iepresent*W10 peraent•of the Gaal numberof spaces . 3601)of 71tk,42'of the.United States Code,ar.anyothergovernmentai.houstng :thenoccupied by mobilehomes:in-the mobilehomeparks assistance program administered by the United States Deparhnentof Housingand'.: 798,44:5: (a)Any qualified;tenant receiving a e r+ental assistance subsidy shall' Development oras provided by other state or federal laws or programs.: lose the.right to the rental assistance subsidy upai the occurrence of either of the . ') "Rental assistance subsidy”means a 10 percent discount from the foliowing events: T r y rent charged for the mobilehome space occupied by one or more qualifted (1) The,tenant'fails to pay the monthly`rent in:accordance with the rental tenants as established by mobilehome park management(the presubsidy monthly. 'agreement(as reduced by the rental`assistanwsubsidy)withimfive days of its due. - rent level):The presubsidymonthly.rert level of a qualified tenant wha is receiving date: or is entitled to receive,a rental assistance subsidy,may be increased anti shall be. (2).The tenant no longer meets the cttteria fora qualifted tenant for anyreasom decreased as appropriate,from time to time;so that the presubsidy monthly rent (b) The mobilehome park management may,uponl0•days'written notice to the level shall not,at any time,exceed the average monthly,rent level charged for all tenant,terminate the tenant's rental a#sistance subsidy form-reason.specifted ire. 62. 0.04105 P96 is either paragraph(1)or(2)of subdivision(a): management of a mobilehome park may charge for a space within the park which (c) A tenant whose rental assistance subsidy has been terminated pursuant to is.an exempt space;as defined in Section 798.46.4:.All exempt spaces shall be,for subdivision(b)may not reapply for rental assistance subsidy for a period of 12 all purposes on.or after the effective date of this measure,exempt from any and all months thereafter mobilehome park rent control laws (d) For purposes of the 10 percent limitation,set forth in Section 798.44:4,a SEC. 6. Section 798.46.3 is added to the Civil Code,to read: rental.assistance subsidy terminated pursuant to subdivision(b)shall be deemed 798.46.3. The State of California shall enact no statute•,restricting,. or- to r to have been.terminated'on the last day of the calendar year ' authoirzing the restriction of,the maximum amount of rent that the manageme 798.44.6. (a)•Any qualified tenant aggrieved or damaged by any substantial of a mobilehome park may charge for a space in a mobilehome park.Any statin violation of this article may petition the municipal court of the judicial district in having that effect and enacted before or after the effective date of this measu which the mobilehome park is-located for a judicial determination of his or her shall be void and unenforceable. rights under this article.An aggrieved tenant prevailing in this action shall be SEC. 7. Section 798:46.4 is added to the.Civil Code,to read entitled to actual damages,consisting of the amount of rental assistance.subsidy 798.46.4. As used in this article, the following terms have the following lost due to the violation, and reasonable attorney's fees and costs.A tenant meanings: aggrieved by a violation of this article shall also be entitled to seek injunctive relief (a) Decontrolling event"means,with respect to any space in a mobilehome park and any other equitable remedies available under Section 526 of the Code of Civil covered:by a mobilehome park rent control law as of the.effectiue date of this Procedure. measure,the occurrence of any of the following events after the effective date of this (b) A judgment of the municipal court shall be reviewable by the appellate measure: department of the superior court of the county in which the action arose.: (1)Any sale,transfer(by foreclosure,operation of law,orotherwise),or other 798.44.7. (a) A mobilehome park's management shall not terminate the change in ownership of the mobilehome,as.defined in.Section.798:3. . tenancy of any tenant,or attempt to do so,or retaliate against any tenant;or .(2)Any termination of the tenancy of the persons who are tenants in such space attempt to do so,as a proximate result of a request by that tenant for a rental by eviction;voluntary vacancy,or.otherwise assistance subsidy or the exercise of any rights relating thereto as provided in this (3)Any sublease by the tenant.to a third party.of the mobilehome or space after article- the effective date of this measure. Nothing contained herein is intended to (b) Any demand by a mobilehome park's management for rent in emu of the authorize a sublease of the mobilehome or space..Notwithstanding paragraphs(1), subsidized rental charge from any qualif ed tenant whose application for a rental (2),and(3),no decontrolling event shall be deemed to have occurred upon any assistance subsidy is approved for the calendar year or whose application was transfer of ownership of a mobilehome to the•conservator,guardian,or trustee of a denied or rejected in violation of this article shall.constitute a defense to any action homeowner or to a homeowner's trust if the beneficiaries entitled to ownership of brought by the mobilehome park management for either one of the following the mobilehome are members of the homeowner's•immediate family, or to a _ (1)The excess rent over the subsidized rental charge. surviving spouse upon the death of the other spouse,or to a spouse or the parents or (2)Eviction of the_qualifaed:tenant from the mobilehome park for nonpayment children of a homeowner of that excess rent. (b) Exempt space"means(1)any space in a mobilehome park which is not (c) However,subdivision(b)shall not apply if enforcement of the subsidized occupied by a mobilehome as of the effective date of this measure,or(2)any space rental charge would violate any constitutional right of the owner of the which is,as of the effective date of this measure,exempt from a mobilehome park mobilehome park to a fair rate of return. rent control law as a result of any lease or rental agreement covering such space SEC. 4. Section 798.46.1 is added to the Civil Code,to read:. including,without limitation,a rental agreement described in Section 798.17. 798.46.1. On or after the of j"ective dkte of this measure,no=county,or city• (c) "Mobilehome park rent control"has the same meaning as set forth in Section and bounty,shall,enact any new mobilehome park rent control or amend or 798.44: .modify any existing mobilehome,park rent control law to apply its restriction on SEC. 8. AMENDMENT OR-REPEAL OF MEASURE. maximum rents to any space in a mobilehome park which is:not,on the effective The provisions of this measure maybe amended or repealed by the procedures date of this measure,by reason of a long-term lease or otherwise,subject to rent set forth in this section.If any portion of subdivision(a)is declared.invalid,then restrictions under the mobilehome park rent control law. subdivision(b)shall be the exclusive means of amending or repealing.this title. SEC.-5. Section 798.46.2 is added to the Civil Code,to read: (a)The provisions:of this measure may be amended to further its purposes by 798.46.2.. Every mobilehome park rent control law in of ject as of the of jective statute, in each house by rollcall vote entered in the journal,.two-thirds of 'date of this measure shall be subject to the following provisions: the membership concurring and signed by the Governor: (a) (1) On or after January 1 of the year following the effective date of this (b) The provisions of this measure may be amended or repealed by a statin measure,no mobilehome park rent control law may,with.respect to the rent which that becomes-effective only when approved by the electors. a mobilehome park management may charge for a space within the park;do either SEC.. 9. EFFECTIVE DATE of the following: The effective date of this measure shall be the day after the election.at which it (A) Require that the rent for the space ever be reduced from that lawfully is.approved by the voters. charged before the effective date.of this measure or as of any subsequent date.. SEC- 10. CONSTRUCTION OF MEASURE (B) Limit any annual rent increase to.an amount which is.less than the full The measure shall be liberally construed to achieve,the purposes of this annual cost of living increase;as measured by the change in the cost of living from measure and to preserve its validity, the 12-month period ending in.the calendar month preceding the date in which a SEC. 11: SEVERABILITY notice of rent increase is given by the mobilehome park management at any time, If any. provision of this measure, or the application tb any person. or and from time to time,after the effective date of this measure. circumstances is-held invalid or void;that invalidity or voidness shall not affect- (2) For purposes of this subdivision,the cost of tivinnggshaa be determined using other provisions or applications which can be given effect without the invalid or the California Consumer Price Index("CCPD),as published'by the Department of ,void provision or application,and to this end;all of the provisions of this measure Industrial Relations for all items and all urban-consumers,and this index.for the are declared to be severable.. 1982-1984 period shall be computed as 100. SEC. 12. 'ELECTORS'INTENTION IN THE EVENT OF PASSAGE OF (b)No jurisdiction administering any mobilehome park rent control-law shhll' POSSMLE CONFLICTING MEASURES require.the management of a mobilehome park to attend any hearing or submit In the-event another measure to be voted on.by the voters at the same election any information to the jurisdiction as:long as management limits the rental as this measure,and which.constitutes a comprehensive regulatory scheme, increases for any space affected by the mobilehome park rent control law to the full- receives more affirmative.votes than this measure;the electors intend that any annual CCPI increase as provided in subdivision(a). provision or•provisions of this!measure not in direct and apparent conflict with (c) On or after the effective date;of this,measure; nd mobilehome park rent any provision or provisions of another-measure,shall not:be deemed to be is control law shall impose any restriction whatsoever on the amount of-rent that the conflict therewith,and.shall.be:severed from any other provision or,provisions of management of a mobilehome p k may charge for-a mobilehome space within the .this measure:which are in direct and apparent conflict with the-provisions.of park upon or after a decontrolling events as defined in Section 798.46.4. another measure.In this event,the provisions shall be severed accordingto the . (d) On or after the effective.date of-this measure,no•mobilehome-park-rent provisions of Section;11 of this measure.upon•application to any court of- control law shall impose any restriction whatsoever on the amount of rent that the competent jurisdiction 'Proposition 2OO: Text of Proposed Law This initiative measure is submitted.to the people in accordance-with the consumers.It costs too much money and delivers-too little protection.Under this. provisions of Article II,Section 8 of the.Constitution. system: = This.initiative measure adds sections to the Insurance Code;therefore,new (1) No matter how much insurance motorists buy,they get no guarantee that provisions proposed to be added.are printed in italic type to indieate,that.they are their medical bills and wage losses will be covered if they are injured in a car new. accident.Seriously injured accident victims typically recover only a small fraction of their losses from auto insurance. PROPOSED LAW (2) Mbtorista who violate the law and drive uninsured have exactly the sam Pure No-FaultAuto Insurance Act right to collect liability insurance benefits as do motorists who have insurance. SECTION ONE. This Act shall be-known and may be cited as the"Pure a result,policyholders are forced to spend well over$1 billion a year to subsid iW y uninsured motorists. NaFaultAuto Insurance Act.? (3) Only about one-fourth of every dollar spent on insurancecovering bodily SECTION TWO. The People of the State of California find and declare: injury actually goes to pay for accident victims'medical expenses=wages. wages. (a) The auto liability insurance system is a terrible deal for California More money—one-third of every such insurance dollar—goes to pay legal fees. P96OOOlOE'i 63