City Council Packet - 11/09/1993
1
CITY OF TIGARD
OREGON
PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the
appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor
at the beginning of that agenda item. Visitor's Agenda items are asked to be two minutes
or less. Longer matters can be set for a future Agenda by contacting either the Mayor or
the City Administrator.
Times noted are estimated: it is recommended that persons interested in testifying be
present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items
can be heard in any order after 7:30 P.m.
Assistive Listening Devices are available for persons with impaired hearing and should
be scheduled for Council meetings by noon on the Monday prior to the Council meeting.
Please call 639-4171, Ext. 309 (voice) or 684-2772 (TDD - Telecommunications Devices
for the Deao.
Upon request, the City will also endeavor to arrange for the following services:
• Qualified sign language interpreters for persons with speech or hearing
impairments; and
• Qualified bilingual interpreters.
Since these services must be scheduled with outside service providers, it is important to
allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on
the Thursday preceding the meeting date at the same phone numbers as listed above:
639-4171, Ext. 309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deat).
SEE ATTACHED AGENDA
COUNCIL AGENDA - NOVEMBER 9, 1993 - PAGE 1
AGENDA
CITY OF TIGARD COUNCIL BUSINESS MEETING
NOVEMBER 9, 1993 - 7:30 P.M.
• NOTE: NO STUDY SESSION
1. BUSINESS MEETING (7:30 p.m.)
1.1 Call to Order - City Council & Local Contract Review Board
1.2 Roll Call
1.3 Pledge of Allegiance
1.4 Council Communications/Liaison Reports
1.5 Call to Council and Staff for Non-Agenda Items
2. VISITOR'S AGENDA (Two Minutes or Less, Please)
3. CONSENT AGENDA: These items are considered to be routine and may be
enacted in one motion without separate discussion. Anyone may request that an
item be removed by motion for discussion and separate action. Motion to:
3.1 Approve Council Minutes: October 12, 19, 1993
3.2 Receive and File: Council Calendar
4. REVIEW FOR APPROVAL: LINK PROPERTY PURCHASE AGREEMENT
• City Administrator/Legal Counsel
5. CHARTER AMENDMENT DISCUSSION
• City Administrator/Legal Counsel
6. ANNEXATION UPDATE - DISCUSSION OF OPTIONS
• Community Development Director LLe
7. NON AGENDA ITEMS
8. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session
under the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations,
real property transactions, current and pending litigation issues.
9. ADJOURNMENT
ccal109.93
COUNCIL AGENDA - NOVEMBER 9, 1993 - PAGE 2
Council Agenda Item H.
TIGARD CITY COUNCIL
MEETING MINUTES - NOVEMBER 9, 1993
BUSINESS MEETING
• Meeting was called to order at 7:30 p.m. by Mayor Jerry Edwards.
1. ROLL CALL
Council Present: Mayor Jerry Edwards; Councilors Judy Fessler, Wendi Conover
Hawley, Paul Hunt, and John Schwartz. Staff Present: Patrick Reilly, City
Administrator; Ed Murphy, Community Development Director; Liz Newton,
Community Relations Coordinator; Jim Coleman, Legal Counsel; Catherine
Wheatley, City Recorder; and John Acker, Associate Planner.
2. VISITOR'S AGENDA
No visitors.
3. CONSENT AGENDA
The following items were approved upon motion by Councilor Hunt, seconded by
Councilor Schwartz.
3.1 Approve Council Minutes: October 12, 19, 1993
3.2 Receive and File: Council Calendar
It was noted that on Page 1 of the October 19, 1993 minutes, Agenda Item No. 2,
Paragraph 4, the following language was added:
"In response to an inquiry by Mayor Edwards, Councilor Hunt advised there was
no need to defer this issue to the next agenda for additional consideration.
Council authorized, by consensus, a one-time only payment to the PSU Institute
of Metropolitan Studies in the amount of $2,500."
The motion was approved by unanimous vote of Council present. Councilor
Hawley, however, noted she would abstain from voting on the October 12, 1993
minutes, since she did not attend that meeting.
CITY COUNCIL MEETING MINUTES - NOVEMBER 9, 1993 - PAGE 1
• EXECUTIVE SESSION: The Tigard City Council went into Executive Session at
7:40 p.m. under the provisions of OIRS 192.660 (1) (d), (e), & (h) to discuss labor
relations, real property transactions, Current and pending litigation issues.
Council meeting reconvened at 8:43 p.m.
4. REVIEW FOR APPROVAL: LINK PROPERTY PURCHASE AGREEMENT
Legal Counsel reported Mr. and Mrs. Link's attorney had reviewed the agreement.
Mr. Coleman had not been advised by the Link's attorney of any objections.
Council will be asked to finalize the adoption of the agreement by Resolution at a
future Council meeting.
Councilor Hawley questioned several issues with regard to wording in the
agreement. Among those things she was concerned about included whether the
Council would receive a copy of the multiple listing service advertisement, showing
how this property is being marketed. (Staff will verify this listing.) Councilor
Hawley was also concerned whether or not the City would receive copies of
bonified offers. Legal Counsel Coleman advised this is a requirement.
In response to a question from Councilor Hawley, City Administrator Reilly advised
that Ms. Nicky Williams, who testified at a previous Council meeting, was allowed
access to the Link property for viewing. After further comments and clarification
to wording, the next step will be for staff to prepare the Resolution and Agreement
for City Council review.
Motion by Councilor Fessler, seconded by Councilor Hunt, to request staff to
prepare a Resolution addressing acceptance of the Agreement as presented to the
Council, including Exhibit "A" and any other necessary addendums.
Main motion was amended by motion of Councilor Hawley, seconded by Councilor
Schwartz, to reflect that closing costs would be the exclusive responsibility of the
seller. The maker of the main motion, Councilor Fessler, accepted the
amendment.
The main motion, as amended, was approved by a majority vote of Council
present. (Councilors Fessler, Hawley, Hunt, and Schwartz voted yes; Mayor
Edwards voted no. Councilor Hawley clarified that she voted "yes" on this
process, in keeping with the majority vote of Council a few months ago).
Ms. Jill Link requested that Council back-date the Agreement, noting the property
had been on the market for three and one-half months. After discussion, Council
consensus was that they would not approve back-dating. Mayor Edwards noted
CITY COUNCIL MEETING MINUTES - NOVEMBER 9, 1993 - PAGE 2
( there were many legal ramifications which took time to research but had to be
considered while putting together this agreement.
Motion by Councilor Fessler to back-date the Agreement to the time the Links
listed their house died for lack of a second.
City Administrator Reilly noted the Agreement would be coming back to the City
Council after it had been signed by the Links. Councilor Schwartz requested the
Agreement be processed as quickly as possible.
Ms. Jill Link inquired about whether or not the amount set aside for the purchase
of her property would be re-appropriated after the end of the fiscal year (fiscal year
ending June 30, 1994). Mayor Edwards and Councilor Hawley noted Council
could not appropriate funds at this time, and they would be remiss in doing so
without going through the Budget Committee process.
5. CHARTER AMENDMENT DISCUSSION
City Administrator Reilly reviewed this agenda item. Council discussed the packet
information. After discussion, consensus of Council was to direct staff to proceed
with a Public Hearing for the following Charter changes:
A. Eliminate mandatory appointee in the event of vacancy.
B. Eliminate mandatory election in the event of vacancy.
C. Repeal prohibition of interim appointment to vacancy from filing as a
candidate for the same Council position.
Council requested that TMC Section 2.40.030 be reviewed to determine whether
or not this section was consistent with Charter provisions (Ordinance 86-06).
6. ANNEXATION UPDATE - DISCUSSION OF OPTIONS
Deferred to a future meeting.
7. NON-AGENDA ITEMS
• It was noted the November 16, 1993 Council meeting will start at 5:30 p.m.
instead of 6:30 p.m.
• MPAC - Councilor Fessler updated Council with MPAC (Metro Policy
Advisory Committee) activities. She noted there was a Memorandum of
CITY COUNCIL MEETING MINUTES - NOVEMBER 9, 1993 - PAGE 3
i
Understanding concerning the Multnomah County Parks and Cemeteries,
for transfer to Metro.
She noted MPAC has no funding. There have been discussions on how to
obtain funding for this Charter-originated Metro Committee.
• Hart Property - Community Development Director Murphy updated Council
on the situation with regard to the Hart property. Engineering studies
indicate that a small amount of fill was in the floodplain. Mrs. Hart has
removed this fill. He also advised that 85% of the chipping of the branches
and debris has been completed. The next step would be for the Municipal
Court to review the situation. If it appears Mrs. Hart is complying, it is
possible the Municipal Court would dismiss the charges.
There was discussion on the Engineering Report which delineated the
floodplain. Community Development Director Murphy advised staff will not
challenge the report. The report is consistent with what staff had calculated
the floodplain to be. Mr. Murphy advised the report is more precise than
the other floodplain maps that had been used.
• Water negotiation update - City Administrator Reilly noted the Tigard Water
District had requested extension of the Joint Water Agency interim
agreement to March 31, 1994. Mr. Reilly advised he recommended Council
reject the request for this extension. He believed the issues that were of
concern to the Water District could be met or provided for by the end of this
year. Council requested that City Administrator Reilly write to the Tigard
Water District Board, advising them that the City would not be in favor of
extending the Interim Joint Water Agency Agreement as requested. In
addition, the City would continue to work on resolving the issues within the
timeframe of the Joint Water Agency Agreement which expires on
December 31, 1993.
Motion by Councilor Hunt, seconded by Councilor Fessler, that the Tigard
Water District commence the study in an expeditious fashion which is
necessary to divide the Tigard Water District assets among the Cities and
the Tigard Water District.
The motion was approved by unanimous vote of Council present. (Mayor
Edwards and Councilors Fessler, Hawley, Hunt and Schwartz voted "Yes.")
The November 16, 1993 Council meeting will begin at 5:30 p.m. in order to
provide time for a joint meeting with the Tigard Water District to resolve any
issues.
CITY COUNCIL MEETING MINUTES - NOVEMBER 9, 1993 - PAGE 4
i
8. ADJOURNMENT: 10:04 p.m.
Attest: Catherine Wheatley, City Recorder
o City 2iga
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Date: ~02~~~1C13
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C ccm1109.93
CITY COUNCIL MEETING MINUTES - NOVEMBER 9, 1993 - PAGE 5
COMMUNITY NEWSPAPERS, INC. Legal
P.O. BOX 370 PHONE (503) 684-0360 Notice Tr 7709
BEAVERTON, OREGON 97075
Legal Notice Advertising
° City of Tigard ° ❑ Tearsheet Notice
Accounts Payable Terry
° 13125 SW Hall Blvd. • ❑ Duplicate Affidavit
Tigani, Oregon 97223-8199 Tie following meting hIgblight$ are published fof ydMinibmig ion: Full
agendas:may-be obtaincd:from the City Recorderi-13,125`_:We'Hall'
Bou)e, a Tigard, O, egon 97223 orby eping 639.4171
AFFIDAVIT OF PUBLICATION crTYCONOVciLBu ugE&s EE4*G 1993
STATE OF OREGON, ) TIGARDCITyHALL -TOWNHALL
COUNTY OF WASHINGTON, )8e' 13125 S.W. HALL BOULEVARD, MOARD, OREGON. `
i Judith Koehler Business Meeting - 7:30 P.M.
being first duly sworn, depose and say that I am the Advertising
Director, or his principal clerk, of the Tigard Timac • Charter Amendment Discussion
a newspaper of general circulatign as defined in ORS 193.010 • Annexation Discussion Of Options
and 193.020; published at Tigard in the ' link Purchw en t"'
afot9saidg unty,end sta)e; thatth Reports
itV unc>_ Business Ztin¢ • 1,p -practCReview+BaardMeeiing ~
a printed copy of which is hereto annexed, was published in the o Executive Session: The Tigard City Council may. go into ExecutiYe
entire issue of said newspaper for --9>~-succeaeive and Session under the provisions of ORS 192.660 (1) (d), (e), & (h)'to
discuss labor relations, real property transactions, current and pending
consecutive in the following issues: litigation issues: '
Nov. 4, 1993 7"709-Publish November 4,1993. `
n
Subscribed and sworn to fore me this i, *h A- P No ber, OFFICIAL SEAL
ROBIN A. BURGESS
NOTARY PUBLIC - OREGON
Notary lic for Oregon COf.1M SSION NO. 024552
My Commission Expires: MY COMMISSION EXPIRES MAY 16.1997
AFFIDAVIT
AGENDA ITEM NO. 2 -VISITOR'S AGENDA DATE: Nmmrnb6r 9. 9993 ?
(Limited to 2 minutes or less, please)
Please sign on the appropriate sheet for listed agenda items. The Council wishes to hear from you on
other issues not on the agenda, but asks that you first try to resolve your concerns through staff.
Please contact the City Administrator prior to the start of the meeting. Thank you.
STAFF
NAME & ADDRESS TOPIC CONTACTED
v\IogIn\jo\visItors.sht
Council Agenda Item Aq•-
MEMORANDUM
CITY OF TIGARD, OREGON
( TO: Honorable Mayor and City Council
FROM: Patrick J. Reilly, City Administrator
DATE: November 1, 1993
SUBJECT: COUNCIL CALENDAR, November, 1993 - January, 1994
Official Council meetings are marked with an asterisk If generally
OK, we can proceed and make specific adjustments in the Monthly Council
Calendars.
November '93
6-8 Sat- League of Oregon Cities Conference
Mon Eugene
* 9 Tue Council Meeting (7:30 p.m.)
Study Session
Business Meeting
11 Thur Veterans Day - City Hall Offices Closed
* 16 Tue Council Study Meeting (6:30 p.m.)
Tentative
* 23 Tue Council Meeting (6:30 p.m.)
Study Session
Business Meeting
25-26 Thur- Thanksgiving Holidays - City Hall Offices Closed
Fri
December '93
1-6 Wed- National League of Cities Conference
Mon
* 14 Tues Council Meeting (6:30 p.m.)
Study Session
Business Meeting
* 21 Tues Council Study Meeting (6:30 p.m.)
24 Fri Christmas Holiday - City Hall Offices Closed
* 28 Tues Council Meeting - Tentatively Cancelled
31 Fri New Year's Holiday - City Hall Offices Closed
January '94
11 Tues Council Meeting (6:30 p.m.)
Study Session
Business Meeting
STATE OF THE CITY - MAYOR EDVARDS
EXECUTIVE SUMMARY - CITY ADMINISTRATOR REILLY
18 Tues EMPLOYEE SERVICE AWARDS RECEPTION (4-5 p.m.)
Council Study Meeting (6:30 p.m.)
25 Tues Council Meeting (6:30 p.m.)
Study Session
Business Meeting
h:\login\cathy\cccal
O'DONNELL, RAMIS, CREW & CORRIGAN
ATI,OIINEVS AT LAW
C BAI.LOW & WRIGHT BUILDING
1727 N.W. Hoyt Street ~ n r^~~1
Portland, Oregon 97209 O
7TI.E111IONE: (503) 222-4402 NOV 0 2 1993 j
FAX: (S03) 243-2944 S~
i
DATE: November 1, 1993
TO: Randy Wooley, City Engineer
City of Tigard
FROM: Ty K. Wyman
City Attorney's Office
RE: Links Agreement
Enclosed please find a draft of the agreement with the Links for
the acquisition of their property. _
Please call me with any comments or concerns.
r TKW/sb
t tkw/tiganVwooley.mm 1
cc: Pat Reilly
l_
AGREEMENT DRAFT
This Agreement, relating to the disposition of that real
property identified as 13050 SW Walnut Street, Tigard, Oregon
(PROPERTY) is between the City of Tigard, Oregon (CITY) and Mark
and Jill Link (collectively, LINKS), and is entered into this
day of November, 1993.
RECITALS
WHEREAS, the LINKS have requested that the CITY consider the
purchase of the PROPERTY, and
WHEREAS, CITY finds it probable that, at some point in the future,
it will have an interest in acquiring the PROPERTY, the
Comprehensive Plan Transportation Map calls for the improvements
of the PROPERTY to be removed in the future to make way for the
extension of Gaarde Street, and
WHEREAS, the CITY has adopted a policy for the acquisition of
property that is in the route of the possible extension of Gaarde
Street,
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the parties agree as set forth herein.
AGREEMENT
1. LINKS ACTIONS.
A. The LINKS hereby represent:
(1) that they hold marketable fee title to the PROPERTY,
without liens or encumbrances, other than those
recorded with the Washington County Recorder;
(2) that they have entered into a Listing Agreement with
a licensed real estate agent;
(3) that the PROPERTY has been listed in the Realtors
Multiple Listing Service of Portland; and
(4) that the PROPERTY is listed therein at a price of
$164,900.
(5) that they are an owner-occupant of the PROPERTY.
B. The LINKS agree as follows:
(1) They shall maintain the listing described in
Subsection A of this section for a continuous period
of no less than six months from the date of this
Page 1 - AGREEMENT
( Agreement set forth above, and that during this
1 period:
a. they or their agent shall hold no less than
three open houses, each for a period of no less
than three hours on either a Saturday or
Sunday;
b. the listing price of the PROPERTY shall not
exceed $164,900;
C. they and their agent shall make every attempt
in good faith to maintain the salability of the
PROPERTY, including but not limited to
maintaining and presenting the PROPERTY in the
manner most reasonably calculated to attract
prospective buyers.
d. they and their agent shall in no way deter
prospective buyers from seeing and touring the
PROPERTY.
(2) That in voluntarily conveying the PROPERTY pursuant
to Section 3 of this Agreement they will not qualify
as displaced persons under state and federal
relocation assistance law. (ORS 281.045, et sea.,
42 USC 4601 et sea., and 42 CFR Part 24).
(3) That in agreeing to these terms and conditions, they
hereby waive any and all claims against the CITY
arising from the development of Gaarde Street and
hereby waive any claim to relocation costs,
appraisal fees, or legal fees for which they may
otherwise be eligible under state or federal law.
2. CITY ACTIONS.
A. The CITY hereby represents:
(1) that it does not have a need at this time nor within
any given time period, to acquire the PROPERTY;
(2) that the PROPERTY is not part of an intended,
planned or designated program or project which has
been undertaken by the CITY.
(3) that it has received an appraisal of the PROPERTY
of $161,000.
(4) that in the event negotiations fail to result in a
mutually satisfactorily agreement for the conveyance
of the PROPERTY, the CITY does not contemplate
Page 2 - AGREEMENT
acquisition of the PROPERTY in the foreseeable
future.
B. The CITY agrees that, should the LINKS fail to obtain any
offers for the purchase of the PROPERTY in the amount of
$161,000 or more within six months of the date of this
Agreement, CITY shall, upon written request of the LINKS:
(1) Purchase the PROPERTY in the manner described in
Section 3 of this Agreement.
(2) Utilize the funds in the CITY's 1993-1994 capital
improvement program for road improvements to
purchase the PROPERTY.
3. TERMS OF AGREEMENT TO SELL/PURCHASE. The CITY agrees to
purchase the PROPERTY from the LINKS, and the LINKS agree to
sell the PROPERTY to the CITY, upon the following conditions:
A. The purchase price for the PROPERTY shall be $161,000.
B. The LINKS shall convey their entire interest in the
PROPERTY to the CITY via a Statutory Warranty Deed
subject only to liens and encumbrances acceptable to the
CITY in its sole discretion.
C. Upon the LINKS' request of the CITY to purchase the
t PROPERTY, the LINKS shall provide documentation of the
representations of Section 1.A. and a representation from
the real estate agent described in Section 1.A.(2)
stating what offers, if any, have been presented for the
PROPERTY.
D. The CITY and the LINKS shall execute a Purchase and Sale
Agreement in form substantially similar to that in
Exhibit A attached hereto and by this reference
incorporated herein.
4. NON-APPROPRIATION. Notwithstanding anything contained in this
Agreement to the contrary, in the event the funds appropriated
by CITY in any fiscal period for amounts due under this
Agreement are insufficient therefor, this Agreement shall
terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to
CITY of any kind whatsoever, except as to the amounts herein
agreed upon for which funds shall have been appropriated and
budgeted or are otherwise available.
5. NON-WAIVER. The failure of CITY to insist upon or enforce
strict performance by the LINKS of any terms of this
Agreement, or to exercise any rights hereunder, shall not be
construed as a waiver or relinquishment of its rights to
assert or rely upon such terms or rights on any future
Page 3 - AGREEMENT
occasion.
6. ATTORNEY'S FEES. In case suit or action is instituted to
enforce the provisions of this Agreement, the parties agree
that the losing party shall pay such sum as the court may
adjudge reasonable attorney fees and court costs, including
attorney's fees and court costs on appeal. "Legal action"
shall include matters subject to arbitration and appeals.
7. COMPLETE AGREEMENT. This Agreement, including attachments,
contains the entire Agreement between and among the parties,
integrates all the terms and conditions mentioned herein or
incidental hereto, and supersedes all prior written or oral
discussions or contracts between the parties or their
predecessors in interest with respect to all or part of the
subject matter hereof.
8. MODIFICATION IN WRITING ONLY. No modification, change,
supplement or amendment of the provisions of this Agreement
shall be valid unless it is in writing and signed by both
parties.
9. WRITTEN NOTICES. Written notices required or permitted under
this Agreement shall be deemed to have been given when sent
via telecopy or overnight air courier, or three (3) days after
deposit in the United States mail, certified, first-class
postage prepaid, addressed as follows:
CITY:
City of Tigard
Attention: City Engineer
13125 SW Hall Boulevard
Tigard, Oregon 97223
LINKS:
Any party hereto may change its address by providing written
notice to the other party in accordance with the provisions
of this Section.
10. SEVERABILITY. The parties agree that if any term or provision
of this Agreement is declared by a court to be illegal or in
conflict with any law, the validity of the remaining terms and
provisions shall not be affected.
11. NON-ASSIGNMENT. Neither party may assign its or their right,
Page 4 - AGREEMENT
title and interest under this Agreement without first
obtaining the other party's written consent.
12. GOOD FAITH; FURTHER ASSURANCES AND ADDITIONAL DOCUMENTS. The
parties covenant, warrant and represent to each other good
faith, complete cooperation, due diligence and honesty in fact
in the performance of their respective obligations. The
parties shall execute and deliver any additional papers,
documents and other assurances and shall otherwise perform as
reasonably necessary in connection with their respective
obligations hereunder and to carry out the intent of the
parties hereto. The parties shall execute and deliver all
other appropriate supplemental agreements and other
instruments and take any other action necessary to make this
Agreement fully and legally effective, binding and enforceable
as between the parties and as against third parties.
13. STATUTORY DISCLAIMER. THE PROPERTY DESCRIBED IN THIS
INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT
PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE
LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT
AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE
TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY
OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND
EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
14. ACCEPTANCE. If the above terms are acceptable to the LINKS,
they shall execute a copy of this Agreement and return it by
hand delivery or regular mail to the offices of the CITY set
forth above no later than 5:00 p.m. November , 1993.
15. REPRESENTATION. At all times relevant to this Agreement, CITY
has been represented by Timothy V. Ramis of O'Donnell, Ramis,
Crew & Corrigan, and the LINKS have been represented by Scott
Wyse of Meyer and Wyse.
Executed as of the date first written above.
CITY LINKS
City of Tigard
By:
Title:
APPROVED AS TO FORM:
Counsel for the City of Tigard Counsel for the Links
tkw/tigard/links.agi 111/1/931
Page 5 - AGREEMENT
ODONNELL RAMIS ET AL 503-243-2944 Oct 11.93 17:21 No.007 P.02
O'DONNELL, RAMIS, CREW & CORRIGAN
ATLOFXM AT LAW J
U=W & MOM LiUwwc; L ~ JrP,rl C ~
1727 N.W. Hoy[ SUM
PoMU4 OMOA M09
TL'[liF MM'. (303) 222.4403
PAX: (303) 243.2944 • w
DATE: October 11, 1993
TO: Tigard City Council and
Pat Reilly, City Administrator
FROM: Tim Ramie - city Attorney
RE: Possible Charter Amendment
As a follow up to our last discussion concerning changes to the
City's nomination and election process for mayor, I would like to
clarify a few issues.
The Primary Election
We have determined that a city cannot hold its Sole election for
mayor at the primary election. Article II, section 14(a) of the
® Oregon Constitution provides:
"Incorporated cities and towns - shall hold their
nominating and regular elections for their several
elective officers at the same time that the primary and
general biennial elections for state and county officers
are held, and the election precincts and officers shall
be the same for all elections held at the same time."
We have interpreted this to mean that the nominating election is
to be held at the primary election and that the regular election
is to be held at the general election. Therefore, if a city only
holds one election for mayor, it must be held at the general
election.
However, if the City of Tigard wishes to adopt a provision which
states that if a candidate receives more than 50$ ce the vote at
the primary election then they are elected and do not have to run
in the general election, then they may. Such a provision does not
rule out a regular election in November, it is simply a
possibility. The City would still be holding its. "nominating
election" at the primary election, and if necessary, its "regular -
election" at the general election.
With this in mind, if the city council decides it wants the 50%
provision, then we will draft language for the charter or code
amendment accordingly.
OUONNELL RAMIS ET AL 503-243-2944 OCt 11.93 17:21 No.007 P.03
O'DONNGLL, RAMIE, CRSW & CORRIOAN
Memo re: Possible Charter Amendment
October 11, 1993
Page 2
i
j
The Nomination Process
ORS 249.016 to 249.088 apply to a "candidate for nonpartisan
office." A "nonpartisan office" pursuant to ORS 249.002(6) means
the office of judge, Superintendent of Public Instruction,
executive officer or councilor of a metropolitan service district
under ORS chapter 268, justice of the peace, sheriff or district '
attorney. So though a City office is not a "nonpartisan office"
as defined by statute, we still use the statutes as a guideline.
In an earlier memo, I stated that ORS 249.068 provides that " ajt
the nominating election held on the date of the primary election,
two candidates shall be nominated for the nonpartisan office."
This provision may be used as a guideline and is not controlling. ;
i
The City can, for the most part, control its own nomination
process. Therefore, issues such as how a candidate is nominated
or what happens when a candidate withdraws can be determined by the
f city council. once the council has settled on a process, we will
( draft the language accordingly.
Next Available Election Date
Paragraph Two of the draft Section 7 of the Charter uses the phrase
"next available date" when setting the date for an election to fill
a vacancy. In the context of elections, the term "next available
date" is used because though there is always 'an election date
approaching, the filing deadlines for the election may have passed.
Therefore, codes or charters do not usually require that an
election be held "at the next date." Nor would the City probably
want to omit the phrase because then there would be no date certain
as to when an election has to be held.
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Se-~ over
r COUNCIL AGENDA ITEM
1~1~t4~43 CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
AGENDA OF: Seratemb oy 28 -4993 DATE SUBMITTED: September 20, 1993
ISSUE/AGENDA TITLE: Charter Amendment PREVIOUS ACTION: Discussed on
Discussion Au st 10 1993
PREPARED BY: Cathy Wheatlev
DEPT HEAD OK CITY ADMIN OK REQUESTED BY: Patrick J. Reilly
ISSUE BEFORE THE COUNCIL
Review of Charter amendments which include the following:
1. Eliminate mandatory appointment in the event of vacancy.
2. Eliminate mandatory election in the event of vacancy.
3. Repeal prohibition of interim appointment to vacancy from filing as
a candidate for the same Council position.
4. Delete resignation requirement to file as candidate with concurrent
term.
Review of nominating procedure for office of Mayor (TMC 2.40):
1. Provide for a primary election for the Mayor's position.
STAFF RECOMMENDATION
Direct staff to set up a public hearing to receive comments if the Council
decides to proceed with Charter amendments and changes to Tigard Municipal
Code Section 2.40. The next available election is March 22, 1994; the filing
deadline for this election is January 20, 1994.
INFORMATION SUMMARY
Attached is material from City Attorney Tim Ramis' office reviewing the
proposed changes. If the Council incorporates all of the suggestions, an
amendment to Section 7 of the Charter could be submitted to the voters in
March 1994. Also, Tim's memorandum outlines changes to Tigard Municipal Code
Section 2.40 with regard to nomination and election procedure for Mayor
should the Council decide to change this process.
PROPOSED ALTERNATIVES
1. Direct staff to proceed with hearing process to solicit citizen input.
2. Discontinue consideration of charter and Municipal Code amendments at
this time.
FISCAL NOTES
Mail-in ballot costs would be borne by the City. Costs are difficult to
estimate: Tigard would pay a prorated share as one of the jurisdictions
which has a candidate or measure on the ballot. Costs can rise or fall
depending on voter turnout and the number of items on the ballot from other
cities/districts in the County.
h:\ login\cathy\char2.sum
f.
O'DONNELL, RAMIS, CREW & CORRIGAN
ATTORNEYS AT LAW
SALLOW & WRIGHT BUILDING
1727 N.W. Hoyt Street
Portland, Oregon 97209
TELEPHONE: (503) 222-4402 J
FAX: (S03) 243-2944
SEP 31993
DATE: September 10, 1993
TO: Tigard City Council and
Pat Reilly, City Administrator
FROM: Tim Ramis - City Attorney
RE: Possible Charter Amendment and Changes to the Election
Process
A number of changes have been proposed to the manner in which the
Mayor is elected. The proposed changes as I understand them are:
1) To eliminate the requirement in Section 7 of the Tigard
Charter that any member of the Council wishing to seek a City
office with a term concurrent with the term of their existing
C office, submit a written resignation at the time of filing for
the other office.
2) To eliminate the requirement in Section 7 of the Tigard
Charter that the Council hold an election to fill an unexpired
term and to provide alternate directions for filling the
vacancy.
3) To eliminate the requirement in section 7 of the Tigard
Charter that a person appointed to fill a vacancy not be a
candidate for election to that position at a vacancy filling
election.
4) To elect the Mayor on odd-numbered years, but continue
to elect Councilors at the biennial general elections.
5) To provide for a primary election for the Mayor's
position.
6) To provide for the number of candidates for Mayor in the
general election after the primary election.
7) To provide that if a candidate for Mayor receives more
than 50$ of the votes at the primary, then the candidate is
elected to the position of Mayor and no general election for
f Mayor is held.
O'DONNIELL, RAMIS, CREW & CORRIGAN
Memo re: Possible Charter Amendment and Changes to the Election
Process
September 10, 1993
Page 2
8) To provide for what happens if a candidate withdraws
after the primary election.
I have been asked to comment on the proposed changes.
Suggested Changes #1 - 3
Our office prepared a draft of Section 7 of the Tigard Charter
which incorporates these suggested changes. I believe the City
council had the opportunity to review the draft wording in August.
am attaching the proposed section as Exhibit "A" to this memo.
Suggested Change #4
We contacted the Elections Division of the Secretary of State's
office concerning the proposal for odd-year elections. We are in
agreement with that Division's opinion that regular elections of
city officers must be held at the same time as the primary and
general biennial elections are held.
Suggested Changes #5 - 8
There are a couple of things to keep in mind when contemplating
changes to the nomination and election process for Mayor.
Paragraph Two of Section 31 of the Tigard Charter provides that:
"The procedures for nomination and election for elective City
positions shall be governed by the election laws of the State
of Oregon, or by City ordinances if such ordinances are not
inconsistent with state law."
Therefore, changes to the nomination and election process may be
adopted by ordinance rather than by amending the Charter. Chapter
2.40 of the Tigard Municipal Code already sets out the nominating
procedure as it exists and would be the logical place to put any
additions or changes to the nominating process for Mayor.
Also, keep in mind that the proposed charter amendment will
probably go to the voters in March. By the time the election is
held in March, the filing deadline for the May primary will have
passed. Therefore in order to have a primary election for Mayor
in 1994, under any newly adopted charter provisions, a special or
emergency election would have to be called, most likely in June.
i
O-DONNELL, RAMIS, CREW & CORRIGAN
1
Memo re: Possible Charter Amendment and Changes to the Election
Process
September 10, 1993
Page 3
I
I have drafted changes and additions to Chapter 2.40 of the Tigard
Municipal Code which address most of the issues in changes 15 - S.
I have attached a draft of the proposed revisions as Exhibit "B"
to this memo. The sections added to Chapter 2.40 call for a
primary election for Mayor and provide that the top two candidates
shall advance to a run-off in November. ORS 249.088 provides that
"[a]t the nominating election held on the date of the primary
election, two candidates shall be nominated for the nonpartisan r
office." I have drafted the section so that the top two candidates
advance in keeping with this statute.
The new sections also provide direction in case the only candidate Js
or one of the candidates should die, withdraw or become ineligible
for the position.
I did not include any draft language for election of the Mayor at s
the primary election if a candidate receives more than 50% of the R
votes cast for that position. However, we did draft a similar
provision for the City of West Linn, which is attached as Exhibit
oC".
The proposed changes to Chapter 2.40 were drafted after a review
of the current state statutes concerning nominations and elections.
If the City Council decides to pursue these suggested changes, they
will be reviewed in light of any changes that the 1993 Legislature I
made.
A final note concerning elections. The City's initiative and
referendum process is located in Chapter 1.12 of the Tigard
Municipal Code. The ordinance setting out the process was adopted
in 1962. I recommend that this chapter be updated in order to make
more similar to the state process and to make it easier to use and
interpret.
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wam\mmd\tigard\nom&elec.mem
i
J
Ti VIABI
Proposed Amendments to Section 7 of the Charter:
1. Eliminate the second paragraph of Section 7, which requires that
any member of the council wishing to seek aCity office with a term
concurrent with the term of their existing office, submit a written
mom resignation at the time of filing for the other office.
2. Revise the third paragraph to eliminate the mandatory requirement
that the Council make an appointment or hold an election to fill a
vacancy of an unexpired term. Also the revision will eliminate the
requirement which prohibits.an interim appointee from running gor
that position. The suggested new Section 7 is as follows:
"Section 7. MAYOR AND COUNCIL. The elective officers of
the city shall be a mayor and four councilors who together
shall constitute the City Council. At the general election
held in 1990 and every fourth year thereafter, a mayor shall
be elected for a term of four years. No councilor shall serve
the city as councilor for more than eight consecutive years,
nor shall the mayor serve as mayor for more than eight
consecutive years. In no case shall any person serve on the
City council for more than twelve consecutive years. These.
limitations do not apply to the filling of an unexpired term.
In the event the office of mayor or councilor becomes
vacant before the normal expiration of its term, a special
election may be held at the next available date to fill the
office for the unexpired term. Such an election shall only
take place if the council can schedule and hold a special
election at least twelve months before the term would
otherwise expire. if an election is geld, it shall be held in
accordance with the election laws of the State of Oregon and
city ordinance and not inconsistent with such election laws.
The Council may appoint a person to fill a vacancy until an
election can be hnld.u
EXHIBIT "B"
i
Tigard Municipal Code
Chapter 2.40
NOMINATING PROCEDURE UKAFT
Delete
Section 2.40.030(1)
Amend
Section 2.40.030(3)
Add
Section 2.40.060
2.40.060 Primary Election. A nominating election for the
position of mayor shall be held at the biennial primary election
in 1994 and every fourth year thereafter. The two persons
receiving the higher number of votes at the biennial primary
election shall be nominated and may participate in a run off
f election at the'biennial general election.
i
Section 2.40.070
2.40.070 Withdrawal of Candidacy by Nominee. Any person who
has been nominated at a biennial primary election may withdraw from
nomination by filing a written statement declining the nomination
and stating the reason for withdrawal. The statement shall be
signed by the candidate before a notary public and filed not later
than the 67th day before the biennial general election with the
city recorder.
Section 2.40.080
2.40.080 Filling a vacancy in Nomination.
(A) If the only candidate nominated to the mayoral position
at the primary election dies, withdraws or becomes ineligible for
the position not later than the 67th day prior to the general
election, then other candidates may be placed on the ballot by
filing a declaration of candidacy pursuant to state law. The
filing fee shall be $25.00. If the only candidate nominated to the
mayoral position at the primary election dies, withdraws or becomes
ineligible for the position after the 67th day prior to the general
election, then the vacancy shall be filled pursuant to Charter
provisions concerning a vacancy in office.
f
(B) If one of the two candidates nominated to the mayoral
position at the primary election dies, withdraws or becomes
ineligible for the position then:
(1) If the remaining nominated candidate received more
than 50% of the votes cast for the mayoral position at
the biennial primary election, then that person shall run
unopposed at the biennial general election; or
(2) If the remaining nominated candidate failed to
receive more than 50% of the votes cast for the mayoral
position at the biennial primary election, but there was
no third candidate for the mayoral position, then the
remaining nominated candidate shall run unopposed at the
biennial general election; or
(3) If the remaining nominated candidate failed to
receive more than 50% of the votes cast for the mayoral
position at the biennial primary election, then the
candidate receiving the third highest number of votes
shall advance to the biennial general election with the
remaining nominated candidate.
aspires. His or her name shall appear on the ballot
only for such designated position. At all elections
each such office of councilor to be filled shall be
separately designated on the ballot by official position
EXHIBIT C
number as herein provided, in addition to other matters
required by law to appear thereon. An incumbent coun-
cilor may not file for nomination for or election to any
councilor position except the one he or she presently
fills.
Each Council member shall act as a liaison to one
or more department(s) within the City. Council members
who will act as liaison to a department shall be
determined by the Mayor annually.
Section 9. Mayor.
(1) No person may be elected to the position of
Mayor unless that person receives more than fifty
percent (50%) of the votes cast for that position at the
biennial primary election. If no mayoral candidate
receives more than fifty percent (50%) of the votes
cast, the two candidates receiving the highest number of
votes cast shall participate in a run off election at
the biennial general election. The candidate receiving
the highest number of votes at that election shall be
elected Mayor.
(2) The term of the Mayor who was elected to serve
a four year term beginning in January, 1989, shall ter-
minate on March 1, 1990. A special election shall be
held in the city on March 27, 1990, for the purpose of
electing a successor mayor. If no mayoral candidate
receives more than fifty-percent of the votes cast, the
two candidates receiving the highest number of votes
cast shall participate in a run-off election on the next
available election date. The person elected as mayor,
with a term beginning in 1990, shall assume the office
of mayor at the first city council meeting subsequent to
the election, and shall serve a term continuing until
January 1992.
(3) A special election shall be held in the City
on the third Tuesday in May, 1991, and if necessary, a
run-off election on the first Tuesday after the first
Monday in November, 1991, for the purpose of electing a
mayor to serve a one-year term from January, 1992 to
January, 1993. The person elected as mayor with a term
beginning in January, 1992 shall assume the office at
the first council meeting of 1992. Regular elections
shall be held at the primary and general elections in
1992 to elect a mayor to assume office in January, 1993.
(4) The person elected as mayor with a term
beginning in January, 1993 and subsequent mayors shall
be elected for two-year terms.
C-3 (S:est Linn 8/90)