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HomeMy WebLinkAbout03-17-1999 4C1 AGENDA ITEM SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 11 (p AGENDA ITEM MEETING DATE March 17, 1999 CITY MANAGER: 6/i ail({,,/ ORIGINATING DEPT. City Manager PREPARED BY: City Clerk SUBJECT: Letter from Greenbelt Alliance requesting City support for the Bear Creek Redwoods Regional Preserve RECOMMENDED MOTION(S): Consider adoption of Resolution of Support. REPORT SUMMARY: Please see attached letters with a copy of the proposed resolution from Greenbelt Alliance. I have also attached a copies of the minutes from the December 17, 1997, January 7, 1998 and January 13, 1998 Council meetings when this issue was last discussed by the Council, along with a copy of the letter to the Greenbelt Alliance approved by the Council on January 13, 1998. FISCAL IMPACTS: N/A ADVERTISING, NOTICING AND PUBLIC CONTACT: N/A CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION(S): N/A FOLLOW UP ACTIONS: N/A ATTACHMENTS: 1. Letter from Greenbelt Alliance dated March 9, 1999 with draft resolution 2. Letter from Greenbelt Alliance dated January 12, 1999 3. City Council minutes of December 17, 1997, January 7, 1998 and January 13, 1998 Mar -09 -99 11:35 P.02 a'°. 46°1" PN, 1 Qn toee Od e r.a/l e soeae. O 9 b P E O P L E F O R O P E N S PAC E •ROR" March 9, 1999 Mayor Jim Shaw and Members of the City Council City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Re: Support for Bear Creek Redwoods Regional Preserve Dear Mayor Shaw and Members of the City Council: Thank you for agreeing to consider a resolution in support of Bear Creek Redwoods Regional Preserve on your March 17th City Council meeting agenda. I look forward to speaking with you on the 17th and explaining recent activities in the campaign to acquire the Bear Creek Redwoods area for public use and enjoyment. I have attached a copy of an article that appeared in today's San Jose Mercury News for your interest. As the article explains, Bear Creek Redwoods is a 1,100 acre property bounded by Highway 17 and Bear Creek Road and has been of keen interest by parks agencies over the years. The Midpeninsula Regional Open Space District (MROSD) is currently engaged in efforts to protect this land as a public open space preserve for all to enjoy. However, protecting all of the property will require significant public support as MROSD will have to raise additional funds for full acquisition. As MROSD approaches potential funders (such as the Packard Foundation) it is absolutely critical to demonstrate a high level of public interest in the project. It is for this reason that we are writing to area local elected and appointed officials to generate resolutions of support. Thus far, we have received endorsements from the Cities of Monte Sereno and Cupertino, as well as from the Santa Clara County Parks Commission, the League of Women Voters Saratoga Chapter, and the Silicon Valley Manufacturing Group. We will also be approaching the Cities of Los Gatos and San Jose and the Santa Clara County Board of Supervisors in the coming weeks. If acquired, this property would represent a true regional resource, within easy access by Saratoga and most Santa Clara County residents and connecting to other regional parks. Please join our efforts to protect this unique and beautiful resource with a resolution of support for acquisition efforts. Sincerely, (4/„.-.4- Kaitilin Gaffney South Bay Field Representative Encl. \LAIN OFFICE 530 Bush Street. Suite 303, San Francisco CA 94108 (4I5) 398-3730 Fax (415) 398 -6530 SOUTH BAY OFFICE 1922 The Alameda Suite 213, Sanitise CA 95126 (408) 983 -0539 Fax (498) 983 -1001 NORTH BAY OFFICE 520 Mendocino Avenue Suite 225, Santa Rosa GA 95401 (707) 575 -3661 Fax (707) 575 -4275 EAST BAY OFFICE 1372 North Main Street. Suite 203, Walnut Creek CA 94596 (510) 932 -7776 Fax (510) 932 -1970 email: greenheltnigc.apc.org web site: www.greenhelt.org ®M Mar -09 -99 11:36 P.03 DRAFT RESOLUTION IN SUPPORT OF BEAR CREEK REDWOODS REGIONAL PRESERVE Whereas there is a community effort to permanently preserve the former Alma College property in its natural state for future generations to enjoy as Bear Creek Redwoods Regional Preserve, and Whereas the property is stunningly beautiful and biologically diverse with oak studded meadows, hillsides of maple, madrone and fir, and steep canyons thick with 100 year old redwoods which harbor numerous species of mammals, birds, and reptiles, and Whereas it is the largest privately held wild area in the Lexington Basin and its protection would preserve a contiguous stretch of undeveloped land critical for watershed and wildlife protection, and Whereas public acquisition would offer opportunities for recreation and trails linking regional open space areas, and Whereas the site has long been identified by public agencies as a priority for acquisition, and Whereas this open space will provide tremendous benefits to the residents of Santa Clara County, and Therefore be it resolved that the City of Saratoga endorses the permanent acquisition of the 1,100 acres known as the "Alma College Property" from a willing seller by a public agency or land trust to that it may become the Bear Creek Redwoods Regional Preserve. Mar -09 -99 11:36 P.04 w F uture of x Di strict d poised at in a to make land buy crossroads ,,,,,to Lexington proposal Open s requires $30 million p space district considers KA. BY PAUL RO(iLKS proposal for Alma College land Mourn' Newt; Staff Weiurr Drawing closer to its '25-year goal of turning the wooded hills west of ■PURCHASE Meanwhile, the fate of another h i hill Lexington Reservoir into a public from Page IA acres es of of lo lower lands adjacent t to d park, the Midpeninsuda Regional way 17 would be left unfinishsheed. way 17 between San Jose and Santa 'loose are the lands most. evident Open Space District has lined up Chu the 1,100-acre 0 what would be the most expensive parcel is the larg- from the highway. 4;ii CI purchase in its history up to a $410 esl. piece of private property in the Ender that part of the deal, the h ml million deal for the old Alma College Lexington basin. Bounded by the company would apply to Santa Clara highway and Bear Creek Road, it was County to build 50 luxury homes and P P the site of a Jesuit seminary That a golf course on those lower lands. The district i sc heduled to vote un closed ir l 1967. It. is thick with red- The district would assist, by transfer- the complex transaction Wednesday co 1z11:-. wood and oak trees, and home to ring 39 legal lots from the upper par- night Burt tmle a the disc it t rrcei�z:s deer, bobcats, red -tail hawks and otli c el to oin je lowerparcel's lo 14 $20 mi ion in donations from prlvalc er wildlife. sources, the ne park could h av e orists half If the open I hider the pro- its large trees cut dowri by lo posal hammered spaz'e district and po tentiall y see consWction of ri0 9 11 t! q wa nts to hui r �i 11 fouowutg ma Carle e ro e J those 260 acres, it 4;i* luxury homes and a golf course. e u r. Why? The open space distrir t Y a year of a must cx ami ui, r. �s, the o}xrn Santa Sa r uu >I her _doesrit rove enough money to bbuy ,�,.1e.,' district Cia2Go Ad `9 1:i0 the land and all its lucrative timber .lose gl ade one mi would acquire o p- ,r throe 30. and real estate rights. lion. to bu the aareaa ar K it Visibl to th ousands of mot Y =.L G eek L 13i prolx rty in sever- ea th i Cr ek Lwn11 ber ll. of every day they zoom along High al pieces from its Lower. See PURCHASE, Back Page x Y, timber owns own.�r, the Artie parcels Day V I Land and Cattle et. t tber upper on re Mop locates property. BACK PAGE C u located 1 p ti r mach dIC r es of the lad. miles s outh of Redwood trees in W l ugen Ore. that area have t "Phis deal is t' not been logged G% 2 very dillk unto r since 1886; the y said C Brit- t:I to Up et are described by sp a, the open foresters as sonic ,pace district's s of the best sec- general manager. �'3 ond-growth nar- 'The price makes 0 1 MI bee i the Santa 1* you blink, but. is 0.5 KM Cruz Mountains. the Very best, W ver. Thtti e P can deli MERGURV NEWS To block that log- i grog, the dislric I is our window. We have trailed this will vote on approving an option to property since the mid- 1970s. It was buy those timber rights back from Big f always a little out of our reach. I think Creek for another $5.2 million; the this is our last chance." company paid $3.6 million for the linm- TM her tights in 1996, and already has a 4= 811 acres for sale state permit to begin logging. Grand total: $30.2 million to buy Under the plan, the seven- member the whole property untouched. Villit open space board will vote on a pro- Or $10.5 million to buy a property posal to spend $10.5 million by Friday that is substantially logged and could to acquire a purchase option and a contain homes and a golf course il• nine -year lease for 811 acres in the Santa Clara County supervisors give upper reaches of the property. No the OK monthly payments would be made. .lotun Mnswntici, land acquisition di i IA District rangers would patrol the rector for Arlie Land and Cattle Co. propert and then comment. would be no pub.- said Monday he has no comment. on eL lie access for up to five years. the proposed deal. Mar -09 -99 11:37 P.05 SAN JOSE MERCURY NEWS 1 From Page One I TUESDAY, MARCH 9, 1999 M ;a`. ya :i ce, a y 'x�n 3 r r .•,;rtb N .s�€" Y t Y J .,f,�,, y .-i. vo y a 4 `rr`aiw r c'L 5+ A er Y 5 q, Y 7 dd �i i z r, e, C m bak r ti` v•e eV ”q7 y a ja'.'''.1....t,..-,'3, 1P `r 7 .2. 1 I t F '4 r' r 4 "}C�`;. 4 r +i: i ;`V �'T W k 1 4•x( 1 a `.l �1. g•t. 1 According to coluity records, the This property, the Arlie Land and Cattle Co. look out site of the former loans for $18 million to buy the land Alma College w.:` i in January 1998. The previous owner seminary, right, was Bong Kong casino tycoon Stan could be purchased ley Ho, a billionaire who bought it in by the Midpeninsula 1989 from the Jesuits for $12 million. Regional Open Space District. But mgr k ,h t r i''• Y i 'r..? 41.1-.;: y More complications $20 million 4 r Y t tlr w T `i I more in donations, t Further complicating the deal is a provision Uri. says for every home part of the land }:r' w that the land company wins approval could be developed k to build, it will pay the open space dis into homes and a trict $100,000, as well a.s $6.4 million if golf course. it wins approval for the golf course. Thus, if the county approved homes .t a p on till 3D lots the cGsl rict hail given to PHOTOGRAPHS BY i g PATRICK TEHAN ��r a the land company and the golf MtfiC WAY NEWS _lie'', ".L ilili course, the district would get the 811 the acres free. Defending arrangement that ail- easily." any expectations one way or the oth- If the land company does not win lows some development, Britton said Gaffney said she expects her group er," said Michael Mantel], a Sar•ra- county approval for the homes and that the Arlie land company has legal would fight any proposal for a golf memo attorney and consultant who golf course, it could back out at any lots for 50 homes. Each could be sold course because it "is out of character assists the Packard Foundation•on its I.icue. The developer tlwn could sell off piecemeal, ending any chance for for the area," and because of long- land transactions. each of the rio lots one by one. a public park. .standing fears that pesticides and fer- Under current zoning, Santa Clara Founded by voters in 1972, the EnvirorunentalisLs, who successful- tilizer runoff would contaminate Lex- County officials have ruled there Midpertirtsula Regional Open Space ly killed plans in 1996 for a golf inglon Reservoir. could be as many as 26 homes built District has used property taxes to ac- course on the site by Los Gatos devel- Environmentalists and district offs- on the properly. Yet the Arlie land quire more than 43,000 acres for pub- oper Pete Denevi, said the deal may cials are hoping for an 11th-hour do- company was able to vastly inflate the lic parks in San Mateo and Santa Cla- be the best they can get nation from a benefactor with deep value of the property by expanding rat counties. "This is an incredible area," said pockets. District officials have ap- that to 50 lots. Kaitilin Gaffney, South Bay field rep- preached the David and Lucile Pack The company's claims are based on IF YOU'RE INTERESTED resentative for the Greenbelt Alliance. and Foundation, as well as two non- property documents that crate to the The Midpeninsula Regional Open "It is exceptional because it is a profit land trusts, the Peninsula Open 1800s. A landmark 1994 state Su- Space District board will meet at 7:30 beautiful place, but also because its Space Trust and Save- the Redwoods preme Court ruling, Morehart v. Santa p .rn. on Wednesday at its headquar- so close to a major metropolitan area Le ague. Barbara County, said that such an- ters at 330 Distel Circle in L os Altos to It could offer trails and recreational "We're just starting our process of dent land records override modern vole; on the land deal Fa more ii Ior- opporhmities for a lot of people very looking at it- I wouldn't want. to create development rules. rr,ation, call (650)691 t t S UI NG 6> fereeer d e l e teili et i lowae. it Z 9 8 P E O P L E F O R O P E N S P A C E MTY YSP January 12, 1999 Mayor Jim Shaw City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Re: Support for Bear Creek Redwoods Regional Preserve Dear Mayor Shaw: We are writing to enlist your support and the support of the Saratoga City Council for the campaign to create the Bear Creek Redwoods Regional Preserve. This 1,100 acre property bounded by Highway 17 and Bear Creek Road has been of keen interest by parks agencies over the years, and we may fmally have the opportunity to protect this land as a public open space preserve for all to enjoy. We are writing to area local elected and appointed officials because this property represents a true regional resource, within easy access by Cupertino and most Santa Clara County residents and connecting to other regional parks. Formerly known as the Alma College property, Bear Creek Redwoods is the largest wild area left in the Lexington Basin area and has long been a priority property to acquire for open space. The land is stunningly beautiful, with open meadows studded with oaks above Lexington Reservoir, hillsides of maple, madrone and fir, and steep canyons thick with 100 year old redwoods. A rich variety of wildlife including deer, coyote, fox and horned owl, thrive on the property and many small streams course down the canyons and feed the reservoir. The property has long been a priority for acquisition by local and state agencies. Recently, Midpeninsula Regional Open Space District (MROSD) has renewed efforts to acquire and preserve this property as open space, ranked by the County's Preservation 2020 Report in the highest category for open space preservation area in Santa Clara County. If acquired as a open space preserve it would link with Lexington Reservoir and Sanborn Skyline County Park, providing an important contiguous stretch of undeveloped land so critical for watershed protection and wildlife corridors. A section of the Bay Area Ridge Trail also traverses the site. We are asking for your support for the strong community efforts to create a beautiful redwood retreat preserve for the public to enjoy. We would appreciate the opportunity to be placed on the agenda at an upcoming City Council meeting to make a formal presentation and entertain discussion. We have enclosed a draft resolution and MAIN OFFICE 530 Bush Street Suite 303, San Francisco CA 94108 (415) 398 -3730 Fax (415) 398 -6530 SOUTH BAY OFFICE 1922 The Alameda Suite 213, San Jose CA 95126 (408) 983-0539 Fax (408) 983 -1001 NORTH BAY OFFICE 520 Mendocino Avenue Suite 225, Santa Rosa CA 95401 (707) 575 -3661 Fax (707) 575 -4275 EAST BAY OFFICE 1372 North Main Street Suite 203, Walnut Creek CA 94596 (510) 932 -7776 Fax (510) 932 -1970 email: greenbelt @igc.apc.org web site: www.greenbelt.org Bear Creek Redwoods Resolution January 12, 1999 Page 2 background piece for your consideration. We have received endorsements from the Cities of Monte Sereno, Cupertino, the County Parks Commission and the Midpeninsula Regional Open Space District as well as the League of Women Voters Saratoga Chapter and the Silicon Valley Manufacturing Group. Thank you for your consideration. Please call me at 983 -0539 in the meantime if you have any questions. Sincerely, kqT Kaitilin Gaffney South Bay Field Representative FRIENDS OF BEAR CREEK REDWOODS REGIONAL PRESERVE Requested Action: Resolution of support for a community effort to permanently preserve the former Alma College property in its natural state for future generations to enjoy as Bear Creek Redwoods Regional Preserve. Background: Over 500 individuals and numerous conservation organizations have endorsed the effort of Friends of Bear Creek Redwoods Regional Preserve to permanently preserve the former Alma College property in its natural state for future generations to enjoy. The 1,100 acre site, formerly a Jesuit seminary, is located in the hills above Los Gatos and the Lexington Reservoir. The property is stunningly beautiful and biologically diverse. Its oak studded meadows, hillsides of maple, madrone, fir, and steep canyons thick with 100 year old redwoods harbor Funding for acquisition is expected to come from private sources, such as foundations and individuals, as well as from existing public sources such as the Land and Water Conservation Fund. There should not be any additional tax burden required for the purchase of this property. While there are development proposals for this property, you are not being asked to take any positions on the proposed developments. City Council Minutes 2 January 7, 1998 2) Finance Advisory Committee Minutes, 10/7 Note and file. 3) Parks and Recreation Commission Minutes, 11/3 Note and file. 4) Approval of Check Register Councilmember Bogosian questioned a payment made in connection with the Civic Theater Relight Project, for which the bid had been rejected. City Manager Perlin explained that the payment was for design work. Councilmember Bogosian then asked whether the City would be reimbursed for a payment made for valet parking signs for the Village. City Manager Perlin replied that the City would not be reimbursed, since the arrangement approved by the Council did not contemplate reimbursement, and the signs were considered to benefit the entire Village. JACOBS /SHAW MOVED TO APPROVE THE CHECK REGISTER. Passed 5 -0. 5) Final Acceptance and Notice of Completion for ADA Improvements Phase I (CIP 9302) 6) Approval of Payments for Miscellaneous Construction Work performed by C.F. Archibald Paving, Inc. 7) Memo Authorizing Publicity for Upcoming Hearings Vessing Road Assessment District Protest Hearing C. CLAIMS AGAINST THE CITY None. 6. PUBLIC HEARINGS None. 4. A. Oral Communications (continued) and instructions to staff regarding actions on current oral communications None. 7. OLD BUSINESS A. Resolution endorsing Acquisition and Creation of the Bear Creek Redwoods Regional Preserve City Manager Perlin reviewed the staff report. Councilmember Jacobs noted that he preferred to send a letter .rather than a resolution. A letter could better set forth the stance of the City Council that the Council supports acquisition of the property by a willing buyer to donate as open space. He feared that the draft resolution could be misused by people opposed to development, and he did not wish to send a message to the County telling them what to do if no willing buyer comes forth. Robert Montcrief, representing the Friends of Bear Creek Redwoods Preserve, spoke in favor of the preserve, as did Cheriel Jensen. City Manager Perlin said the Mid Peninsula Open Space District staff report stated they were not committing any funding. Councilmembers discussed the issues, including whether a resolution would be binding; whether the document should be sent to a County agency such as the Planning Commission or Supervisors; whether any agency had funds or a timeframe for acquisition of the property; whether the resolution was simply a form of public input; the fact that a golf course comprises open space; whether Saratoga could properly suggest to the County what it should do; and the fact that the City agreed to tell the federal government to keep the Civil Air Patrol at Moffett Field. F. L. Stutzman spoke again, saying as a taxpayer to the County he felt he should have some say in how the County used the tax funds. MORAN /JACOBS MOVED TO SEND A LETTER TO THE GREENBELT ALLIANCE ENDORSING ACQUISITION OF OPEN SPACE IN GENERAL AND OF THIS PROPERTY IN City Council Minutes 3 January 7, 1998 PARTSCULAR. Passed 3 -2 (Bogosian, Shaw opposed). There was consensus for the City Manager to prepare a draft to be returned to the Council on Tuesday. Copies of the letter are to go to POST, Mid Peninsula Open Space District, and the Town of Los Gatos. B. Ordinance amending Article 6 -10 of the Municipal Code relating to Alarm Systems (second reading) MORAN /SHAW MOVED TO ADOPT THE ORDINANCE BY TITLE ONLY, WAIVING FURTHER 1111 READING. passed 5 -0. City Manager Perlin noted that Sharon Melin had been hired to clear a backlog of false alarms which had accumulated from last year. 8. NEW BUSINESS A. Annual Review of City's Investment Policy Interim Administrative Services Director Larson noted that the Finance Commission felt the current investment policy was working well and required no changes, so they recommended none. MORAN /BOGOSIAN MOVED TO APPROVE THE CURRENT INVESTMENT POLICY. Passed 5 -0. B. Renewal of Lease with Friends of the Saratoga Libraries for Village Library located at 14410 Oak Street City Manager Perlin reviewed the staff report. Councilmember Moran questioned the amount of expenses paid by the Friends of the Libraries. Mr. Nolan, treasurer of the group, replied that utilities for six months amounted to $927, and maintenance was D performed by volunteers, since there were no salaried employees. She then noted that the lease was for ten years, which future city councils could not change. City Attorney Riback stated that the 90- day cancellation clause made the lease, in effect, a 90 -day lease. Councilmember Shaw pointed out that on page 7 a reference to "contractor" should be changed to "lessee." The City Attorney was directed to do so. JACOBS /MORAN MOVED TO APPROVE THE LEASE. passed 5 -0. 9. ROUTINE MATTERS A. Approval of Minutes 12/17 JACOBS /SHAW MOVED TO APPROVE THE MINUTES AS SUBMITTED. Passed 5 -0. 10. CITY COUNCIL ITEMS A. Agenda items for January 13•adjourned regular meeting Massage Ordinance Adult Business Ordinance Removed. Discussion about televising adjourned Council meetings and location for future Council and Planning Commission meetings Policy Manual Ideas for upcoming Council retreat f There was consensus to schedule the retreat for March 14. In addition to the above items, the letter to the Greenbelt Alliance and the Orchids and Onions Tour were added to the agenda. B. Other MINUTES SARATOGA CITY COUNCIL TIME: Wednesday, December 17, 1997 6:30 p.m. PLACE: Civic Theater, 13777 Fruitvale Ave. TYPE: Regular Meeting Parks and Recreation Commission Interview 6:30 p.m. in Administration Conference Room, 13777 Fruitvale Avenue Closed Session 6:45 p.m. CONFERENCE WITH LEGAL COUNSEL- ANTICIPATED LITIGATION Significant exposure to litigation pursuant to subdivision (b) of Section 54956.9:in one case. Mayor's Report on Closed Session. Mayor Wolfe reported that no action had been taken. 7:30 Pledge of Allegiance 1. ROLL CALL Councilmembers Bogosian, Jacobs, Shaw, Moran, and Mayor Wolfe were present. Also present were City Manager Perlin, Interim Administrative Services Director Larson, Community Development Manager Walgren, City Attorney Riback, and Deputy City Clerk Cory. 2. CEREMONIAL ITEMS A. Resolution commending Al Fregoso on his Retirement Mayor Wolfe presented the resolution to Mr. Fregoso. 3. REPORT OF CITY CLERK ON POSTING OF AGENDA Pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on December 12. 4. COMMUNICATIONS FROM COMMISSIONS AND THE PUBLIC A. ORAL COMMUNICATIONS Mayor Wolfe thanked the Council for electing him Mayor and Jim Shaw as Vice Mayor. He described his vision as Mayor, including Saratoga's remaining unspoiled. He believed that more services could be provided by the City if the State and federal government did not impose unfunded mandates, and he asked that staff and citizens assist in identifying such mandates so that their impact can be modified. Jenny Crotty, Parks and Recreation Commissioner, then described a Saratoga Union School District meeting on. December 9 at which negative remarks were made concerning Saratoga residents who are not residents of the District. She expressed appreciation to the Council for their professionalism and decorum concerning this matter. 1) Presentation from Green Belt Alliance concerning resolution endorsing permanent acquisition of Alma College Property Robert Montcrief, representing Friends .of Bear Creek Redwoods, made a slide presentation and answered Counp 1members' questions. JACOBS /BOGOSIAN MOVED TO DIRECT STAFF.TO PREPARE FOR THE NEXT MEETING A RESOLUTION SUPPORTING PUBLIC ACQUISITION OF THE PROPERTY. Passed 4 -I (Wolfe opposed). B. COMMUNICATIONS FROMCOIISSIONS None. C. WRITTEN COMMUNICATIONS 1) Letter* from Warren Lampshire requesting City support for4aratoga Parade City Council Minutes 2 January 13, 1998 for cablecasting by the end of February or beginning of March. Councilmembers agreed that preparations for cablecasting the meetings should be completed as quickly as possible. There was consensus that rebroadcasting of the adjourned Council meetings would be an acceptable arrangement in the short term to deal with scheduling conflicts. The Councilmembers also agreed to have cablecasting capabilities brought into the Adult Care Center for adjourned meetings. 7. Council Policy Manual Deputy City Clerk Cory reviewed the history of the policy manual and the desirability of incorporating past policies into such a manual. There was consensus for the Deputy City Clerk and the City Manager to review the items presented for the policy manual, reorganize them, and present them in full to the-Council within a few months. They were directed not to take time from other pressing City projects for the policy manual. 8. Discussion concerning Agendizing of Commission Attendance Reports Councilmembers discussed the most appropriate forum for reviewing attendance reports. There was consensus for the City Manager to forward the reports to the Council informally rather than agendizing them at a meeting. 9. Discussion of City Commission Forum /Reception Councilmembers felt that January 30 would be too soon for this event. Councilmember Bogosian suggested a barbecue in late June or July. There was consensus to discuss this matter further at the Council retreat on March 14. 10. Letter to Greenbelt Alliance concerning Alma College Property Councilmembers Shaw and Bogosian expressed their preference for the resolution which had been previously presented rather than the letter. They did not feel the proposed letter represented their opinions, and they intended to write their own letters. Councilmember Jacobs said he would have stated in the letter that if the property is not purchased for public use, the City is not telling the County what should be done with the property. Councilmember Moran said her main concern with the resolution was how it could be used by those opposed to development of the property. There was a majority consensus for Mayor Wolfe to sign the letter and to direct staff to send it. 11. Orchids and Onions Tour with Planning Commission Scheduled for January 23 City Manager Perlin explained that it was not possible for the Planning Commission, the Council, and staff to take the tour in the same vehicle. After discussion of various alternatives, there was consensus to discuss the tour at the next joint meeting with the Planning Commission. It was also suggested that staff take slide photographs of the properties toured to review at the joint meeting. Councilmembers will also be provided with the addresses of houses on the tour so they can view them at their convenience. 12. Self- Evaluation of Previous Meetings 12/17; 1/7 There was consensus that the meetings were going well procedurally. Councilmember Moran felt that even if there was not a great deal to SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 31 1 AGENDA ITEM 5 A 1 MEETING DATE March 17, 1999 CITY MANAGER: *Mt ORIGINATING DEPT. City Manager PREPARED BY: City Clerk SUBJECT: Resolution denying an appeal from the decision of the Planning Commission: Applicant /Appellant Loh; 20651 Leonard Road (V -98 -011) RECOMMENDED MOTION(S): Adopt subject resolution. REPORT SUMMARY: At the Council meeting of March 3, 1999, under public hearing, the City Council denied an appeal to approve a variance at 20651 Leonard Road. The attached resolution has been prepared by the City Attorney to memorialize the decision to assure the accuracy of the findings, the vote and any conditions imposed. FISCAL IMPACTS: N/A ADVERTISING, NOTICING AND PUBLIC CONTACT: None required by law. CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION(S): Resolution will not be adopted. FOLLOW UP ACTIONS: None ATTACHMENTS: Subject resolution. FROM MEYERS, NAVE, RI BACK, SILVER WILSON (THU) 3. 11 99 17:25/ST. 17:19/NO. 4860102576 P 2 RESOLUTION NO. 99- RESOLUTION OF THE CITY COUNCIL OF THE h CITY OF SARATOGA DENYING AN APPEAL FROM THE DECISION OF THE PLANNING COMMISSION; APPLICANT /APPELLAh1T LOH; 20651 LEONARD ROAD V -98 -011 WHEREAS, Mr. and Mrs. Loh, the applicant has applied for variance approval for a 260 square foot storage shed previously constructed without permits, which does not meet the front and sideyard setbacks and for a gazebo and deck which do not meet height and setback requirements for the zoning district; and WHEREAS, on January 13, 1999, the Planning Commission of the City of Saratoga held a duly noticed public hearing on said application at which all interested parties were given a fully opportunity to be heard and to present evidence and following the conclusion thereof, the Planning Commission voted to deny the variance approval; and WHEREAS, the applicant has appealed the denial of the Planning Commission to the City Council; and WHEREAS, on March 3, 1999, the City Council conducted a de novo public hearing on the appeal, at which time any person interested in the matter was given the full opportunity to be heard and to present evidence; and WHEREAS, the City Council reviewed and considered the staff report, minutes of proceedings conducted by the Planning Commission relating to the application, and all written and oral evidence presented to the City Council in support of and in opposition to the appeal. NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Saratoga, as follows: 1. After careful consideration of the site plan, architectural drawings, plans and other exhibits submitted in connection with this matter, by unanimous vote of the City Council (Councilmember Mehaffey being absent) the appeal from the Planning Commission is denied and the action of the Planning Commission is affirmed, to wit: FROM MEYERS, NAVE, RI BACK, SILVER &WILSON (THU) 3. 11' 99 17:25/ST. 17:19/NO. 4860102 76 P 3 The applicant has failed to meet the burden of proof required to support the application for variance approval and the following findings have been determined: That there are no special circumstances about the property that would deprive the applicant of privileges enjoyed by the owners of the other properties in the vicinity. That the granting of the variance would constitute a granting of special privilege inconsistent with the limitations on other properties in the vicinity and classified in the same zoning district. 2. The Loh property shall be subject to the following conditions: 1. The storage shed shall be removed within 60 days of the effective date of this Resolution. 2. The gazebo shall either be removed or comply with the setback and height requirements of Section 15- 80.030(e) of the Saratoga Municipal Code within 60 days of the effective date of this Resolution. 3. The deck shall either be removed or comply with the setback and height requirements of Section 15-12.090 of the Saratoga Municipal Code within 60 days of the effective date of this Resolution. 4. All structures remaining on the property 60 days after the effective date of this Resolution lion shall have building permits on file with the City of Saratoga. 5. The deadline for completing the work described in the above conditions 1 through 4 may be extended once for no more than 30 days, only upon the finding of exceptional circumstances by the Community Development Director. Applicant agrees to hold City harmless from all costs and expenses, including attorney's fees, incurred by the City or held to be the liability of City in connection with City's defense of its actions in any proceeding brought in any State or Federal Court, challenging the City's action with respect to the applicant's project. 2 FROM MEYEtRS, NAVE, RI BACK, SILVER &WILSON (THU) 3. 11' 99 17:26/ST. 17:19/NO. 4860102576 P 4 Noncompliance with any of the conditions of this Resolution shall constitute a violation of the permit. Because it is impossible to estimate damages the City could incur due to the violation, liquidated damages of $250 shall be payable to this City per each day of the violation. The above and foregoing resolution was passed and adopted by the Saratoga City Council at a regular meeting held on the day of by the following vote: y 1999, AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk MSRdsp March i i, 1999 1: \WPD\MNRSW\2 73\RES99\L O HDENY.99 3 SARATOGA CITY COUNCIL 5 OP EXECUTIVE SUMMARY NO. 3// ie AGENDA ITEM 4 MEETING DATE: March 17, 1999 CITY MANAGER: ti r ORIGINATING DEPT: Administrative Services DEPT. HEAD: b 2Aai 47 11 I SUBJECT: Annual Review of the City of Saratoga Investment Policy RECOMMENDED MOTION(S): Approve the City of Saratoga Investment Policy. REPORT SUMMARY: California Government Code Section 53600 et seq., City of Saratoga Municipal Code Section 2- 20.035, and Section 16.0 of the City of Saratoga Investment Policy require the City Council to annually review and approve the City's Investment Policy. The Investment Policy lays the foundation for the City's investment management functions. It serves as a guide for setting and achieving investment objectives, defines rules and established benchmarks, prohibits and/or restricts investment instruments and reduces the exposure to liability of both staff and City Council. Compliance with the Policy is an element of fiscal discipline considered by the City's auditors and rating agencies during their respective reviews. Last year, at the January 7, 1998 City Council meeting, staff recommended no changes to the Investment Policy from the previous year, and the City Council approved the Investment Policy in its current version. This year, staff is recommending a number of changes to strengthen and clarify the Policy, but none which significantly changes the Policy. The Finance Commission reviewed the draft Policy at their March 8, 1999 meeting. The Commission recommended a number of minor changes to the Policy and asked staff to clarify several portions of the Policy more thoroughly. The Commission recommended forwarding the draft Policy, as amended, on to the City Council. Staff has incorporated these changes and clarifications into the version which you have before you. As mentioned, many of the recommended changes to the Policy are "housekeeping" items. There are a few changes which are noteworthy, however. Section 8, Authorized and Suitable Investments, has been expanded to include state, local or public authorities obligations, and I money market mutual funds. Section 13, Internal Control, has been broadened to strengthen this portion of the City's cash management and investment procedures. Additionally, the Glossary has been greatly expanded. Please note that the changes which are being added to the Policy are highlighted in bold italics, and the phrases which are recommended to be deleted in written in "strikethrough" mode. FISCAL IMPACTS: None ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION(S): Staff would receive City Council direction and resubmit the Investment Policy for approval at the next regularly scheduled City Council meeting. FOLLOW UP ACTIONS: Issue updated Investment Policy (with new adoption date) to interested parties. ATTACHMENTS: City of Saratoga Investment Policy CouncilRpt 2 CITY OF SARATOGA INVESTMENT POLICY ADOPTED 1.0 Policy: It is the policy of the City of Saratoga to invest public funds in a manner which will provide the maximum security with the highest investment return while meeting the daily cash flow demands of the entity and conforming to all state and local statutes governing the investment of public funds. 2.0 Scope: This investment policy applies to all financial assets of the City of Saratoga. These funds are accounted for in the City of Saratoga's Comprehensive Annual Financial Report and include: 2.1 Funds: 2.1.1 General Fund 2.1.2 Special Revenue Funds 2.1.3 Capital Project Funds 2.1.4 Debt Service Funds 2.1.5 Trust and Agency Funds 2.1.6 Any new fund, unless specifically exempted 2.2 Exceptions: The following financial assets are excluded: 2.2.1 Deferred Compensation Plans Investments are directed by the individual plan participants. 2.2.2 Debt Service Funds Held by Trustees Investments are placed in accordance with bond indenture provisions. 2.2.3 Notes and Loans Investments are authorized by separate agreements approved by City Council. 3.0 Prudence: Investments shall be made with judgment and care -under circumstances then prevailing- which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not for speculation, but for investments, considering the probable safety of their capital as well as the probable income to be derived. 3.1 The standard of prudence to be used by investment officials shall be the "prudent person" standard and shall be applied in the context of managing an overall portfolio. Investment officers acting in accordance with written procedures and the investment policy and exercising due diligence shall be relieved of personal responsibility for an individual security's credit risk or market price changes, provided deviations from expectations are reported in a timely fashion and appropriate action is taken to control adverse developments. 4.0 Objective: The primary objectives, in priority order, of the City of Saratoga's investment activities shall be: 4.1 Safety: Safety of principal is the foremost objective of the investment program. Investments of the City of Saratoga shall be undertaken in a manner that seeks to ensure the preservation of capital in the overall portfolio. T.. attain thin ob; ect ve- 4.2 Liquidity: The City of Saratoga's investment portfolio will remain sufficiently liquid to enable the City of Saratoga to meet all operating requirements which might be reasonably anticipated. 4.3 Return on Investments: The City of Saratoga's investment portfolio shall be designed with the objective of attaining a rate of return throughout budgetary and economic cycles, commensurate with the City of Saragota's investment risk constraints and the cash flow characteristics of the portfolio. 5.0 Delegation of Authority: Authority to manage the City of Saratoga's investment program is derived from the following: California Government Code Section 53600 et seq. and Saratoga Municipal Code Section 2- 20.035. Management responsibility for the investment program is hereby delegated to the City Manager who shall be responsible for supervising all treasury activities of the Administrative Services lase Director and who shall establish written procedures for the operation of the investment program consistent with this investment policy. Procedures should include reference to: safekeeping, delivery vs. payment, investment accounting, wire transfer agreements, banking service contracts and collateral/depository agreements. Such procedures shall include explicit delegations of authority to persons responsible for investment transactions. No person may engage in an investment transactions except as provided under the terms of this policy and the procedures established by the City Manager. The City Manager shall be responsible for all transactions undertaken and shall establish a system of controls to regulate the activities of subordinate officials. 6.0 Ethics and Conflicts of Interest: Officers and employees involved in the investment process shall refrain from personal business activity that could conflict with proper execution of the investment program, or which could impair their ability to make impartial investment decisions. These empleyees officers and employees involved in the investment process shall disclose to the City Manager any material financial interests in financial institutions that conduct business with this jurisdiction, and they shall further disclose any large personal financial/investment positions that could be related to the performance of the City of Saratoga, particularly with regard to the time of purchases and sales. Employees and investment officials shall refrain from undertaking personal investment transactions with the same individual with whom business is conducted on behalf of the City of Saratoga. 7.0 Authorized Financial Dealers and Institutions: The City Manager will maintain a list of financial institutions authorized to provide investment services. In addition, a list will also be maintained of approved security broker /dealers selected by credit worthiness who are authorized to provide investment services in the State of California. These may include "primary" dealers or regional dealers that qualify under Securities Exchange Commission Rule 15C3 -1 (uniform net capital rule). No public deposit shall be made except in a qualified public depository as established by state laws. All financial institutions and broker /dealers who desire to become qualified bidders for investment transactions must supply the City Manager with the following: personal interview, firm description and audited financial statements, proof of National Association of Securities Dealers (NASD) certification, proof of State of California registration, completed broker /dealer questionnaire and certification of having read City of Saratoga's investment policy and applicable depository contracts. An annual periodic review of the financial condition and registrations of qualified bidders will be conducted by the City Manager. A current audited financial statement is required to be on file for each financial institution and broker /dealer in which the City of Saratoga invests prior to any transaction. 8.0 Authorized and Suitable Investments: The City of Saratoga is empowered by Government Code Section 53601 statute, and further limited by this investment policy, to invest in the following types of securities: I Term to Type Guarantee Limits Maturity LAIF State Fund $20,000,000 Demand U.S. Treasury Bills U.S. Treasury No limit To one year U.S. Treasury Notes U.S. Treasury No limit 1- 5 years U.S. Govt. Agency Federal Agencies No limit 6 mos. -5 issues (e.g. FNMA, years GNMA) Certificates of FDIC or FSLIC 20% /portfolio 3 years Deposit (Calif. per institution Banks or Savings Loan Co.) Negotiable Issuing Bank 20% /portfolio 14 days Certificates of per institution or over Deposit Investment -grade Public entity 20 %/portfolio 1- 5 years obligations of state, per institution local governments or public authorities Money market Fund 20 %/portfolio Demand mutual funds per institution Passbook Savings Issuing Bank Minimum Demand Account and necessary Demand Deposits for current cash flow The City shall not engage in leveraged investing, such as in margin accounts or any form of borrowing for the purpose of investment. The City shall not invest in instruments whose principal and interest have no backing as described in Section 4.1 of this policy. Examples of these instruments are options and future contracts. The City shall not invest in "derivatives See Glossary for description of above securities. 9.0 Collateralization: Collateralization will be required on certificates of deposit. In order to anticipate market changes and provide a level of security for all funds, the collateralization level will be 102% of market value of principal and accrued interest. The City of Saratoga chooses to limit collateral to the following: Collateral will always be held by an independent third party with whom the entity has a current custodial agreement. A clearly marked evidence of ownership (safekeeping receipt) must be supplied to the City of Saratoga and retained. The right of collateral substitution is granted. 10.0 Safekeeping and Custody: All security transactions entered into by the City of Saratoga shall be conducted on a delivery- versus payment(DVP) basis. Securities will be held by a third party custodian, in the City of Saratoga's name and control, designated by the City Manager and evidenced by safekeeping receipts. 11.0 Diversification: The City of Saratoga will diversify its investments by security type and institution. Limits are provided for in Section 8.0. With the exception of U.S. Treasury securities and authorized pools, no more than 20% of the City of Saratoga's total investment portfolio will be invested in a single security type or with a single financial institution. 12.0 Maximum Maturities: To the extent possible, the City of Saratoga will attempt to match its investments with anticipated cash flow requirements. Unless matched to a specific cash flow, the City of Saratoga will not directly invest in securities maturing more than five (5) years from the date of purchase. However, the City of Saratoga may collateralize its certificates of deposits using longer -dated investments not to exceed ten (10) years to maturity. Debt reserve funds may be invested in securities exceeding five (5) years if the maturity of such investments are made to coincide as nearly as practicable with the expected use of the funds. The City of Saratoga will retain a general operating reserve adopted annually by the City Council. The amount of active deposits and inactive investments with a maturity of one year or less shall always be equal to or greater than the required general operating reserve. The report discussed in Section 15.0 shall demonstrate this policy is in effect. 13.0 Internal Control: The City of Saratoga is responsible for establishing and maintaining an internal control structure designed to ensure that the assets of the City are protected from loss, theft or misuse. The internal control structure shall be designed to provide reasonable assurance that these objectives are met. The concept of reasonable assurance recognized that (1) the cost of a control should not exceed the benefits likely to be derived and (2) the valuation of costs and benefits requires estimates and judgments by the City Manager and staff. Accordingly, the City ef-Saratoga shall establish an annual process of independent review by an external auditor. This review will provide internal control by assuring compliance with policies and procedures. The internal controls shall address the following points: Control of collusion Separation of transaction authorityform accounting and reco r d k e e p in g Custodial safekeeping Avoidance of physical delivery securities Clear delegation of authority to subordinate staff members Written confirmation of transactionsfor investments and wire transfers Development of a wire transfer agreement with the lead bank and third party custodian. 14.0 Performance Standards: The investment portfolio shall be designed with the objective of obtaining a rate of return throughout budgetary and economic cycles, commensurate with the investment risk constraints and the cash flow needs. 14.1 Market Yield (Benchmark): The City of Saratoga's investment strategy is passive. Given this strategy, the basis used by the City of Saratoga to determine whether market yields are being achieved shall be a short term U.S. Treasury Bill. 15.0 Reporting: The City Manager is charged with the responsibility of including a market report on investment activity and returns in the City of Saratoga's Cash and Investment Report. The report will be in compliance with California Government Code Section 53646. 16.0 Investment Policy Adoption: The City of Saratoga's investment policy shall be adopted by the City Council. The policy shall be reviewed annually by the Finance Commission and any modifications made thereto must be approved by the City Council. GLOSSARY Broker Someone who brings buyers and sellers together and is compensatedfor his/her service. Certificates of Deposit Commonly called time deposits certificates or time deposit open accounts. These are nonnegotiable. Collateralization Process by which a borrower pledges securities, property or other deposits for the purpose of securing the repayment of a loan and/or security. Also refers to securities pledged by a bank to secure deposits of public monies. Dealer Someone who acts as a principal in all transactions, including buying and selling from his/her own account. Delivery vs. Payment The preferred method of delivering securities, with an exchange of money for the securities. Demand Deposits A deposit of monies which are payable by the bank upon demand of the depositor. Derivative Securities that are based on, or derived from, some underlying asset, reference date, or index. FDIC Federal Depository Insurance Corporation FSLIC Federal Savings and Loans Insurance Corporation Liquidity An asset that can easily and rapidly be converted into cash without significant loss of value. Local Agency Investment Fund (LAIF) The LAIF was established by the State of California to enable treasurers to place funds in a pool for investments. There is a limitation of $20 million per agency subject to a maximum of ten (10) total transactions per month. The City uses this fund when market interest rates are declining as well as for short-term investments and liquidity. Money market mutualfunds Mutual funds which invest in short term securities and strive to maintain a share price of $1. Negotiable certificates of deposit A bank deposit issued in negotiable form (Le., one that can be bought or sold in the open market). Portfolio Combined holding of more than one stock, bond, commodity, cash equivalent or other asset. The purpose of a portfolio is to reduce risk by diversification. Safekeeping Offers storage and protection of assets provided by an institution serving as an agent U.S. Treasury Bills Commonly referred to as T -Bills these are short-term marketable securities sold as obligations of the U.S. Government. They are offered in three- month, six -month and one -year maturities. T -Bills do not accrue interest but are sold at a discount to pay face value at maturity. U.S. Treasury Notes These are marketable, interest bearing securities sold as obligations of the U.S. Government with original maturities of one to ten years. Interest is paid semi annually. U.S. Government Agency Issues Include securities which fall into this category. Issues which are unconditionally backed by the full faith and credit of the United States, e.g. Small Business Administration Loans. C:MaryJo \Invest\InvPolicy •4, t (4 i I SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO: 3(2- 0 AGENDA ITEM: 1 A MEETING DATE: March 17, 1999 CITY MANAGER: in ORIGINATING DEPT: Community Development DEPT HEAD:/ j AI {/y 0 SUBJECT: Redwood Middle School Initial Study RECOMMENDED MOTION: Continue the Redwood Middle School Initial Study review and response to the April 7th regular City Council meeting. Staff will forward a request to the Public Safety Commission to convene a special meeting in advance of the Council meeting to allow for their review of the revised Initial Study when it becomes available. If the School District cannot complete the revised report by these dates, these meetings may need to be further postponed. REPORT SUMMARY: An environmental Initial Study has been prepared and distributed by the Saratoga Union School District for public review for the Redwood Middle School expansion plans. The School District has determined that an EIR is not necessary for the project. Staff has previously forwarded copies of the Initial Study to the City Council and Planning and Public Safety Commissions for review and comment. Responses to the Initial Study were originally required to be received by the School District by March 4th.. The Planning Commission has reviewed the document and forwarded their comments to staff. Since neither the City Council nor the Public Safety Commission would have met within that time frame, staff requested that the School District grant the City an extension of time in order to schedule the Initial Study for Council and Public Safety Commission consideration. At their February 23` meeting, the School District board did grant the City an extension of time to March 18` Since the February 23r board meeting, staff has met with School District Superintendent Mary Gardner and the project architects to discuss what staff has already found to be deficiencies in the traffic analysis in the Initial Study. As a result of this meeting, Ms. Gardner agreed to postpone discussion of the Initial Study until such time as a comprehensive traffic circulation and queuing analysis can be performed by a licensed traffic engineer and included in the document. The Initial Study would then be rescheduled for City Council and Public Safety Commission review at a later date. FISCAL IMPACTS: None. ADVERTISING, NOTICING AND PUBLIC CONTACT: None. CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION: Not Applicable. FOLLOW UP ACTIONS: Reschedule the Redwood Middle School Initial Study review and response to the April 7th regular City Council meeting. Staff will forward a request to the Public Safety Commission to convene a special meeting in advance of the Council meeting to allow for their review of the revised Initial Study when it becomes available. If the School District cannot complete the revised report by these dates, these meetings may need to be further postponed. SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO: 3 1 Z AGENDA ITEM: A MEETING DATE: March 17, 1999 CITY MANAGER #ffill ORIGINATING DEPT: Community Development DEPT HEAD: SUBJECT: Ordinance adding Article 4 -80 to Chapter 4 of to the Municipal Code related to regulating adult oriented businesses. RECOMMENDED MOTION: Introduce Adult Oriented Business Ordinance by title only, waiving a full reading. REPORT SUMMARY: In response to an adult business that desired to operate in Saratoga at the commercial shopping center between Lawrence Expressway and Prospect Avenue, the City Attorney recommended the City Council adopt an Adult Business Ordinance to regulate future proposals. While in this one case staff was able to deny the business license based on a determination that the proposed video screens constituted a "theater and that the business was therefore subject to a Conditional Use Permit, the City Attorney felt that the City needed to be prepared for the next potential adult business proposal. The draft Adult- Oriented Business Ordinance has been reviewed previously by both the Public Safety Commission and the City Council. The Public Safety Commission recommended its adoption to the City Council at the Council's February 9 adjourned meeting. The council accepted the staff report and the Commission's recommendation and directed staff to schedule the Ordinance for formal introduction and adoption. Staff had previously suggested that this proposed Ordinance be substituted, or augmented, with a land use Zoning Ordinance that would require a Conditional Use Permit for adult businesses as a means to regulate these businesses. The City Attorney has noted, however, that this approach could put the Planning Commission and City Council in the difficult position of making a land use decision on a project that may be strenuously opposed by residents and yet the Commission and Council would be ORDINANCE NO. 71- AN ORDINANCE ADDING ARTICLE 4.80 TO CHAPTER 4 OF THE SARATOGA CITY CODE RELATING TO REGULATION OF ADULT- ORIENTED BUSINESSES The City Council of the City of Saratoga does hereby ordain as follows: SECTION 1. FINDINGS. The City Council of the City of Saratoga hereby finds that: (a) The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Adult- Oriented Business in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). The City Council finds that these studies are relevant to the potential problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Adult- Oriented Businesses, and more specifically finds that the these studies provide convincing evidence that: (1) Adult Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (2) There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Adult Oriented Businesses. (b) Based on the foregoing, the City Council of the City of Saratoga finds and determines that special regulation of Adult- Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates. The need for such special regulations is based upon the recognition that Adult- Oriented Business have serious objectionable operational characteristics, thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent such adverse secondary side effects. 1 (c) In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Adult Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of Adult Oriented Businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of Adult- Oriented Businesses, including but not limited to: Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) (Reh. Denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S. 41 (1986) (Reh. Denied 475 U. S. 1132); FW/PBS. Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener, 3 Ca1.4th 832 (1993); People v. Superior Court (Lucero) 49 Ca1.3d 14 (1989); and City of Vallejo v. Adult Books, et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074. The City Council also takes legislative notice of the facts recited in the case of Key. Inc. v. Kitsap County, 793 F.2d 1053 (1986), regarding how live adult entertainment results in adverse secondary effects and law enforcement problems. (d) The City Council finds the following, in part based upon its understanding of the documents and judicial decisions in the public record: (1) Evidence indicates that some dancers, models and entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatomical Parts in Adult- Oriented Businesses (collectively referred to as `performers') have been found to engage in sexual activities with patrons of Adult- Oriented Businesses on the site of the Adult- Oriented Businesses; (2) Evidence has demonstrated that performers employed by Adult Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows; 2 (3) Evidence indicates that performers at Adult- Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment; (4) Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as a location for engaging in unlawful sexual activity; (5) As a result of the above, and the increase in incidents of AIDS and Hepatitis B, which are both sexually transmitted diseases, the City has a substantial interest in adopting regulations which will reduce, to the greatest extent possible, the possibility for the occurrence of prostitution and casual sex acts at Adult- Oriented Businesses. (e) Licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Saratoga and to help assure that all operators of Adult- Oriented Businesses comply with reasonable regulations that minimize the adverse secondary effects which typically accompany the operation of such businesses. (f) It is not the intent of the City Council of the City of Saratoga in enacting this ordinance, or any provisions thereof to condone or legitimize the distribution of obscene material, and the City of Saratoga recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in the City of Saratoga. (g) Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof. (h) In prohibiting public nudity in Adult- Oriented Businesses, the City Council does not intend to proscribe the communication of erotic messages or any other communicative element or act, but rather only to prohibit public nudity due to the secondary impacts associated with such public nudity; and 3 (i) The City Council also finds, as a wholly independent basis, that it has a substantial public interest in preserving societal order and morality, and that such interest is furthered by a prohibition on public nudity; and (j) While the City Council desires to protect the rights conferred by the United States Constitution on Adult- Oriented Businesses, it does so in a manner that ensures the continued and orderly use and enjoyment of property within the City and diminishes, to the greatest extent feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of Adult- Oriented Businesses; and (k) In enacting a nudity limitation, the City declares that the limitation is a regulatory licensing provision and not a criminal offense. The City has not provided a criminal penalty for a violation of the nudity limitation. The City adopts such a limitation only as a condition of issuance and maintenance of an Adult- Oriented Business permit issued pursuant to the City Code; and The City Council finds that requiring separations e arations between entertainers q g p rtamers and patrons and preventing the exchange of money between entertainers and patrons also reduces the likelihood of drug and sex transactions occurring in Adult Oriented Businesses; and (m) Enclosed or concealed booths and dimly -lit areas within Adult- Oriented Businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areas be open to view by management at all times, and that adequate lighting be provided are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct within Adult- Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel, and (n) The City Council finds that Adult- Oriented Business Permits shall be denied to applicants with recent criminal convictions for sexually- related offenses due to the evidenced lack of commitment to enforcement of prohibitions with respect to sexual offenses and due to the high incidence of recidivism with respect to sexual crimes. SECTION 2. "Adult- Oriented 4.80 entitled Adult Oriented Businesses is hereby added to Chapter 4 of the Saratoga City Code, to read as follows: 4 Article 4.80. ADULT- ORIENTED BUSINESSES SEC. 4.80.010. LEGISLATIVE PURPOSE. It is the purpose of this Article to regulate Adult- Oriented Business in order to promote the health, safety, morals, and general welfare of the citizens of the City. The provisions of this Article have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult- oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to adult- oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult- oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. SEC. 4.80.015. DEFINITIONS. For the purposes of this Article the following words and phrases shall have the meanings respectively ascribed to them by this section: (a) Adult arcade. The term "adult arcade" as used in this Article, is an establishment where, for any form of consideration, one or more still or motion picture projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, computer generated images, motion pictures, video cassettes, slides or other photographic reproductions thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the .depiction or description of specified sexual activities of specified anatomical areas. (b) Adult bookstore. The term "adult bookstore" as used in this Article, is an establishment that has thirty (30) percent or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, records or other form of visual or audio representations which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities and or specified anatomical areas. 5 (c) Adult cabaret. The term "adult cabaret" as used in this Article, means a nightclub, restaurant, or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear semi -nude; and/or (3) video films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas. (d) Adult hotel/motel. The term "adult hotel/motel" as used in this Article, means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which, (1) provides patrons with closed- circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, and (2) rents, leases, or lets any room for less than a six (6) hour period, or rents, leases, or lets any single room more than twice in a 24- hour period. (e) Adult motion picture theater. The term "adult motion picture theater" as used in this Article, means a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes slides or similar photographic reproductions are shown, and thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas. (f) Adult theater. The term "adult theater" as used in this Article, means a theater, concert hall, auditorium, or similar establishment which, for any form of consideration regularly features live performances which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities. 6 i I (g) Adult- Oriented Business Operator. The term "Adult- Oriented Business Operator" (hereinafter "operator as used in this Article means, a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an Adult- Oriented Business or the conduct or activities occurring on the premises thereof. (h) Applicant. The term "Applicant" as used in this Article, means a person who is required to file an application for a permit under this chapter, including an individual owner, a managing partner, officer of a corporation, or any other operator, a manger, employee, or agent of an Adult Oriented Business. (i) Bar. The term "Bar" as used in this Article, means any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises. (j) City Manager. The term "City Manager" as used in this Article, means the City Manager of the City of Saratoga or the authorized representatives thereof. (k) Computer Site. The term "computer site" as used in this Article, means a business which provides, for pecuniary compensation, monetary or other consideration, live performances that are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities and/or which regularly feature persons who appear semi -nude and which such performances can be viewed by computer or any other type of electronic device. (1) Distinguished or characterized by an emphasis upon. The term "distinguished or characterized by an emphasis upon," as used in this Article, means the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon" the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction 7 of the enumerated sexual activities or anatomical areas. See, Pringle v. City of Covina, 115 Cal.App.3 151 (1981). (m) Figure model. The term "Figure model" as used in this Article, means any person who, for pecuniary compensation, considera- tion, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted. (n) Health officer. The term "Health Officer" as used in this Article, means the "City Manager Any of the powers or duties to be exercised or approvals to be granted by the Health Officer under PP Y this Article may be delegated by the City Manager, in whole or in part, to the County Health Department or to such other authorized agents as the City Manager may designate. Modeling studio. The term "modeling g g studio as used in this Article, means a business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, sketched, photographed painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the State Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and which does not provide, permit, or make available "specified sexual activities." (p) Nudity or a state of nudity. The term "Nudity or a state of nudity" as used in this Article, means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernible turgid state. (q) Operate an Adult- Oriented Business. The term "operate an adult oriented business" as used in this Article, means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities 8 of an Adult- Oriented Business or activities within an Adult- Oriented Business. (r) Permittee. The term "Permittee" as used in this Article, means the person to whom an Adult- Oriented Business Permit is issued. (s) Person. The term "Person" as used in this Article, means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character. (t) Regularly Features. The term "regularly features" as used in this Article with respect to an adult theater or adult cabaret, means a regular and substantial course of conduct. The fact that live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities occurs on two (2) or more occasions within a thirty (30) day period; three (3) or more occasions within a sixty (60) day period; or four (4) or more occasions within a one hundred and eighty (180) day period, shall to the extend permitted by law be deemed to be a regular and substantial course of conduct. (u) Semi -nude. The term "Semi- Nude" as used in this Article, means a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered by supporting straps or devices. (v) Specified anatomical areas. The term "specified anatomical areas" as used in this Article, means any of the following: (1) Less than completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; and (iii) female breast below a point immediately above the top of the areola; (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered; 9 (3) Any device, costume or covering that simulates any of g y other body parts included in subdivisions (1) or (2) above. (w) Specified sexual activities. The term "specified sexual activities" as used in this Article, means any of the following, whether performed directly or indirectly through clothing or other covering: (1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; (2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; (3) Masturbation, actual or simulated; (4) Excretory functions as part of or in connection with any of the other activities described in subdivision (1) through (3) of this subsection. SEC. 4.80.020. PERMITS REQUIRED. (a) It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Saratoga, the operation of an Adult- Oriented Business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Saratoga as herein required. (Adult- Oriented Business Regulatory Permit) (b) It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an Adult Oriented Business unless the person first obtains and continues in full force and effect a permit from the City of Saratoga as herein required. (Adult- Oriented Business Performer Permit) SEC. 4.80.025. ADULT- ORIENTED BUSINESS REGULATORY PERMIT APPLICATIONS. 10 (a) Adult- Oriented Business Regulatory permits are nontransferable, except in accordance with Section 4.80.040. Therefore, all applications shall include the following information: (1) If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least eighteen (18) years of age. (2) If the applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any. (3) If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California, the names and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered office for service of process. (4) If the applicant has had any convictions within the last five (5) years of the offenses set forth in Section 4.80.045(d)(5). (b) If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity or an individual with a ten (10) percent or greater interest in the business entity shall sign the application. (c) If the applicant intends to operate the Adult- Oriented Business under a name other than that of the applicant, the applicant shall file the fictitious name of the Adult- Oriented Business and show proof of registration of the fictitious name. (d) A description of the type of Adult- Oriented Business for which the Permit is requested and the proposed address where the Adult Oriented Business will operate, plus the name and 11 addresses of the owners and lessors of the Adult- Oriented Business site. (e) The address to which notice of action on the application is to be mailed. (f) The names of all employees, independent contractors, and other persons who will perform at the Adult- Oriented Business, who are required by Section 4.80.045 to obtain an Adult- Oriented Business Performer Permit (for ongoing reporting requirements see Section 4.80.045(a). (g) A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the Adult- Oriented Business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior the premises to an accuracy of plus or minus six (6) inches. (h) A certificate and straight -line drawing prepared within thirty (30) days prior to application depicting the building and the portion thereof to be occupied by the Adult- Oriented Business. (i) A diagram of the off street parking areas and premises entries of the Adult- Oriented Business showing the location of the lighting system required by Section 4.80.070(c) and (j). (j) If the City Manager determines that the applicant has completed the application improperly, the City manager shall promptly notify the applicant of such fact and, on request of the applicant, grant the applicant an extension of time of ten (10) days or less to complete the application properly. In addition the applicant may request an extension, not to exceed ten (10) days, of the time for the City Manager to act on the application. The time period for granting or denying a Permit shall be stayed during the period in which the applicant is granted an extension of time. (k) The fact that an applicant possesses other types of State or City permits or licenses does not exempt the applicant from the 12 requirement of obtaining an Adult- Oriented Business Regulatory Permit. (1) Along with the filing of the application, the applicant shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable. SEC. 4.80.030. INVESTIGATION AND ACTION ON APPLICATION. (a) Upon receipt of a completed application and payment of the PP p ym e application and permit fees, the City Manger shall immediately stamp the application as received and promptly investigate the information contained in the application to determine whether the applicant shall be issued an Adult- Oriented Business Regulatory Permit. Within ithin forty -five (45) days of receipt of the completed application, the City Manager shall complete the investigation, grant or deny the application in accordance with the provisions of PP P this Section, and so notify the applicant as follows: (1) The City Manager shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the City manager shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the City manager shall attach to the application an Adult- Oriented Business Regulatory Permit. The (4 application as granted or denied and the Permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the address stated in the application. (c). The City Manager shall grant the application and issue the Adult Oriented Business Regulatory permit upon findings that the applicant has met all of the development and performance 13 standards and requirements of Section 4.80.070, unless the application is denied for one or more of the reasons sets forth in Section 4.80.035. The Permittee shall post the Permit conspicuously in the Adult- Oriented Business premises. (d) If the City Manager grants the application or if the City Manager neither grants nor denies the application within thirty (30) days after it is stamped as received (except as provided in Section 4.80.025 (j)), the applicant may begin operating the Adult Oriented Business for which the Permit was sought, subject to strict compliance with the development and performance standards and requirements of Sections 4.80.070. SEC. 4.80.035. PERMIT DENIAL. The City Manager shall deny the application for any of the following reasons: (a) The building, structure, equipment, or location used by the business for which an Adult- Oriented Business Regulatory permit is required do not comply with the requirements and standards of the health, zoning, fire and safety laws of the City and the State of California, or with the locational or development and performance standards and requirements of these regulations. (b) The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an Adult Business Regulatory Permit. (c) An applicant is under eighteen (18) years of age. (d) The required application fee has not been paid. (e) An applicant has been convicted of an offense specified in Section 4.80.045(d)(5). Each Adult- Oriented Business Regulatory permit shall expire one (1) year from the date of issuance, and may be renewed only by filing with the City Manager a written request for renewal, accompanied by the 14 I Annual Permit Fee and a copy of the Permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the Permit. When made less than thirty (30) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for Permits. SEC. 4.80.040. TRANSFER OF ADULT- ORIENTED BUSINESS REGULATORY PERMITS. (a) A permittee shall not operate an Adult- Oriented Business under the authority of an Adult- Oriented Business Regulatory Permit at any place other than the address of the Adult- Oriented Business stated in the application for the Permit. (b) A permittee shall not transfer ownership or control of an Adult Oriented Business or transfer an Adult- Oriented Business Regulatory Permit to another person unless and until the transferee obtains an amendment to the Permit from the City Manager stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the City Manager in accordance with Section 4.80.025, accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the City Manager determines in accordance with Section 4.80.030 that the transferee would be entitled to the issuance of an original Permit. (c) No Permit may be transferred when the City Manager has notified the permittee that the permit has been or may be suspended or revoked. (d) 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. SEC. 4.80.045. ADULT- ORIENTED BUSINESS PERFORMER PERMIT. (a) No person shall engage in or participate in any live performance 15 depicting specified an p g p anatomical areas or involving specified sexual activities in an Adult- Oriented Business, without a valid Adult Oriented Business performer permit issued by the City. All persons who have been issued an Adult- Oriented Business Regulatory Permit shall promptly supplement the information provided as part of the application for the Permit required by Section 4.80.025, with the names of all Performers required to obtain an Adult- Oriented Business Performer Permit, within thirty (30) days of any change in the information originally submitted. Failure to submit such changes shall be grounds for suspension of the Adult- Oriented Business Regulatory Permit. (b) The City Manager shall grant, deny and renew Adult Business Performer Permits. (c) The application for a Permit shall be made on a form provided by the City Manager. An original and two copies of the completed and sworn permit application shall be filed with the City Manager. (d) The completed application shall contain the following information and be accompanied by the following documents: (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (2) Age, date and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number; (5) Whether the applicant has ever been convicted of: (i) Any of the offenses set forth in Sections 315, 316, 266a, 266b, 266c, 266e, 266g, 266h, 266i, 647(a), 647(b) and 647(D) of the California Penal Code as those sections now exist or may hereafter be amended or renumbered. 16 (ii) The equivalent of the aforesaid offenses outside the State of California. (6) Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other State to engage in prostitution, a Statement shall be submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution. (7) State driver's license or identification number; (8) Satisfactory written proof that the applicant is at least eighteen (18) years of age; (9) The applicant's fingerprints on a form provided by the Sheriffs Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant; (10) If the application is made for the purpose of renewing a Permit, the applicant shall attach a copy of the Permit to be renewed. (e) The completed application shall be accompanied by a non- refundable application fee. The amount of the fee shall be set by resolution adopted by the City Council, from time to time. (f) Upon receipt of an application and payment of the application fees, the City Manager shall immediately stamp the application as received and promptly investigate the application. (g) If the City Manager determines that the applicant has completed the application improperly, the City Manager shall promptly notify the applicant of such fact and grant the applicant an extension of time of not more than ten (10) days to complete the application 17 properly. In addition, the applicant may request an extension, not to exceed ten (10) days, of the time for the City Manger to act on the application. The time period for granting or denying a Permit shall be stayed during the period in which the applicant is granted an extension of time. SEC. 4.80.050. INVESTIGATION AND ACTION ON APPLICATION. (a) Within ten (10) days after receipt of the properly collected application, the City manager shall grant or deny the application and so notify the applicant as follows: (1) The City Manager shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the City Manager shall attach to the application a statement of the reasons for denial. (3) If the application in granted, the City Manager shall attach to the application an Adult- Oriented Business Performer Permit. (4) The application as granted or denied and the Permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the residence address stated in the application. (b) The City Manager shall grant the application and issue the Permit unless the application is denied for one or more of the reasons set forth in subsection (d) of this section. (c) If the City Manager grants the application or if the City Manager neither grants nor denies the application within ten (10) days after it is stamped as received (except as provided in Section 4.80.045(g), the applicant may begin performing in the capacity for which the Permit was sought. (d) The City Manager shall deny the application for any of the following reasons: 18 (1) The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a Permit or in any report or document required to be filed with the application; (2) The applicant is under eighteen (18) years of age; (3) The Adult- Oriented Business Performer Permit is to be used for performing in a business prohibited by State or City law. (4) The applicant has been registered in any state as a prostitute. (5) The applicant has been convicted of any of the offenses enumerated in Section 4.80.045(d)(5) or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed within the State of California. A Permit may be issued to any person convicted of the described crimes if the conviction occurred more than five (5) years prior to the date of the application. (e) Each Adult- Oriented Business Performer Permit shall expire one (1) year from the date of issuance and may be renewed only by filing with the City Manager a written request for renewal, accompanied by the application fee and a copy of the Permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the Permit. When made less than thirty (30) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as provided herein for application for Permits. SEC. 4.80.055. SUSPENSION OR REVOCATION OF ADULT ORIENTED BUSINESS REGULATORY PERMITS AND ADULT ORIENTED BUSINESS PERFORMER PERMITS. An Adult- Oriented Business Regulatory Permit or Adult- Oriented Business Performer Permit may be suspended or revoked in accordance ordance 19 with the procedures and standards of this Section. (a) On determining that grounds for Permit revocation exist, the City Manager shall furnish written notice of the proposed suspension or revocation to the Permittee. Such notice shall set forth the time and place of a hearing, and the ground or grounds upon which the hearing is based, the pertinent Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the Permittee, or shall be delivered to the Permittee personally, at least ten (10) days prior to the hearing date. Hearings shall be conducted in accordance with procedures established by the City Manager, but at a minimum shall include the following: (1) All parties involved shall have a right to offer testimonial, documentary, and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which retainable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this Section may be continued for a reasonable time for the convenience of a party or a witness. The City Manager's decision may be appealed in accordance with Section 4.80.060. (b) A Permittee may be subject to suspension or revocation of a Permit, or be subject to other appropriate disciplinary action, for any of the following causes arising from the acts or omissions of the Permittee, or an Employee, agent, partner, director, stockholder, or manager of an Adult- Oriented Business: (1) The Permittee has knowingly made any false, misleading or fraudulent statement of material facts in the application for a Permit, or in any report or record required to be filed with the City. (2) The Permittee, employee, agent, partner, director, stockholder, or manager of an Adult- Oriented Business- has 20 knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the Adult- Oriented Business, or in the case of an Adult- Oriented Business Performer, the permittee has engaged in one of the activities described below while on the premises of an Adult Oriented Business: (i) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation. (ii) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. (iii) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. (iv) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Sections 315, 316, or 318 or Subdivision b of Section 647 of the California Penal Code. (v) Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including but not limited to Sections 311 through 313.4. (vi) Any conduct prohibited by this chapter. (3) Failure to abide by an disciplinary action previously imposed by an appropriate City official. (c) After holding the hearing in accordance with the provisions of this Section, if the City Manager finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the City Manager shall impose one of the following: (1) A warning; 21 (2) Suspension of the Permit for a specified period not to exceed six months; (3) Revocation of the Permit. SEC. 4.80.065. APPEAL OF DENIAL. SUSPENSION OR REVOCATION. After denial of an application for an Adult- Oriented Business Regulatory Permit or an Adult Oriented Business Performer Permit, or after denial of renewal of a Permit, or suspension or revocation of a Permit, the applicant or person to whom the Permit was granted may appeal through the following procedures: (a) Request for appeal hearing. The applicant shall file a written request for an appeal hearing, which states the specific grounds on which the decision of the City Manager to deny, suspend, or revoke the permit is contested, within ten (10) days after service of the notice of the written decision, by deposit of the notice, addressed to the holder of the permit, by certified mail and/or by hand delivery. At the time of submitting the written request for an appeal hearing, the appellant shall pay an appeal hearing fee, set forth in the City fee schedule. If the applicant or person to whom the permit was granted does not request an appeal hearing with the ten (10) day period, no further notice is required and the action will become final. (b) Appeal hearing. An appeal hearing shall be conducted as provided for in Section 4- 55.080 and 4- 55.150 of this Code. (c) The decision of the Board of Appeals shall inform the applicant of the right to a prompt judicial review and that any judicial action appealing the Board of Appeals decision shall be commenced within thirty (30) calendar days of the date of the service of the decision. SEC. 4.80.070. ADULT- ORIENTED BUSINESS DEVELOPMENT AND PERFORMANCE STANDARDS. (a) Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the fire and building regulations and standards adopted by the City of Saratoga. 22 (b) No Adult- Oriented Business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. All off street parking areas and premise entries of the ad (c p g 1 p adult- oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1) foot candle of light on the parking surface and/or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the adult- oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises. (d) The premises within which the Adult Oriented Business is located shall provide sufficient sound absorbing insulation so that noise generated inside said premises shall not be audible anywhere on any adjacent property or public right -of -way or within any other building or other separate unit within the same building. (e) The building entrance to an Adult Oriented Business shall be clearly and legibly posted with a notice indicating that persons under eighteen (18) years of age are precluded from entering the premises. Said notice shall be constructed and posted to the satisfaction of the Community Development Director or designee. No person under the age of eighteen (18) years shall be permitted within the premises at any time. (f) All indoor arenas of the Adult- Oriented Business within which patrons are permitted, except rest rooms, shall be open to view by the management at all times. 23 (g) Any Adult- Oriented Business which is also an Adult arcade, shall comply with the following provisions: (1) 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 has two or more managers 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 stations. The view required in this subsection must be direct line of sight from the managers station. (2) The view area specified in section (5) shall remain unobstructed by any door, walls, merchandise, display racks, or other materials at all times. 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. (3) No viewing room may be occupied by more than one person at any one time. (4) The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any two such rooms such as would allow viewing from one booth into another or such as to allow physical contact of any kind between the occupants of any two such booths or rooms. (5) Customers, patrons or visitors shall not be allowed to stand idly by in the vicinity of any such video booths, or from remaining in the common area of such business, other than the restrooms, who are not actively engaged in shopping for or reviewing the products available on display for purchaser viewing. Signs prohibiting loitering shall be 24 posted in prominent places in and near the video booths. (6) The floors, seats, walls and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any such booths shall be evidence of improper maintenance and inadequate sanitary controls; repeated instances of such conditions may justify suspension or revocation of the owner and operators permit to conduct the adult- oriented establishment. (j) All areas of the Adult Oriented Business shall be illuminated, at a minimum, with the following foot candles, evenly distributed at ground level: Area Foot Candles Bookstores and other retail 20 establishments Theaters and cabarets 5 (except during performances, at which times lighting shall be at least 1.25 foot candles) Arcades 10 Motels/Hotels 20 (in public areas) Modeling studios and 10 computer sites (k) The Adult Oriented Business shall provide and maintain separate rest room facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) for males, except to carry out duties of repair, maintenance and cleaning of the rest room facilities. The rest rooms shall be free from any Adult Oriented Material. Rest rooms 25 shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an Adult- Oriented Business which deals exclusively with sale or rental of Adult Material which is not used or consumed on the premises, such as an Adult Bookstore or Adult Video Store, and which does not provide rest room facilities to its patrons or the general public. (1) The following additional requirements shall pertain to Adult Oriented Businesses providing live entertainment depicting Specified Anatomical Arena or involving Specified Sexual Activities, except for businesses regulated by the Alcoholic Beverage Control Commission and those businesses that are computer sites: (1) No person shall perform live entertainment for patrons of an Adult- Oriented Business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least ten (10) feet from the nearest area occupied by patrons, and no patron shall be permitted within ten (10) feet of the stage while the stage is occupied by an entertainer. "Entertainer" shall mean any person who is an employee or independent contractor of the Adult Oriented Business, or any person who, with or without any compensation or other form of consideration, perform live entertainment for patrons of an Adult Oriented Business. (2) The Adult- Oriented Business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. (3) The Adult- Oriented Business shall provide an entrance/exit for entertainers which is separate from the entrance/exit used by patrons. (4) The Adult- Oriented Business shall provide access for entertainers between the stage and the dressing rooms which is completely separated from the patrons. If such 26 separate access is not physically feasible, the Adult Oriented Business shall provide a minimum (3) foot wide walk aisle for entertainers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the entertainers capable of (and which actually results in) preventing any physical contact between patrons and entertainers. (5) No entertainer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any entertainer either before, during or after performances by such entertainer. This subsection shall only apply to physical contact on the premises of the Adult- Oriented Business. (6) Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between entertainers and patrons required by this subsection. (7) No patron shall directly pay or give any gratuity to any entertainer and no entertainer shall solicit any pay or gratuity from any patron. (8) No owner or other person with managerial control over an Adult- Oriented Business (as that term is defined herein) shall permit any person on the premises of the Adult Oriented Business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than fully opaque coverage over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered. (m) Adult- Oriented Businesses shall employ security guards in order to maintain the public peace and safety, based upon the following standards: 27 1 Adult- Oriented Businesses esses featuring live entertainment, except for computer sites, shall provide at least one (1) security guard at all times while the Business is open. If the occupancy limit of the premises is greater than thirty -five (35) persons, an additional security guard shall be on duty. (2) Security guards for other Adult- Oriented Businesses may be required if it is determined by the City Manager that their presence is necessary in order to prevent any of the conduct listed in Section 4.80.055(b)(2)(i) (vi) from occurring on the premises. (3) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations as well as controlling behavior and reporting all criminal offenses to the Police Department. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of the State. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as a security guard. The City Manager reserves the right to determine the number of guards and may require that the number of guards be increased if necessary. The foregoing applicable requirements of this Section shall be deemed conditions of Adult- Oriented Business Regulatory Permit approvals, and failure to comply with every such requirement shall be grounds for revocation of the Permit issued pursuant to these regulations. SEC. 4.80.075. REGISTER AND PERMIT NUMBER OF EMPLOYEES. (a) Every permittee of an Adult- Oriented Business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities must maintain a register of all persons so performing p p orming on the premises and their permit numbers. 28 Such register shall be available for inspection during regular business hours by any police officer or health officer of the City of Saratoga. SEC. 4.80.080. DISPLAY OF PERMIT AND IDENTIFICATION CARDS. (a) Every Adult- Oriented Business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such Adult- Oriented Business in a conspicuous place so that the same may be readily seen by all persons entering the Adult- Oriented Business. (b) The City Manager shall provide each Adult- Oriented Business Performer required to have a Permit pursuant to the chapter, with an identification card containing the name, address, photograph and permit number of such performer. (c) An Adult Oriented Business Performer shall have such card available for inspection at all times during which such person is on the premises of the Adult- Oriented Business. SEC. 4.80.085. EMPLOYMENT OF AND SERVICES RENDERED TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS PROHIBITED. (a) It shall be unlawful for any permittee, operator, or other person in charge of any Adult- Oriented Business to employ, or provide any service for which it requires such permit, to any person who is not at least eighteen (18) years of age. (b) It shall be unlawful for any permittee, operator or other person in charge of any Adult- Oriented Business to permit to enter, or remain within the Adult- Oriented Business, any person who is not at least eighteen (18) years of age. SEC. 4.80.090. INSPECTION. An applicant or Permittee shall permit representatives of any City Department or County Agency to inspect the premises of an Adult- Oriented Business for the purpose of insuring compliance with the law 29 and the development and performance standards applicable to Adult Oriented Businesses, at any time it is occupied or opened for business. A person who operates an Adult- Oriented Business or his or her agent or employee is in violation of the provision of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business. SEC. 4.80.095. REGULATIONS NONEXCLUSIVE. The provisions of this article regulating Adult- Oriented Businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the City Council of the City of Saratoga. SEC. 4.80.100. EMPLOYMENT OF PERSONS WITHOUT PERMITS UNLAWFUL. It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of an Adult Oriented Business which provides live entertainment depicting specified anatomical arena or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked Adult Oriented Business Performer Permit. SEC. 4.80.105. TIME LIMIT FOR FILING APPLICATION FOR PERMIT. All persons who possess an outstanding businesses license heretofore issued for the operation of an Adult- Oriented Businesses and all persons required by this chapter to obtain an Adult- Oriented Businesses Performer Permit, must apply for and obtain such a permit within ninety (90) days of the effective date of this chapter. Failure to do so and continued operation of an Adult- Oriented Business, or the continued performances depicting specified anatomical arena or specified sexual activities in an Adult- Oriented Businesses after such time without a permit shall constitute a violation of this chapter." 30 SECTION 3. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective. SECTION 4. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its .final passage and adoption. The above and foregoing Ordinance was regularly introduced and after the waiting time required by law, was thereafter passed and adopted at a regular meeting of the City Council of Saratoga held on the day of 1999, by the following vote. AYES: NOES: ABSENT: Mayor ATTEST: City Clerk April 7, 1998 Rev. February 23, 1999 Rev: March 8, 1999 MSR:pcp:apn:dsp J:\WPD\MNRSW\273\ORD99\ADLTBUS.99 31 T limited in their ability to deny the activity outright as a result of First Amendment protections. Staff therefore recommends that the City Council move to adopt this regulatory Ordinance as drafted and not pursue a land use Zoning Ordinance at this time. FISCAL IMPACTS: Negligible. Additional staff time will be expended enforcing Ordinance requirements when, and if, staff needs to respond to this type of proposed business in the future. ADVERTISING, NOTICING AND PUBLIC CONTACT: A notice of the Ordinance will be published in the Saratoga News prior to its adoption. CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION: The Adult Oriented Business Ordinance would not be adopted. FOLLOW UP ACTIONS: The Ordinance will be scheduled for the next regular meeting for adoption on the City Council consent agenda. ATTACHMENTS: 1. Adult- Oriented Business Ordinance