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City Council Packet - 04/10/2007 City of Tigard, Oregon 13125 SWHall Blvd. ® Tigard, OR 97223 ~ P{ TIGARD CITY COUNCIL MEETING April 10, 2007 COUNCIL MEETING WILL BE TELEVISED f:\Ofs\Donna's\Ccpktl Phone: 503.639.4171 . Fax: 503.684.7297 . www.tigard-or.gov . TTY Relay: 503.684.2772 TIGARD CITY COUNCIL AND LOCAL CONTRACT REVIEW 3 BOARD MEETING APRIL 10, 2007 6:30 p.m. TIGARD CITY HALL 13125 SW HALL BLVD. TIGARD, OR 97223 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. Citizen Communication 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 Manager. 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 7:3012.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 503-639-4171, ext. 2410 (voice) or 503-684-2772 (TDD - Telecommunications Devices for the Deaf). 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 by calling: 503-639-4171, ext. 2410 (voice) or 503-684-2772 (IDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - APRIL 10, 2007 page 1 AGENDA TIGARD CITY COUNCIL MEETING 6:00 PM • TRAINING on New Town Hall Audio/Video System Equipment - Financial and Information Services Department 6:30 PM • STUDY SESSION > Briefing on a Proposal to create a Commercial Crime Unit and use a Business Tax Increase for Funding - Police Department • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session for consultation with counsel legal rights and duties regarding current litigation or litigation likely to be filed, under ORS 192.660(2) (h). All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 7:301'M 1. BUSINESS MEETING 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. CITIZEN COMMUNICATION (Two Minutes or Less, Please) • Tigard High School Student Envoy Jasmina Dizdarevik • Follow-up to Previous Citizen Communication 3. CONSENT AGENDA: These items are considered to be routine and may be enacted in one motion avithout separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. Motion to: COUNCIL AGENDA - APRIL 10, 2007 page 2 3.1 Approve Council Minutes for February 27, 2007 3.2 Receive and File: 3.2.a Council Calendar 3.2.b Tentative Agenda 3.2.c Annual Solid Waste Financial Report Findings 3.3 Appoint Matt Clemo and Kandace Horlings as Regular Members; Dale Richards as Second Alternate Member and Reappoint Chair Janet Gillis to the Tigard Tree Board 3.4 Appoint Ralph Hughes to the City Center Advisory Commission Member - Resolution No. 07- 3.5 Consider a Resolution Authorizing Amendment No. 1 to the Intergovernmental Agreement for Joint Funding of a Water Supply System Plan - Resolution No. 07- 3.6 Adopt Paid Time Off Policy for Management Employees - Resolution No. 07- 3.7 Approve Proposal to Transfer Custody of Records Created, Assembled and Maintained by Tigard Staff During the Term of the Urban Services Intergovernmental Agreement between the City of Tigard and Washington County - Resolution No. 07- - 3.8 Approve Budget Amendment #13 to the FY 2006-07 Budget to Increase Appropriations in the Water CIP Fund Capital Projects Budget within the Community Investment Program for Additional Funding for the Lake Oswego Feasibility Study Project - Resolution No. 07-- 3.9 Local Contract Review Board: 3.9.a Award Contract for Wetland Consulting Services for the Washington Square Regional Center Greenbelt Trail Project to Virgil-Agrimis, Inc. 3.9.b Award Contract for Aquifer Storage and Recovery (ASR) Test Well Drilling to Boart Longyear, Inc. 3.9.c Award of Contract for the Construction of Ann Street Sanitary Sewer Extension (Sewer Reimbursement District No. 40) to Cipriano & Son Construction 3.9.d Award of Contract for Engineering Services for the SW Cherry Street Sanitary Sewer Project to Century West Engineering Corp. Consent Agenda - Items Removed ,for Soarate Discussion: Any items requested to be removed from the ConsentAgenda for separate discussion zvill be considered immediately after the Council has voted on those items which do not need discussion. 4. LEGISLATIVE BRIEFING BY SENATOR BURDICK AND REPRESENTATIVE GALIZIO Introduction: Administration Department 5. WASHINGTON COUNTY VISION ACTION NETWORK PRESENTATION Introduction: Administration Department COUNCIL AGENDA - APRIL 10, 2007 page 3 6. GRANT EXEMPTION FROM PROPERTY TAXES UNDER TIGARD MUNICIPAL CODE SECTION 3.50 FOR THREE NON-PROFIT LOW INCOME HOUSING PROJECTS OWNED AND OPERATED BY COMMUNITY PARTNERS FOR AFFORDABLE HOUSING (CPAH) AND ONE HOUSING PROJECT THAT IS OPERATED BY TUALATIN VALLEY HOUSING PARTNERS (TVHP) Introduction: Financial and Information Services Department Council Discussion Council Consideration: Resolution No. 07- 7. CONTINUATION OF RESIDENTIAL ZONING AMENDMENT LEGISLATIVE PUBLIC HEARING a. Open Public Hearing b. Declarations or Challenges: Does any Council member wish to declare or discuss a conflict of interest or abstention. c. Staff Report: Community Development Department d. Public Testimony Proponents Opponents e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Ordinance No. 07- 8. APPROVE ORDINANCE GRANTING A CABLE FRANCHISE TO VERIZON NORTHWEST, INC. Staff Report: Community Development Department • Council Discussion Council Consideration: Ordinance No. 07- 9. BALLOT MEASURE 37 QUASI JUDICIAL PUBLIC HEARING - WAY W. LEE GENERAL CONTRACTOR, INC. (2006-00004) a. Open Public Hearing - Mayor b. Statement by City Attorney Regarding Procedure C. Declarations or Challenges - Do any members of Council wish to report any ex parte contact or information gained outside the hearing, including any site visits? Have all members familiarized themselves with the application? COUNCIL AGENDA - APRIL 10, 2007 page 4 - Are there any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participation of any member of the Council? d. Staff Report: Community Development Department C. Public Testimony - Proponents Applicant Other Proponents - Opponents - Rebuttal/Final argument by applicant f. Staff Recommendation g. Close Public Hearing h. Council Discussion and Consideration: Ordinance No. 07- 10. EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 11. ADJOURNMENT COUNCIL AGENDA - APRIL 10, 2007 page 5 City of Tigard, Oregon it Affidavit of Posting In the Matter of the Proposed Ordinance(s) u U`7 US d- 0`7 U Cv STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, ajIM& Z , being first duly sworn (or affirmed), by oath (or affirmation), depose and say: That I posted in the following public and conspicuous places, a copy of Ordinance Number(s) J-67 -U , which were adopted at the City Council meeting of 02 , with a copy(s) of said Ordinance(s) being hereto attached and by reference made a part hereof, on the day of-4 1 , 20 6 ) 1. Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon 2. Tigard Public Library, 13500 SW Hall Blvd., Tigard, Oregon 3. Tigard Permit Center, 13125 SW Hall Blvd., Tigard, Oregon Signature of Person who Performed Posting Subscribed and sworn (or affirmed) before me this 3 day of Sig ature of Notary blic for Oregon CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO.07-- AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE CHAPTER 18.5 10 - RESIDENTIAL ZONING DISTRICTS, SPECIFICALLY TABLE 18.510.1, USE TABLE TO ADD FOOTNOTE 12 TO ALLOW SCHOOL BUS PARKING AS AN ACCESSORY USE ON HIGH SCHOOL SITES WITHIN ALL RESIDENTIAL ZONES. WHEREAS, the applicant Tigard-Tualatin School District has requested to amend Chapter (18.510 - Residential Zoning Districts) of the Tigard Development Code to allow school bus parking as a restricted use on school sites within all residential zones. This use is restricted to high school sites only and cannot be within 200 feet of a property line abutting a residential use; and WHEREAS, staff proposed a modification to allow bus parking as an accessory use and not as a restricted use; and WHEREAS, notice was provided to the Department of Land Conservation and Development 45 days prior to the first scheduled public hearing; and WHEREAS, the Tigard Planning Commission held a public hearing on February 5, 2007, and recommended approval of the proposed amendment with a 4-0 vote; WHEREAS, notice of the public hearings was published in the Tigard Times and the Oregonian Newspapers at least 10 business days prior to the public hearings; and WHEREAS, the Tigard City Council has considered applicable Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; any federal or state statutes or regulations found applicable; any applicable Metro regulations; any applicable Comprehensive Plan Policies; and any applicable provisions of the City's implementing ordinances; and WHEREAS, the City Council has found the following to be the only applicable review criteria: Community Development Code Chapters 18.380, 18.390, 18.510, and 18.745; Comprehensive Plan Policies 1, 2, 4, 6, 7, and 12; The Metro Urban Growth Management Plan Titles 1, 8, and 12; Metro Regional Framework Plan Policies 1.14 and 8.3; and Statewide Planning Goals 1, 2, 5, 6, 10, 11, and 12; and WHEREAS, the Tigard City Council held a public hearings on March 13, 2007 and April 10, 2007, to consider the proposed amendments; and WHEREAS, the Tigard City Council has determined that the proposed development code amendment is consistent with the applicable review criteria, and that approving the request would be in the best interest of the City of Tigard. ORDINANCE No. 07- 0,5- Page 1 r , NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The specific text amendments attached as "EXHIBIT A" to this Ordinance are hereby adopted and approved by the City Council. SECTION 2: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By Ll h G t )'l (Yc QU5 vote of all Council members present after being read by number and title only, this I DL-- , day of L )2007. oa_j~~ z~ uD . Catherine Wheatley, City Recorder APPROVED: By Tigard City Council this day of , 2007. c3~ Crai Dirksen, Mayor Approved as to form: cj:~~ ~ / / ~2 City Attorney' `mot ~ ~ • Date ORDINANCE No. 07- Page 2 Exhibit A ~DCA2006=00007 . RESIDENTIAL ZONING DISTRICTS USE REGULATIONS AMENDMENT December, 2006 Explanation of Formatting 'These text amendments employ the following formatting: [B old, Underline and Italic] - Text to be added Proposed code language is as follows: TABLE 18.510.1 USE TABLE USE CATEGORY R-1 R-2 R-3.5 R-4.5 R-7 R-12 R-25 R-40 Schools Ct' Cz C19 C2 C2 CM Cr2 C12 'ZSchool bus parlance is pennitted on public high school sites as an accessory use iflocated a minimum of 200 feet from the nearest pro gM line of any tax lot used for residential purposes. Maximum time limitation is three 0 years. An extension to the time limit is possible throw ham for modification to the approved Conditional Use. CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 07- 0(V AN ORDINANCE GRANTING A NON-EXCLUSIVE CABLE FRANCHISE TO VERIZON NORTHWEST, INC., AND DECLARING AN EMERGENCY. WHEREAS, in 1980 the Metropolitan Area Communications Commission (hereinafter "MACC") was formed by Intergovernmental Cooperation Agreement, amended in 2002 and now an Intergovernmental Agreement (hereinafter IGA) to enable its member jurisdictions to work cooperatively and jointly on communications issues, in particular the joint franchising of cable services and the common administration and regulation of such franchises, and the City of Tigard is a member of MACC; and WHEREAS, the IGA authorizes MACC and its member jurisdictions to grant one or more nonexclusive franchises for the construction, operation and maintenance of a cable service system within the combined boundaries of the member jurisdictions; and WHEREAS, the IGA requires that each member jurisdiction to be served by the proposed franchisee must formally approve any cable service franchise; and WHEREAS, Verizon Northwest, Inc. has formally requested a franchise with MACC and several of its member jurisdictions, and MACC has reviewed the franchisee's qualifications in accordance with federal law; and WHEREAS, the Board of Commissioners of MACC, by Resolution 2007-01 adopted on the 8th day of February, 2007, recommended that affected member jurisdictions grant a franchise to Verizon Northwest, Inc. in the form attached hereto as Exhibit "A"; and WHEREAS, the Council finds that approval of the recommended franchise is in the best interest of the City and its citizens, in order to provide opportunities for effective competition in the provision of these services consistent with the federal Telecommunications Act of 1996; and WHEREAS, due to timing constraints in coordinating the franchise approval with other members of MACC, the City Council finds that a state of emergency exists for the passage of this ordinance. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: There is hereby granted to Verizon Northwest, Inc. a non-exclusive franchise on the terms and conditions contained in Exhibit "A." This nonexclusive grant authorizes the provision of cable services within the jurisdictional boundaries of the City as said boundaries presently exist or may be amended, commencing upon Verizon's fulfillment of the franchise acceptance provisions contained in the franchise and ORDINANCE No. 07- `o Page 1 r • upon the formal determination by the MACC Administrator that all affected jurisdictions have approved the franchise, and ending fifteen years thereafter. SECTION 2: The grant of franchise at Section 1 is conditioned upon each of the following events: (a) The affirmative vote of the governing body of each MACC member jurisdiction to be served under the franchise; , (b) Verizon's fulfillment of the franchise acceptance provisions contained in the Franchise; and (c) Formal written determination by the MACC Administrator that each of the above two events has occurred. SECTION 3: Because of the need to coordinate this franchise approval with other governments in MACC, an emergency is declared and this ordinance shall take effect upon its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By CI.I Q C'l vote. of all Coun ' members present after being read by number and title only, this 10 day of ~ ~-i L , 2007. GL-~ -2. a erine Wheatley, City Recorder APPROVED: B Tigand City Council thi / y s/.~= day of " , 2007. r Craig irksen, Mayor Approved as to fo 4~~b~ V// City Attorney V 0 Date iAadmlpacket W\070410tvedzon ordinance.doc ORDINANCE No. 07- 0' Page 2 Exhibit A CABLE FRANCHISE AGREEMENT Between THE CITY OF TIGARD AND VERIZON NORTHWEST INC. J i CABLE FRANCHISE AGREEMENT between WASHINGTON COUNTY, the cities of BEAVERTON, CORNELIUS, DURHAM, FOREST GROVE, HILLSBORO, KING CITY, LAKE OSWEGO, RIVERGROVE, TIGARD, and TUALATIN AS PARTICIPATING MEMBERS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION AND VERIZON NORTHWEST INC. 2007 TABLE OF CONTENTS ARTICLE PAGE 1. DEFINITIONS 2 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS ......................................9 3. PROVISION OF CABLE SERVICE ...........................................................................12 4. SYSTEM OPERATION ..............................................................................................14 5. SYSTEM FACILITIES ................................................................................................14 6. PEG SERVICES ..........................................................................................................15 7. FRANCHISE FEES .....................................................................................................19 8. CUSTOMER SERVICE 21 9. REPORTS AND RECORDS 21 10. INSURANCE AND INDEMNIFICATION 23 11. TRANSFER OF FRANCHISE 25 12. RENEWAL OF FRANCHISE 26 13. ENFORCEMENT AND TERMINATION OF FRANCHISE 26 14. MISCELLANEOUS PROVISIONS 29 EXHIBIT A - INITIAL SERVICE AREA/FRANCHISE AREA 34 EXHIBIT B - ORIGINATION POINTS 37 EXHIBIT C - QUARTERLY FRANCHISE FEE REMITTANCE FORM 38 EXHIBIT D - CUSTOMER SERVICE STANDARDS 39 EXHIBIT E - FRANCHISEE PARENT AS OF JANUARY 24, 2007 49 EXHIBIT F - QUARTERLY CUSTOMER SERVICE STANDARDS PERFORMANCE REPORT 50 MACC 1 Seattkd3385559 0010932-00100 i THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered into by and between the Metropolitan Area Communications Commission (the "Commission"), Member Jurisdictions, and Verizon Northwest Inc., a corporation duly organized under the applicable laws of the State of Washington (the "Franchisee"). WHEREAS, Grantor and Member Jurisdictions wish to grant Franchisee a nonexclusive franchise to construct, install, maintain, extend and operate a cable communications system in the Franchise Area as designated in this Franchise; WHEREAS, Grantor and Member Jurisdictions are "franchising authorities" in accordance with Title VI of the Communications Act (see 47 U.S.C. §522(10)) and are authorized to grant one or more nonexclusive cable franchises; WHEREAS, Franchisee is in the process of installing a Fiber to the Premise Telecommunications Network ("FTTP Network") in the Franchise Area for the transmission of Non-Cable Services pursuant to authority granted by the State of Oregon; WHEREAS, the FTTP Network will occupy the Public Rights-of-Way within the jurisdictional boundaries of the Commission's Member Jurisdictions, and Franchisee desires to use portions of the FTTP Network once installed to provide Cable Services (as hereinafter defined) in the Franchise Area; WHEREAS, Grantor has identified the future cable-related needs and interests of the Commission, its Member Jurisdictions and their citizens, has considered the financial, technical and legal qualifications of Franchisee, and has determined that Franchisee's plans for its Cable System are adequate in a full public proceeding affording due process to all parties; WHEREAS, Grantor and Member Jurisdictions have found Franchisee to be financially, technically and legally qualified to operate the Cable System; WHEREAS, Grantor and Member Jurisdictions have determined that the grant of a nonexclusive franchise to Franchisee is consistent with the !public interest; and WHEREAS, Grantor and Franchisee have reached agreement on the terms and conditions set forth herein and the parties have agreed to be bound by those terms and conditions. NOW, THEREFORE, in consideration of Grantor and Member Jurisdictions' grant of a franchise to Franchisee, Franchisee's promise to provide Cable Service to residents of the Franchise Area pursuant to the terms and conditions set forth herein, the promises and undertakings herein, and other good and valuable consideration, the receipt and the adequacy of which are hereby acknowledged, THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS: 1. DEFINITIONS Except as otherwise provided herein the following definitions shall apply: MACC 2 Seatttc-3338555.9 0010932-00100 1. 1. Access Channel: A video channel, which Franchisee shall make available to Grantor without charge for non-commercial public, educational, or governmental use for the transmission of video programming as directed by Grantor. 1.2. Additional Service Area: Shall mean any such portion of the Service Area added pursuant to Section 3.1.2 of this Agreement. 1.3. Affiliate: Any Person who, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, Franchisee. 1.4. Basic Service: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522, which currently states, "any service tier which includes the retransmission of local television broadcast signals." 1.5. Cable Operator: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(5), which currently states; "any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system." 1.6. Cable Service or Cable Services: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(6), which currently states, "the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service." 1.7. Cable System or System: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(7), which currently states, "a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Communications Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent that such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use-is solely to provide interactive on-demand services; (D) an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for operating its electric utility systems." Subject to Section 2.10, the Cable System shall be limited to the optical spectrum wavelength(s), bandwidth or future technological capacity that is used for the transmission of Cable Services directly to Subscribers within the Franchise/Service Area and shall not include the tangible network facilities of a common carrier subject in whole or in part to Title 11 of the Communications Act or of an Information Services provider. MACC 3 Seanle3338555.9 0010932-00100 1.8. Channel: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(4), which currently states, "a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation)." 1.9. Commission: The Metropolitan Area Communications Commission, its officers, agents and employees, and, for purposes of this Agreement, its affected Member Jurisdictions which are the Oregon cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin, together with Washington County. The Commission was created and exercises its powers pursuant to an Intergovernmental Cooperation Agreement, as authorized by state law (particularly ORS Chapter 190) and the laws, charters, and other authority of the individual member units of local government who are members of the Commission. The powers of the Commission have been delegated to it by its members and although it may exercise those powers as an entity, it remains a composite of its members. 1.10. Communications Act: The Communications Act of 1934, as amended. 1.11. Control: The ability to exercise de facto or de jure control over day-to= day policies and operations or the management of corporate affairs. 1.12. Days: Calendar days unless otherwise noted. 1.13. Designated Access Provider: The entity or entities designated by the Grantor to manage or co-manage the Public, Education,' and Government Access Channels and facilities. The Grantor may be a Designated Access Provider. 1.14. Educational Access Channel: An Access Channel available solely for the use of the local public schools in the Franchise Area and other higher level educational institutions in the Franchise Area. 1.15. Effective Date: The effective date of this Agreement shall be upon the Grantor's written certification of approval of all its Member Jurisdictions and Franchisee's unconditional written acceptance of this Agreement. If either event fails to occur, this Agreement shall be null and void, and any and all rights of Franchisee to own or operate a Cable System within the Franchise Area under this Agreement shall be of no force or effect. 1.16. FCC: The United States Federal Communications Commission, or successor governmental entity thereto. 1.17. Force Majeure: An event or events reasonably beyond the ability of Franchisee to anticipate and control. This includes, but is not limited to, severe or unusual weather conditions, strikes, labor disturbances, lockouts, war or act of war (whether an actual declaration of war is made or not), insurrection, riots, act of public enemy, actions or inactions of any government instrumentality or public utility including condemnation, accidents for which Franchisee is not primarily responsible, fire, flood, or other acts of God, or documented work delays caused by waiting for utility providers to service or monitor utility poles to which MACC 4 Seat lo-3338555.9 0010932-00100 Franchisee's FTTP Network is attached, and documented unavailability of materials and/or qualified labor to perform the work necessary to the extent that such unavailability of materials or labor was reasonably beyond the ability of Franchisee to foresee or control. 1.18. Franchise Area: Those portions of the unincorporated area of Washington County and the incorporated areas (entire existing territorial limits) of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin as shown in Exhibit A, and such additional areas as may be included in the corporate (territorial) limits of Member Jurisdictions during the term of this Agreement or are added pursuant to Section 3.1.2. 1.19. Franchisee: Verizon Northwest Inc., and its lawful and permitted successors, assigns, and transferees. 1.20. Government Access Channel: An Access Channel available solely for the use of Grantor and other local governmental entities located in the Franchise Area. 1.21. Grantor: The Metropolitan Area Communications Commission (MACC) created in 1980 which is the local franchising authority for the Oregon cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin, and Washington County, or the lawful successor, transferee, or assignee thereof. 1.22. Gross Revenue: All revenue, including any and all cash, credits, property, or consideration of any kind, as determined in accordance with generally accepted accounting principles which is earned or derived by Franchisee and/or its Affiliates received from Franchisee's provision of Cable Service over the Cable System in the Franchise Area. Gross Revenue shall be reported to Grantor using the "accrual method" of accounting. Gross Revenue shall include the following items so long as all other cable providers in the Service Area include the same in Gross Revenues for purposes of calculating franchise fees: (a) fees charged for Basic Service; (b) fees charged to Subscribers for any service tier other than Basic Service; (c) fees charged for premium Channel(s), e.g. HBO, Cinemax, or Showtime; (d) fees charged to Subscribers for any optional, per-channel, or per-program services; (e) charges for installation, additional outlets, relocation, disconnection, reconnection,'and change-in-service fees for video or audio programming; (f) fees for downgrading any level of Cable Service programming; (g) fees for service calls; (h) fees for leasing of Channels; (i) rental of customer equipment, including converters (e.g. set top boxes, high definition converters, and digital video recorders) and remote control devices; (j) advertising revenue as set forth herein; (k) revenue from the sale or lease of access Channel(s) or Channel capacity; (1) revenue from the sale or rental of Subscriber lists; MACC 5 Seattle-3338555.9 0010932-00100 (m) revenues or commissions received from the carriage of home shopping channels; (n) fees for any and all music services that are deemed to be a Cable Service over a Cable System; (o) revenue from the sale of program guides; (p) late payment fees; (c) forgone revenue that Franchisee chooses not to receive in exchange for trades, barters, services, or other items of value; (r) revenue from NSF check charges; (s) revenue received from programmers as payment for programming content cablecast on the Cable System; and (t) Franchise fees. Advertising commissions paid to independent third parties shall not be deducted from advertising revenue included in Gross Revenue. Advertising revenue is based upon the ratio of the number of Subscribers as of the last day of the period for which Gross Revenue is being calculated to the number of Franchisee's Subscribers within all areas covered by the particular advertising source as of the last day of such period, e.g., Franchisee sells two ads: Ad "A" is broadcast nationwide; Ad "B" is broadcast only within Oregon. Franchisee has 100 Subscribers in the Franchise Area, 500 Subscribers in Oregon, and 1,000 Subscribers nationwide. Gross Revenue as to the Grantor from Ad "A" is 10% of Franchisee's revenue therefrom. Gross Revenue as to the Grantor from Ad "B" is 20% of Franchisee's revenue therefrom. Gross Revenue shall not include: 1.22.1. Revenues received by any Affiliate or other Person from Franchisee in exchange for supplying goods or services used by Franchisee to provide Cable Service over the Cable System in the Franchise Area; 1.22.2. Bad debts written off by Franchisee in the normal course of its business, provided, however, that bad debt recoveries shall be included in Gross Revenue during the period collected; 1.22.3. Refunds, rebates, or discounts made to Subscribers or other third parties; 1.22.4. Any revenues classified, in whole or in part, as Non-Cable Services revenue under federal or state law including, without limitation, revenue received from: Telecommunications Services; Information Services, including without limitation Internet Access services; charges made to the public for commercial or cable television that is used for two-way communication; and any other revenues attributed to Non-Cable Services in accordance with applicable federal and state laws or regulations; 1.22.5. Any revenue of Franchisee or any Person that is received directly from the sale of merchandise through any Cable Service distributed over the Cable System, notwithstanding that portion of such revenue that represents or can be attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of such merchandise, which portion shall be included in Gross Revenue; MACC 6 Scattlc-3338555.9 0010932-00100 1.22.6. The sale of Cable Services on the Cable System for resale in which the purchaser is required to collect cable franchise fees from purchaser's customer; 1.22.7. The imputed value of the provision of Cable Services to customers on a complimentary basis including, without limitation, the provision of Cable Services to public buildings as required or permitted herein; 1.22.8. Any tax of general applicability imposed upon Franchisee or upon Subscribers by a city, state, federal, or any other governmental entity and required to be collected by Franchisee and remitted to the taxing entity (including, but not limited to, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes, and non-cable franchise fees and revenue); 1.22.9. Any forgone revenue that Franchisee chooses not to receive in exchange for its provision of free or reduced cost cable or other communications services to any Person, including without limitation, employees of Franchisee and public institutions or other institutions designated in the Agreement; provided, however, that such forgone revenue that Franchisee chooses not to receive in exchange for trades, barters, services, or other items of value in place of cash consideration shall be included in Gross Revenue; 1.22.10. Sales of capital assets or sales of surplus equipment; 1.22.11. Reimbursement by programmers of marketing costs incurred by Franchisee for the introduction of new programming pursuant to a written marketing agreement; or 1.22.12. Directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement, and electronic publishing. 1.23. Information Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. §153(20), which currently states, "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." 1.24. Initial Service Area: The area depicted as the Initial Service Area in Exhibit A. 1.25. Internet Access: Dial-up or broadband access service that enables Subscribers to access the Internet. 1.26. Member Jurisdictions: Washington County and the member cities of the Commission that are within the Initial Service Area, specifically the cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin. MACC 7 Sewtle•3338555.9 0010932-00100 1.27. Non-Cable Services: Any service that does not constitute the provision of Video Programming directly to multiple Subscribers in the Franchise Area including, but not limited to, Information Services and Telecommunications Services consistent with FCC rules and orders by courts of competent jurisdiction following all appeals. 1.28. Normal Business Hours: Those hours during which most similar businesses in.the Franchise Area are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. 1.29. Origination Points: Locations from which PEG programming is delivered to the PEG Access Headend for transmission as set forth in Exhibit B. 1.30. PEG: Public, educational, and governmental. 1.31. Person: An individual, partnership, association, joint stock company, trust, corporation, or governmental entity. 1.32. Public Access Channel: An Access Channel available solely for use by the residents and others in the Franchise Area, as authorized by Grantor. 1.33. Public Communications Network ("PCN') / Institutional Network: The separate communications network provided by Comcast Inc. or its successor in interest, designed principally for the provision of non-entertainment, interactive services to schools, public agencies, or other non-profit agencies for use in connection with the ongoing operations of such institutions. Services provided may include video, audio, and data .to PCN subscribers on. an individual application, private channel basis. This may include, but is not limited to, two-way video, audio, or digital signals among institutions. 1.34. Public Rights-of-Way: The surface and the area across, in, over, along, upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways, alleys, and boulevards, including, public utility easements and public lands and waterways used as Public Rights-of-Way, as the same now or may thereafter exist, which are under the jurisdiction or control of the Member Jurisdictions, to the full extent of the Member Jurisdictions' right, title, interest, and/or authority to grant a franchise to occupy and use such streets and easements for Telecommunications Facilities and Cable Service. Public Rights-of- Way shall also include any easement granted or owned by the Grantor or Member Jurisdictions and acquired, established, dedicated or devoted for public utility purposes. Public Rights-of- Way do not include the airwaves above a right-of-way with regard to cellular or other nonwire communications or broadcast services. 1.35. School: Any educational institution, public or private, registered by the State of Oregon pursuant to ORS 345.505-.525, excluding home schools, including but not limited to primary and secondary schools, colleges and universities. 1.36. Service Area: All portions of the Franchise Area where Cable Service is being offered, including the Initial Service Area and any Additional Service Areas. MACC 8 Sea"10338555.9 0010932-00100 1.37. Service Date: The date that Franchisee first provides Cable Service on a commercial basis directly to more.than one Subscriber in the Franchise Area. Franchisee shall memorialize the Service Date by notifying Grantor in writing of the same, which notification shall become a part of this Franchise. 1.38. Subscriber: -A Person who lawfully receives Cable Service over the Cable System with Franchisee's express permission. 1.39. Telecommunications Facilities: Franchisee's existing Telecommunications Services and Information Services facilities and its FTTP Network facilities. 1.40. Telecommunication Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. § 153(46), which currently states, "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 1.41. Title H: Title II of the Communications Act.. 1.42. Title VT Title VI of the Communications Act. 1.43. Video Programming: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(20), which currently states, "programming provided by, or generally considered comparable to programming provided by, a television broadcast station." 2. GRANT OF AUTHORITY: LIMITS AND RESERVATIONS 2.1. Grant of Authority: Subject to the terms and conditions of this Agreement, Grantor and Member Jurisdictions hereby grant Franchisee the right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way within the Franchise Area in order to provide Cable Service. No privilege or power of eminent domain is bestowed by this grant; nor is such a privilege or power bestowed by this Agreement. 2.1.1. This Agreement is intended to convey limited rights and interests only as to those streets and Public Rights-of-Way in which the Member Jurisdictions have an actual interest. It is not a warranty of title or interest in any Public Right-of-Way, it does not provide the Franchisee any interest in any particular location within the Public Right-of-Way, and it does not confer rights other than as expressly provided in the grant hereof. Except as set forth in this Agreement, this Agreement does not deprive Grantor or Member Jurisdictions of any powers, rights, or privileges they now have or may acquire in the future under applicable law, to use, perform work on, or regulate the use and control of the Member Jurisdictions' streets covered by this Agreement, including without limitation, the right to perform work on their roadways, Public Rights-of-Way, or appurtenant drainage facilities, including constructing, altering, paving, widening, grading or excavating thereof. 2.1.2. This Agreement authorizes Franchisee to engage in providing Cable Service. Nothing herein shall be interpreted to prevent Grantor or Franchisee from challenging the lawfulness or enforceability of any provisions of applicable law. MACC 9 Seattle-3338555.9 0010932-00100 2.1.3. To the extent Franchisee uses other parties (whether or not affiliated) to fulfill its obligations hereunder, Franchisee will insure such parties comply with the terms and conditions of this Agreement. 2.2. Regulatory Authority Over the FTTP Network: The parties recognize that Franchisee's FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities for the provision of Non-Cable Services. Jurisdiction over such Telecommunications Facilities is governed by federal and state law, and Grantor and Member Jurisdictions do not and will not assert jurisdiction over Franchisee's FTTP Network in contravention of those laws. Therefore, as provided in Section 621 of the Communications Act, 47 U.S.C. § 541, Grantor and Member Jurisdictions' regulatory authority under Title VI of the Communications Act is not applicable to the construction, installation, maintenance, or operation of Franchisee's FTTP Network to the extent the FTTP Network is constructed, installed, maintained, or operated for the purpose of upgrading and/or extending Verizon's existing Telecommunications Facilities for the provision of Non-Cable Services. Nothing in this Agreement shall affect the Grantor or Member Jurisdictions' authority, if any, to adopt and enforce lawful regulations with respect to the Public Rights-of-Way, subject to 2.9 below. 2.3. Term: The term of this Agreement and all rights, privileges, obligations, and restrictions pertaining thereto shall be from the Effective Date of this Agreement through the fifteenth (15'') anniversary thereof, unless extended or terminated sooner as hereinafter provided. 2.4. Grant Not Exclusive: This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements, permits, easements or licenses granted by Grantor or Member Jurisdictions to any Person to use any street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever, including the right of the Member Jurisdictions to use same for any purpose they deem fit, including the same or similar purposes allowed Franchisee hereunder. Member Jurisdictions may, at any time, grant authorization to use the Public Rights-of-Way for any purpose not incompatible with Franchisee's authority under this Agreement, and for such additional franchises for cable systems as the Grantor deems appropriate. Any such rights which are granted shall not adversely impact the authority as granted under this Agreement and shall not interfere with existing facilities of the Cable System or Franchisee's FTTP Network. 2.5. Effect of Acceptance: By accepting the Agreement, the Franchisee: (1) acknowledges and accepts the Grantor's and Member Jurisdiction's legal right to issue the Agreement; (2) acknowledges and accepts the Grantor's legal right to enforce the Agreement on behalf of its Member Jurisdictions; (3) agrees that it will not oppose the Grantor intervening or other participation in any proceeding affecting Cable Service over the Cable System in the Franchise Area; (4) accepts and agrees to comply with each and every provision of this Agreement; and (5) agrees that the Agreement was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary. 2.6. Franchise Subject to Federal Law: Notwithstanding any provision to the contrary herein, this Franchise and its exhibits are subject to and shall be governed by all MACC 10 Seattle-3338555.9 0010932-00100 applicable provisions of federal law and regulation as they may be amended, including but not limited to the Communications Act. 2.7. No Waiver: 2.7.1. The failure of Grantor on one or more occasions to exercise a right or to require compliance or performance under this Franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by Grantor, nor to excuse Franchisee from complying or performing, unless such right or such compliance or performance has been specifically waived in writing. 2.7.2. The failure of Franchisee on one or more occasions to exercise a right under this Franchise or applicable law, or to require performance under this Franchise, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse Grantor from performance, unless such right or performance has been specifically waived in writing. 2.8. Construction of Agreement: 2.8.1. The provisions of this Franchise shall be liberally construed to effectuate their objectives. 2.8.2. Nothing herein shall be construed to limit the scope or applicability of Section 625 Communications Act, 47 U.S.C. § 545. 2.8.3. Notwithstanding any provision to the contrary herein, this Franchise is subject to and shall be governed by all applicable provisions of federal and state law as they may be amended, including but not limited to the Communications Act. Should any change to state and federal law after the Effective Date have the lawful effect of materially altering the terms and conditions of this Franchise to the detriment of one or more parties, then the parties shall modify this Franchise to ameliorate such adverse effects on, and preserve the affected benefits of, the Franchisee and/or the Grantor to the extent possible which is not inconsistent with the change in law. If the parties cannot reach agreement on the above- referenced modification to the Franchise, then, at Franchisee or Grantor's option, the parties agree to submit the matter to mediation. In the event mediation does not result in an agreement, then, at Franchisee or Grantor's option, the parties agree to submit the matter to non-binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The non-binding arbitration and mediation shall take place in the Franchise Area, unless the parties' representatives agree otherwise. In any negotiations, mediation, and arbitration under this provision, the parties will be guided by the purpose as set forth below. In reviewing the claims of the parties, the mediators and arbitrators shall be guided by the purpose of the parties in submitting the matter for guidance. The parties agree that their purpose is to modify the Franchise so as to preserve intact, to the greatest extent possible, the benefits that each party has bargained for in entering into this Agreement and ameliorate the adverse effects of the change in law in a manner not inconsistent with the change in law. Should the parties not reach agreement, including not mutually agreeing to accept the guidance of the mediator or arbitrator, this Section 2.8.3 shall have no further force or effect. To the extent permitted by law, MACC 11 Seattle-3338555.9 0010932-00100 if there is a change in federal law or state law that permits Franchisee to opt out of or terminate this Agreement, .then Franchisee agrees not to exercise such option. 2.9. Police Powers: In executing this Franchise Agreement, the Franchisee acknowledges that its rights hereunder are subject to the lawful police powers of Grantor or Member Jurisdictions to adopt and enforce general ordinances necessary to the safety and welfare of the public and Franchisee agrees to comply' with all lawful and applicable general laws and ordinances enacted by Grantor or Member Jurisdictions pursuant to such power. Nothing in this Agreement shall be construed to prohibit the reasonable, necessary, and lawful exercise of Grantor or Member Jurisdictions' police powers. However, if the reasonable, necessary and lawful exercise of Grantor or Member Jurisdictions' police power results in any material alteration of the terms and conditions of this Franchise, then the parties shall modify this Franchise to the satisfaction of all parties to ameliorate the negative effects on Franchisee of the material alteration. If the parties cannot reach agreement on the above-referenced modification to the Franchise, then Franchisee may terminate this Agreement without further obligation to Grantor or Member Jurisdictions or, at Franchisee's option, the parties agree to submit the matter to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. 2.10. Termination of Telecommunications Services. Notwithstanding any other provision of this Agreement, if Franchisee ceases to provide Telecommunications Services over the FTTP Network at any time during the Term and is not otherwise authorized to occupy the Public Rights-of-Way in the Franchise Area, Grantor may regulate the FTTP Network as a cable system to the extent permitted by Title VI. 3. PROVISION OF CABLE SERVICE 3.1. Service Area: 3.1.1. Initial Service Area: Franchisee shall offer Cable Service to significant numbers of Subscribers in residential areas of the Initial Service Area, and may make Cable Service available to businesses in the Initial Service Area, within twelve (12) months of the Service Date of this Franchise, and shall offer Cable Service to all residential areas in the Initial Service Area within four (4) years of the Service Date of the Franchise, except: (A) for periods of Force Majeure; (B) for periods of delay caused by Grantor or Member Jurisdictions; (C) for periods of delay resulting from Franchisee's inability to obtain authority to access rights- of-way in the Service Area; (D) in areas where developments or buildings are subject to claimed exclusive arrangements with other providers; (E) in developments or buildings that Franchisee cannot access under reasonable terms and conditions after good faith negotiation, as determined by Franchisee; and (F) in developments or buildings that Franchisee is unable to provide Cable Service for technical reasons or which require non-standard facilities which are not available on a commercially reasonable basis; and (G) in areas where the occupied residential household density does not meet the density requirement set forth in Subsection 3.1.1.1. 3.1.1.1. Density Requirement: Franchisee shall make Cable Services available to residential dwelling units in all areas of the Service Area where the average density is equal to or greater than ten (10) occupied residential dwelling units per quarter mile as MACC 12 Seattle-3338555.9 0010932-00100 measured in strand footage from the nearest technically feasible point on the active FTTP Network trunk or feeder line. Should new construction in an area within the Initial Service Area meet the density requirements after the time stated for providing Cable Service as set forth in Subsection 3.1.1, Franchisee shall provide Cable Service to such area within ninety (90) days of the date that the Franchisee's Franchise Service Manager is notified of a request from a potential Subscriber and verification that the density requirement is satisfied. Franchisee has an ongoing obligation to notify Grantor of any changes to the name and contact information for the Franchise Service Manager. 3.1.2. Additional Service Areas: Aside from the Initial Service Area, Franchisee shall not be required to extend its Cable System or to provide Cable Services to any other areas within the Franchise Area during the term of this Franchise or any renewals thereof. If Franchisee desires to add Additional Service Areas within the unincorporated areas of Washington County or the territorial limits of the Member Jurisdictions, Franchisee shall notify Grantor in writing and provide a map of such Additional Service Area at least thirty (30) days prior to providing Cable Services to such Additional Service Area which shall then become.part of the Franchise Area. Notwithstanding the foregoing, the parties acknowledge that the addition of the cities of Banks, Gaston, or North Plains as an Additional Service Area shall be subject to reasonable approval by Grantor and the affected jurisdiction. Franchisee shall meet with Grantor at least once every two years, beginning with the Effective Date, to discuss whether technology and development warrant extending the service area to include Banks, Gaston, North Plains and additional areas within Member Jurisdiction boundaries not included in the Initial Service Area. As a result of each of these meetings, Franchisee will either (a) negotiate in good faith an amendment to the Agreement to expand service to one or more of these areas, if an amendment is necessary, or (b) explain why, in Franchisee's sole discretion, expansion of service is not yet justified. Franchisee shall not be required to disclose confidential information in conjunction with these discussions. 3.2. Availability of Cable Service: Franchisee shall make Cable Service available to all residential dwelling units and may make Cable Service available to businesses within the Service Area in conformance with Section 3.1 and Franchisee shall not discriminate between or among any individuals in the availability of Cable Service. In the areas in which Franchisee shall provide Cable Service, Franchisee shall be required to connect, at Franchisee's expense (other than a standard installation charge) all residential dwelling units that are within one hundred twenty-five (125) feet of trunk or feeder lines not otherwise already served by Franchisee's FTTP Network. Franchisee shall be allowed to recover, from a Subscriber that requests such connection, actual costs incurred for residential dwelling unit connections that exceed one hundred twenty-five (125) feet and actual costs inured to connect any non- residential dwelling unit Subscriber. 3.3. Cable Service to Public Buildings: Subject to 3. 1, Franchisee shall provide, without charge within the Service Area, one service outlet activated for Basic Service to each unserved (by any cable operator) fire station, School, police station, and public library as may be designated by Grantor; provided, however, that if it is necessary to extend Franchisee's trunk or feeder lines more than one hundred twenty-five (125) feet solely to provide service to any such School or public building, Grantor shall have the option either of paying Franchisee's direct costs for such extension in excess of one hundred twenty-five (125) feet, or of releasing MACC 13 Seattle-3338555.9 0010932.00100 Franchisee from the obligation to provide service to such building. Furthermore, Franchisee shall be permitted to recover, from any School or other public building owner entitled to free service, the direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than one hundred,twenty-five (125) feet of drop cable; provided, however, that Franchisee shall not charge for the provision of Basic Service to the additional service outlets once installed. Cable Service may not be resold or otherwise used in contravention of Franchisee's rights with third parties respecting programming. Equipment provided by Franchisee, if any, shall be replaced at retail rates if lost, stolen or damaged. No more than 150 complimentary service outlets shall be required to be served under this provision. In addition, Franchisee shall provide without charge one service outlet activated for Enhanced Basic Service and one set-top box as necessary to receive digital signals to each of the following locations: the Commission's offices and the Commission's PEG Access Headend. 4. SYSTEM OPERATION As provided in Section 2.2, the parties recognize that Franchisee's FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities. The jurisdiction of Grantor or Member Jurisdictions over such Telecommunications Facilities is restricted by federal and state law, and neither Grantor nor the Member Jurisdictions asserts jurisdiction over Franchisee's FTTP Network in contravention of those limitations. 5. SYSTEM FACILITIES 5.1. System Characteristics: The Cable System must conform to or exceed all applicable FCC technical performance standards, as amended from time to time. Franchisee's Cable System shall substantially conform in all material respects to applicable sections of the following standards and regulations to the extent such standards and regulations remain in effect and are consistent with accepted industry standards. 5.1.1. The System shall be designed with an initial analog and digital carrier passband of between 50 MHz and 860 MHz. The System shall be capable of analog, standard digital, HDTV, VOD, as well as other future services. 5.1.2. The System shall have a modern design, when built, utilizing an architecture that will permit additional improvements necessary for high quality and reliable service throughout the Franchise Term. 5.1.3. The System shall have protection against outages due to power failures, so that back-up power is available at a minimum for at least twenty-four (24) hours at each headend, and conforming to industry standards, but in no event rated for less than four (4) hours, at each power supply site. 5.1.4. All work authorized and required hereunder shall be done in a safe, thorough and workman-like manner. The Franchisee must comply with all safety requirements, rules, and practices and employ all necessary devices, as required by applicable law during construction, operation and repair of its Cable System. By way of illustration and not limitation, MACC 14 Seattle-3338555.9 0010932-00100 the Franchisee must comply with the National Electrical Code, National Electric Safety Code, and Occupational Safety and Health Administration (OSHA) Standards. 5.2. Inspection of Facilities: The Grantor may ,inspect upon request any of Franchisee's facilities and equipment to confirm performance under this Agreement upon at least twenty-four (24) hours notice. In all instances, a qualified representative of Franchisee must be available to accompany the tour to insure that no privacy requirements are violated. 5.3. Emergency Alert System: 5.3.1. Franchisee shall comply with the Emergency Alert System ("EAS") requirements of the FCC in order that emergency messages may be distributed over the System. 5.3.2. In the event of a state or local civil emergency, the EAS shall be activated by equipment or other acceptable means as set forth in the State and Local EAS Plans. Member Jurisdictions shall permit only appropriately trained and authorized Persons to activate the EAS equipment through the EAS Local Primary Stations (LP 1 or LP2) and remotely override the audio and video on all channels on the Cable System.. Each Member Jurisdiction shall take reasonable precautions to prevent any inappropriate use of the EAS or Cable System, or any loss or damage to the Cable System, and, except to the extent prohibited by law, shall hold harmless and defend Franchisee, its employees, officers and assigns from and against any claims arising out of use of the EAS by that Member Jurisdiction, including but not limited to, reasonable attorneys' fees and costs. 6. PEG SERVICES 6.1. PEG Access Channels: 6.1.1. All PEG Access Channels provided for herein shall be administered by the Grantor or its designee. Grantor or its designee shall establish rules and regulations for use of PEG facilities consistent with, and as' required by, 47 U.S.C. §531. Franchisee shall cooperate with Grantor or its designee in the use of the Cable System for the provision of PEG Access Channels. 6.1.2. In order to ensure universal availability of public, educational and government programming, Franchisee shall provide Grantor, within thirty (30) days of the Service Date of this Agreement, six (6) dedicated Public, Educational, and Government Access Channels ("PEG Access Channels"). All PEG Access Channels will be on the Basic Service Tier and will be fully accessible to Subscribers, consistent with FCC regulations. Franchisee shall ensure that the signal quality for. all PEG Access Channels is in compliance with all applicable FCC technical standards. Franchisee will use equipment and procedures that will minimize the degradation of signals that do not originate with the Franchisee. Franchisee shall provide regular and routine maintenance and repair/replacement of transmission equipment it supplies necessary to carry a quality signal on the PEG Access Channels and from the Origination Points provided for herein. MACC 15 Seattle-3338555.9 0010932-00100 6.1.3. Within ten (10) days after the Effective Date of this Agreement, Grantor shall inform Franchisee of the general nature of the programming to be carried on the initial PEG Access Channels set aside by Franchisee. Grantor and Member Jurisdictions authorize Franchisee to transmit such programming within and outside the Franchise Area. Franchisee shall assign the PEG Access Channels on its channel line-up as set forth in the notice from Grantor to the extent such channel assignments do not interfere with Franchisee's existing or planned channel.line-up. If Grantor later changes the programming carried on a PEG Access Channel(s), Grantor shall provide Franchisee with at least ninety (90) days notice of the change(s). 6.1.3.1. If a PEG Access Channel provided under this Article is not being utilized by Grantor, Franchisee may utilize such PEG Channel, in its sole discretion, until such time as Grantor elects to utilize the PEG Access Channel for its intended purpose. 6.1.3.2. Grantor shall require all local producers and users of any of the PEG facilities or Channels to agree to authorize Franchisee to transmit programming consistent with this agreement in writing and to defend and hold harmless Franchisee and Grantor from and against any and all liability or other injury, including the reasonable cost of defending claims or litigation, arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity, which result from the use of a PEG facility or PEG Access Channel. 6.1.4. If all of Franchisee's video programming is delivered in a digital format, then, Franchisee shall reserve six (6) additional PEG Access Channels, for a total of twelve (12) PEG Access Channels. Franchisee shall activate the reserved PEG Access Channels following a written request from Grantor when the following criteria have been met for each additional PEG Access Channel: 6.1.4.1. Grantor must have a documented need for additional programming capacity that cannot be fulfilled by existing PEG Access Channels; 6.1.4.2. the existing PEG Access Channels must be utilized for PEG programming within the Franchise Area as follows: 6.1.4.2.1. Public Access Channels: During any eight (8) consecutive weeks, the Public Access Channel is in use for Locally Produced, Locally Scheduled Original Programming 80% of the time, seven (7) days per week, for any consecutive five (5) hour block during the hours from noon to midnight; or 6.1.4.2.2. Educational Access Channels: During any eight (8) consecutive weeks, the Educational Access Channel is in use for Locally Scheduled Original Programming 80% of the time, five (5) days per week, Monday through Friday, for any consecutive five (5) hour block during the hours from 6:00 a.m. to 11:00 p.m.; or MACC 16 Seatde-3338555.9 0010932.00100 6.1.4.2.3. Governmental Access Channels: During any eight (8) consecutive weeks, the Governmental Access Channel is in use for Locally Scheduled Original Programming 80% of the time, five (5) days per week, Monday through Friday, for any consecutive five (5) hour block during the hours from 6:00 a.m. to 11:00 p.m.; 6.1.4.3. all cable providers within the Franchise Area similarly provide such additional PEG Access Channels; and 6.1.4.4. as long as the signal source location is the PEG Access Headend, any additional PEG Access Channel shall be made available within one hundred twenty (120) days following Grantor's request (which shall constitute Grantor's authorization to transmit the PEG Access Channel within and outside the Franchise Area) and verification of compliance with each of the foregoing conditions. If the signal source location is not the PEG Access Headend, the timing of the availability and other conditions will be by mutual agreement of Grantor and Franchisee. In no event shall the origination point be located outside the Franchise Area. 6.1.5. For the purpose of Section 6.1.4: 6.1.5.1. "Locally Produced" means programming produced in Clackamas, Multnomah, or Washington Counties, or the Vancouver/Clark County, Washington metropolitan area; and 6.1.5.2. "Original Programming" means Programming in its initial cablecast on the Cable System or in its first or second repeat; and 6.1.5.3. "Locally Scheduled" means that the scheduling, selection and or playback of Original Programming on a per-program basis is determined in consultation with, or pursuant to the operating procedures of, the Designated Access Provider or, with respect to programming received from an Interconnection, the provider transmitting the programming over the Interconnection. However, carriage on any PEG Access Channel of all or a substantial portion of any non-local programming which duplicates programming otherwise carried by Grantee as a part of its Basic or expanded Basic Cable Services shall not be considered "Locally Scheduled." 6.2. Connection of PEG Access Headend.- 6.2.1. Grantor shall provide suitable video signals for the PEG Access Channels to Franchisee at Grantor's PEG Access Headend located at 11375 SW Center Street, Suite B, Beaverton, Oregon 97005. Upon receipt of a suitable video signal, Franchisee shall provide, install, and maintain in good working order the equipment necessary for transmitting the PEG signal to the channel aggregation site for further processing for distribution to Subscribers. Franchisee's obligation with respect to such upstream transmission equipment and facilities shall be subject to the availability, without charge to Franchisee, of suitable required space, environmental conditions, electrical power supply, access, pathway within the facility, and other facilities and such cooperation of Grantor as is reasonably necessary for Franchisee to fulfill such obligations. MACC 17 Seattle-3338555.9 0010932-00100 6.2.2. Grantor shall have the right to relocate the PEG Access Headend one time during the term of this Franchise as follows: Grantor may relocate the PEG Access Headend to a new location within the Service Area and within five hundred (500) feet of one of Franchisee's active, video-enabled FTTP trunk or feeder lines; provided that Grantor shall provide to Franchisee at the new location: (1) suitable required space, environmental conditions, electrical power supply, access, pathway within the facility, and other facilities and cooperation of Grantor as is reasonably necessary; (2) access to such space at least ninety (90) days prior to anticipated use of the new PEG Access Headend; and (3) reimbursement of up to Fifteen Thousand Dollars ($15,000) for costs associated with the relocation of the equipment necessary for transmitting the PEG signal. 6.3. Origination Points: To facilitate the Grantor's transmission of live video/audio and other PEG programming from certain remote sites, the Franchisee, at its own expense, will provide and maintain fiber connections and the related analog to digital (ADC) transmission/receive equipment necessary between the Grantor's PEG Access Headend and the Origination Points listed in Exhibit B of this Agreement. Grantor agrees it will not use these fiber connections for other purposes. 6.4. PEG/PCN Grant: 6.4.1. Franchisee shall provide an annual grant (the "PEG/PCN Grant") to Grantor to be used in support of the production of local PEG programming and in support of the PCN. Such grant shall be used by Grantor for capital costs for public, educational, or governmental access facilities, including, but not limited to, studio and portable production equipment, editing equipment and program playback equipment, or for renovation or construction of PEG access facilities, and to support the capital and operating needs of PCN users. 6.4.2. The PEG/PCN Grant provided by Franchisee hereunder shall be the sum of $1.00, per month, per Subscriber in the Service Area to Franchisee's Basic Service Tier. Franchisee shall deliver the PEG/PCN Grant payment, along with a brief summary of the Subscriber information upon which it is based, to Grantor concurrent with the Franchise fee payment. Calculation of the PEG/PCN Grant will commence with the first calendar quarter during which Franchisee obtains its first Subscriber in the Service Area. Franchisee may retain up to twenty-five percent (25%) of PEG/PCN Grant payments until the full amount of the Incidental Payment required in Section 14.5 of this Agreement is recovered. 6.4.3. Grantor shall provide Franchisee with a complete accounting annually of the distribution of funds granted pursuant to this Section. 6.4.4. To the extent permitted by federal law, the Franchisee shall be allowed to recover the costs of the PEG/PCN Grant or any other costs arising from the provision of PEG and PCN services from Subscribers and to include such costs as a separately billed line item on each Subscriber's bill. Without limiting the forgoing, if allowed under state and federal laws, Franchisee may externalize, line-item, or otherwise pass-through these costs to Subscribers. MACC 18 Seattle-3338555.9 001 0932-001 00 7. FRANCHISE FEES 7. 1. Payment to the Grantor: Franchisee shall pay to the Grantor a Franchise fee of five percent (5%) of annual Gross Revenue. In accordance with Title VI of the Communications Act, the twelve (12) month period applicable under the Franchise for the computation of the Franchise fee shall be a calendar year. Such payments shall be made no later than forty-five (45) days following the end of each calendar quarter. Franchisee shall be allowed to submit or correct any payments that were incorrectly omitted, and shall be refunded any payments that were incorrectly submitted, in connection with the ' quarterly Franchise fee remittances within ninety (90) days following the close of the calendar year for which such payments were applicable. In the event any law or valid rule or regulation applicable to this Franchise limits Franchise fees below the five percent (5%) of annual Gross Revenues required herein, Franchisee agrees to and shall pay the maximum permissible amount and, if such law or valid rule or regulation is later repealed or amended to allow a higher permissible amount, then the Franchisee shall pay the higher amount up to the maximum allowable by law, not to exceed five percent (5%) during all affected time periods. 7.2. Supporting Information: Each Franchise fee payment shall be accompanied by a written report prepared by a representative of Franchisee showing the basis for the computation in the form attached hereto as Exhibit C. Grantor shall have the right to reasonably request further supporting documentation and information for each Franchise fee payment, subject to the confidentiality provisions in this Agreement; provided that Franchisee shall not be required to develop or create reports that are not a part of its normal business procedures and reporting or that have been defined specifically within this Agreement. 7.3. Acceptance of Payments: Subject to Section 7.4 below, no acceptance of any payment shall. be construed as an accord by Grantor that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim Grantor may have for further or additional sums payable or for the performance of any other obligation of Franchisee. 7.4. Audit of Franchise Fee Payments: 7.4.1. Grantor, or its designee, may conduct an audit or other inquiry in relation to payments made by Franchisee no more than once every two (2) years during the Term. As a part of the audit process, Grantor or Grantor's designee may inspect Franchisee's books of accounts relative to Grantor at any time during regular business hours and after thirty (30) calendar days prior written notice. 7.4.2. All records deemed by Grantor or Grantor's designee to be reasonably necessary for such audit, which shall include, but not be limited to, all records subject to inspection by Grantor pursuant to Section 9.2 herein, shall be made available by Franchisee in a mutually agreeable format and location. Franchisee agrees to give its full cooperation in any audit and shall provide responses to inquiries within thirty (30) calendar days of a written request. Franchisee may provide such responses within a reasonable time after the expiration of the response period above so long as Franchisee makes a good faith effort to procure any such tardy response. MACC 19 Seattle-3338555.9 0010932-00100 7.4.2. 1. During any audit period when Franchisee has less than 10,000 Subscribers, if the results of any audit indicate that Franchisee (i) paid the correct Franchise fee, (ii) overpaid the Franchise fee and is entitled to a refund or credit, or (iii) underpaid the Franchise fee by five percent (5%) or less, then Grantor shall pay the costs of the audit. If the results of the audit indicate Franchisee underpaid the Franchise fee by more than five percent (5%) during the audit period, then Franchisee shall pay the reasonable, documented, third-party costs of the audit up to Ten Thousand Dollars ($10,000) per audit. 7.4.2.2. During any period when Franchisee has 10,000 or more Subscribers, if the results of any audit indicate that Franchisee (i) paid the correct Franchise fee, (ii) overpaid the Franchise fee and is entitled to a refund or credit, or (iii) underpaid the Franchise fee by three percent (3%) or less, then Grantor shall pay the costs of the audit. If the results of the audit indicate Franchisee underpaid the Franchise fee by more than three percent (3%) during the audit period, then Franchisee shall pay the reasonable, documented, third-party costs of the audit up to Fifteen Thousand Dollars ($15,000) per audit. 7.4.2.3. Grantor agrees that any audit shall be performed in good faith. If any audit discloses an underpayment of the Franchise fee of any amount, Franchisee shall pay Grantor the amount of the underpayment, together with interest as provided in Section 7.7 below. Any auditor employed by Grantor shall not be compensated on a success based formula, e.g., payment based on a percentage on underpayment, if any. 7.5. Limitation on Franchise Fee Actions: The period of limitation for recovery of any Franchise fee payable hereunder shall be three (3) years from the date on which payment by Franchisee is due. 7.6. Bundled Services: In the case of a Cable Service that is bundled or integrated functionally with other services, capabilities, or applications, the portion of Franchisee's revenue attributable to such other services, capabilities, or applications shall be included in Gross Revenue unless Franchisee's books and records that are kept in the regular course of business identify the revenue as being attributable to the other services, capabilities or applications. 7.7. Annual Franchise Fee Report: Franchisee shall, no later than one hundred twenty (120) days after the end of each calendar year, furnish to Grantor an annual summary of Franchise fee calculations, substantially in the form attached hereto as Exhibit C but showing annual rather than quarterly amounts. 7.8. Interest on Late Payments: In the event that a Franchise fee payment or other sum is not received by Grantor on or before the due date, or is underpaid, Franchisee shall pay in addition to the payment, or sum due, interest from the due date at a rate equal to the statutory interest rate on judgments in the State of Oregon. 7.9. Payment on Termination: If this Agreement terminates for any reason, Franchisee shall file with Grantor within ninety (90) calendar days of the date of the termination, a fmancial statement showing the Gross Revenues received by the Franchisee since the end of the previous calendar quarter for which Franchise fees were paid. If, within sixty (60) days of MACC 20 Seattle-3338555.9 0010932-00100 providing such financial statement, Franchisee has not satisfied all remaining financial obligations to Grantor, Grantor reserves the right to, satisfy any remaining financial obligations of the Franchisee to Grantor by utilizing the funds available in the Letter of Credit provided by the Franchisee under Section 13.6 of this Agreement. 7.10. Costs of Publication: Franchisee shall pay the reasonable cost of newspaper notices and publication pertaining to this Agreement, and any amendments thereto, including changes in control or transfers of ownership, as such notice or publication is reasonably required by Grantor under applicable law. 8. CUSTOMER SERVICE 8.1. Customer Service Requirements are set forth in Exhibit D, which shall be binding unless amended by written consent of the parties. 8.2. If, at any time during the term of this Franchise, "Effective Competition," as defined by the Communications Act, as the term may be reasonably applied to Franchisee, ceases to exist in the Service Area, Grantor and Franchisee agree to enter into good faith negotiations to determine if there is a need for additional customer service requirements. Grantor and Franchisee shall enter into such negotiations within forty-five (45) days following a request for negotiations by Franchisee after the cessation of "Effective Competition" as described above. 9. REPORTS AND RECORDS 9.1. Open Books and Records: Upon reasonable written notice to Franchisee and with no less than thirty (30) days written notice to Franchisee, Grantor shall have the right to inspect Franchisee's books and records pertaining to Franchisee's provision of Cable Service in the Franchise Area at any time during weekday business hours and on a nondisruptive basis at a mutually agreed location within Franchisee's Title II service territory in Oregon and Washington, as are reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the section or subsection of the Franchise which is under review, so that Franchisee may organize the necessary books and records for appropriate access by Grantor. Franchisee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years. Franchisee shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act, 47 U.S.C. §551. If any books, records, maps, plans or other requested documents are too voluminous, not available locally in the Franchisee's Title II service territory in Oregon and Washington, or for security reasons cannot be copied and moved, then the Franchisee may request that the inspection take place at a location mutually agreed to by Grantor and the Franchisee, provided that the Franchisee must pay all travel expenses incurred by Grantor in inspecting those documents or having the documents inspected by its designee, above those that would have been incurred had the documents been produced in Franchisee's Title II service territory in the Portland metropolitan area. 9.2. Proprietary Books and Records: If the Franchisee believes that the requested information is confidential and proprietary, the Franchisee must provide the following documentation to Grantor: (i) specific identification of the information; and (ii) statement MACC 21 Seattle-3338555.9 0010932-00100 attesting to the reason(s) Franchisee believes the information is confidential. The Grantor shall take reasonable steps to protect the proprietary and confidential nature of any books, records, Service Area maps, plans, or other documents requested by Grantor that are provided pursuant to this Agreement to the extent they are designated as such by the Franchisee, consistent with the Oregon Public Records Law. Should Grantor be required under state law to disclose information derived from Franchisee's books and records, Grantor agrees that it shall provide Franchisee with reasonable notice and an opportunity to seek appropriate protective orders prior to disclosing such information. Notwithstanding anything to the contrary set forth herein, Franchisee shall not be required to disclose any of its or an Affiliate's books and records not relating to the provision of Cable Service in the Service Area, or any confidential information relating to such Cable Service where the Grantor and Member Jurisdictions cannot lawfully protect the confidentiality of the information. 9.3. Records Required: Franchisee shall maintain: 9.3.1. Records of all written complaints for a period of three (3) years after receipt by Franchisee. The term "complaint" as used herein refers to complaints about any aspect of the Cable System or Franchisee's cable operations, including, without limitation, complaints about employee courtesy. Complaints recorded will not be limited to complaints requiring an employee service call; 9.3.2. Records of outages for a period of three (3) years after occurrence, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause; 9.3.3. Records of service calls for repair and maintenance for a period of three (3) years after resolution by Franchisee, indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was resolved; 9.3.4. Records of installation/reconnection and requests for service extension for a period of three (3) years after the request was fulfilled by Franchisee, indicating the date of request, date of acknowledgment, and the date and time service was extended; and 9.3.5. A public file showing the area of coverage for the provisioning of Cable Services and estimated timetable to commence providing Cable Service. 9.4. Additional Requests: The Grantor shall have the right to request in writing such information as is appropriate and reasonable to determine whether Franchisee is in compliance with applicable Customer Service Standards, as referenced in Exhibit D. Franchisee shall provide Grantor with such information in such format as Franchisee customarily prepares reports. Franchisee shall fully cooperate with Grantor and shall provide such information and documents as necessary and reasonable for the Grantor to evaluate compliance, subject to Section 9.6. 9.5. Copies of Federal and State Documents: Franchisee shall submit to the Grantor a list, or copies of actual documents, of all pleadings, applications, notifications, Ma,cc 22 Seank-3338555.9 0010932-00100 communications and documents of any kind, submitted by Franchisee or its parent corporations or Affiliates to any federal, state or local courts, regulatory agencies or other government bodies if such documents specifically relate to the operations of Franchisee's Cable System within the Franchise Area. Franchisee shall submit such list or documents to the Grantor no later than thirty (30) days after filing, mailing or publication thereof. Franchisee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, state, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or state agency or a request for confidential treatment is pending. To the extent allowed by law, any such confidential material determined to be exempt from public disclosure shall be retained in confidence by the Grantor and its duly authorized agents and shall not be made available for public inspection. 9.6. Report Expense: All reports and records required under this or any other Section shall be furnished, without cost, to Grantor. Franchisee shall not be required to develop or create reports that are not a part of its normal business procedures and reporting or that have been defined specifically within this Section 9 in order to meet the requirements of this Section 9. 10. INSURANCE AND INDEMNIFICATION 10.1. Insurance: 10.1.1. Franchisee shall maintain in full force and effect, at its own cost and expense, during the Franchise Term, the following insurance coverage: 10.1.1.1. Commercial General Liability Insurance in the amount of Three Million Dollars ($3,000,000) combined single limit for property damage and bodily injury; one million dollar ($1,000,000) limit for broadcaster's liability. Such insurance shall cover the construction, operation and maintenance of the Cable System, and the conduct of Franchisee's Cable Service business in the Franchise Area. 10.1.1.2. Automobile Liability Insurance in the amount of Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage coverage. 10.1.1.3. Workers' Compensation Insurance meeting all legal requirements of the State of Oregon. 10.1.1.4. Employers' Liability Insurance in the following amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by Disease: $100,000 employee limit; $2,000,000 policy limit. 10.1.2. Grantor and Member Jurisdictions shall be designated as additional insureds under each of the insurance policies required in this Article 10 except Worker's Compensation and Employer's Liability Insurance. 10.1.3. Franchisee shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Agreement. MACC 23 Seattle-3338555.9 0010932-00100 10.1.4. Each of the required insurance policies shall be with sureties qualified to do business in the State of Oregon, with an A- or better rating for"financial condition and financial performance by Best's Key Rating Guide, Property/Casualty Edition. 10.1.5. Upon written request, Franchisee shall deliver to Grantor Certificates of Insurance showing evidence of the required coverage. 10.2. Indemnification: 10.2.1. Franchisee agrees to indemnify, save and hold harmless, and defend Grantor, its officers, agents, boards and employees, from and against any liability for damages or claims resulting from tangible property damage or bodily injury (including accidental death), to the extent proximately caused by Franchisee's negligent construction, operation, or maintenance of its Cable System, provided that Grantor shall give Franchisee written notice of its obligation to indemnify Grantor within ten (10) days of receipt of a claim or action pursuant to this subsection. Notwithstanding the. foregoing, Franchisee shall not indemnify Grantor for any damages, liability or claims resulting from the willful misconduct or negligence of Grantor, its officers, agents, employees, attorneys, consultants, independent contractors or third parties or for any activity or function conducted by any Person other than Franchisee in connection with PEG Access Channels, use of the PCN, or EAS, or the distribution of any Cable Service over the Cable System. 10.2.2. With respect to Franchisee's indemnity obligations set forth in Subsection 10.2.1, Franchisee shall provide the defense of any claims brought against Grantor by selecting counsel of Franchisee's choice to defend the claim, subject to the consent of Grantor, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent Grantor from cooperating with Franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense, provided however, that after consultation with Grantor, Franchisee shall have the right to defend, settle or compromise any claim or action arising hereunder, and Franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such settlement does not include the release of Grantor and Grantor does not consent to the terms of any such settlement or compromise, Franchisee shall not settle the claim or action but its obligation to indemnify Grantor shall in no event exceed the amount of such settlement. 10.2.3. Grantor shall hold Franchisee harmless and shall be responsible for damages, liability or claims resulting from willful misconduct or negligence of Grantor. 10.2.4. Grantor shall be responsible for its own acts of willful misconduct or negligence, or breach of obligation committed by Grantor for which Grantor is legally responsible, subject to any and all defenses and limitations of liability provided by law. Franchisee shall not be required to indemnify Grantor for acts of Grantor which constitute willful misconduct or negligence, on the part of Grantor, its officers, employees, agents, attorneys, consultants, independent contractors or third parties. MACe 24 Seattle-3338555.9 0010932-00100 11. TRANSFER OF FRANCHISE 11.1. Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, no "Transfer of the Franchise" shall occur without the prior consent of Member Jurisdictions, provided that such consent shall not be unreasonably withheld, delayed or conditioned. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of Franchisee in the Franchise or Cable System in order to secure indebtedness, or otherwise excluded under this Article 11. 11.2. A ".Transfer of the Franchise" shall mean any transaction in which: 11.2.1. an ownership or other interest in Franchisee is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, so that control of Franchisee is transferred; or 11.2.2. the rights held by Franchisee under the Franchise are transferred or assigned to another Person or group of Persons. However, notwithstanding Subsections 11.2.1 and 11.2.2, a Transfer of the Franchise shall not include transfer of an ownership or other interest in Franchisee to the parent of Franchisee or to another Affiliate of Franchisee; transfer of an interest in the Franchise or the rights held by Franchisee under the Franchise to the parent of Franchisee or to another Affiliate of Franchisee; any action which is the result of a merger of the parent of Franchisee; or any action which is the result of a merger of another Affiliate of Franchisee. The parent of Franchisee is shown in Exhibit E. 11.3. Franchisee shall make a written request ("Request") to Grantor and Member Jurisdictions for approval of any Transfer of the Franchise and furnish all information required by law and/or reasonably requested by Grantor and Member Jurisdictions in respect to its consideration of a proposed Transfer of the Franchise. Member Jurisdictions shall render a final written decision on the Request within one hundred twenty (120) days of the Request, provided it has received all requested information. Subject to the foregoing, if the Member Jurisdictions fail to render a written decision on the Request within one hundred twenty (120) days, the Request shall be deemed granted unless Franchisee and Member Jurisdictions agree to an extension of time. 11.4. In reviewing a Request related to a Transfer of the Franchise, Grantor and Member Jurisdictions may inquire into the legal, technical and financial qualifications of the prospective transferee, and Franchisee shall assist Grantor and Member Jurisdictions in so inquiring. Member Jurisdictions may condition said Transfer of the Franchise upon such terms and conditions as they deem reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective or transferee and to the resolution of outstanding and unresolved issues of Franchisee's noncompliance with the terms and conditions of this Agreement. MACC 25 Seattle-3338555.9 0010932-00100 11.5. The consent or approval of Member Jurisdictions to any Request by the Franchisee shall not constitute a waiver or release of any rights of Member Jurisdictions, and any transferee shall be expressly subordinate to the terms and conditions of this Agreement. 11.6. Notwithstanding the foregoing, the parties agree that the Member Jurisdictions' consent and/or approval to any transfer or assignment of any rights, title, or interest of Franchisee to any Person shall not be required where Verizon Northwest Inc. or its lawful successor which is not a third party transferee remains the Franchisee following any such transfer or assignment. 12. RENEWAL OF FRANCHISE 12.1. The parties agree that any proceedings undertaken by Grantor and Member Jurisdictions that relate to the renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act, 47 U.S.C. § 546. 12.2. In addition to the procedures set forth in said Section 626 of the Communications Act, Grantor agrees to notify Franchisee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of Franchisee under the then current Franchise term. Grantor further agrees that such assessments shall be provided to Franchisee promptly so that Franchisee has adequate time to submit a proposal under Section 626 and complete renewal of the Franchise prior to expiration of its term. 13. ENFORCEMENT AND TERMINATION OF FRANCHISE 13.1. Notice of Violation: In the event Grantor believes that Franchisee has failed to perform any obligation under this Agreement or has failed to perform in a timely manner, Grantor shall informally discuss the matter with Franchisee. If these discussions do not lead to resolution of the problem, Grantor shall notify Franchisee in writing, stating with reasonable specificity the nature of the alleged violation. 13.2. Franchisee's Right to Cure or Respond. Franchisee shall have thirty (30) days from receipt of the written notice described in Section 13.1 to: (i) respond to Grantor, contesting (in whole or in part) Grantor's assertion that a violation has occurred, and requesting a hearing in accordance with subsection 13.3 below; (ii) cure the violation; or (iii) notify Grantor that Franchisee cannot cure the violation within the thirty (30) days, and notify the Grantor in writing of what steps Franchisee shall take to cure the violation including Franchisee's projected completion date for such cure. The procedures provided in Section 13.4 shall be utilized to impose any fines. The date of violation will be the date of the event and not the date Franchisee receives notice of the violation provided, however, that if Grantor has actual knowledge of the violation and fails to give the Franchisee the notice called for herein, then the date of the violation shall be no earlier than ten (10) business days before the Grantor gives Franchisee the notice of the violation. 13.2.1. In the event that the Franchisee notifies the Grantor that it cannot cure the violation within the thirty (30) day cure period, Grantor shall, within thirty (30) days of Grantor's receipt of such notice, set a hearing. MACC 26 Seattle-3338555.9 0010932-00100 13.2.2. In the event that the Franchisee fails to cure the violation within the thirty (30) day basic cure period, or within an extended cure period approved by the Grantor pursuant to subsection 13.2(iii), the Grantor shall set a hearing to determine what fines, if any, shall be applied 13.2.3. In the event that the Franchisee contests the Grantor's assertion that a violation has occurred, and requests'a hearing in accordance with subsection 13.2(i) above, the Grantor shall set a hearing within sixty (60) days of the Grantor's receipt of the hearing request to determine whether the violation has occurred, and if a violation is found, what fines shall be applied. 13.3. Public Hearing. In the case of any hearing pursuant to section 3.2 above, Grantor shall provide reasonable notice to Franchisee of the hearing in writing. At the hearing Franchisee shall be provided an opportunity to be heard, to examine Grantor's witnesses, and to present evidence in its defense. The Grantor may also hear any other person interested in the subject, and may provide additional hearing procedures as Grantor deems appropriate. 13.3.1. If, after the hearing, Grantor determines that a violation exists, Grantor may use one of the following remedies: 13.3.1.1. Order Franchisee to correct or remedy the violation within a reasonable time frame as Grantor shall determine; 13.3.1.2. Establish the amount of fine set forth in Section 13.5, taking into consideration the criteria provided for in subsection 13.4 of this Agreement as appropriate in Grantor's discretion; or 13.3.1.3. Pursue any other legal or equitable remedy available under this Agreement or any applicable law; or 13.3.1.4. In the case of a substantial material default of a material provision of the Franchise, seek to revoke the Franchise in accordance with Section 13.7. 13.4. Reduction of Fines: The fines set forth in Section 13.5 of this Agreement may be reduced at the discretion of the Grantor, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: 13.4.1. Whether the violation was unintentional; 13.4.2. The nature of the harm which resulted; 13.4.3. Whether there is a history of prior violations of the same or other requirements; 13.4.4. Whether there is a history of overall compliance, and/or; MACC 27 Seattle-3338555.9 0010932-00100 13.4.5. Whether the violation was voluntarily disclosed, admitted or cured. 13.5. Fine Schedule: 13.5.1. For violating telephone answering standards set forth in Exhibit D, Section 2.1) for a quarterly measurement period, unless the violation has been cured, fines shall be as set forth below. A cure is defined as meeting the telephone answering standards for two consecutive quarterly measurement periods. Quarterly Telephone Answer Time Fines 1" Violation 2"d Violation 3'd Violation Quarterly Fine $ 2,000* $ 4,000* $ 6,000* * If after forty-two (42) months, no fines have been assessed for violations of call answer time standards, these fines shall be reduced by fifty percent (50%). 13.5.2. For all other violations of this Agreement, the fine shall be $250 per day. 13.5.3. Total fines shall not exceed Twenty-Five Thousand Dollars ($25,000) in any twelve-month period. .13.5.4. If Grantor elects to assess a fine pursuant to this Section, such election shall constitute Grantor's exclusive remedy for the violation for which the fine was assessed for a period of sixty (60) days. Thereafter, the remedies provided for in this Agreement are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another remedy, or the exercise of any rights of the Grantor at law or equity, provided that the cumulative remedies may not be disproportionate to the magnitude and severity of the breach for which they are imposed. 13.6. Letter of Credit: Franchisee shall provide a letter of credit in the amount of Twenty Thousand Dollars ($20,000) as security for the faithful performance by Franchisee of all material provisions of this Agreement. 13.7. Revocation: Should Grantor seek to revoke the Franchise after following the procedures set forth in Sections 13.1 through 13.5 above, Grantor shall give written notice to Franchisee of its intent. The notice shall set forth the exact nature of the noncompliance. Franchisee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event Grantor has not received a satisfactory response from Franchisee, it may then seek termination of the Franchise at a public hearing. Grantor shall cause to be served upon Franchisee, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise. MACC 28 Seattle-3338555.9 0010932-00100 13.7.1. At the designated hearing, Franchisee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of Grantor, to compel the testimony of other persons as permitted by law, and to question and/or cross examine witnesses. A complete verbatim record and transcript shall be made of such hearing. 13.7.2. Following the public hearing, Franchisee shall be provided up to thirty (30) days to submit its proposed findings and conclusions in writing and thereafter Grantor shall determine (i) whether an event of default has occurred; (ii) whether such event of default is excusable; and (iii) whether such event of default has been cured or will be cured by Franchisee. Grantor shall also determine whether to revoke the Franchise based on the information presented, or, where applicable, grant additional time to Franchisee to effect any cure. If Grantor determines that the Franchise shall be revoked, Grantor shall promptly provide Franchisee with a written decision setting forth its reasoning. Franchisee may appeal such determination of Grantor to an appropriate court, which shall have the power to review the decision of Grantor de novo. Franchisee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within sixty (60) days of Franchisee's receipt of the determination of the Grantor. 13.7.3. Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce Grantor's rights under the Franchise in lieu of revocation of the Franchise. 13.8. Limitation on Grantor Liability: The parties agree that the limitation of Grantor liability set forth in 47 U.S.C. §555a is applicable to this Agreement. 13.9. Franchisee Termination: Franchisee shall have the right to terminate this Franchise and all obligations hereunder within ninety (90) days after the end of four (4) years from the Service Date of this Franchise, if at the end of such four (4) year period, Franchisee does not then in good faith believe it has achieved a commercially reasonable level of Subscriber penetration on its Cable System. Franchisee may consider Subscriber penetration levels outside the Franchise Area in this determination. Notice to terminate under this Section 13.9 shall be given to the Grantor in writing, with such termination to take effect no sooner than one hundred and twenty (120) days after giving such notice. Franchisee shall also be required to give its then- current Subscribers not less than ninety (90) days prior written notice of its intent to cease Cable Service operations. 14. MISCELLANEOUS PROVISIONS 14.1. Actions of Parties: In any action by Grantor or Franchisee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, delayed or conditioned. 14.2. Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, MACC 29 Seattle-3338555.9 0010932-00100 successors and assigns, and the promises and obligations herein shall survive the expiration date hereof. 14.3. Preemption: In the event that federal or : state law, rules, or regulations preempt a provision or limit the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent, and for the. time, but only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of Grantor. 14.4. Force Majeure: Franchisee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by a Force Majeure. 14.4.1. Furthermore, the parties hereby agree that it is not the Grantor's intention to subject Franchisee to penalties, fines, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on Subscribers, or where strict performance would result in practical difficulties and hardship being placed upon Franchisee which outweigh the benefit to be derived by Grantor and/or Subscribers. 14.5. Incidental Payment: The Franchisee shall pay the Grantor an Incidental Payment of $149,600 as set forth below as a condition of the Franchise granted by this Agreement. The Incidental Payment will be made to Grantor in four annual payment installments as follows: Commencing on the Service Date, and on the same date in the three (3) following years, the Franchisee shall provide the amounts shown below to the Grantor as an advance of a portion of the Annual PEG/PCN Grant required in Section 6.4 of the Agreement. Incidental Payment Schedule Year 1 $17,600 Year 2 $35,200 Year 3 $44,000 Year 4 $52,800 These payments shall not be regarded as franchise fees, nor payments in lieu of franchise fees, nor as an offset against franchise fees, and they shall be used by Grantor at the Grantor's sole discretion consistent with applicable law. To recover the Incidental Payment, the Franchisee may retain up to twenty-five percent (25%) of the $1.00 per month collected from Subscribers under Section 6.4 of this Agreement until such time as the total amount of $149,600 is recovered. Once the total amount of the Incidental Payment is recovered, the Franchisee shall pay the Grantor the full $1.00 per month, per Subscriber PEG/PCN Grant. The Grantor may assure the accuracy of these payments by inspecting Franchisee's records under Section 9 of this Agreement or by an audit under Section 7.4 of this Agreement. MACC 30 Seatde-3338555.9 0010932-00100 14.6. Notices: Unless otherwise expressly stated herein, notices required under the Franchise shall be mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party. 14.6.1. Notices to Franchisee shall be mailed to: Verizon Northwest Inc. Attn: Tim McCallion, President 112 Lakeview Canyon Road, CA501 GA Thousand Oaks, CA 91362 with a copy to: Mr. Jack H. White Senior Vice President & General Counsel - Verizon Telecom One Verizon Way Room VC43E010 Basking Ridge, NJ 07920-1097 14.6.2. Notices to the Grantor shall be mailed to: Mr. Bruce Crest, MACC Administrator Metropolitan Area Communications Commission 1815 NW 169t1i Place, Suite 6020 Beaverton, OR 970064886 14.7. Entire Agreement: This Franchise and the Exhibits hereto constitute the entire agreement between Franchisee and Grantor, and it supersedes all prior or contemporaneous agreements, representations or understanding of the parties regarding the subject matter hereof. Any ordinances or parts of ordinances that conflict with the provisions of this Agreement are superseded by this Agreement. 14.8. Amendments: Amendments to this Franchise shall be mutually agreed to in writing by the parties. 14.9. Captions: The captions and headings of articles and sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. 14.10. Severability: If any section, subsection, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, subsection, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise. MACC 31 Scat le-3338555.9 0010932-00100 14.11. Recitals: The recitals set forth in this Agreement are incorporated into the body of this Agreement as if they had been originally set forth herein. 14.12. Modification: This Franchise shall not be modified except by written instrument executed by both parties. 14.13. FTTP Network Transfer Prohibition: Under no circumstance including, without limitation, upon expiration, revocation, termination, denial of renewal of the Franchise or any other action to forbid or disallow Franchisee from providing Cable Services, shall Franchisee or its assignees be required to sell any right, title, interest, use or control of any portion of Franchisee's FTTP Network including, without limitation, the cable system and any capacity used for cable service or otherwise, to Grantor or any third party. Franchisee shall not be required to remove the FTTP Network or to relocate the FTTP Network or any portion thereof as a result of revocation, expiration, termination, denial of renewal or any other action to forbid or disallow Franchisee from providing Cable Services.. This provision is not intended to contravene leased access requirements under Title VI or PEG requirements set out in this Agreement. 14.14. Independent Legal Advice: Grantor and Franchisee each acknowledge that they have received independent legal advice in entering into this Agreement. In the event that a dispute arises over the meaning or application of any term(s) of this Agreement, such term(s) shall not be construed by the reference to any doctrine calling for ambiguities to be construed against the drafter of the Agreement. 14.15. Grantor Authority: Grantor represents and warrants that it is authorized to enter into this Agreement on behalf of its Member Jurisdictions pursuant an Intergovernmental Cooperation Agreement originating in 1980 and in effect in its current form since February 13, 2003, and that the party signing below is authorized to execute this Agreement on behalf of the Member Jurisdictions following certification that the governing bodies of each of the affected Member Jurisdictions have approved this Agreement as required by Section 4.E of the Intergovernmental Cooperation Agreement. 14.16. Franchisee Authority: Franchisee represents and warrants that it is authorized to enter into this Agreement and that the party signing below is authorized to execute this Agreement. MACC 32 Seattle-3338555.9 0010932-00100 AGREED TO THIS DAY OF J2007. METROPOLITAN AREA COMMUNICATIONS COMMISSION By. [Title] VERIZON NORTHWEST INC. By: [Title] EXHIBITS Exhibit A: Initial Service Area/Franchise Area Exhibit B: Origination Points Exhibit C: Quarterly Franchise Fee Remittance Form Exhibit D: Customer Service Standards Exhibit E: Franchise Parent Structure as of January 24, 2007 Exhibit F: Quarterly Customer Service Standards Performance Report MACC 33 Scat le-3338555.9 0010932-00100 EXHIBIT A - INITIAL SERVICE AREA/FRANCHISE AREA ®oo O Lr o~ u? O Z MACC 34 Seattle-3338555.9 0010932-00100 ^ r 43 ay, f "I d NOSM jpr a" 1 ! s rY c y~~; } a ( X24 f rp~~ . ~j~., i., r _ t Q J m 5i Jp. -tir t ~N~a ~ k~ R.LT ~ xx Y & 1 Ofrdu ~ u y Ha m ~r w f z gg~, ` , Aaa AA'Vj~a hgMy1 a 7rg aNA, 35 MACc Seattle-3338555.9 0010932-00100 ~ ~~p,{{~^y~qy, _ oQ c fit` 777 t Z a 1( z 1 NC w rr ~ -0 goo.. J i Y -Tw ('yam t I( r ^r///111 • b r ^.d a Q ~ ~ C ~ it' '+L+ ~t S ( 7 S ~ v ~ i C d v ` 7 1 r r ♦ r r 3 tS •a, i MACC 36 Seattle-3338555.9 0010932-00100 Agenda Item No. 3 For Agenda of a aoo7 Tigard City Council Meeting Minutes Date: April 10, 2007 Time: 6:30 p.m. Place: Tigard City Hall, 13125 SW Hall Boulevard Tigard, Oregon Attending: Mayor Craig Dirksen Presiding Councilor Gretchen Buehner Councilor Sydney Sherwood Councilor Tom Woodruff Absent: Councilor Sally Harding Agenda Item Discussion & Comments Action Items follow u Study Session Mayor Dirksen called the Study Session to order at 6:30 .m. Executive City Manager Prosser announced the Executive Session Session: The Tigard City Council went into Executive Session at 6:30 p.m. for consultation with legal counsel or litigation likely to be filed, under ORS 192.660(2) (h). Executive Session concluded at: 6:45 p.m. Study Session Police Chief Dickinson introduced this agenda item (cont.) and the history of how this proposal came about. By utilizing the GIS system, staff was able to view Briefing on a the direct correlation of a higher incidence of crimes Proposal to within the commercial zones. Police Chief create a Dickinson also reviewed statistics for types of crime Commercial within the different zoning districts. To address Crime Unit and crime in business areas, the staff would like the City use a Business Council and community to support a commercial Tax Increase for crime unit with funding to come from an increase in Funding - the business tax. Police Department Police Chief Dickinson and the Council reviewed a chart outlining rate structuring options for this tax. A copy of this chart is on file in the City Recorder's office. Consensus of the City Council was that Police Chief Dickinson and his staff could resent to the Tigard City Council Minutes - April 10, 2007 1 Agenda Item Discussion & Comments Action Items follow u community a proposed Commercial Crime Unit with funding from increasing the business taxes to determine whether the community was supportive. City Manager Prosser advised that this program is not in the proposed budget; staff will develop an issue paper for the Budget Committee to review. City Council requested that staff emphasize to the community that this is only an idea at this time. In addition, Councilor Sherwood suggested that Police Chief Dickinson contact the grocers lobby for their input. Study Session Tigard Chamber of Commerce Shining Stars Banquet, (cont.) April 27, 6 p.m., Crowne Plaza; City Council members present indicated they would attend. Administrative Items Reminder: League of Oregon Cities Conference - September 27-29, Bend Riverhouse. Mayor Dirksen, Councilor Sherwood, Councilor Buehner, and Councilor Woodruff said they would attend this conference. Initiative Petition Status: Deadline for appeal of the ballot tide was April 6, 2007. No objections were filed for the Repeal of Motor Vehicle Fuel Dealers Tax ballot title. Next step: Approve Petition cover and signature sheets for circulation by end of this week. Required number of signatures of registered Tigard voters: 3,596, which must be collected no later than June 18, 2007. Depending on when the signatures are turned in and verification is completed, timeline is for the measure to appear on either the September or November 2007 ballot. Public Hearing - Agenda Item No. 7 - Zoning Amendment (Continued from the March 13, 2007, City Council meeting). March 21, 2007 letter from Dianna Matthews was distributed to the City Council; this letter was forwarded to the Council in their mail packet. Changes to tonight's agenda: 1. Agenda Item No. 4 - Representative Galizio is unable to attend tonight. Tigard City Council Minutes - April 10, 2007 2 Agenda Item Discussion &Comments Action Items follow u 2. Agenda Item No. 9 - Public Hearing for Ballot Measure 37 Hearing - Way W. Lee - was set over to May 22, 2007. 3. Council calendar, distributed to the City Council, was reviewed. Study Session concluded at 7:25 p.m. 1. Business 1.1 Mayor Dirksen called the City Council and the Meeting Local Contract Review Board to Order at 7:37 p.m. 1.2 Council Present: Mayor Dirksen, Councilors Buehner, Sherwood, and Woodruff. 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports Councilor Buehner reported she attended the MACC meeting last Thursday for Councilor Harding. The Commission has appointed Tigard resident Ann Robinson to the PEG Grant Review Committee. There was also an in depth review of Comcast customer service associated with customer complaints. Councilor Buehner noted that those who were attending the MACC meeting were reminded that they needed to be involved in the claim against the FCC regarding franchise fees and the right of way. Mayor Dirksen advised he recently attended a Washington County Coordinating Committee meeting discussion. Most of the discussion was on transportation funding and the Metro Regional Transportation Plan. A WCCC workshop meeting was held to discuss transportation funding and the potential of a Washington County bond measure in the future. The Mayor said he would wait to talk about this further when it is a topic at an upcoming City. Council workshop meeting. Councilor Buehner reported that she has attended work group meetings on annexation Tigard City Council Minutes - April 10, 2007 3 enda Item Discussion & Comments Action Items follow u bills for the State legislature. She said she would report more fully at a later date. 1.5 Call to Council and Staff for Non-Agenda Items City Manager Prosser pointed out that the new sound system was in operation for the first time at this Council meeting. He described some of the enhanced features of the system for sound and staff presentations. 2. Citizen • Tigard High School Student Envoy Jasmina Communication Dizdarevik presented her report on recent activities at the Tigard High School. A copy of her report is on file in the City Recorder's office. • Mayor Dirksen noted one person was signed up to speak on the Citizen Communication sign-up sheet. Mr. Sanford Inouye from Comcast signed up to speak on Agenda Item No. 8. Mayor Dirksen advised this was not a public hearing and asked the City Council members' opinion about whether they should hear from Mr. Inouye on this topic. After brief discussion, the City Council agreed to hear testimony from Mr. Inouye. Mr. Inouye referred to a letter that had been submitted to the City regarding Comcast's concerns with Agenda Item No. 8: Consideration of an ordinance to grant a cable franchise to Verizon Northwest, Inc. Two main issues by Comcast included: 1. Comcast would want the "playing field" to be competitive and they would want to modify their current franchise if the proposed ordinance is adopted. 2. Concerns about the types of services to be provided. Mayor Dirksen told Mr. Inouye that City Council had received all the letters on this issue. The Metropolitan Area Communications Commission has been asked to review the concerns. Mr. Inouye submitted a report: A Picture is Wlorth a Thousand Wlords. A co of this report is on file Tigard City Council Minutes - April 10, 2007 4 Agenda Item Discussion & Comments Action Items follow u in the City Recorder's office. 3. Consent 3.1 Approve Council Minutes for February 27, 2007 Motion by Councilor Agenda 3.2 Receive and File: Sherwood, seconded by 3.2.a Council Calendar Councilor Buchner, to 3.2.b Tentative Agenda approve the Consent 3.2.c Annual Solid Waste Financial Report Agenda. Findings 3.3 Appoint Matt Clemo and Kandace Horlings as The motion was approved Regular Members; Dale Richards as Second by a unanimous vote of Alternate Member and Reappoint Chair Janet Council present. Gillis to the Tigard Tree Board - Resolution No. 07-18 Mayor Dirksen Yes Councilor Buchner Yes A RESOLUTION OF THE TIGARD CITY Councilor Sherwood Yes COUNCIL APPOINTING MATT CLEMO Councilor Woodruff Yes AND KANDACE HORLINGS TO THE TREE BOARD AS REGULAR MEMBERS, DALE RICHARDS AS SECOND ALTERNATE, AND REAPPOINTING JANET GILLIS TO ANOTHER FOUR- YEAR TERM 3.4 Appoint Ralph Hughes to the City Center Advisory Commission - Resolution No. 07-19 A RESOLUTION APPOINTING RALPH HUGHES THE TO CITY CENTER ADVISORY COMMISSION 3.5 Consider a Resolution Authorizing Amendment No. 1 to the Intergovernmental Agreement for Joint Funding of a Water Supply System Plan - Resolution No. 07-20 A RESOLUTION AUTHORIZING AMENDMENT NO. 1 TO THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF TIGARD AND THE CITY OF LAKE OSWEGO FOR JOINT FUNDING OF A WATER SYSTEM PLAN 3.6 Adopt Paid Time Off Policy for Management Employees - Resolution No. 07-21 A RESOLUTION ADOPTING AN Tigard City Council Minutes - April 10, 2007 5 Agenda Item Discussion & Comments Action Items follow u AMENDMENT TO THE MANAGEMENT, SUPERVISORY & CONFIDENTIAL GROUP PERSONNEL POLICIES ADDING PAID TIME OFF POLICY 3.7 Approve Proposal to Transfer Custody of Records Created, Assembled and Maintained by Tigard Staff During the Term of the Urban Services Intergovernmental Agreement between the City of Tigard and Washington County - Resolution No. 07-22 A RESOLUTION DOCUMENTING THE TRANSFER OF CUSTODY FROM THE CITY OF TIGARD TO WASHINGTON COUNTY THOSE RECORDS CREATED, ASSEMBLED AND MAINTAINED BY THE CITY OF TIGARD DURING THE TERM OF THE CITY OF TIGARD/WASHINGTON COUNTY URBAN SERVICES INTERGOVERNMENTAL AGREEMENT 3.8 Approve Budget Amendment #13 to the FY 2006-07 Budget to Increase Appropriations in the Water CIP Fund Capital Projects Budget within the Community Investment Program for Additional Funding for the Lake Oswego Feasibility Study Project - Resolution No. 07-23 A RESOLUTION APPROVING BUDGET AMENDMENT #13 TO THE FY 2006-07 BUDGET TO INCREASE APPROPRIATIONS IN THE WATER CIP FUND CAPITAL PROJECTS BUDGET WITHIN THE COMMUNITY INVESTMENT PROGRAM FOR ADDITIONAL FUNDING FOR THE LAKE OSWEGO FEASIBILITY STUDY PROJECT 3.9 Local Contract Review Board: 3.9.a Award Contract for Wetland Consulting Services for the Washington Square Regional Center Greenbelt Trail Project to Vir ' -A ' s, Inc. Tigard City Council Minutes - April 10, 2007 6 Agenda Item Discussion & Comments Action Items follow u 3.9.b Award Contract for Aquifer Storage and Recovery (ASR) Test Well Drilling to Boart Longyear, Inc. 3.9.c Award of Contract for the Construction of Ann Street Sanitary Sewer Extension (Sewer Reimbursement District No. 40) to Cipriano & Son Construction 3.9.d Award of Contract for Engineering Services for the SW Cherry Street Sanitary Sewer Project to Century West Engineering Corp. Mr. Ralph Hughes was present. Mayor Dirksen thanked Mr. Hughes for agreeing to serve on the City Center Advisory Commission. (See Agenda Item 3.4) 4. Legislative Senator Burdick updated the City Council on the Briefing - following State legislature matters: Senator Burdick ■ Much work is going on behind the scenes regarding Measure 37. Compromises are being sought with emphasis on building a home on property; de-emphasis on use of Measure 37 for commercial purposes. ■ Senator Burdick won a walking contest; her prize money will be split '/2 to Metzger Elementary School and '/2 to the Portland Public Schools. ■ Major issues relating to budget are coming up including public schools, community colleges and higher education. ■ A number of annexation bills are being studied. She said Tigard could count on her to support the rights of cities. ■ Reference made to attorney/client privileges for cities and acknowledgement that this needs to be maintained for cities (i.e., Executive Sessions). ■ "Gut and stuff' season is starting where the stated subject of the bill might not really be what is contained in the proposed bill. 5. Washington VAN Executive Director Sia Lindstrom and Board County Vision Member Conrad Pearson spoke to the City Council. Action Network The main topics were presented to the Council in a (VAN) PowerPoint presentation. A copy is on file in the City Presentation Recorder's office. Tigard City Council Minutes - April 10, 2007 7 Agenda Item Discussion & Comments Action Items follow u The purpose of VAN was reviewed as well as the following issue areas: ■ Affordable Housing ■ Aging and Disabilities ■ Basic Needs ■ Behavioral Health ■ Children & Families ■ Education ■ Environment ■ Primary Health Care Services in and around the City of Tigard were reviewed as well as how the investment in VAN has benefited the City of Tigard. Councilor Sherwood noted her support of VAN and that she is aware of the many good things that have come to the community because of this organization. 6. Grant Finance Director Sesnon presented the staff report. Motion by Councilor Exemption A summary of the staff repot is on file in the City Woodruff, seconded by from Property Recorder's office. Councilor Sherwood, to Taxes Under adopt Resolution No. 07-24. Tigard Before the City Council is a proposed resolution to Municipal Code exempt three low-income housing projects from The motion was approved Section 3.50 for City of Tigard property taxation in 2007. by a unanimous vote of Three Non- Council present. Profit Low In- After brief discussion the City Council considered come Housing the proposed resolution. Mayor Dirksen Yes Projects Owned Councilor Buchner Yes and Operated RESOLUTION NO. 07-24 - A RESOLUTION Councilor Sherwood Yes by Community GRANTING AN EXEMPTION FROM Councilor Woodruff Yes Partners for PROPERTY TAXES UNDER TIGARD Affordable MUNICIPAL CODE SECTION 3.50 FOR Housing THREE NON-PROFIT LOW INCOME (CPAH) and HOUSING PROJECTS OWNED AND One Housing OPERATED BY COMMUNITY PARTNERS Project FOR AFFORDABLE HOUSING (CPAH) AND Operated by ONE HOUSING PROJECT THAT IS Tualatin Valley OPERATED BY TUALATIN VALLEY Housing HOUSING PARTNERS (TVHP) Partners (-fVHP) Tigard City Council Minutes - April 10, 2007 8 Agenda Item Discussion & Comments Action Items follow u 7. Continuation Mayor Dirksen announced the continuation of the Motion by Councilor of Residential public hearing, which was opened on March 13, Sherwood, seconded by Zoning District 2007. Councilor Woodruff, to Use Regulations adopt Ordinance No. 07-05. Amendment City Attorney Ramis commented on process and (Legislative advised there was no need for the City Council to The motion was approved Public Hearing) make statements regarding declarations unless by a unanimous vote of - Tigard circumstances changed since the last hearing. Council present. Development Councilor Sherwood advised she was not present at Code Chapter the initial public hearing; she said she drives by the Mayor Dirksen Yes 18.510 to Allow site. Councilor Buehner Yes School Bus Councilor Sherwood Yes Parking as an Planning Manager Bewersdorff reviewed the history Councilor Woodruff Yes Accessory Use of the request before the City Council. on High School Sites in Mayor Dirksen advised that public testimony had Residential been closed on March 13; however, additional Zones Subject public testimony can be received if necessary. to Location and Time Councilor Woodruff advised at the initial hearing Restrictions there was concern expressed that this would be a (Not Within 200 long-term use. With a three-year limitation, he Feet of a indicated he could support the proposed Property Line amendments. Councilor Buehner and Councilor Abutting a Sherwood indicated they agreed with Councilor Residential Use Woodruff. and Not More Than Three Council considered Ordinance No. 07-05: Years) ORDINANCE NO. 07-05 - AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE CHAPTER 18.510 - RESIDENTIAL ZONING DISTRICTS SPECIFICALLY TABLE 18.510.1, USE TABLE TO ADD FOOTNOTE 12 TO ALLOW SCHOOL BUS PARKING AS AN ACCESSORY USE ON HIGH SCHOOL SITES WITHIN ALL RESIDENTIAL ZONES 8. Approve Metropolitan Area Communications Commission Motion by Councilor Ordinance (MACC) Administrator Bruce Crest presented the Sherwood, seconded by Granting a information about the proposed cable franchise Councilor Buehner, to adopt Cable Franchise agreement with Verizon Northwest, Inc. to the City Ordinance No. 07-06. to Verizon Council. Northwest, Inc. There was discussion on the Tigard City Council Minutes - April 10, 2007 9 Agenda Item Discussion & Comments Action Items follow u The written copy of the MACC staff report is on file motion. Councilor Buehner in the City Recorder's office. noted she would have problems voting in support The Mayor responded to a request for testimony because her past experiences from members present in the audience. Mayor have been sufficiently bad; Dirksen advised that this was not a public hearing she indicated she would and public testimony would not be taken at this likely vote "no." Councilor time. Woodruff said he viewed support for this ordinance as MACC Administrator Crest spoke of the benefits of a "step in faith" and was competition to the advantage of subscribers. supportive because he believes in competition and During the discussion reference was made to offering choices. He said he Verizon as a franchised business in the City of hoped this would be a good Tigard. City Manager Prosser clarified that Verizon thing for citizens. Councilor does not have a current franchise agreement with Sherwood indicated the City. The City has adopted an ordinance for agreement with Councilor service providers such as Verizon and regulations, as Woodruff s comments and specified in the ordinance are being used. added she was aware of MACC's work in getting the Councilor Buehner noted concerns about service agreement to this point. and the need for consistency. She questioned Mayor Dirksen indicated he whether any assurances could be made that Verizon was supportive of the would comply with the agreement. MACC agreement and commented Administrator Crest explained how Verizon services on the differences being are separated out. MACC has the responsibility to presented in this agreement assure the agreement is followed and that Verizon from the previous franchise complies with the terms of the agreement. City agreement with Comcast. Manager Prosser advised that the "right-of-way" He said his support was not ordinance does not address billing issues; those are just because other cities in regulated by the state. MACC's jurisdiction have given their approval. Mayor MACC Administrator Crest said it was hoped that Dirksen said he favored when Verizon launches its services, the resulting continual review and competition with companies (i.e., Comcast) will be additional requirements if of benefit to the customer. needed. He indicated he also supported the agreement Councilor Buehner noted problems she has because of the competition it encountered with her business telephone. Councilor would bring. Woodruff advised that there have been a number of complaints from citizens with regard to work done The vote on the motion was by Verizon contractors when lines were being conducted by roll call: installed. Mayor Dirksen Yes The City Council considered the proposed Councilor Buchner No ordinance. Councilor Sherwood Yes Councilor Woodruff Yes Tigard City Council Minutes - April 10, 2007 10 Agenda Item Discussion & Comments Action Items follow u ORDINANCE NO. 07-06 - AN ORDINANCE The motion was approved GRANTING A NON-EXCLUSIVE CABLE by a majority vote of Council FRANCHISE TO VERIZON NORTHWEST, present. INC., AND DECLARING AN EMERGENCY 9. Ballot Public hearing was set over to May 22, 2007. Measure 37 Quasi Judicial Public Hearing - Way W. Lee General Contractor, Inc. 2006-00004 Motion by Councilor Adjournment The meeting adjourned at 8:57 p.m. Woodruff, seconded by Councilor Sherwood, to adjourn the meeting. The motion was approved by a unanimous vote of Council present. Mayor Dirksen Yes Councilor Buehner Yes Councilor Sherwood Yes Councilor Woodruff Yes Catherine Wheatley, City Record r Attest: J Mayo City of Tigard Date: C CJ( Tigard City Council Minutes - April 10, 2007 1 1 STUDY SESSION AGENDA TIGARD CITY COUNCIL BUSINESS MEETING April 10, 2007 13125 SW Hall Boulevard, Tigard, Oregon 6:30 PM • STUDY SESSION > Briefing on a Proposal to create a Commercial Crime Unit and use a Business Tax Increase for Funding - Police Department • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session for consultation with counsel legal rights and duties regarding current litigation or litigation likely to be filed, under ORS 192.660(2) (h). All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. • ADMINISTRATIVE ITEMS > Tigard Chamber of Commerce - Shining Stars Banquet - April 27, 6 p.m. Crowne Plaza; Determine Council Member Attendance with Spouse or Guest. > Reminder: League of Oregon Cities Conference - September 27-29, Bend Riverhouse > Initiative Petition Status: Deadline for appeal of the ballot title was April 6, 2007. No objections were filed for the Repeal of Motor Vehicle Fuel Dealers Tax ballot title. Next step: Approve Petition cover and signature sheets for circulation by end of this week. Required number of signatures of registered Tigard voters: 3,596, which must be collected no later than June 18, 2007. Depending on when the signatures are turned in and verification is completed, timeline is for the measure to appear on either the September or November 2007 ballot. > Public Hearing - Agenda Item No. 7 - Zoning Amendment (Continued from the March 13, 2007, City Council meeting). March 21, 2007 letter from Dianna Matthews is attached; this letter was forwarded to the Council in their mail packet. > Changes to tonight's agenda: 1. Agenda Item No. 4 - Representative Galizio is unable to attend tonight. 2. Agenda Item No. 9 - Public Hearing for Ballot Measure 37 Hearing - Way W. Lee - has > Council Calendar: April 24* Tuesday Council Business Meeting - 6:30 pm, Town Hall 30 Monday Budget Committee Meeting - 6:30 pm, Library Community Room Executive Session - The Public Meetings Law authorizes governing bodies to meet in executive session in certain limited situations (ORS 192.660). An "executive session" is defined as "any meeting or part of a meeting of a governing body, which is closed to certain persons for deliberation on certain matters." Permissible Purposes for Executive Sessions: 192.660 (2) (a) - Employment of public officers, employees and agents, If the body has satisfied certain prerequisites. 192.660 (2) (b) - Discipline of public officers and employees (unless affected person requests to have an open hearing). 192.660 (2) (c) - To consider matters pertaining to medical staff of a public hospital. 192.660 (2) (d) - Labor negotiations. (News media can be excluded in this instance.) 192.660(2) (e) - Real property transaction negotiations. 192.660 (2) (f) - Exempt public records - to consider records that are "exempt by law from public inspection." These records are specifically identified in the Oregon Revised Statutes. 192-660 (2) (g) - Trade negotiations - involving matters of trade or commerce in which the governing body is competing with other governing bodies. 192.660 (2) (h) - Legal counsel - for consultation with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. 192.660 (2) (i) - To review and evaluate, pursuant to standards, criteria, and policy directives adopted by the governing body, the employment-related performance of the chief executive officer, a public officer, employee or staff member unless the affected person requests an open hearing. The standards, criteria and policy directives to be used in evaluating chief executive officers shall be adopted by the governing body in meetings open to the public in which there has been an opportunity for public comment. 192.660 (2) Public investments - to carry on negotiations under ORS Chapter 293 with private persons or businesses regarding proposed acquisition, exchange or liquidation of public investments. 192.660 (2) (k)- Relates to health professional regulatory board. 192.660 (2) (1)- Relates to State Landscape Architect Board. 192.660 (2) (m)- Relates to the review and approval of programs relating to security. i:tadmtcethytcca ss - pink sheett20071070410.dO Agenda Item # Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Study Session: Briefing and Ask for Feedback on a Proposal to Create a Commercial Crime Unit and Use an Increase in the Business Tax to Fund the New Unit in the Police Department Prepared By: Chief Bill Dickinson Dept Head Approval: A4-Vt-,Q City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall the City Council give the Police Department staff direction to proceed with soliciting input from members of the Tigard business community on the creation and funding of a Commercial Crime Unit in the Tigard Police Department. STAFF RECOMMENDATION Give direction to staff to proceed with scheduling various meetings with the Tigard business community so that staff from the Tigard Police Department can share the concept and benefits of the new unit and solicit input on using an increase in the Business Tax for the ongoing funding of the new unit. The Business Tax has not been adjusted since it was first implemented in 1988. KEY FACTS AND INFORMATION SUMMARY The Department has been aggressively using mapping analysis software that is part of the City's expanded use of Geographical Information System (GIS) technology. By using this new software, the Department has been able to map or graphically show not only what types of crimes are being committed but where they are occurring as well. By using this mapping capability and analyzing the results in conjunction with a zoning map, it clearly shows that a significant portion of major crimes are taking place in the major commercial/industrial corridors or areas. The areas include the Washington Square area and along major roadways in the City; namely Hwy 99, Hwy 217, Hall Blvd., and Greenburg Rd. Although, intuitively, this crime pattern has been used in developing responses to these situations in the past, this new tool helps more accurately analyze and display the crime patterns. According to the data from 2006, the areas noted above account for approximately 36% of all calls for service in the City of Tigard (9,777/27,467). Over a two year period, this same area was responsible for over 39% of all calls for service no matter the type of incident. In addition, the same areas account for 38% of all reported crime in Tigard. Major crimes in Tigard amounted to 2,092 in 2006. Of those major crimes, 1,129 (or 54%) occurred in the targeted area. These represent part I crimes only. Larceny represents 81.7% of these crimes. Robbery showed a significant increase from 2005, up 25 cases. With regard to Part II crimes (such as vandalism, disorderly conduct, and etc.), on a city-wide basis, the 2006 data showed that there were over 4,400 cases and represented 49% of all reported crime. Of these cases, 37% occurred in the targeted areas. The most significant offenses were vandalism, the apprehension of wanted criminals, and disorderly conduct. However, 26% of the cases collectively involved such crimes as forgery, simple assaults, fraud, identity theft, and drugs. Many of the crimes committed can be directly correlated to the nature of the commercial areas that include liquor establishments, retail stores, and areas where drug related activities can often and do occur. Existing patrol officers' primary task is to respond to emergency calls for services in the City. They follow-up on calls where there are clear leads and when time is available. Due to the number of calls for service, the amount of time available for follow-up is limited. The Police Department's Detective Unit does follow-up on Measure 11 (major crimes such as armed robbery crimes). They do not normally investigate non-measure 11 crimes. Again, the time available for working on the normal business crime call for service is severely limited. Thus, a number of crimes occur in the business community are not given the attention which the community and the Tigard Police Department would like to give them. So what this means is that some burglaries, larceny cases, and embezzlement cannot be investigated to the full extent desired. The Commercial Crime Unit would bridge the gap between patrol response the Detective Unit response by examing all reported crime in the business community and from the information gathered, take appropriate measures to reduce crime in the business community. As part of the ongoing program, the Unit would conduct commercial property surveys, a review of all crimes in the commercial area and from the information gathered; develop various strategies to reduce crimes in that segment of the community. To fund this unit beginning in FY 2007-08, an increase in the Business License Tax is being suggested. There has been no change/increase in this tax since it was first implemented in 1988. Most fees in the City are now being adjusted annually based on at least the Consumer Price Index (CPI). Also, the majority of the additional revenue generated from this source would be coming from the area that would be most served directly. Before any further consideration of this is given, staff is recommending that the Chief of Police and other City staff begin a dialogue with the business community through a series of meetings to solicit their input. This would also give the City an opportunity to share with the community the facts surrounding the issue and what the direct benefits would be from the creation and funding of a Commercial Crime Unit. When ultimately supported by the business community and City Council, the additional revenue would be dedicated to the annual funding of this new unit. OTHER ALTERNATIVES CONSIDERED Not pursue the creation and funding for a Commercial Crime Unit. CITY COUNCIL GOALS This would be part of the work items referred to in the 2007 City Council goals that would foster and create enhanced public safety. ATTACHMENT LIST N/A, additional briefing materials will be provided at the City Council Study Session. N/A, additional briefing materials will be provided at the City Council Study Session. FiscA. Nom Ultimate goal would be to generate approximately $350,000 per year through an increase in the Business Tax or other alternative funding to create a new Commercial Crime Unit in the Police Department. \\tig20\inetpub\tig20\wwwroot\formsVom docs\council agenda item summary sheet 07.doc Exhibit B Recap of Alternative Business Tax Rate Structure, Goal: Generate an Additional $350,000 in Revenue Annually ChA e Additional # of Employees Revenue Revenue ~f Home Based No Change in Rate Categories Businesses 0 to 10 11 to 50 51+ Generated Generated % of Businesses 408 86.43% 10.96% 2.61% Based on # of tl Current Rates Employees $55 $110 $220 $206,965 N/A Based on # of Scenario #1 Employees $150 $300 $600 $564,450 $357,485 # of Employees Expand Rate Categories b # of Employees O to 2 3 to 5 6 to 10 11 to 50 51+ % of Businesses 57.09% 16.83% 12.51% 10.96% 2.61% Based on # of Scenario #2 Employees $75 $100 $325 $525 $725 $560,150 $353,185 # of Emplyees Expand Rate Categories by # of Employees with Home Based Businesses Remaining at $55.00 0 to 2 3 to 5 6 to 10 11 to 50 51 + % of Businesses 57.09% 16.83% 12.51% 10.96% 2.61% Scenario #3 $55 $75 $100 $325 $525 $725 $549,340 $342,375 # of Employees Expand Rate Categories by # of Employees with Home Based Businesses Remaining at $55.00 and Separate Rental Unit Rates 0 to 2 3 to 5 6 to 10 11 to 50 51+ % of Businesses 57.09% 16.83% 12.51% 10.96% 2.61% Scenario #4 $55 $75 $100 $325 $525 $725 $572,077 $365,112 With Rental Unit Rates Per Unit after Base Units A artment Rental Unit Rates $55 $5 AGENDA ITEM NO.2 - CITIZEN COMMUNICATION DATE: April 10, 2007 (Limited to 2 minutes or less, please) 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. This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony becomes part of the public record. The names and addresses of persons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. NAME, ADDRESS & PHONE TOPIC STAFF Please Print CONTACTED Name: S`A Vl QJ J Y1y vC.s~ _ Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address ~u/ I,►v► L(s ILL City s- A U`t, VIt~ S < U State Zit) _ -700 D Phone No. S 3 S~Z Name: Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address City State Zip Phone No. Name: Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address City State Zip Phone No. CITIZEN COMMUNICATION Coyn mw-~j cadcm 3 J--/, /0.Or7 A Picture Is Worth a Thousand Words How the Bell Business Model Leaves Much of America Behind A special report from BROADBAND www.broadbandeveawhere.org April 4, 2006 Sanford Inouye Vice President of Government Affairs Cc®mcast® Comcast Cable 9605 SW Nimbus Avenue Beaverton , OR 97008 Office: 503.605.6352 Mobile: 503.209.3641 Fax: 503.605.6229 Sanford-Inouye@cable.comcast.com 1 Introduction As the Bell telephone monopolies press Congress for special favors on video franchising legislation, the companies continue to face accusations that they will exclude many, if not most, of their ratepayers from fiber upgrades to their publicly subsidized networks. In an attempt to quell widespread criticism of their "fiber to the rich" business model, the Bells have relied on a "don't worry, be happy" response, and a promise to a growing number of skeptics that they should just "trust us" to eventually deploy new networks more widely to their ratepayers. But as they try to assuage the public concerns of lawmakers and civic groups, the Bells also tell Wall Street a wholly different story. Time after time in their public pronouncements, the Bells have told investors about leaving communities behind. Percent of Each Segment Take AT&T, for example. Less than 18 months ago Covered by Project Lightspeed (when they were still SBC), they told Wall Street of their intent -90% to serve 90% of customers who can afford to spend $160-200 a * ` Y month on telecommunications services, versus just 5% of -70% customers who spend less than $110 a month. Today, their public anthem is, "Your World. Delivered," but something doesn't seem to quite gel. And unlike Verizon, AT&T has thus far been slow to disclose where they will deploy their upgrades. What are they hiding? Medium Low Broadband Everywhere set out to put some graphic Highue Value Value meaning to the reality of the Bell business model. Relying on Va l public announcements about communities that they have selected Source: SBC Investor Update, November 11, 2004 for investment, Broadband Everywhere has assembled maps and analyzed demographic data from the U.S. Census Bureau that reveal show the winners and losers in the Bell business plan. To date, the Bells have announced plans to deploy fiber to roughly 570 American towns and cities, virtually all of which are privileged communities. Among the findings of this report are: • Over 90% of the communities to which the Bells have announced upgrades are above the national median income; • Only fourteen of the 570 announced communities have majority African American populations and only ten have majority Hispanic populations; • On average, the Bell-announced target towns are 7% African American and only 8.3% Hispanic - each well below the national averages for each demographic; But the pictures on the ensuing pages are certainly worth a thousand words. Inside you will find maps, charts and analyses based on what the Bells have said publicly - sometimes when they apparently believed that lawmakers were looking the other way. The stark visuals and graphic representations speak for themselves, and that is why the Bells should no longer be allowed to tell America that they will bring the next generation of broadband everywhere. I The Bells Leave Most of Texas Behind I I + t 1 t ! lye= I '4 ! l I ~ l ~ { LL Y ~ EX 3 la i ~ ~ a r ~ y I I i Areas shaded in green represent towns to which the Bells have promised to deploy Fiber. Bell Fiber Purrs in Texas 40 0 i 0 i j 10 0 } High L i income income UiOS targetneighhorhoods 49 HOS target neighborhoods above; state median income-37 (90%) Fit~S target neighborhoods with Enaajority African American population -0 HOS target neighborhoods with majority Latina population 2 i Average percentage of'Af`riclan Americans in target neighborhoods: 5% State Average: 11.5`1 Average percentage of Latinos in i target neighborhoods: 13.5% I State Average: 32~Yo i r { V rizon i Leaves Most Massachusetts Behind 4 , i ' S , i ~ i n I 3 7 Areas shaded in green represent towns to which Verizon has promised to bring its FiOS service. I 1 Verizon R Pleas in Massachusetts 0 i 30 20 I 10 gggp (t(~ { 08 f J High Income Low Income I FiOS target neighborhoods 39 [=i()S target neighborhoods above state niedian income - 38 (971YO) FiOS target neighborhoods with majority African American population U FiOS target neighborhoods with majority Latino population - 0 j Average percentage of African Americans in target neighborhoods: 1.3% State Average: .4O/o Average percentage of Latinos in target neighborhoods: 2% State Average- 6.8% I I 3 i Verizon O Leaves Most of New Jersey hind i i yina Rn i 4r t. t ~ III - - su u~.ar i i ,L vwkiU:sc~ t I i i i ~ V ° i eJar>De 'I .ennbaekint! ' 9IT4 LfaY...: li Areas shaded in Green represent towns to which Vcriaon has promised to bring its 4^iOS service. I i i Verizon i Plans in New Jersey 140 , 120 100 ypgq ®yp - 60 0 20 - 1 i Hi h Lo Income Income FiOS target neighborhoods 159 Fit)S target neighborhoods above state median income - 122 (77 Y4)) l iOS target neighborhoods with rnajoriq African American population - 4 ~ FiOS target neighborhoods with majority Latino population 3 Average percentage of African Americans in target neighborhoods: 6e6%) State Average. 13.6% Average percentage of Latinos in target neighborhoods: 7% State Average: 13.3'Yo i i i Verizo R Leaves Most o Maryland hire u t VJr _]t "`.i. f Y t ~ ~ gvypA~"ry~'n~". g WYrucefa5 ~ :r.~„ „f l ~ cq ~ ry tL xrr a ' e' Areas shaded in represent towns to which Verizon has promised to bring its FiOS service, I I i I V rizon R Plans in Maryland ~I l 60 0 0 3 i__.. I 20 0 I High Lo Income Income HOS target neighborhoods 52 €=iOS target neighborhoods above state median incorne - 49 (95%) PiOS target neighborhoods with n- ajority~ African American population 3 F'iOS target neighborhoods with nrajor-it' Latino population 0 I Average percentage of African Americans in I target neighborhoods: 201) Sete Average: 7>% Average percentage of Latinos in target neighborhoods: 5e9% State Average- .3% i it Verizo i Leaves Most of New York shirk[ 4 x I j r 4t tt N!. s, p e r 'a4' (f. „,.fix P W f { { I 1 J wr f j nx Areas shaded in rt~ ,a represent towns to which Veri/on has promised to bring its FiOS service. I i Verizon i Pleas in New York 100 80 I 60 I I 40 i 3 20 I T..... t a: High Income Income iOS target neighborhoods - 97 FiOS target neighborhoods above state median incor)ie 3 (961%) F'iOS target neighborhoods with majority African Arierican population 3 FiOS target neighborhoods with majority Latina population 7 Average percentage ol'Aft-ic;an Americans in target neighborhoods: 6.1% State Average: .9% Average percentage of Latinos in target neighborhoods: 7% State Average- 15.1% I i E i I i V rizon R Leaves Most of Pennsylvania Behind m. E E I it „tit E , i ~ ~ • alb >.e r T _ it r~ri S u i ~ro i r f_ 3 ~ ~ E Sfot f li E . b ht nc 4._.. f r ztt t t x8r+~inV E , urr „ v is Ya'3~a F~ t: La i qY E A r r u.v~mar _r x'e . 'n' A' I a^@ Ay ",n\ , r,rm I i. , .r.rr R « Ir r.. + ' ° .amtm. I i Areas shade d in represent towns to which Ve -izon his promised to bring its FiOS service, i rizon i Flans in Pennsylvania I 140 1 20 100 - E 0 f i 60 40 20 T I i Low Tacoma Tacoma I Fit S targct neighborhoods - 145 FiOS target neighborhoods above state; median incon-Le 127 (88"l4) HOS target neighborhoods with majority African American population - 7 PiOS target neighborhoods with majority Latino population - 0 Average percentage o#'r'lfiican Americans in target neighborhoods: 4.3% Stain Average: O'X) i Average percentage of Latinos in target neighborhoods: 2%e) State Average- 3.2% i I i erizon H Leaves Most of hod Island shied i i i i N. ♦~~F•.~ 3~',. ~~i,v, t~x)•:: fix:., . k' •.d:,v tji{; .~SmPy, .,may.: .:.~4r":,e ~y...i "k,~i♦M~:¢ryti9 `4'y, %;`Fe f.; v,3$:'%'•'ro,A'» ~i."''i';:f.' _ ~.N,fi *J•' gYv'35t3.}.JO`i~{,{vpi`. i:>i "'4; ✓A::: r P ~v`t ` ,t,X,~b~"~T t, t.Sn'" ,ya I~. I(, ,~t' v •:,Wn':~ is"1 Y"" Nil $"nipp.'i ~ .r.K,,","''~ti...y+.. r; "r~., v'. S~'~.'t a°''4•°z i'Ytts~N' aW~~;., t~ p 'i.'.' ,...e :St"iti~.,a6 '>.d. ~.::44.~• Y+{h 'Xs..~..,hu ~n°.b. .s YZI.v . m-,. .„..,....-..f,"~,:'z. `>?$x''*~+,'~.~°'~,~~~~'s:~ ~~~`,~e,,.~:~.:.i;'~s;3,";~~.?b~:;,,,t.^x,Y=`4,~~ ..,.....°''7z''''~'~~tss~...,. ~~~...:~~~.s yeas shadec4 in represent towns to whict) Verizon has promised to brine its 4''iOS sm ice, ~I i i rizon i Pleas in Rhode Island i °10 - .7 i 8 ~ E - .5 1 3.1 - 2. l t 0 i African Hispanic American E0 FiOS_ Stag v r e Fi{tS target neighborhoods 2 HOS target neighborhoods above state median income 1 (5011/o) F'iOS target neighborhoods with majority African American population 0 f iOS tat-get neighborhoods with majJority Latino population 0 i Average percentage of African Americans in target neighborhoods: 2.4% State Average: 4.5$Yo Average percentage of Latinos in target neibhborhoods: 3.1% State Average; .7% ~ I ~I i I eri on Leaves Most of Virginia Behind s k dqi ~ in, t5 dw + . } 1 7• f 1 Y Y..pav, ( ` J ..WWSY aye • t ~w t Areas shaded in represent towns to which Veri on h<as i~rc~t~iise.€i to ring its FjOS service.. ~ i44 1 ~I i i I 1 i V r°izon i Pleas in Virginia 1 - I 14- j 1 10 3 . ~ i 3 3 1 ~ k i 2 Ci High Income Low Income FjOS target neighborhoods 16 FiOS target neighborhoods above state median inccanc is (941f0) 1 It )S target neighborhoods with majority African American population - T I iOS target neighborhoods with maiority Latino pol?ialation - 0 Average percentage of African Americans in target neighborhoods: 13% State Average: 12% Average percentage of t atinos in target neighborhoods: % State Averag : 501(, L i Verizon i heave Most of Delaware Behind I b & +E EE f I E2 i E 45fu(iC ( GS 4 i $ { f i i i 3 1 i~W " Areas shaded in gron represent towns to wbicli Verizon has promised to bring its FiOS service. I ~ V ri n i Pleas in Delaware 305 1 1 . I 1.5 i .5 f 0 7- High Into Low Income i i iOS target neighborhoods I NOS target neighborhoods below state median incorne 2 (401,4)) t iOS target neighborhoods with majority African American popUlation d$ NOS target neighborhoods with maiority Latino population 0 I Average percentage of African Ainericans in target neighborhoods: 1.5% Slate Average; 19.2% Average percentage of Latinos in target neighborhoods: 2.8% Stale Average; 4.8% II _ I I Verizo Fi S Leaves Most of New Hampshire Behind ~a.xv y } t tt'F 5* 14 t ~k fl1 { > jA? f t -t `7eaif011 arrWi ,r I Z . s ~ t S e t Aflk`tae5 - { F: Z # q'r-1.!'tirfs 44 h!tl hJrf «ryh,ao' yF; 'ai Areas shaded in ; ---en represent towns to which Verizon has promised to bring its FiOS service, ~ l s i i i Veriztsn O Plats l e Hampshire 3 i 4 z i i High Lo Income Income FiOS target neighhorhoods - FiOS target neighborhoods above: state median income 7 (88%) FiOS target neighborhoods with rn4jority Affican American population 0 F'iOS target neighborhoods with majority Latino population 0 i Average percentage o Afi-ican Americans in target neighborhoods: ®6% State Average. .7%) Average percentage of f atinos in ~ target neighborhoods: .2% State average: 1.71Y$ I i i i The Bells Leave the Nation's Capital hire :re;t (1,% lhei (nhh t 'r.+Fl r s.} bw the ri , ~ htt<,,-,i('11r(1:'In!t-irF~:ifrt<<r;'Ett4''r;;7t'1tlu'1;' f'F'+~3Fifd'Pd' j0 build evert' it'hepe, the B4'11J "Icli i7e in 1/1, il't1.St illgfl,11, Of, F elropoll'"'i tfPa'.! WV fhc, 11hiFt cm? le'sfcarlttllf l,) lheir h17fiiw,cSjolan (111hicill 411F'(urb{ are 1t7.' jtth-',m. hilt' low-MCOPM,'117x1 mmoril t' ncigh/)or of"Jy ❑ e i'%i Otlf. Act ' vc evc 1 ty?Il0,',,1,4 emir" Ur:,frict of i`ohwlblo 1 ~ ~S ..;fem...... S f`NGMyc, ry ' l f w 1 v, h l~ ? £ t~" 1)4 31C y' ♦ ',~`s, to eke ~ N^ hg' 1 S 3 `G4 >A'r Hn ^y JP'"a ~n1 } 'ii T"j~ ~M11 },l :rv ,`4 a~♦ i Y•y S'~ i{ (fit 0 ` `t"P S fa ' vYsLi"hYJt ~y ~ ~ 'Lc„ i •~kiifa ' ~ ~ Conclusion Congress has a choice. It can insist that everyone play by the same rules and require that all consumers benefit from new rollouts by the giant telecom companies. Or it can succumb to the Bells' special interest pleadings, selling most of our communities down the river in the process. The Bell business model - absent any meaningful requirements to provide service to every neighborhood in their service territory, as cable companies are currently required - is a license to do the latter. And despite their pledges to serve all ratepayers, who have for decades subsidized their networks, they resist signing on the dotted line and submitting to any meaningful oversight to ensure that they don't break this promise, as they have done with so many promises in the past. If the non-discrimination laws are lifted at the special behest of the telephone monopolies, it will be the beginning of the end of a national broadband policy that ensures widespread access of the latest technologies. That will result in a broadband checkerboard, where there are pockets of the digitally literate and swaths of those left behind. And that will not be .good for our national productivity, our educational attainment and the American cause of basic fairness. There is a better way. On a bipartisan basis Congress has supported non-discrimination laws for over two decades. These laws provide the tools to ensure that video providers bring the latest technologies to all neighborhoods in their service territory. They have resulted in over $100 billion in investment and the most advanced fiber networks in the country. The policy of non-discrimination "ain't broke," and Congress should therefore not try to fix it. Ccomcast. ®Mer AeW Comcast is the largest provider of cable, entertainment and communications products and ser- vices in Oregon and Washington. Comcast acquired AT&T Broadband's Oregon and Southwest Washington cable properties in November 2002. The company oversees 15,837 miles of hybrid fiber/coaxial cable plant in Oregon and SW Washington. In 2006 alone, Comcast of Oregon and SW Washington rolled more than two million trucks to customers' homes for installations and other activities in the market, and took 3,434,589 calls at its local call center. Comcast maintains 81 franchises, serving 66 cities and 9 counties in Oregon and SW Washington. Among them are: the Portland metro area, Vancouver, Longview, Washington, Salem, Albany, Corvallis and Eugene. In addition, Comcast's Seattle market serves the greater Seattle metro area, Spokane, Tacoma, Aberdeen and Olympia. Plr0daUCtffi Cable television and digital cable-more than 250 channels available. ON DEMAND-Comcast's video-on-demand service receives more than four million views a month in Oregon and SW Washington alone. With more than 4,500 titles and 2,500 hours of programming, customers can watch what they want when they want with ON DEMAND. HDTV-18 of the most popular HD channels and counting available in super clear high-definition format and an industry-leading initiative with more than 100 hours of HD programs available ON DEMAND. Digital Video Recorders-a dual tuner DVR allows customers to record two shows at once, and enables customers to record up to 80 hours of standard-definition programming and 15 hours of high-definition programming. High-Speed Internet service - Comcast has increased speeds four times in the past three years at no additional charge to customers, and added Powerboost technology that gives customers up to two times faster speeds when downloading large files on the Internet. Comcast High-Speed Internet offers a robust, award-winning portal at Comcast.net and many valuable features to customers at no additional charge, including: Security with McAfee Virus Scan, PhotoShow, Rhapsody Radio Plus, Video Mail, the Fan and the Games Channel. Comcast Digital Voice-local, residential phone service available throughout Oregon and SW Washington, and coming to Longview and the mid-Willamette Valley in 2007. • Comcast's IP-enabled phone services is a residential, primary line service that offers digital quality and includes all of the features that customers expect from their phone service plus new enhanced features like email notification when there is voice mail - all for one low price. • The Comcast unlimited package gives customers unlimited local and long distance calling, free calling to Canada and 12 of the most popular calling features. c06AS5t®U'4 em 590,000 cable television customers. (BUV PODY(SeSS 1,700 employees throughout Oregon and SW Washington including 600 local customer service representatives based in Beaverton, Oregon and more than 800 technicians who install and repair Video, High Speed Internet, Comcast Digital Voice and Business Services throughout the market. cC®mUVDaUnftV Contributed more than $2 million in cash and in-kind contributions to local non-profit organizations in 2006. SOU a ncCMse Comcast paid over $18,785,000 in franchise fees to local governments in Oregon in 2006. fees n Ccomcast. COMCAST'S COMMUNITY PARTNERSHIPS - 2006 One of the foundations of Comcast is its commitment to the community where its employees and customers live and work. Initiatives such as Reading Network Grants, Comcast Cares Day, United Way Employee Giving Campaign and the Leaders and Achievers Scholarship Fund are at the core of the company's commitment, as well as the establishment of the multi-million dollar Comcast Foundation, which gives grants to non- profits focused on literacy, diversity, encouraging volunteerism and youth development. At the local level, Comcast of Oregon and Southwest Washington takes this commitment even further through its corporate giving program. The program includes financial support to non-profits, in-kind media support, video and high speed Internet connections at no cost for schools throughout the region via the Cable in the Classroom program, and most significantly, employee volunteerism initiatives. Every year on the first Saturday of October, Comcast employees around the country volunteer their time to local schools, non-profits and community centers. The local Comcast team consists of 1,700 employees from Vancouver to Eugene, and last year, almost 1,000 employees and their families volunteered for the Comcast Cares Day. An additional 985 people from the community also joined the day to create a nearly 2,000 person volunteer force. In addition to Comcast Cares Day, Comcast's employees give their time and dedication to various non-profits throughout Oregon and Southwest Washington. Here are some of the highlights: Camp Fire's Washington County School-based programs, after school programs and youth volunteer engagement: Approximately1,000 youth and their family members are served weekly in Camp Fire's school year programs by paid staff with the support of more than 200 volunteers. Camp Fire has been a leader in providing opportunities for low-income and minority youth, grades K-12, by offering a holistic set of services that support youth academically and recreationally, and provide valuable opportunities for community service and service-learning. Their continuum of services is proven to help youth in the areas of self-esteem, independence, leadership, friendship skills, social comfort, peer relationships, adventure and exploration, environmental awareness, and decision making. These skills and experiences give youth the "toolkit" they need to achieve milestones such as high school graduation, further education, employment and active community involvement. Comcast Leaders & Achievers Scholarship program: Funded by the Comcast Foundation, the program recognizes senior high school students in the local communities for their commitment to community service and academics, and their demonstrated leadership. The scholarship is a one-time grant of $1,000. In 2006, 35 students from local schools in Oregon were awarded the scholarship. Beaverton Education Foundation: The foundation raises funds to support strong public schools in Beaverton by funding after-school, summer school and classroom projects that increase student achievement and success. In 2006, the Comcast Foundation awarded grants totaling $15,000 for Homework Clubs at Cedar Mill and West Tualatin View elementary schools. Virginia Garcia Memorial Health Centers: A private, nonprofit, health care organization that focuses on the needs of migrant farm workers, both through the health center and outreach programs into the migrant camps. The Centers also provide services to any of the medically needy of Washington & Yamhill Counties. Comcast supports the centers through our sponsorship of the annual Oregon & Wine Art Auction. Employee Volunteer Program: Comcast encourages employees to take eight hours of paid time a year to volunteer during a workday at a local school, food bank or even a Little League team, in a program that calls the time Comcast Cares Hours. The program encourages employees to do something extra for groups that can use volunteer assistance. Comcast understands that through the teamwork and cooperation of many groups in the community, everyone will thrive. The company supports more than 50 non-profits and projects in Oregon and Southwest Washington in the areas of literacy, volunteerism and youth development. Some of these include: Academic All Stars Albertina Kerr American Cancer Association: Relay for Life American Red Cross Campfire Day of Service Sponsorship: WA County CAP: Art for Life, for Cascade AIDS Project Central Oregon Intergovernmental Council - Telecommunications Conference Christie School Comcast Movie Series Comcast Presents the 4`h of July at Vancouver's Historic Reserve E3: Employer's for Excellence in Education Family Tree Relief Nursery Festival of the Trees Friendly House: Homeless Youth Ready for School Friendly House: Literacy Program Grant Friends of the Children Girl Scouts of America Habitat for Humanity 2 Hands On Portland Hillsboro Chamber Grand Opening Hispanic Metropolitan Chamber Scholarship Hollywood Theater Project - Film Action Oregon Junior League La Noche de Ocha Latino PSU Scholarship Sponsorship Lewis & Clark Literacy Too! Literary Arts Multnomah County Summer Reading MusicFest NW - First Octave MusicFestNW - Rock and Roll Camp for Girls NW Academy Sponsor NW Film Center: Young People's Film & Video Fest Oaks Park Reading Program OMSI OPB Russian & Spanish Early Literacy: Ready to Learn Oregon Entrepreneurs Forum Oregon Jamboree - Concert Event Sponsorship Oregon Symphony Story Time Education Police Activities League Portland Institute for Contemporary Art Portland Art Museum Portland Children's Investment Fund Portland Relief Nursery Portland Tribune/Comcast Regional Spelling Bee Portland Zoo Cheetah Event Project Youth Documentary with FilmAction Oregon Providence Child Center Foundation School House Supplies and Tools for Schools Self Enhancement, Inc. SW Washington Boys & Girls Club Homework Helpers Tigard Balloon Festival Uptown Village Street Festival United Way Urban League Vancouver Wine & Jazz Festival Willamette Week - Longbaugh Film Festival Wordstock Young Audiences of Oregon, Inc. 3 S`1 r 11~ D&W)Q Vi l~ apvid(5 TIGARD HIGH SCHOOL LEADERSHIP 9000 SW DURHAM ROAD - TIGARD - OREGON - 97224 (503) 431.5518 - FAX (503) 431.54 10 HTTP: HTHS.TTSD. Kl2.OR. US/LEADERSHIP/HOME.HTML CITY COUNCIL STUDENT REPORT: APRIL 10, 2007 STUDENT ENVOY: JASMINA DIZDAREVIC 2006-2007 "Leaving a Lasting I. ACADEMICS Impression" a.) End of third quarter, no school Friday b.) April 17: Juniors will take ACT Activities Director: c.) Graduation plans are under way Judy Edtl President: II. ATHLETICS Jasmina Dizdarevic a.) Track: Meet tomorrow at home vs. McMinnville b.) Tennis: Vice President: i.) Girls vs. Forest Grove at home, 4:00pm Lu Yang ii.) Boys vs. Forest Grove away, 4:00pm Activities Officer: c.) Softball season going well Will McLellarn i.) Game tomorrow vs. Forest Grove at home, 4:30pm d.) Baseball vs. Forest Grove at home. Friday at 4:30pm Secretary: Kaity Haworth III. ARTS a.) Choir Treasurer: i.) Came back from spring break trip. Mark Schleyer ii.) State Solo Competition: April 28th Human Relations: b.) Band: Lisa Yanagawa i.) Will be hosting a competition, fundraiser ii.) Winter guard performs at pep assembly last Friday Assemblies: c.) Theater Kaitlyn Lange i.) Play: You're a Good Man Charlie Brown ii.) Not produced through the Thespians/Tigard High Spirit: Ben Murphy Theatre Program. Broadway Rose helps. Publicity: IV. ACTIVITIES: St Ariel Gruver a.) Junk in the Truck on April 21 (Ilam-4pm), following Earth Week (new event) Technology b.) Prom Fashion Show cancelled Coordinator: c.) Class Elections: April 23rd Justin Karr d.) April 29th: Rotary Awards ***I will be bringing Megan Foltz, the new ASB President, next time!*** 14 • MEMORANDUM k%DD TO: Honorable Mayor & City Council Agenda Item No. ~?.a For Agenda of April 10, 2007 FROM: Cathy Wheatley, City Recor er RE: Three-Month Council Meeting Calendar DATE: April 10, 2007 Regularly scheduled Council meetings are marked with an asterisk April 10* Tuesday Council Business Meeting - 6:30 pm, Town Hall 17* Tuesday Council Workshop Meeting - 6:30 pm, Town Hall (Tentatively: Joint Meeting with Intergovernmental Water Board and Lake Oswego City Council) 24* Tuesday Council Business Meeting - 6:30 pm, Town Hall 30 Monday Budget Committee Meeting - 6:30 pm, Library Community Room May 7 Monday Budget Committee Meeting - 6:30 pm, Library Community Room 8* Tuesday Council Business Meeting - 6:30 pm, Town Hall 14 Monday Budget Committee Meeting - 6:30 pm, Library Community Room 20* Tuesday Council Workshop Meeting - 6:30 pm, Town Hall 21 Monday Budget Committee Meeting - 6:30 pm, Library Community Room (If needed.) 22* Tuesday Council Business Meeting - 6:30 pm, Town Hall 28 Monday Memorial Day Holiday - City Offices Closed 29 Tuesday Fifth Tuesday Council Meeting - 7 pm, Library Community Room June 12* Tuesday Council Business Meeting - 6:30 pm, Town Hall 19* Tuesday Council Workshop Meeting - 6:30 pm, Town Hall 26* Tuesday Council Business Meeting - 6:30 pm, Town Hall Oadm\dty counGlll-month calendar for 03-13-07 cc nng.doc Tigard City Council Tentative Agenda 2007 Agenda Item No. • a;? , b Meeting of 4 X9040 /7 Meeting Date: April 10, 2007 Meeting Date: April 17, 2007 Meeting Date: April 24, 2007 Meeting Type/Time: Business/6:30 p.m. Meeting Type/Time: Workshop/6:30 Meeting Type/Time: Business/6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Greeter: Greeter: Greeter: Materials Due @ 5: March 27, 2007 Materials Due @ 5: April 3, 2007 Materials Due @ 5: April 10, 2007 Study Session Workshop Agenda Study Session 6:00:pm Town Hall A/V System Training - Bob S. Tree Board Interim Charge Statement Executive Session: Labor Negotiations Exec Session-Cable Franchise -Tom C. 30 min. re Urban Forest Protection - Tom C. - 40 min. Sandy - 25 min. Commercial Crime Unit - Bill D. 20 min. Reconsideration of Planning Commission NO ADD'L STUDY SESSION ITEMS Liaison Duties - Tom C. - 30 min. TO BE ADDED PER LIZ 3115107 Consent Agenda Enhanced Citizen Participation Update - (Volunteer Recognition) Appoint Tree Board Members -Ron B. - RES Liz N. - 20 mins. - SI Appoint CCAC Member - Phil N. - RES Comp Plan Amendment to Update Downtown Joint Water Supply Funding IGA - Dennis K.-RES Goals, Policies & Action Measures - Tom C. - Consent Agenda Adopt Paid Time Off - Mgmt. Empl. - Sandy Z. 15 min. Metro Grant IGA - Dennis K. Annual Solid Waste Financial Rpt.-Dennis K. Future MSTIP Proposal - Gus D. - 20 min. Records Transf. to Wash. Co. -Cathy W. -RES Realignment of 175th - Tom C. - 20 min. Bud. Amend.#13- Jt. Water Supply Plan-Bob-RES Building Valuation Change - Tom C. - 15 min. LCRB-Wash. Sq. RC Wetland Consult. Cont.-Gus.-MO LCRB - Award ASR Well Drill Cont.- B. Rager-MO LCRB-Ann St. Sewer Const. Cont. -Gus. D. - MO Business Meeting LCRB-Cherry St. Sewer Eng.Cont. - Gus D. - MO Proclamation - Be Kind to Animals Week Business Meeting Joanne - 5 min. Proc. Community Develop. Week-Admin. 5 min Chamber of Commerce Rep. - 10 min. THS Student Envoy - 10 min. 1st Qtr.Goal Update - Craig P. - 15 min.- SI Sen. Burdick & Rep. Galizio -Joanne -30 min. Annual Volunteer Program Highlights Presentation Wash. Co. Vision Action Net. Present.-Liz 15 min, - Bob R. - 25 min. - SI GrantTProp. Tax Exempt (3) Low-Income Hsng.Proj. Comp Plan Amendment to Update DT Goals, Bob S. - RES - 15 min. Policies & Action Measures - Ron B. - 45 min. Cont. of Res. Zoning Amend Leg. PH -Tom C - 30 Measure 37 Claims Quasi-Judicial Public Hearings - Grant Cable Franchise - ORD - Tom C. 30 min. (1) E&V Development - Cheryl C. - 30 min. - ORD Measure 37 Claim Quasi-Judicial Public Hearing - (2) Robert E. Ruedy - Gary P. - 30 min. - ORD (1) Way W. Lee - Gary P. - 30 min. - ORD Time Avail: 135 min. - Time Scheduled: 165 min. Time Avail: 200 min. - Time Scheduled: 160 min. Time Avail. 135 Time Scheduled 160 min. Time Left: -30 min. Time Left: 40 mins. Time Left -25 min. 4/3/2007 1 Tigard City Council Tentative Agenda 2007 Meeting Date: May 8, 2007 Meeting Date: May 15, 2007 Meeting Date: May 22, 2007 Meeting Type/Time: Business/6:30 p.m. Meeting Type/Time: Workshop/6:30 p.m. Meeting Type/Time: Business/6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Greeter: Greeter: Greeter: Materials Due @ 5: April 24, 2007 Materials Due @ 5: May 1, 2007 Materials Due @ 5: May 8, 2007 Study Session Workshop Agenda Study Session Exec. Session: Property Acquisition - Gus.-15 min. Meeting with Municipal Court Judge - Liz N. / Review of Proposed Revisions to City Wide Nadine - 30 min.- SI Personnel Policies - Sandy - 20 min. CCDA Approval of Annual Downtown Implem. Strategy & Work Program - Tom C. - 30 min. CCDA -Downtown Urban Design -Tom C.- 35 min. Consent Agenda Burnham Street Design Update - Gus D. - 20 min Consent Agenda LCRB - Award Skatepark Contract - Dennis K. Adopt Revisions to Citywide Personnel Policies - Sandy - RES Business Meeting THS Student Envoy - 10 min. Business Meeting Sen. Burdick & Rep. Galizio -Joanne - 30 min. Chamber of Commerce Rep. 10 min. Tigard-Tualatin Family Resource Center Update Sunrise Lane Annexation QJ Pub. Hearing - Cathy W. - 10 min. Tom C. - 45 min. - ORD Youth Advisory Council - Sheryl H. -10 min. - SI Possible Ballot Title Approval - Need RTS TMC Amendment regarding Cross Connection Continuance of 3/27/07 Measure 37 - QJPH - Control Program Dennis K. - 10 min. - ORD Shilo Inn (M372006-00005) Tom C. - 20 min-ORD Measure 37 Claims Quasi-Judicial Public Hearings - (1) Truck Terminals, Inc. - Gary P. - 30 min. - ORD (2) Tigard Grange - Emily E. - 30 min. - ORD Time Avail: 135 min. - Time Scheduled: 130 min. Time Avail: 200 min. - Time Scheduled: 115 min. Time Avail: 135 min. - Time Scheduled: 75 min. Time Left: 5 min. Time Left: 85 min. Time Left: 60 min. 4/3/2007 6 Tigard City Council Tentative Agenda 2007 Meeting Date: May 29, 2007 Meeting Date: June 12, 2007 Meeting Date: June 19, 2007 Meeting Type/Time: 5th Tues/7 PM Meeting Type/Time: Business/6:30 p.m. Meeting Type/Time: Workshop/6:30 p.m. Location: Library Com. Room Location: City Hall Location: City Hall Greeter: Greeter: Greeter: Materials Due @ 5: Materials Due @ 5: May 29, 2007 Materials Due @ 5: June 5, 2007 Fifth Tuesday Meeting Study Session Workshop Agenda Consent Agenda Business Meeting Approve CIP for FY 07-08 - PH - PPT - CD - 10 min. Certify City provides Services Qualifying for State Shared Revs - RES - Bob S. - 10 min. Declare City's Election to Receive State Revenues - PH - RES - Bob S. - 10 min. Adopt FY 2007-08 Budget - PH - RES Bob S.- 40 min. Goodlett Annexation (ZCA 2007-00002) QJPH Tom C. - 40 min. - ORD Residential Zone Conditional Use Change to Allow Community Theater to the Major Event Entertainment Use Classification - Leg. PH - Tom C. - 45 min. - ORD Time Avail: 135 min. - Time Scheduled: 155 min. Time Avail: 200 min. - Time Scheduled: min. Time Left: -20 min. Time Left: 200 min. 4/3/2007 7 Agenda Item # Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Receive and File Annual Solid Waste Financial Report Findings Prepared By: Dennis Koellermeier Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COVNcu. Receive and file the annual solid waste financial report findings. STAFF RECOMMENDATION Receive and file the annual solid waste financial report findings. KEY FACTS AND INFORMATION SUMMARY ■ The City of Tigard has two franchised solid waste haulers, Pride Disposal Company and Waste Management Incorporated. ■ Every March these haulers provide the City with financial reports for the preceding year as required by Tigard Municipal Code Chapter 11.04.090. ■ Staff then reviews the reports in accordance with the Annual Haulers' Financial Report Review Procedure found in Resolution No. 01-54-A. This resolution: - Sets an aggregate target profit rate of 10 percent annually for the solid waste haulers. - Automatically triggers a solid waste rate adjustment when the aggregate profit rate falls below 8 percent or exceeds 12 percent. ■ Staff has determined the aggregate profit rate for 2006 was 10.37 percent. ■ In accordance with Resolution No. 01-54-A, no solid waste rate adjustments are warranted at this time. On4m ALTERNATIVES CONSIDERED The annual solid waste financial report findings are required by Tigard Municipal Code. The Council would need to provide staff with direction in the event it wishes to take some sort of action other than receiving and filing these findings. Cny COUNCM GOALS None ATTACHMI NT LIST 1. March 27, 2007, Annual Solid Waste Financial Report Findings Memo to Craig Prosser 2. Aggregate Franchised Solid Waste Hauler Financial Report 3. Resolution No. 01-54-A FISCALNOTES The City expects to receive $372,000 in solid waste franchise fees for FY '07208. Attachment 1 MEMORANDUM TIGARD TO: Craig Prosser, City Manager FROM: Dennis Koellermeier, Public Works Director RE: Annual Solid Waste Financial Report Findings for 2006 DATE: March 27, 2007 As required by Tigard Municipal Code (TMQ Chapter 11.04.090, Tigard's two franchised solid waste haulers have submitted their annual financial reports for the calendar year ending December 31, 2006. The TMC also requires the City Manager to prepare a report to the Council summarizing the franchisee reports and recommending any rate adjustments that might be required based on the Annual Haulers' Financial Report Review Procedure found in Resolution No. 01-54-A. Staff has reviewed the annual financial reports and prepared an aggregate report that is attached. The aggregate rate of return for the haulers is 10.37 percent for calendar year 2006. The Council's policy on allowable rate of return provides for rate adjustments if the aggregate profit rate falls below 8 percent or exceeds 12 percent. Based on this policy, and the calculated return of 10.37 percent for calendar year 2006, a rate adjustment would not be warranted at this time. Staff will prepare an agenda item for the April 10, 2007, meeting in order for the Council to officially receive and file this report. City of Tigard Attachment 2 Franchised Solid Waste Haulers Financial Reports For Year ended December 31, 2006 (Aggregate Report) Direct Calendar Labor Year 2006 Hours Indirect Cost Total Indirect Costs $1,151,900 Drop Boxes Operating Revenue $2,383,289 Operating Costs $2,361,477 6,709 $243,762 Net Income 21,812 0.92% Can/Cart Services Operating Revenue Residential $3,142,738 Multi-Family $11,720 Commercial $133,887 Operating Costs $1,684,705 5,317 $244,560 Net Income 1,603,640 48.77% Container Services Operating Revenue Residential $31,080 Multi-Family $727,512 Commercial $2,639,479 Operating Costs $2,175,847 5,631 $209,062 Net Income 1,222,224 35.97% Reycling Services Operating Revenue Bin/Cart Recycling $52,333 Container Recycling $55,611 Operating Costs $1,580,057 9,582 $389,538 Net Income (1,472,113) -1363.77% Yard Debris Operating Revenue $6,393 Operating Costs $419,443 2,051 $64,979 Net Income ($413,050) -6461% a Medical Waste Operating Revenue $2,278 Operating Costs $0 Net Income 2,278 100% Consolidated Net Income $964,792 Other Revenue (14,014) Other Costs 0 Grand Total Net Income 950,778 Total Revenues $9,172,306 29,290 $1,151,900 Profit Percentage 10.37% Attachment 3 CITY OF TIGARD, OREGON RESOLUTION NO. 01-5 k A RESOLUTION OF THE TIGARD CITY COUNCIL FORMALIZING COUNCIL POLICIES AFFECTING SOLID WASTE RATE ACTIONS AND RESCINDING RESOLUTION NO. 96-03 WHEREAS, the Tigard City Council desires to manage solid waste rates in a manner which is consistent with the Solid Waste Management Ordinance (TMC 11.04); and WHEREAS, the Solid Waste Industry and recycling programs and markets continue to rapidly change; and WHEREAS, the Solid Waste Industry is being forced to change by multiple court challenges region-wide which question continuing the past rate practice of commercial rates subsidizing the residential service rates; and WHEREAS, the Tigard City Council wishes to update its established policies for solid waste management to insure rates that are just, fair, reasonable and adequate to provide ongoing necessary service to the public; and WHEREAS, the Tigard City Council desires to rescind Resolution No. 96-03.and adopt updated policies to meet the challenges faced in providing solid waste services for the citizens of Tigard. NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby rescinds Resolution No. 96-03 in its entirety. SECTION 2: The Tigard City Council will use the following policy when it reviews any changes to the solid waste rates in an effort to reduce the commercial subsidy of residential service rates and move to rates that are based on cost of service over a period of time: SERVICE-TYPE RATE SUBSIDY POLICY It is the desire of the Tigard City Council to eventually have solid waste rates be profitable by each service type (i.e., cart, container, drop box). Since there currently exists a commercial (container) subsidy of the residential (cart) rates and drop box rates, a phased-in reduction of the subsidy is anticipated within the next seven years. The subsidy will be reduced at increments acceptable to the City Council. SECTION 3: The Finance Director, or designee, will use the following policy when computing the solid waste haulers' rate of return: OPERATING MARGIN/RATE OF RETURN POLICY The Operating Margin, or rate of return, will be calculated on the before tax net profit as a percentage of gross revenue. The "profit rate" review will be based on the aggregate pre-tax net income as a percentage of the aggregate gross revenues of the franchised haulers. The City Council shall consider an adjustment during rate review proceedings to provide a ten percent (10%) margin in the aggregate. RESOLUTION NO.01- - -A- Page 1 Loreen\l:\CrrYWIDMSK_MGT%Solid Waste\Council Action Items\Council Solid Waste Policies Res.doc SECTION 4: ANNUAL HAULERS' FINANCIAL REPORT REVIEW PROCEDURE 'Ilse Finance Directur, ur designee, will review the solid waste haulers' annual financial reports and gather any clarifications deemed necessary from the haulers or their designated representatives each year. After being satisfied that the reports are complete and properly filled out in accordance with the instructions provided, the Finance Director, or designee, will determine the "profit rate" by the aggregate pre-tax net income of the haulers as a percentage of aggregate gross revenues. The Finance Director, or designee, will then report the results to the City Manager, the Mayor and City Council. If the aggregate profit rate falls below eight percent (8%) the City Council shall consider an adjustment to provide a ten percent (10%) margin. If the aggregate profit rate exceeds twelve percent (12%), the City Council shall consider an adjustment downward to provide a ten percent (10%) margin. EFFECTIVE DATE: This resolution will be effective on and after October 1, 2001. PASSED: This day o 2001. Yyo&4 r - ty o T' I Al'I'1✓ST: City Recorder - City of Tig RESOLUTION NO.01- f4 f - Page 2 LoreenTUTYWIDLIRISR MG RSolid Waste\Council Action Items\Council Solid Waste Policies Res.doc Agenda Item # Meeting Date Aril 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Tide Resolution Making Appointments to the Tigard Tree Board Prepared By: Ron Bunch Dept Head Approval: ' City NIgr Approval: ISSUE BEFORE THE COUNCIL Shall Council approve the resolution appointing Matt Clemo and Kandace Horlings to the Tree Board as regular members, Dale Richards as second alternate member, and reappointing Chair Janet Gillis for another four-year term? STAFF RECOMMENDATION Staff recommends adopting the resolution. KEY FACTS AND INFORMATION SUMMARY On March 2007, Mayor Dirksen and Councilor Woodruff interviewed prospective members for the Tigard Tree Board. It was determined Matt Clemo and Kandace Horlings should be appointed as regular members because they have the requisite qualifications and personal interests. For the same reasons, it was decided Dale Richards should be appointed as second alternate member. Further, Chair Janet Gillis is recommended to be reappointed for another four-year term. Without these appointments, the Tree Board would be down to three voting members. Resolution 01-02, which established the Tree Board, requires the composition of the Board to be a minimum of five, not to exceed seven members. OTHER ALTERNATIVES CONSIDERED None CITY COUNCIL GOALS No. 4: Improve Council Communications with Tigard Citizens ATTACHMENT LIST Attachment 1: Proposed City of Tigard Resolution FISCAL NOTES None I:\L,RP1.N\Council Materials\2007\410-07 AIS Trcc Board Appointmcnts.doc Agenda Item # 3, Lf Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Tide Appointment of Ralph Hughes to City Center Advisory Commission (CCAC) Prepared By: Phil Nachbar Dept Head Approval: ' C-49 City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall the City Council approve the attached resolution appointing Ralph Hughes, currently an alternate member of CCAC, to the Commission as a permanent member? STAFF RECOMMENDATION Approve the attached resolution appointing Ralph Hughes to the City Center Advisory Commission. KEY FACTS AND INFORMATION SUMMARY Currently, there are 2 vacancies on the 9-member City Center Advisory Commission. In accordance with the newly approved by laws, the vacancies include: 1 Planning Commission member and 1 at-large position. If approved, Ralph Hughes would fulfill the at-large vacancy. At its February 21" meeting, the Commission agreed by consensus that Chair Carl Switzer would contact Ralph Hughes to ask him if he would be interested in becoming a permanent member to the Commission. Ralph Hughes indicated an interest in becoming a permanent member of the CCAC. Ralph Hughes is currently President of the Chamber Board, and is expected to stay on the Board after his President's term is up at the end of June. As we execute definitive projects in the Downtown, it will be important to obtain the support of the business community both in Downtown and in general. Having a liaison to the Chamber of Commerce represented on the CCAC would provide an avenue to channel the concerns and interests of the business community and garner support for key projects. OTHER ALTERNATIVES CONSIDERED None considered. CITY COUNCIL GOALS 2007 Council goals include continued support of implementation of the Downtown Plan. Maintaining representation on the CCAC is in support of this Council goal. ATTACHMENT LIST Resolution appointing Ralph Hughes to the CCAC. FISCAL NOTES No direct impact. Agenda Item # S Meeting Date April 10, 2007 COUNCIL AGENDA ITEM S WPAARY City Of Tigard, Oregon Issue/Agenda Title Consider a Resolution Authorizing; Amendment No. 1 to the Intergovernmental Agreement for joint Funding of a Water Luppjy System Plan Prepared By: Dennis Koellermeier Dept Head Approval: 4L~~ City Mgr Approval: ~JO ISSUE BEFORE THE COUNC[[- Shall the Council approve a resolution authorizing Amendment No.1 to the Intergovernmental Agreement (IGA) for Joint Funding of a Water Supply System Plan? STAFF RECOMMENDATION Approve the resolution. KEY FACTS AND INFORMATION SUMMARY ■ To explore the feasibility of a possible water partnership, the Cities of Tigard and Lake Oswego entered into an IGA to jointly fund a Water Supply System Plan in March, 2006. ■ Changes to the IGA's Scope of Work can be made with the mutual consent of both parties, and both parties have agreed to share the cost of any additional services. ■ Carollo Engineers P.C. was retained as the consultant to provide engineering services for the joint Water Supply System Plan. ■ In December, 2006, the Intergovernmental Water Board and the Tigard and Lake Oswego City Councils held a joint meeting. As a result of the December meeting, services outside the consultant's existing Scope of Worm were requested Some of the additional services outlined in the amended Scope of Work include: - Expanded information on Tigard's water supply options - Implementation of a public outreach plan - Additional information on Clackamas River water rights - Development of a Tigard rate impact forecast - Potential effects of water conservation strategies ■ The amendment before the Council reflects the consultant's revised Scope of Work and Tigard's proportionate share of the costs ($62,619) associated with the additional services. ■ The Council is also being asked to consider a separate budget amendment which will fund these additional services. ■ The Lake Oswego City Council approved this amendment on February 20, 2007. CgmRALTERNATIVES CONSIDERED The Council could choose to not authorize the amendment. This would effectively end the study and the possibility of a water partnership with Lake Oswego. Given the direction at the December meeting, some of the work has already gone forward As a result, Tigard may have some financial obligation to Lake Oswego even if the amendment is not authorized. CITY COUNCIL GOALS None ATTACHMENT LIST 1. Resolution Exhibit A - Water Supply Plan Joint Funding Agreement, Amendment No. 1 Exhibit 1- Amendment 1 Scope of Work 2. Carollo Engineers Spreadsheet of Updated Project Hours and Costs as Amended FMAL NOM The total cost of the additional services is $126,150. Tigard's share of these services, $62,619, will come from the Water Fund A budget amendment to fund this expenditure will also come before the Council at its April 10, 2007, meeting. Agenda Item # 3, Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Adoption of an Amendment to the Management, Supervisory & Confidential Group Personnel Policies adding Paid Time Off PoliPrepared By: Sand Zodrow HR D' . ept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall the City Council adopt an amendment to the Management, Supervisory & Confidential Group Personnel Policies adding a Paid Time Off Policy? STAFF RECOMMENDATION Council adopt the proposed amendment to the Management, Supervisory & Confidential Group Personnel Policies adding a Paid Time Off Policy? KEY FACTS AND INFORMATION SUMMARY Council reviewed this matter in Study Session at their March 27, 2007 meeting. This agenda item formally adopts the policy and concepts discussed with Council at that time. The Paid Time Off Policy is the result of a long term effort by a City Wide Supervisory Committee and Human Resources to explore other tools to increase the effectiveness of sick leave administration and eliminate or reduce the occurrence of unscheduled absences through the organization. Unscheduled absences are costly in overtime, extra help, lost productivity and morale. Over the course of the last 2 years this committee has issued sick leave administrative guidelines for city supervisors which have resulted in reductions of sick leave usage ranging from 2.6% to 38% for four (4) departments, and zero (0) to minimal increases for the other three (3). In exploring other tools for more effective leave management, the committee researched Paid Time Off which is considered the most effective program to control unscheduled absence. Paid Time Off essentially condenses existing leave banks such as vacation, management leave and 1 /2 of sick leave into one single bank of time off to be used for whatever purposes the employee wishes. It requires approval in advance for use. And the first two days of illness or injury must be drawn from this bank. Paid Time off (PTO) has climbed in popularity among employers throughout the country as an effective tool for dealing with unscheduled absence, protecting employee privacy, providing better leave tracking and administration, giving greater employee flexibility and control over paid time off, adding more responsible employee time management, and an establishing an excellent recruitment and retention tool, especially for high performing, self motivated employees. The Cities of Beaverton, Sherwood and Gresham are examples of other public employers in the metro area offering PTO, and many others are exploring this concept. The committee discussed this idea with the 45-50 other city supervisors, managers and directors and also received their endorsement on the potential usefulness of PTO in their work units. The proposed policy, as discussed with Council, will establish two (2) leave banks: (a) a Paid Time Off Bank, which will condense current vacation and management leave time, and must be used for the first two days of any illness or injury absence, and b) a Medical Leave Bank, which will incorporate current sick leave time and can only be used for illness or injury which exceeds two work days. Monthly accruals equal to their vacation rate, 2 hours of their management leave and 1 /2 of their monthly sick leave will be deposited into the PTO. The remaining 1 /2 of their current monthly sick leave accrual will be deposited into their Medical Leave Bank each month. Any balance in the PTO will be paid upon separation from City service, except for probationary employees. For employees who accrued in excess of 514 hours in their Medical Leave Bank, they will have the option to convert MLB time over 514 into Paid Time Off on a ratio basis. This proposed policy is only extended to the Management, Supervisory & Confidential Group employees at this time. This program would need to be formally negotiated with other city employee represented groups (SEIU or TPOA) should they wish to convert to PTO. Finally, this policy would be effective July 1, 2007, and would offer all existing employees on the payroll at that time the option to convert to PTO, or to remain with the traditional vacation, sick and management leave provisions currently in the Personnel Policies. All new employees hired after July 1, 2007 into the Management, Supervisory & Confidential Group would be included in the PTO/MLB policy. The committee's work has sought to promote scheduled rather than unscheduled absences. We feel that this PTO approach has proven to achieve those objectives in other businesses and organizations, and will be an effective leave management tool for our organization. OTHER ALTERNATIVES CONSIDERED The Committee and Human Resources has researched many options, and determined that this proposed policy represents the most effective approach to better unscheduled absence management. CITY COUNCIL GOALS Improved effectiveness and efficiency of internal organizational operations relative to human resource management. ATTACHMENT LIST (1) Exhibit A, Revisions to Personnel Policies - Management, Supervisory & Confidential Group, Policy 19.0 Paid time Off (PTO) Leave (Effective July 1, 2007) (2) Resolution Adopting An Amendment to the Management, Supervisory & Confidential Group Personnel Policies Adding Paid Time Off Policy FISCAL NOTES The potential financial impact operates on the same principle as we have now with the vacation cap. The PTO cap has been raised proportionately to accommodate the other sick leave and management leave that is going into the PTO. Therefore, the potential time available for payoff upon termination could be higher. It doesn't mean that it will be higher. We do not expect all employees to be paid a higher amount. We expect most employees will continue to use accrued time off much the same as they do now. \\tig20Vnetpub\tig20\w oot\tonnsVonn docskouncil agenda item summary sheet 07.doc Agenda Item # d Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Approve Proposal to Transfer Custody of Records Created Assembled and Maint tined by Tigard Staff During the Term of the Urban Services Intergovernmental Agreement between the City of Tigard and Washington County Prepared By: Cathy Wheatley o Dept Head Approval: lJ~ City Mgr Approval: ISSUE BEFORE THE COUNCIL Transfer custody of records created, assembled and maintained by Tigard staff during the term of the Urban Services Intergovernmental Agreement between the City of Tigard to Washington County. STAFF RECOMMENDATION Approve the proposed resolution. KEY FACTS AND INFORMATION SUMMARY • During the term of the City of Tigard/Washington County Urban Services Intergovernmental Agreement Tigard staff created and maintained records relating to alarm permits, home occupation permits, subdivision files, building files and code enforcement cases. • The City and County mutually agreed to terminate the Agreement as of June 30, 2006. • After researching the Attorney General' Public Records and Meetings Manual, and talking to Catherine Weber at the Oregon State Archives office, now that the City is no longer an agent for services under the Agreement, these records should reside with the County. • The proposed resolution formally documents the City's determination that the records are to be transferred. • The City Attorney has reviewed the proposed resolution and concurs that Washington County should now have physical custody of these records. • Staff will inventory and document the records to be transferred and the date(s) of transfer. OTHER ALTERNATIVES CONSIDERED None. CITY COUNCIL GOALS N/A ATTACHMENT LIST Proposed resolution. FISCAL NOTES N/A \\tig20YnetpubIlig20kw root\fo"sUOnn docs\council agenda item summary sheet 07.doclAadm\packet '07\070410\transferupaa records to washington county ais.doc 02 Agenda Item # 9• Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title A Resolution Approving Budget Amendment #13 to the FY 2006-07 Budget to Increase Appropriations in the Water CIP Fund Capital Projects budget within the Community Investment Program for Additional Funding for the Lake Oswego Feasibility Study Project. Prepared By: Michelle Wareing Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall the City Council approve Budget Amendment #13 to increase appropriations in the Water CIP Fund Capital Projects budget for additional funding for the Lake Oswego Feasibility Study project? STAFF RECOMMENDATION Staff recommends approval of Budget Amendment #13. KEY FACTS AND INFORMATION SUMMARY In early 2006, the cities of Lake Oswego and Tigard entered into an intergovernmental agreement for a comprehensive study to develop and evaluate options for the possible formation of a joint water supply system to serve both cities. The Agreement provided that modifications to the approved scope of work may be made at any time with the mutual consent of both cities. At the November 2006 joint meeting between Lake Oswego and Tigard City Councils, the need to amend the scope of work for additional items was discussed. Any scope of work change order costs are to be shared between the two cities. The total cost of this change order is $126,150 with Tigard's share being $62,619. Lake Oswego's City Council authorized the first amendment to the intergovernmental agreement at its February 20, 2007 Council meeting. Tigard City Council will authorize the first amendment to the intergovernmental agreement at its April 10, 2007 Council meeting. The FY 2006-07 Budget includes $130,000 for the Lake Oswego Feasibility Study. This budget amendment will transfer $62,619 from the Water CIP Fund contingency to the Water CIP Capital Projects budget. The total new cost of the project will be $192,619. OTHER ALTERNATIVES CONSIDERED Do not approve Budget Amendment #13. The Water CIP Capital Projects budget may or may not be overspent. CITY COUNCIL GOALS None ATTACHMENT LIST Resolution including Attachment A FISCAL NOTES This resolution transfers $62,619 from the Water CIP Fund Contingency to the Water CIP Fund Capital Projects budget for the additional funding for the Lake Oswego Feasibility Study project. Agenda Item # 3. Meeting Date April 10, 2007 LOCAL CONTRACT REVIEW BOARD AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Award of Contract for Wetland Consulting Services for the Washington Square Regional Center Greenbelt Trail Project n/ Prepared By: G. Berry Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD Should City Council, acting as the Local Contract Review Board, approve a contract award to Vigil-Agrimis, Inc., to provide wetland consulting services for the Washington Square Regional Center Greenbelt Trail Project? STAFF RECOMMENDATION Staff recommends that the Local Contract Review Board, by motion, approve the contract award to Vigil-Agrimis, Inc. to provide wetland consulting services for the Washington Square Regional Center Greenbelt Trail Project in the amount of $60,500. Staff further recommends authorization of an additional amount of $6,000 to be reserved as a contingency for the project and applied as needed as the project progresses towards completion. The total amount committed to the project is therefore $66,500. KEY FACTS AND INFORMATION SUMMARY • The proposed Washington Square Regional Center Greenbelt Trail will start at SW 95`h Av. and extend east to either Pine or Oak St. Because a portion of the route is along Ash Creek and its wetland, a number of federal, state and local agencies may require permits. • On November 28, 2006, City Council awarded wetland consulting services contracts to Vigil-Agrimis Inc. and Zion Natural Resources Consulting, on an as-required basis. We requested that Vigil-Agrimis Inc. submit a proposal to provide wetland consulting services on the project. The attached proposal provides these services with a not to exceed fee of $60,500. Contracts exceeding $50,000 must be approved by the Local Contract Review Board. • Award of this proposed contract would direct Vigil-Agrimis Inc. to acquire the required permits as described in the proposal. OTHER ALTERNATIVES CONSIDERED None. CITY COUNCIL GOALS The Washington Square Regional Center Greenbelt Trail Project contributes to the Tigard Beyond Tomorrow Growth and Growth Management goal of "Accommodate growth while protecting the character and livability of new and established areas". The proposed project will preserve and provide access to a natural area. In addition, it will contribute to the Tigard Beyond Tomorrow Transportation and Traffic goal of "Identify alternative transportation modes" by providing an off-street bikepath/pedestrian walkway. ATTACHMENT LIST Attachment 1: March 8, 2007, Vigil-Agrimis Inc. Proposal FISCAL NOTES The Washington Square Regional Center Greenbelt Trail Project is funded in the FY 2006 - 07 Community Investment Program through the Parks Capital Fund in the amount $430, 020. This amount is sufficient for the award of the proposed contract. iAeng=06-2007 ty dp\wash square greenbelt traihdty wuncil 410-07M-10-07 va award ais.doc Attachment 1 VIGILN AGRIMIS v design professionals prrc i MAR 1 2 2007 March 8, 2007 Ms. Vannie Nguyen, P.E., Engineering Manager ~~Y V 1- T~ ~AR® City of Tigard 13125 SW Hall Blvd. Tigard, Oregon 97223 SUBJECT: SCOPE AND BUDGET FOR PROFESSIONAL SERVICES FOR WETLANDS, PERMITTING AND TRAIL ALIGNMENT ASSISTANCE FOR WASHINGTON SQUARE REGIONAL CENTER GREENBELT TRAIL PROJECT, TIGARD, OREGON Dear Vannie, We enthusiastically submit our scope and budget for wetland and permitting services required to assist the City of Tigard with trail location and alignment for the 2008 construction season. Our understanding and scope is based on our meeting with you on February 7, 2007 and a subsequent site visit. PROJECT UNDERSTANDING The City of Tigard seeks professional services for wetlands permitting and related services to construct Phase 1 of the Washington Square Regional Center Greenbelt Trail improvements during the 2008 construction season. The trail segment will start at 95th Avenue on the west end, and connect to either Pine or Oak Street at the east end. The site is composed of nine parcels with five different owners. These owners will need to grant permission for site access prior to commencement of fieldwork. Ash Creek, a tributary to Fanno Creek, traverses the site. Fanno Creek provides habitat to listed steelhead. The confluence of Ash, and Fanno Creeks is approximately Y2 -mile from the.project site. Due to this proximity, the potential presence of steelhead habitat in Ash Creek may require preparation of a Biological Assessment (BA) and consultation with the National Marine Fisheries Service (NMFS). The consultation process is approximately five months. NMFS will prepare its Biological Opinion (BO) on what if any harm might be expected to result to steelhead resulting from the proposed action within approximately 135 days after submittal of the BA. A large portion of the site was identified in the Tigard Local Wetlands Inventory (LWI) as containing wetlands. A wetland delineation will be needed to confirm the presence and extent of wetlands at the project-level. Verification from the Department of State Lands (DSL) may or may not occur during the project timeline due to the staffing shortage at DSL. A Removal/Fill (R/F) permit application will need to be submitted to DSL and to the U.S. Army Corps of Engineers (ACOE) for wetlands impacts. This joint R/F application will describe unavoidable wetland impacts and what mitigation measures will be used to compensate for lost wetlands according to the federal C1ean.Water Act and the Oregon Removal Fill Law. The In-Water Work Period for Tualatin River tributaries is July 1 - September 30. A wetland mitigation plan will need to be developed and approved by DSL and ACOE prior to issuance of permits by these agencies. The wetland impacts are anticipated to be minor. A Natural Resources Assessment will need to be prepared, and a Service Provider Letter obtained from Clean Water Services (CWS). These efforts are needed to comply with CWS standards for riparian area and water quality protection. Tigard has its own ordinance protecting sensitive lands such as wetlands, riparian areas, floodplains, and steep slopes. A Sensitive Lands application will need to be prepared for the project describing how -impacts were minimized and addressed. Notice to Proceed (NTP) for the work is anticipated to be approximately March 20, 2007. Engineering o Landscape Architecture o Environmental Science 819 SE Morrison street, suite 310, Portland, Oregon 97214 0 503-274-2010 o 503-274-2024 fax o www.vigil-agrimis.com March 8, 2007 Page 2 PROJECT SCOPE OF SERVICES AND BUDGET Paul Agrimis, R.L.A., P.E., P.W.S. will serve as the Vigil-Agrimis, Inc. (VAI) Principal in Charge. Tracy, Johnson, R.L.A. will serve as the Project Manager, and will be the Task Leader for the wetlands delineation, the wetland mitigation plan. John Vlastelicia will be the Task Leader for the BA, R/F application, and Sensitive Lands application. Maureen Raad will be the Task Leader for the Natural Resources Assessment and Service Provider Letter. Tracy Johnson, R.L.A. will provide quality control. The following tasks describe the scope of services, schedule, labor fees, and expenses. 1. Conduct Wetland Delineation VAI will determine the presence and extent of wetlands in the project area. The wetland delineation will be performed using the procedures defined in the 1987 ACOE Wetland Delineation Manual. We will flag the boundaries and all paired plot locations (per DSL guidelines) and use Global Positioning System (GPS) surveying to determine the location of the boundaries in space. The wetland delineation report will be submitted to DSL for verification and concurrence, which will be required prior to DSL's issuance of a Removal-Fill Permit for the project (see item 4 below). The delineation fieldwork will be performed in early March. The delineation report will be submitted by April 15`h. DSL may take up to 120 days (or longer) to issue concurrence for a delineation report after it is submitted. During the wetland delineation fieldwork, VAI will also locate the top of bank and edge of water for Ash Creek with GPS. Estimated Labor Fees (using rates in our proposal): $5,000 Estimated Expenses: $200 2. Trail Alignment & Access Feasibility Assessment VAI will assist the City of Tigard in determining the best trail alignment to minimize wetland and resource impacts. Upon completion of the wetland delineation, VAI will import the wetland boundaries and creek banks, and overlay them with floodplain and other data available to assess the best alignment for the trail. VAI will prepare up to three alignment alternatives, and meet with City staff to determine their preference. Alternative analysis will review one potential northern alignment option, in addition to south of creek options. VAI will also review conditions at the two east entry points that have been proposed to evaluate the most feasible access point. VAI will place flags and hubs in the field, once the alignment has been determined, to define the location for subsequent survey. Estimated Labor Fees: $1,600 Estimated Expenses : $100 3. Natural Resources Assessment and Service Provider Letter VAI will prepare a Natural Resource Assessment for Clean Water Services with an application for a Service Provider Letter. The loss of riparian vegetation and trees will require mitigation. Vegetated corridor impacts are also likely, which will require a Tier 2 Alternative Analysis. The vegetated corridor along Ash Creek and adjacent to wetlands and ponds on site appears to be degraded and will provide mitigation opportunities along the trail corridor. The report and application will be submitted when coordination with the trail design allows accurate depiction of impacts and mitigation. Estimated Labor Fees: $5,000 Estimated Expenses : $100 4. Prepare Joint Application for DSL and ACOE Permits VAI anticipates preparing a joint application for a DSL Removal-Fill Permit and U.S. Army Corps of Engineers (ACOE) Section 404 Permit for unavoidable impacts to.wetlands and/or waterways. The permit application submittal would include the application, summary sheets, narrative, and standard graphics Washington Square Regional Center Greenbelt Trail - Phase 1 March 8, 2007 Page 3 including vicinity map, existing conditions, grading, planting, and cross-section. VAI does not anticipate major issues with the permit application. VAI will facilitate agency review of the application through phone coordination, email communication, and written correspondence, as necessary. The permit application will be submitted when coordination with the trail design allows accurate depiction of impacts and mitigation. DSL will generally make a permit decision within 90 days of receiving a complete application. The ACOE generally issues decisions for individual Section 404 permits within 120 days of receiving a complete application. It is important to note that DSL will not issue a Removal/Fill Permit until the as wetland delineation report has received agency concurrence. Also, ACOE cannot provide Section 404 authorization until Endangered Species Act (ESA) consultation with NMFS has been completed and a BO has been issued (see item 5 below). An Essential Fish Habitat consultation and agency coordination will also be conducted. Estimated Labor Fees:. $7,000 Estimated Expenses: $100 5. Biological Assessment VAI will prepare the Biological Assessment (BA). The BA will include the following sections: • Introduction, • Project Description, • Alternatives Analysis, • Evaluation Methods, • ESA Listed Species Occurrence • Environmental Baseline Conditions and Impacts • Impacts Analysis, • Conservation Measures, • Indirect, Interrelated, Interdependent, and Cumulative Effects, • Determination of Effect, VAI will conduct an on-site meeting inviting the following agencies: • U.S. Army Corps of Engineers, • Oregon Department of State Lands, • Clean Water Services, • Oregon Department of Fish and Wildlife, • U.S. Fish and Wildlife Service, • National Marine Fisheries Service. The BA will be reviewed by NMFS for up to 135 days before a Biological Opinion (BO) is issued. The BA will be submitted once trail alternatives and mitigation plans are sufficiently developed. The BO will then be expected approximately 135 days from the date the BA is submitted, after which the ACOE may issue a Section 404 permit for work impacting wetlands/waterways. The In-Water Work Period is July 1 through September 30. Estimated Labor Fees: $10,000 Estimated Expenses: $400 6. Sensitive Lands Application VAI will prepare a Sensitive Lands Application for the City of Tigard Sensitive Lands Ordinance. VAI will prepare the text and graphics that support the application. VAI assumes that this project will require 'a Type III Procedure due to floodplain, wetland and vegetated corridor impacts. Attendance at a Pre-Application Washington Square Regional Center Greenbelt Trail - Phase 1 March 8, 2007 Page 4 Conference and one Public Hearing are anticipated to support the application. The application will be submitted when coordination with the trail design allows accurate depiction of impacts and mitigation. Estimated Labor Fees: $6,500 Estimated Expenses : $100 7. Wetland Mitigation Plans, Specifications, and Cost Estimate VAI anticipates the potential need for wetland mitigation design and construction documents. The design drawings will include existing conditions, grading plan, planting plan, and details. Specifications will be in City of Tigard standard format, unless otherwise directed by City staff. Cost estimates will be prepared at 50, 90, and 100 percent development. A bid item list will be prepared from the cost estimate. The cost estimates will be prepared in Excel. The plans, specifications, and cost estimate will be completed concurrently with trail development plans (prepared by City staff). The Mitigation Planting Plan and Details will be provided as a separate bid package at the request of City staff. Estimated Labor Fees: $14,000 Estimated Expenses: $300 8. Bridge Design, Flood Plain, No-rise Analysis VAI will assist City staff with development of design drawings and construction documents for a potential crossing of Ash Creek at the west end of the proposed trail. VAI anticipates that the main span will be a prefabricated structure selected with input from City staff. VAI will coordinate with bridge manufacturer on design detailing. The final drawings will include abutment and connection details and specifications. City staff will incorporate VAI's drawings into final construction document set. VAI will also modify the existing hydraulic floodplain model of Ash Creek at the proposed bridge crossing location, and provide a No-Rise analysis documentation that is required for the Sensitive Lands Application. VAI assumes that the proposed bridge crossing and the associated trail are consistent with the City of Tigard's Sensitive Lands ordinance and will not increase the flood elevations during the base flood discharge or will not cause a net increase in fill material within the floodplain. If these floodplain conditions can not be met by the proposed design of the project, VAI will discuss alternative bridge span/location and trail alignment strategies with City of Tigard staff. VAI will engage Foster Gambee for geotechnical assessment of the bridge area, and Grummel Engineering for structural engineering of bridge abutments and footings. If the City should decide to design a site built structure in lieu of a prefabricated structure, VAI will develop a scope and fee for the additional services. Estimated Labor Fees: $6,300 Estimated Expenses: $200 9. Construction Observation VAI will provide construction administration services during the construction phase of the project. Services will include: site observation at key points during construction project such as pre-construction meeting, erosion control, grading, planting, field reports and final punch list. We estimate eight (8) trips to the site during construction. Estimated Labor Fees: $3,400 Estimated Expenses : $200 Washington Square Regional Center Greenbelt Trail - Phase 1 March 8, 2007 Page S FEES The project is well defined. Following are the Vigil-Agrimis, Inc. team billing rates and proposed fees for the activities and products identified above. Paul Agrimis, R.L.A., P.E., P.W.S./Principal in Charge $118.00/hour Susan Cunningham/Permitting Lead $108.00/hour Adam Zucker, P.E./Water Resources Engineer $91.00/hour Tracy Johnson, R.L.A./Project Manager $86.00/hour John Vlastelicia/Task Leader $70.00/hour Maureen Raad/Task Leader $78.00/hour Linda Mark, R.G./Natural Resources $77.00/hour Steve Roelof/Natural Resources $70.00/hour Ryan Ruggiero/Natural Resources $68.00/hour Sarah Zanze/Natural Resources $68.00/hour Tina Ross, Project Assistant $46.00/hour EXPENSES Anticipated expenses for the minimum scope are as follows: • GPS rental, • Mileage, • Film and developing, Hydraulic Models and Reports, • Reprographics, Etc. We estimate that a not-to-exceed contract amount of $60,500 would be-appropriate for this work order. We will not exceed $60,500 without your prior approval. PAYMENT Vigil-Agrimis, Inc. proposes to be compensated on a time and materials basis for professional services. A monthly invoice will be prepared around the 10'' of each month. Payment by Client will be made within 30 days of the invoice. EXCLUSIONS AND ASSUMPTIONS The above scope of services is for wetland delineation and permitting, and trail alignment design. The following professional services are specifically excluded from this proposal: • Other Local Land Use Requirements, • Topographic and Boundary Survey, • Geotechnical Investigation not associated with the bridge footing design, • Bridge/boardwalk design and engineering, • ' Trail Design and Construction Documents, • Construction monitoring and testing, • Permitting Fees, • As-built documentation. It is assumed that the City of Tigard design staff will provide VAI cut and fill quantities of the proposed trail alignment within wetlands and floodplains for permitting purposes. It is assumed that a current Hydraulic Model (HEC-RAS) is available for the project site. VAI fee only includes updating the existing HEC-RAS model of Ash Creek, and does not include creating a hydraulic, HEC RAS model. Washington Square Regional Center Greenbelt Trail - Phase 1 March 8, 2007 Page 6 AGREEMENT The Client can use this letter as a contract by signing below. An original and one copy of this proposal letter are enclosed for your review and signature. Please read this document carefully and when you are satisfied, please sign the original and return it to me, keeping the copy for your records. SEVERABILITY AND SURVIVAL Any term or provision of this Agreement found to be invalid under any applicable statute or rule of law shall be deemed omitted and the remainder of the Agreement shall remain in full force and effect. Notwithstanding completion or termination of this Agreement for any reason, all rights, duties and obligations of the parties of this Agreement shall survive the completion or termination of this Agreement and shall remain in full force and effect until fulfilled. We look forward to assisting you with this project and thank you for the opportunity to provide our professional. services. Please call me at 503.274.2010 if you have any questions. Sincerely, VIGIL-AGRI IS INC. r T cy Jo son, R.L.A. Paul Agrimis, R.L.A., P.E., -P.W.S. Project Manager Vice President ACCEPTED BY CLIENT: BY: TITLE: DATE: Washington Square Regional Center Greenbelt Trail - Phase 1 Agenda hem # 3 Uo Meeting Date Apri110, 2007 FOCAL CONTRACT REVIEW BOARD AGENDA ITEM SummARY City Of Tigard, Oregon Issue/Agenda Title Award a Contract for Aquifer Storage and Recoverl(ASR) Test Well Drilling Prepared By: Dennis Koellermeier Dept Head Approval: City Mgr Approval: -04~ IssuE BEFoRE THE LocAL CoN iRAcr REVIEW BOARD Shall the Local Contract Review Board (LCRB) award the contract for ASR test well drilling to Boart Longyear, Inc. and authorize staff to execute the contract? STAFF RECOMMENDATION Award the contract. KEY FACTS AND INFORMATION SummARY ■ The City has two existing aquifer storage and recovery (ASR) wells. ■ ASR allows the City to buy and store large quantities of water in an underground aquifer. This is done in the rainy season when the region's water supply is plentiful and water can be purchased at an 80 percent discount over typical water rates. During times of peak demand, the same stored water is pumped out of the aquifer, re- chlorinated and used to supplement Tigard's other drinking water sources. ■ The City's ASR program has been very successful in helping meet peak water demand and has also provided substantial cost savings. As a result, the City would hl-.e to expand its ASR program through the construction of another production well (ASR 3) located at the City's 550-foot Zone Reservoir No. 2 site. This is near the ASR 2 site and is in close proximity to existing water system infrastructure. ■ The test well drilling will provide further insight into the potential performance and capacity of ASR 3, and if technically feasible, this well will be developed into a fully functioning ASR facility under a separate contract. ■ The bid opening was conducted on March, 21, 2007 and the bid results are as follows: Hydro-Geologist of Record "Engineer's Estirite" $617,530 Boart Longyear, Inc. Tualatin, OR $643,690 Schneider Equipment Inc. & Drilling Co. St. Paul, OR $979,800 The lowest bid of $643,690 was submitted by Boart Longyear, Inc. Staff recommends the LCRB award the contract to Boart Longyear, Inc. OTI-mz ALTERNATIVES CONSIDERED The LCRB could choose not to award the contract to Boart Longyear, Inc. and could direct staff on how to proceed with the ASR 3 project. Cn Y COUNCiL GOALS None ATTAC H.MENT LIST None FISCAL NOTES The test well drilling would be conducted over two fiscal years, with completion in FY '07-'08 (August 2007). This project would be funded through the Water CEP Fund A total of $400,000 was budgeted for ASR expansion drilling for FY'06207 and $810,000 is requested in FY'07208. (Funds for FY'07-'08 might also include test well drilling for additional ASR projects.) Over the current and upcoming fiscal year, there are sufficient appropriations to cover the proposed contract to Boart Longyear, Inc. in the amount of $643,690. Agenda Item # Meeting Date April 10, 2007 LOCAL CONTRACT REVIEW BOARD AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title: Award of Contract for the Construction of Ann Street Sanitary Sewer Extension (Sewer Reimbursement District No. 40 Prepared By: Vannie Nguyen Dept Head Approval: City Mgr Approval: v ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD Shall the Local Contract Review Board, by motion, approve a contract award for the construction of Ann Street Sanitary Sewer Extension (Sewer Reimbursement District No. 40)? STAFF RECOMMENDATION Staff recommends that the Local Contract Review Board, by motion, approve a contract award to Cipriano & Son Construction in the amount of $136,477.00 and authorize an additional amount of $13,600.00 to be reserved for contingencies and applied as needed as the project goes through construction. The total amount committed to the project is therefore $150,077.00. / KEY FACTS AND INFORMATION SUMMARY • On March 13, 2007, Council approved the formation of Reimbursement District No. 40. • Council also approved the staff recommendation (based on the owners' request) to reduce the reimbursement fee by one-half. Installation of sewers in Walnut Street in 2001 eliminated an opportunity for the owners to share the costs of the new sewer on Ann Street. The City will pay for the costs not attributable to the district. • The project constructs approximately 1,100 feet of 8-inch sanitary sewer main and 180 feet of 4-inch service lateral to provide sewer service to nine (9) lots on the south side of Ann Street. • The project was advertised for bids on March 15, 2007 in the Daily Journal of Commerce, and March 22, 2007 in The Times. No project addenda were issued. The bid opening was conducted at 2:00 PM on March 27, 2007 and the bid results are: Cipriano & Son Construction Boring, OR $136,477.00 Integrity Excavating & Construction Battleground, WA $149,482.00 Dunn Construction Gresham, OR $159,364.00 NW Kodiak Construction Sherwood, OR $161,719.39 CR Woods Trucking Sherwood, OR $249,365.83 Engineer's Estimate Range $198,000 to $242,000 • The bid submitted by Cipriano & Son Construction is approximately $61,500 or 31% lower than the low estimate of $198,000. The relatively small variance between the next three bids and the lowest bid suggests that the project is over estimated. Staff reviewed all the items included in Cipriano & Son Construction's bid and has determined that its bid is reasonable and recommends approval of the contract award to this lowest bidder. • The contractor has verified his bid and assured staff that the project will be fully completed within the indicated timeframe and the bid amount. • Upon Council approval of the contract and after a Notice to Proceed has been issued, the contractor will have 45 days to complete the construction of the project. The construction is anticipated to start the week of April 30 and is expected to be completed by June 30 of this year. OTHER ALTERNATIVES CONSIDERED None COUNCIL GOALS AND TIGARD BEYOND TOMORROW VISION STATEMENT The project is part of the Citywide Sewer Extension Program established by City Council to provide sewer service to developed but unserved residential areas in the City. It meets the Tigard Beyond Tomorrow Growth & Growth Management goal of "Growth will be managed to protect the character and livability of established areas, protect the natural environment and provide open space throughout the community." Sewer service enhances the environment and protects the health of the residents by providing for the closure of septic systems 40 to 50 years old. ATTACHMENT LIST Project location map FISCAL NOTES The amount of $2,000,000 is available in the FY 2006-07 Citywide Sewer Extension Program for this and other sewer extension projects. The approximate remaining fund balance of $1,430,000 is sufficient to award a contract of $136,477.00 to Cipriano & Son Construction and to reserve a contingency amount of $13,600.00 for the project. ANN STREET RAM DISTRICT NO • 40 EXTENSION PPOC SEWED T2S R1W W.M 006-07 SANITARY SECTION 3 Y 2 OF THE SW 1 A PORTION • `Z W L YN ~ Q NN ST co ti NN ST N W Q ~ LN~T ST ~ WA ti Q VICINITY MAP NTS Agenda Item # J, d Meeting Date April 10, 2007 LOCAL CONTRACT REVIEW BOARD AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Award of Contract for En eerie Services for the SW Che Street Sani Sewer Project. Prepared By: G. Berm' Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD Should the City Council, acting as the Local Contract Review Board, approve a contract award to Century West Engineering Corp. to provide engineering services for the SW Cherry Street Sanitary Sewer Project? STAFF RECOMMENDATION Staff recommends that the Local Contract Review Board, by motion, approve the contract award to Century West Engineering Corp., to provide engineering services for the SW Cherry Street Sanitary Sewer Project in the amount of $69,652. Staff further recommends authorization of an additional amount of $7,000 to be reserved as a contingency for the project and applied as needed as the project progresses towards completion. The total amount committed to the project is therefore $76,652. KEY FACTS AND INFORMATION SUMMARY • A sanitary sewer reimbursement district is proposed to provide service to the SW Cherry Street area. A preliminary cost estimate, plans and specifications are required for the next step of the project. • Once the preliminary cost estimate is completed, the owners within the proposed reimbursement district will be invited to a neighborhood meeting to learn about the proposed project and ask questions. • On April 25, 2006, City Council awarded engineering service contracts to Group McKenzie, W&H Pacific and Century West Engineering Corp., on an as-required basis. We requested that Century West Engineering Corp., submit a proposal to provide design services on the project. The attached proposal provides these services, including construction inspection, with a not to exceed fee of $69,652. If workload permits, city staff may provide the construction inspection and reduce the fee to $57,172. • Award of this proposed contract would direct Century West Engineering Corp. to provide the required services as described in the proposal. OTHER ALTERNATIVES CONSIDERED None. CITY COUNCIL GOALS The project is part of the Citywide Sewer Extension Program established by City Council to provide sewer service to developed but unserved residential areas in the City: It meets the Tigard Beyond Tomorrow Growth and Growth Management goal of "Growth will be managed to protect the character and livability of established areas, protect the natural environment and provide open space throughout the community." Sewer service enhances the environment and protects the health of the residents by providing for the closure of septic systems 40 to 50 years old. ATTACHMENT LIST Attachment 1: Century West Engineering Corp. Proposal, March 23, 2007 FISCAL NOTES The proposed contract is part of the Citywide Sanitary Sewer Extension Program funded in the FY 2006 - 07 Community Investment Program through the unrestricted sewer fund in the amount of $2,000,000. This amount is sufficient to award the design contract and to construct the project. iAen0\gregtreimbursement distriGSW4 cherry st\4-10-07 reim disc" eis.doc Attachment 1 ~EI~ITlJF2V \l0/ES~' - ENGINEERING CORPORATION March 23, 2007 Mr. Greg Berry City of Tigard 13125 SW Hall Boulevard Tigard, Oregon 97223 Re: Cherry Street Sanitary Sewer Reimbursement District Scope of Services CWEC Project No. 4008400701 Dear Greg: We are pleased to submit this proposal for engineering services for the Cherry Street sanitary sewer reimbursement district. The work involves both preliminary and final design services, subsurface exploration of trenching materials, and miscellaneous construction services with the contractor. Due to the likely presence of rock within the trench area, we have included a surbsurface scope that will allow for a specific amount of rock coring within the bores. In the event, this is not used, the subsurface exploration price would be reduced accordingly. Productive work on this project can be scheduled immediately upon approval of the scope and efforts provided. This would include topographic survey and subsurface exploration efforts after all underground utilities were pre- marked with paint in the field using the one-call notification program. The project will be completed as quickly as possible in order to make the most efficient use of our design efforts. Therefore, assuming a Notice to Proceed is provided to Century West on April 11, 2007, the following milestones should be appropriate: Preliminary Design Complete - May 11, 2007 Final Design Complete - June 11, 2007 Please review the information at your earliest opportunity. Further clarifications, modification of scope, or additional information can be provided at your request. Sincerely, on igel, P. . Project Manager Enclosures: Scope/Fee Cherry Street Sanitary Sewer 6650 SW Redwood Lane, Suite 300, Portland, Oregon 97224 (503) 419-2130 phone (503) 639-2710 fax SCOPE OF WORK Project Description: This PROJECT will provide preliminary and final design of a sanitary sewer collection system within approximately 1,700 feet of sanitary sewer identified as the Cherry Street reimbursement district between SW 75`h Place and SW Vams Street. Specific tasks involved in the Sanitary Sewer Project are as follows: Task 1: Project Management, Public Involvement, Geotechnical Investigations, Preliminary Design and Total Project Cost Estimate This task includes the overall planning, monitoring, and control of the Cherry Street Sanitary Sewer Project to meet the technical, cost, schedule, and communication objectives. The work will be accomplished under the following subtasks: 120- Project Management Overall management of the project including: • Monthly meetings with the client • Monthly invoices • Monthly status reports • Monthly schedule updates and revisions Products: Monthly status reports including schedule, monthly invoices, and minutes of monthly meetings. 130-Public Meetings Assist City by attending and making presentations at one public meeting if necessary. This assumes that there will be one public meeting. • Prepare materials for the public meeting • Take minutes of the public meeting Products: Notices of public meetings, handout materials for public meetings, and meeting minutes. Material will be prepared in camera ready format for printing and distribution by the City. 140- Survey Land surveying tasks required to supplement existing mapping will include: • Establishing permanent horizontal and vertical control for use in design and construction phases. This will include use of some control set during efforts on other sewer improvements in the vicinity. • Locating underground utilities and obtain record mapping of existing utilities • Searching and tying existing rights-of way and other property corner monuments to identify the land boundary network sufficient for preparation plans. This subtask does not include property surveys to reestablish property corners if they are missing or are not easily found. • Obtaining adequate ground spot elevations to create a ground surface model for the sewer profile. This will also specifically include basement elevations (outside foundations) for eight homes located on the west side of SW Cherry Street between SW Fir and SW 75`h Place in order to determine if any back lot sewers will be necessary. Further tie outs for the back lot option will be negotiated after Staff reviews preliminary design and decides to acquire easements. Products: Digitized survey information. Page 1 Cherry Street Sanitary Sewer FY 2007-2008 Sanitary Sewer Extension Program March 23, 2007 150- Prepare CAD base mapping Prepare 1"=20' CAD (AutoCAD2006) base mapping including appropriate features such as houses, driveways, trees and shrubs, pavement and permanent structures, and underground utilities. Plan views are to be plotted above the profile. Profiles will be plotted at 1" = 5' vertical scale. City sewer design standards will be used. Products: Plan and profile sheets It is anticipated that the PROJECT area will require approximately 4 plan and profile sheets. 160- Preliminary Design and Total Project Cost Estimate Prepare a preliminary design and an engineer's estimate of the total project costs. The preliminary design will determine how far the improvements can be extended on SW Cherry Street and SW 76`h Avenue to connect homes by gravity sewer, determine the location and profile of the sewers, determine the size and location of all connections, locate manholes, and identify any permits (i.e. Clean Water Services, DEQ, etc.) which are required to construct the project. The alignment is assumed to travel directly west from an existing manhole west of the intersection of SW 75`h Place and SW Cherry Street approximately 1,100 feet. A side lateral will extent east on SW Fir Street and SW 76`h Avenue approximately 600 feet from the intersection of SW Cherry. The entire alignment is assumed to be located within the public right-of- way and will not require the purchase of sanitary sewer easements across private property. The project cost estimate is to include design and construction costs accrued by the consultant and contractors with a targeted level of accuracy of 15 Preliminary design and project cost estimate will include the following: • Prepare 1" = 20' horizontal CAD (AutoCAD2006) base mapping including topographic features, approximate property lines, and underground utilities. Plan views will be plotted above profiles. Topographic data and property line locations will be based upon topographic survey completed in previous section. • Plot preliminary design on 11X17 bond sheets suitable for reproduction. • Investigate the possibility of back lot sewers on the downhill side of SW Cherry to determine if the pipe would be prohibitively deep within the street right-of-way to serve the lower floor with a gravity service lateral to the main. City staff to make final decision after reviewing preliminary plans. • All drawings will be done in accordance with City standards, and as approved. • Manhole and lateral numbering schemes will be in accordance with Clean Water Services standards, as approved. • Submit appropriate documentation to Clean Water Services to obtain a Service Provider Letter for installation of the new sanitary sewer. • Submit application to Clean Water Services for Sensitive Area Pre-Screening Site Assessment. This assumes there will be no formal environmental documentation or studies to gain approval. • Prepare engineer's estimate of the total project cost for provided sewers based upon the preliminary design. Engineer will estimate the cost of construction, design, and construction management. Products: Five (5) sets of preliminary plan and profile drawings (11 x 17), draft specifications and a total project cost estimate. Page 2 Cherry Street Sanitary Sewer FY 2007-2008 Sanitary Sewer Extension Program March 23, 2007 170- Geotechnical Investigation Conduct a geotechnical investigation within the Project area. • Complete five (5) soil borings along proposed alignment to depths ranging from approximately 15 to 20 feet below the ground surface. The maximum depth of the sewer is assumed on the order of 15 feet deep. Borings will be drilled to a depth of about 3 feet below the invert of the proposed sewer line and are assumed to include up to five feet of rock coring at each site. Each boring will be backfilled with bentonite and the ground surface restored with quick-set concrete. Drilling cuttings will be contained in steel drums and taken off site for disposal. Traffic control for the borings are also included. • Should contaminated material be encountered, the City will be notified immediately since our project approach and estimated costs would require revision before proceeding further. • Document following information on each individual boring log: • Thickness of asphalt concrete. • Thickness of road sub-base (base rock) • Soil types by depth • Depth that groundwater is encountered during drilling • Soil recovery (percentage) • Existing pavements, depth, type, and base • Other items directly related to construction and earthwork • Locate boring logs along with water table depth at time of boring on plan & profile sheets. • Laboratory testing of samples will include two grain-size distribution tests and visual classifications. Product: Prepare a Geotechnical Data Report that contains boring logs and discusses the work accomplished and the laboratory testing procedures. Task 2: Final Design 220- Final Design and Cost Estimate Prepare the final design and engineer's construction cost estimate. • Incorporate any review comments received on the preliminary design, include the necessary QA/QC processes, as well as bidability and constructability reviews • Prepare final engineer's construction cost estimate Products: Final contract documents and engineer's construction cost estimate. 235- Prepare Construction Bidding Documents Prepare general conditions based on district standard. Prepare technical specifications based on documents developed for other reimbursement projects within the City such as the recent 93`d Avenue Sanitary Sewer. Prepare contract drawings using AUTOCAD2006, or later version, including: cover sheets showing the location of the project's plan and profile sheets (1"=20'); detail sheets; and prepare bid form including quantities for unit pricing by the contractors. Page 3 Cherry Street Sanitary Sewer FY 2007-2008 Sanitary Sewer Extension Program March 23, 2007 Furnish one(1) set of contract documents and 11 x 17 drawings to the City for printing and distribution to bidders. Printing and distribution can be included as an additional service. Products: Contract documents - one unbound set of reproducible drawings and specifications, and a CD- ROM of all CAD drawings and plot files are to be provided to the City. Task 3: Bidding, and Construction. 310- Bid Period Services Bid period services will include the following: • Prepare notice of advertisement. City will place advertisement for bids • Respond to contractor's requests for information during the bid period • Prepare necessary addenda • Assist the City with Bid Opening • Tabulate bids received and review for compliance with Contract Documents • Make recommendation for award Products: Notice of advertisement; addenda; and all information will be provided in camera ready format for reproduction and distribution by the City. Recommendation for award and supporting bid tabulations. 320- Construction Administration Construction administration will include the following: • Attend the preconstruction conference • Respond to City requested clarifications of contractor questions • Review submittals (shop drawings, materials, etc.) Products: Written responses to contractor questions. Returned submittals appropriately marked up and stamped. 330 - Construction Observation Engineer shall not be responsible for the means, methods, technique sequences, or procedures of construction selected by the contractor, or the safety precautions and programs incident to the work of the contractor. Engineer's efforts will be directed toward providing a greater degree of confidence for the City that the completed work will conform to the drawings and specifications, but Engineer will not be responsible for the failure of the contractor to perform work in accordance with such drawings and technical specifications. On the basis of site observations, Engineer shall keep the City informed of the progress of the work and shall endeavor to guard the City against defects and deficiencies in such work and may approve or reject work failing to conform to the contract documents. Other services will include full project management in the office supporting all activities of the field observer through bi-weekly construction meetings, preparation of change orders, field revisions/clarifications and miscellaneous activities. Approximate 1/2-time observation of all construction activities during the anticipated 50 calendar day construction period for a budget of up to $12,000 includes: • Daily reports of all construction activities • Review of construction schedules • Review of traffic routing • Monitor testing in the field. Page 4 Cherry Street Sanitary Sewer FY 2007-2008 Sanitary Sewer Extension Program March 23, 2007 • Checking of unit quantities. • Review of contractor's requests for payment. • Maintaining project files/document control. • Recording of as-built information. • Public information - keeping public informed of construction activities and addressing any complaints. Products: Daily logs, meeting minutes, submittal log, and test reports. 340- Construction Survey Construction surveys will include the following: • Stake sufficient offset lines to control the location of new pipe • Calculate and mark up cuts to the invert line for the new pipe • Record of Survey for any monuments disturbed is not included. Products: Construction staking with cut sheets. 350- Record Drawings Revise the contract drawings to incorporate all changes made during construction. Product: Contract drawings on 22X34 mylar with 4 - 11X17 drawings shown on each mylar sheet and CD-ROM using AutoCAD2006. CD-ROM shall include all drawing files, reference drawings, plot files, and pcp files) Page 5 Cherry Street Sanitary Sewer FY 2007-2008 Sanitary Sewer Extension Program March 23, 2007 CITY OF TIGARD - CHERRY STREET SANITARY SEWER REIMBURSEMENT DISTRICT March 23, 2006 Subconsultants" - Pro"ect Pr ject Desi n Construction DeHaas S uire/ Manager En ineer Engineer Observation K/einlelder SubTotal Total _ $120/hr $92/hr $70/hr (Varies) Surve Geotec Hours -Fees- --.P--r. 1 .ct Management_Public - Involvement, Geotech Investigation and - Preliminary Design 120- Project Management [M--- 16 $1_920 130- Public Meetin s 8 6 22 $2,116 140=Su~__- $9 745 0 50 - Prepare CAD Base Me in 8 14 160 - Prelimina Desi n 24 32 80 $7,328 170 - Geolechnical Investigation $16,250 0 $16,250 Subtotal Hours 54 32 46 Na Na We 132 Subtotal Fees $6,480 $2 944 $3 220 $0 $9,745 $16,250 36,639 Task 2: Final Design - 220 - Final Design end Cost Estimate 16 18 28 62 $5,536 235 - Construction Bidding Documents 4 18 22 $2,136 Subtotal Hours 20 36 28 Na Na Na 84 Subtotal Fees $2,400 $3,312 $1,960 $0 $0 $0 $7 g7p Task 3: Bidding and Construction 310 - Bid Period Services 16 16 $1,920 320 - Construction Administration 40 40 $4 800 _ 330- Construction Observation $12,000 0 $12,000 340 -Construction Surve $2,125 _ 0 $2.125 350 -Record Drawin s a 8 16 $1 1,296 _ I Subtotal Hours 56 8 8 Na Na Na 72 Subtotal Fees $6720 $736 $560 $12000 $2125 $0 $22,141---- Expenses (Task 120 - 235 - - "Printing - 5 sets Preliminary Plans and S ecitications __$150 _ 1 set Final Plans and Specifications - Printin b City _ _$100_ 1 set Record Drawings $750 _ Mileage $100 Miscellaneous $300 Subtotal Expenses _ $800_ Construction Expenses ask 310-350 Mileage --$100 Miscellaneous $300 Subtotal Expenses $400 TASK 1 AND TASK 2 - DESIGN SERVICES Total Hours 74 68 74 Na Na Na 6_ - _ Total Feea $8,880 $6,256 $5,180 $0 $9,745 $16,250 $47,111 ask 120 through Task 235 " TOTAL SERVICES THROUGH CONSTRUCTION Total Hours 130 76 82 Na Na n/a 288 - Total Fees $15,600 $6,992 $5,740 $12,000 $11,870 $16,250 $69,652 ask 020 through Task 350 Note: Construction observation based upon a rox. 1M time during 50 calendar day construction I T-- Agenda Item # Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Legislative Briefing b Senator Burdick & Re resentative Galizio lPrepared BY Joanne Ben on L Dept Head Approval: W City Mgr Approval: ISSUE BEFORE THE COUNCIL Council and legislative representatives will discuss issues affecting the City of Tigard and State Senator Ginny Burdick and State Representative Larry Galizio will provide an update on the local issues before the Legislature at this time. STAFF RECOMMENDATION Identify issues of interest or concern to Senator Burdick and State Representative Galizio. KEY FACTS AND INFORMATION SUMMARY Senator Burdick and Representative Galizio were contacted and agreed to meet with the City Council to provide an update on the 2007 Legislative Session. OTHER ALTERNATIVES CONSIDERED N/A CITY COUNCIL GOALS Council Goal # 5: Increase Tigard's involvement with Washington County, Metro, State, ODOT, TriMet and Federal government. Tigard Beyond Tomorrow -Community Character and Quality of Life - Communication Goal - Citizen involvement opportunities will be maximized by providing educational programs on process, assuring accessibility to information in a variety of formats, providing opportunities for input on community issues and establishing and maintaining two-way communication. ATTACHMENT LIST 1- City of Tigard Legislative Priorities FISCAL NOTES N/A iAadm\cirycouncd\councd agenda itemsummaries\ais for gakio burdi&070227Aoc2/16/07 Agenda Item # Meeting Date April 10, 2007 COUNQL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Washington County Vision Action Network Presentation Prepared By. oanne Ben on Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Sia Lindstrom, Executive Director of Vision Action Network and Walt Peck from TVF&R will provide a briefing on Vision Action Network services for the citizens of Tigard. STAFF RECOMMENDATION Identify issues of interest to Tigard citizens which the Vision Action Network may collaborate. KEY FAcrs AND INFORMATION SUMMARY The Mission of the Vision Action Network is to promote and support community-based problem solving through relationship building, planning and implementation processes that coordinate and optimize public, private and individual actions and resources. They assess community need and serve as an information resource for important community issues, prioritize practical strategies that respond to established community needs and work as a catalyst for community initiatives that enhance the quality of life in our community. The Vision Action Network grew out of the two-year Washington County "Vision West" planning process that identified 8 key community issues, and developed collaborative strategies to improve outcomes in these 8 areas. VAN was formed as a private non-profit agency in 2002 to be a catalyst and facilitator for resulting collaborative efforts to improve life for people throughout Washington County. It is led by Executive Director, Sia Lindstrom and a 16-member Board of Directors composed of community leaders from education, social services, healthcare, business, government, and the faith community. They provide vision to help set priorities for the community and leadership to mobilize different sectors to respond to community needs. Over the last three years, successes include: • The facilitation of developing the now independent Corawzr yHousingFurA a community-based non-profit that provides new resources for proposed affordable housing projects for individuals and families living in Washington County. • VAN helped the Commission on Children & Families to create the volunteer center, Hands on Washington Cwty, which opened in the fall of 2004 and, • VAN provided support for the creation of iGiwWxe 6Lnew, a website portal designed to make it easy to donate to non-profit organizations serving Washington County residents. OTHER ALTERNATIVES CONSIDERED N/A. CITY COUNCIL GOALS Council Goal # 5: Increase Tigard's involvement with Washington County, Metro, State, ODOT, Tri Met and Federal government. Tigard Beyond Tomorrow -Community Character and Quality of Life - Communication Goal - Citizen involvement opportunities will be maximized by providing educational programs on process, assuring accessibility to information in a variety of formats, providing opportunities for input on community issues and establishing and maintaining two-way communication. ATTACHMENT LIST N/A. FISCAL NOTES Although no funds have been expended this fiscal year, there is a request for funding in next year's proposed budget. is\adm\citycouncil\council agenda item sumnuries\2007\ais for van presentation 070410.doc3/28/07 V i s i o n VAN Initiatives & Outcomes Action Network specifically involving South County: of Wasbington County • I Give Where I Live - Of the 45 nonprofits on the website, 8 (18%) are based in the South County area. Community Newspapers also distributes the annual Giving Guide in the South County area during the holidays. • Human Rights Council - Still in the formation stages, the Council will be of benefit to all jurisdictions in the County. Tigard PD was represented on the planning team for the Council. • Graffiti Eradication Task Force - Charged with increasing coordination that targets quick eradication, the Task Force has heavy involvement from the Tigard-Tualatin School District, the Tigard Police Department, and the Tualatin Police Department. Outcomes include: creation of a website and associated materials, creation of graffiti ordinances in some jurisdictions that previously didn't have one. • Essential Health Clinic - Vision Action Network has supported the Essential Health Clinic's work since its inception. EHC holds one of its three clinic nights in the South County area, to benefit the uninsured needing access to health care. • School-Based Health Centers - In partnership with the NW Regional ESD and the Commission on Children & Families, VAN is partnering with local school districts, health care systems, and other community partners to create more school-based health centers (SBHC) in the county. The Tigard-Tualatin School District is targeted to be one of the first in the county for SBHC development. • Environmental Sustainability - VAN's recent Sustainability Summit had excellent participation from the South County area, and included both government and nonprofit perspectives. • Mayors' Interfaith Breakfast - Sponsored by the Inter-religious Action Network of Washington County, the Mayors' Interfaith Breakfast is a chance for leaders from public, private, and faith sectors to come together and celebrate the religious diversity of our community. The Breakfast is now in its second year and is one of the Inter-religious Action Network's most popular events. (As of February 2007) The Inter-Religious Action Network and the Vision Action Network invite you to: 11 COMMUNITY FAITH FORUM: • ON HOMELESSNESS LEARN ABOUT THE CAUSES OF HOMELESSNESS AND PARTICIPATE IN ONE-OF-THREE HANDS-ON SOLUTIONS PLANNING WORKSHOPS. SOLUTIONS WORKSHOP CHOICES ARE: Affordable Housing • Food • Children & Youth Wednesday, April 18, 2007 8:00 a.m. - registration & breakfast 8:30 a.m. to 1:00 p.m. - program & lunch Providence St. Vincent Medical Center Auditorium 9205 SW Barnes Rd, Portland - East Pavilion Entrance KEYNOTE PRESENTATIONS: Sydney Sherwood Executive Director of the Good Neighbor Center Ms. Sherwood was instrumental in forming the East Washington County Shelter Partnership Council. Currently she serves on the Washington County Housing Advisory Committee and the Washington County Housing Authority. Ms. Sherwood is in her fifth year as a Tigard City Council member. Rev. Chuck Currie Interim Minister at Parkrose Community United Church of Christ Over the years Rev. Currie has eamed a reputation as one of the leading advocates for the homeless in Oregon. A member of the state of Oregon's Ending Homelessness Advisory Committee, he also sits on the Public Policy Committee for Ecumenical Ministries of Oregon. Welcome by Tom Brian Chair, Washington County Board of Commissioners Registration: $20 and includes a light breakfast and lunch. Seating is Limited - Register Today! 2007 Community Faith Forum: Focus on Homelessness - Wednesday, April 18, 2007 1 will attend the following Workshop Solutions session: ❑ Affordable Housing ❑ Food ❑ Children & Youth Name(s): Organization: Address: Ph: Fax: Email: Faith affiliation/faith community (optional): A light breakfast and lunch will be provided: ❑ Please provide me a vegetarian lunch ❑ Please note any other dietary restrictions: Questions? Please call 503.846.5792 Please send your registration along with a check for $20 payable to the Vision Action Network Mail to: 3700 SW Murray Blvd, Ste. 190, Beaverton, OR 97005 - Deadline for registration: April 13, 2007 9fnnf,nl9,IMfYRt ~e unwg A3830APV 6uisnoll spuai.ij A N 3" d 0 1 1 A 3 0 'IVUIN3D ue3 nog( a~uaja Buue2 W4!Unulut0i n!ylinary v 8uippna lea; lii .P V I AS PGIUOSaad Oi - • NO snooj • 1 1 Inter-Religious Action Network c/o Vision Action Network 3700 SW Murray Blvd, Ste. 190 Beaverton, OR 97005 V i s i o n VISION ACTION NETWORK P Action BOARD OF DIRECTORS FY07- Network 08 of Washington County President: Jerralynn Ness Rick Van Beveren Executive Director Owner Community Action Reedville Cafe Carlos Per6z Secretary: Deputy Superintendent Hillsboro School District The Rev. Dr. Wes Taylor Tualatin United Methodist Church Katherine Persson President Treasurer: PCC - Rock Creek Campus Walt Peck Janet Rash Director of Community Services Community Relations Manager Tualatin Valley Fire & Rescue Intel Corporation Past-President: Dick Stenson Conrad Pearson President & CEO Owner Tuality Healthcare Pearson Financial Group Ex-Officio Member Board of Directors: Emily Gottfried Janice Burger Immediate Past Chair Administrator Inter-religious Action Network St. Vincent Medical Center Bob Davis Resource Council: County Administrator Tom Brian, Chair Washington County Washington County Commissioners Roy Kim Charlie Cameron Owner/General Manager Retired Washington County Central Bethany Development Administrator Jan McGowan Steve Clark, President & Publisher Associate Director Community Newspapers SOLV Hon. Marco Hernandez Mary Monnat Washington County Circuit Court PresidenYCEO LifeWorks NW 3700 SW Murray Blvd, Ste. 190, Beaverton, OR 97005 p: 503.846.5792 f: 503.846.5793 Vision Action Vision Action Network The Vision Action Network (VAN) is a private non- profit organization committed to the promotion and support of collaborative community-based problem Network solving in Washington County. of Washington County Mission: To promote and support community-based problem solving through relationship building, planning and implementation processes that coordinate and optimize public, private and individual actions and resources. Goals: Listen. Focus. Act. Listen: VAN assesses community needs and serves as an information resource for important community issues. Focus: VAN prioritizes practical strategies that respond to established community needs. Act: VAN is a catalyst for community initiatives that enhance the quality of life in our community. These initiatives are encouraged and sustained in one of three ways: 1. By supporting the mission of an existing organization. 2. Through a partnership among several organizations. 3. Through a collaborative effort involving multiple partners, which may result in the creation of a new organization. VAN Project Stages as of April 2007 RECOMMENDATION & DECISION LISTEN FOCUS 0 Italics indicate proposed projects. "LISTEN" (gather input) "FOCUS" (plan) "ACT" (implement) Affordable Housing * Graffiti Eradication CASH (Creating Assets, Savings & Hope) Aging & Disabled * Kindergarten Readiness Human Rights Council Basic Needs Philanthropy I Give Where I Live Behavioral Health * Project Access of Wash Co Inter-Religious Action Network Children & Families * School-based Health Centers Walk for Unity Education Sustainability Environment Primary Health Care Other- short term capacity- building issues * On-going input/planning groups already exist. RESULTS (monitor & support): Community Housing Fund, Parish Nursing, One Economy/Beehive, Essential Health Clinic, Hands On Washington County, Tigard Community Fund vision Action Vision Action Network Network Membership Form I want to be a part of a more collaborative Washington County! Become a catalyst for a more collaborative, results-oriented Washington County. Annual membership in the Vision Action Network (VAN) represents more than an investment in our civic infrastructure; it represents an investment in our community. Your tax-deductible donation will help provide the necessary tools to help shape the future of Washington County! Take the first step and become a VAN PARTNER... $100 VAN Partner • Participate in issue work groups & implementation efforts • Your organization listed as a VAN Partner on the VAN web site • Receive printed or electronic newsletter & annual report • Have access to a remarkably diverse and effective network of public, private, non-profit and community based organizations in Washington County Want to get even more involved? We offer four enhanced membership opportunities: $500 LISTEN Member O $1,000 FOCUS Member $2,500 ACTION Member O $5,000 RESULTS Member Receive all the benefits of a VAN PARTNER PL US: See your organization listed in an annual advertisement in local community newspapers My organization would like to join the Vision Action Network as a: 0 VAN Partner ($100) Q Listen Member ($500) 0 Focus Member ($1,000) 0 Action Member ($2,500) 0 Results Member ($5,000) 0 Enclosed is my donation of $ O Invoice me for my donation of $ Name: Company: Address: Phone: Fax: Email: Mail or fax your membership form to: Vision Action Network 3700 SW Murray Blvd, Suite 190 - Beaverton, OR 97005 p: 503.846.5792 f. 503.846.5793 e: van@co.washington.or.us The Vision Action Network is a non-profit corporation registered in Oregon. Your donation is tax-deductible. Our federal tax ID number is 93-1317190. d Vision Action Presentation to Tigard City Council N e t w o r k April 10, 2007 of Washington County ,Wa keg Vision N U A c t i o n Networks of Wasbington County t. 3 , t 1 VAN's Creation "Enhanced collaboration was critical to Washington County's future, but it lacked a champion. " • Establishes a permanent forum to develop, prioritize, and implement a true community agenda Partnership of government, education, social service, business, and faith sectors • Formed as an autonomous non-profit agency in 2002 VAN Issue Areas • Affordable Housing *Children & Families • Aging & Disabilities *Education • Basic Needs •Environment • Behavioral Health *Primary Health Care 2 Community Problem-Solving Recommendation & Decision INPUT PLANNING I F-MEN T, VAN Goals • LISTEN: VAN assesses community needs and serves as an information resource for important community issues. • FOCUS: VAN prioritizes practical strategies that respond to established community needs. • ACT: VAN is a catalyst for community initiatives that enhance the quality of life in our community. VAN Project Stages, as of April 2007 Recommendation &-Decision_ LISTEN FOCUS LISTEN FOCUS ACT Affordable Housing* Graffiti Eradication CASH (Crewing Assets, Savings & Hope) Aging & Disabled* Kindergarten Readiness Human Rights Council Philanthropy Basic Needs I Give Where I Live * Project Access of Wash Co Behavioral Health Inter-Religious Action Network Children & Families* School-Based Health Clinics Walk for Unity Education Sustainability Environment Primary Health Care RESULTS (monitor & support): Community Housing Fund, Parish Nursing, One Economy/ Beehive, Essential Health Clinic, Hands On Washington County, Tigard Community Fund JG1*veWhere,: I' Live. net OF &MMUNITY o. n n e c,t w t ha`C„u :s e' 14 HoUSING FUND: .~y Inc 7. HANDS ON fJ WASHINGTON COUNTY HEssential ealth Clinic 4 A few accomplishments... • Community Housing Fund • Economic Livability Summit • Hands On Washington County • I Give Where I Live • Inter-religious Action Network • Kindergarten Readiness Summit In the works... • Health Care: access to health care • Environment: sustainability • Children & Families: school-based health centers • Cross-cutting: human rights 5 Health Care Access • Problem: Access to primary health care • Solution: Coordination of charity care - create Project Access of Washington County • Partners: - Essential Health Clinic - Kaiser - Legacy/Meridian Park - Pacific University - Providence/St Vincent Medical Center - Tuality Healthcare & Health Alliance - Virginia Garcia Memorial Health Center - Washington County Health & Human Services School-Based Health Centers • Problem: Lack of access to health care for our community's children • Solutions: Create school-based health center in each school district • Partners: - Comm. on Children & Families - Washington County - Northwest Regional ESD - School districts - Vision Action Network - Local hospital systems - Virginia Garcia - Local universities 6 Human Rights Council • Problem: - Distribution of hate material among our children and in our communities - Need to promote unity and an appreciation for our community's growing diversity • Goal: Consider creating a county-wide human rights group • Progress: - Convening initial Human Rights Council - Seeking funding and permanent home Environment • Problem: Lack of broad-based community engagement and consensus about key environmental issues • Solutions: - Convene advisors group - Survey community experts/stakeholders to provide focus - Organize community summit to foster engagement and solutions - Conduct feasibility study for Sustainability Office in Washington County 7 Initiatives Specifically Involving South Coun • I Give Where I Live • Human Rights Council • Graffiti Eradication Task Force • Essential Health Clinic • School-Based Health Centers • Environmental Sustainability • Mayors' Interfaith Breakfast Mayors' Interfaith Breakfast February 23, 2007 8 VAN Revenue Sources FY05-06 Corporate 9% Special Eve nts* 9% Public Foundation 74% & Non-profit 6% Individual 2% Special Events revenue includes corporate sponsorships and participant registrations. VAN Organizational Members VAN Results ($5000+) VAN Focus ($1000+) • City of Beaverton • Central Bethany Dev't • City of Hillsboro • Legacy Health System • Intel Oregon • Beaverton Together! • Providence/St Vincent VAN Listen ($500+) • Tualatin Valley Fire & . Clean Water Services Rescue • Tuality Healthcare • Community Action • Washington County • PCC-Rock Creek • Reedville Cafe 9 VAN Organizational Members VAN Partners ($100+) FY05-07 Special Event Sponsors: • All Together Now Bon Appetit • Bahais of Beaverton Central Bethany Development • Bahais of Washington County Clean Water Services • Boys & Girls Aid Society Intel Oregon • Domestic Violence Resource Kaiser Foundation Center Legacy Health System • Family Bridge Nike NW Natural • Hands On Greater Portland PCC-Rock Creek • Housing Development Corp of "Pearson Financial NW Oregon • PGE • LifeWorks NW :Providence Health System • One Economy/ Beehive Tualatin Valley Water District • Ride Connection Tuality Healthcare • Tualatin United Methodist Church Verizon Foundation "The real test of whether this effort has transcended from a `project' to a `movement' can only be measured in its tangible results five, ten and twenty years from now. " - Tom Brian, Chair, Washington County Board of Commissioners 10 Agenda Item # 6 Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title A Resolution Granting an Exemption from Property Taxes Under Tigard Municipal Code Section 3.50 for Three Non-Profit Low Income Housing Projects Owned and Operated by Community Partners for Affordable Housing (CPAH) and One Housing Project that is Operated by Tualatin Valley Housing Partners EHP. Prepared By: Robert Sesnon Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall three low-income housing projects owned and operated by the Community Partners for Affordable Housing (CPAH) and one housing project managed and operated by the Tualatin Valley Housing Partners (TVHP) be exempted from City of Tigard property taxation for 2007? STAFF RECOMMENDATION Staff recommends approval of this resolution. KEY FACTS AND INFORMATION SUMMARY Tigard Municipal Code 3.50 allows certain organizations providing low income housing to be exempted from Tigard property taxation upon application by March 1 of each year and a demonstration of compliance with certain criteria listed in the Code. Community Partners for Affordable Housing owns and operates Greenburg Oaks, located at 11875 SW 91" Avenue in Tigard. Community Partners for Affordable Housing also owns a single family house located at 9330 SW Tangela Court in Tigard and a low-income housing project on SW Hall Boulevard, known as the Village at Washington Square. These projects are operated as low-income housing and meet all criteria listed in the Tigard Municipal Code. Community Partners for Affordable Housing submitted three applications for exemption from 2007 property taxes on February 20, 2007, which is within the March 1 deadline. All three properties were exempted from property taxation in 2006. Tualatin Valley Housing Partners has applied for the low-income housing tax exemption for the 119-unit Hawthorne Villa, located at 7705 SW Pfaffle Street. The application for exemption was submitted on February 28, 2007, which is also within the March 1 deadline. This will be the third year that Tualatin Valley Housing Partners has applied for this exemption and their property was exempted in 2006. The applications were reviewed by staff in the City's Community Development Department and staff determined that the requested tax exemptions are consistent with the applicable Tigard Municipal Code and also the adopted City Housing Policy. The attached resolution gives consent from the City of Tigard for this tax abatement. Under State law, Community Partners for Affordable Housing and Tualatin Valley Housing Partners must receive similar approval from jurisdictions accounting for 51% (or more) of the total property taxes to be levied on these properties. Both organizations will also make application to the other taxing units. OTHER ALTERNATIVES CONSIDERED Do not approve this tax exemption. CITY COUNCIL GOALS N/A ATTACHMENT LIST Resolution Three applications from Community Partners for Affordable Housing. One application from Tualatin Valley Housing Partners. Memos from Duane Roberts regarding CPAH's and TVHP's applications meeting Tigard Municipal Code criteria. FISCAL NOTES The estimated assessed value of the four properties and the estimated impact of an exemption from City of Tigard property taxes are shown below: Property Estimated City of Tigard City of Tigard Total Tax Rate Total Property Assessed Value * Tax Rate Property Tax Tax Impact Including Bond Impact Levy) (Estimated) Village at $2,585,496 $2.7266/$1,000 $7,050 $15.7510/$1,000 $40,724 Washington Square Single Family $176,183 $2.7266/$1,000 $480 $15.7510/$1,000 $2,775 Home - 9330 SW Tan ela Ct. Greenbur Oaks $3,007,170 $2.7266/$1,000 $8,199 $15.7510/$1,000 $47,366 Hawthorne Villa $2,422,300 $2.7266/$1,000 $6,605 $15.7510/$1,000 $38,154 Total Impact $22,334 $129,019 *Because these properties have been exempted from property taxation in the past, Washington County does not show a current assessed value. This figure is an estimated value. FOR AFFORDABLE HOUSING, INC. 9A ft. ~ a W -4-1 PO Box 23206 • Tigard OR 97281-3206 • Tel:503.968.2724 • Fax:503.598.8923 • www.cpahinc.org • info@gmhirrc.org City of Tigard Aimrk - on forTaxA04 M A Vi l Fdmja y 19, 2007 Village at Washington Square 11157-11163 SW Hall Boulevard, Tigard A. Property Description B. Project's Charitable Purpose C. Certification of Resident Income Levels D. How Tax Exemption Will Benefit Residents E. Tax Exempt Status F. Verification of Information G. IRS Letter A. Property Description Village at Washington Square is located at 11157-11163 SW Hall Boulevard, between SW Spruce and SW Pfaffle in Tigard. The site is located within the Washington Square Regional Center and is proximate to many employment opportunities as well as public transportation and other services. The Village at Washington Square includes three residential buildings with a total of 26 dwelling units, and a community building, all arranged around a central courtyard/play yard. The project includes one studio, seven one-bedroom, five two-bedroom, seven three-bedroom and six four-bedroom units. Eleven of the units are traditional apartment flats, while the other 15 are 2 story townhomes with bedrooms above the main floor living space. The project includes a community green space with benches, a path and a butterfly garden. The total site sits on .84 acres. Legal Description: Partition Plat 1998-038, Lot 1 and Partition Plat 1998-038, Lot 2 in the City of Tigard, County of Washington, State of Oregon Tax Lot: 1 S 135DA (04600 & 04700) B. Project's Charitable Purpose The mission of Community Partners for Affordable Housing, Inc. (CPAH) is to promote a healthy community through the development of. permanent affordable housing, sustainable economic growth, and community-based partnerships. When it opened in 2002, The Village at Washington Square was the first addition of affordable units to the Tigard housing stock in a decade. The 26 units are priced to be affordable to very low, low, and moderate-income residents. The project is subject to an extended use agreement to keep the rents affordable for 60 years, effectively the full life of the property. This covenant is recorded with the title of the property and requires that rents will be affordable to households at 30%, 45% and 60% of area median income and significantly below market rents. Half of the units are three and four bedroom apartments serving larger families who are often unable to find affordable rental opportunities in Tigard. CPAH maintains active partnerships with the Tigard Police Department, Tualatin Valley Fire & Rescue, Tigard Libraries, and the Tigard School District to enhance the safety and quality of life for residents and to be sure that our programs are well-coordinated with other community resources. CPAH works closely with Community Action and other agencies to provide information and referral as well as emergency services like food boxes and rent and utility assistance. Coordination agreements with social service programs such as HopeSpring (a partnership of Lutheran Family Services, Community Action Organization, Good Neighbor Center, Luke-Dorf, and Lifeworks, NW enhance ongoing case management and link stable housing with successful program outcomes. The Community Center at The Village at Washington Square is the focal point of the support, skill building, and community building activities offered by CPAH through its resident services programs. CPAH's on-site three-computer learning center is used by youth for homework, research, e-mail, and educational games; and by adults for job search activities and Internet access. CPAH offers a variety of adult services as well. These include Neighborhood Watch, classes in support of parenting skills, budgeting and other financial literacy skills, and nutritional shopping and cooking. The center is also host to weekly HopeSpring self-sufficiency classes. APPLICATION FOR TAX ABATEMENT PAGE 2 OF 3 The Village at Washington Square is located within a census tract (309) which has a higher than average concentration of low-income rental households. The number of residents without a high school diploma is notably higher than for Tigard as a whole (15% vs. 9%). This area has the second highest concentration of children under 9 of the eight census tracts in Tigard. While this area represents 9% of Tigard's population, it is home to nearly 16% of the city's minority households. C. Certification of Resident Income Levels Resident income levels are verified upon application for tenancy. Residents may remain in their units as long as they income qualify at entry. Rents are well below the market for the area. We certify that all apartments in this project are targeted to and remain affordable to households earning at or below 60% of the AMI. Compliance with income restriction requirements is audited annually by the State of Oregon Department of Housing and Community Services, Washington County Office of Community Development, and by our limited partner investor, Key Bank. D. How Tax Exemption Will Benefit Residents 100% of the property tax exemption is a direct subsidy for the residents. Every dollar reduction in operating costs is passed on as a reduction in the scheduled rents. Some costs, such as the cost of operating our youth programs, must be funded from outside sources. Without property tax abatement, we would have to shift some of our fundraising efforts from developing sources for these programs and use them instead to cover basic operations. It can be argued that using property tax revenues to subsidize well managed affordable housing units results in a net savings of public resources. Fewer and less-severe police calls, healthier students, and stably housed social service consumers, all provide a direct reduction in the demand for government funded services. E. Tax Exempt Status CPAH is the general partner of the Village at Washington Square Limited Partnership, a single asset nonprofit corporation. CPAH's IRS Determination Letter is attached. CPAH undergoes full audit of its books annually, as does the Village at Washington Square. The State of Oregon Housing and Community Services Department and the U.S. Department of Housing and Urban Development review the project and resident files annually. F. Verification of Information I hereby certify that the information in this application for tax abatement is accurate and complete to the best of my knowledge. Income Property Management Company performs day-to-day management of the property and is responsible for certifying income levels of each resident for compliance with program guidelines. Martin Soloway, Deputy Director, Housing Date APPLICATION FOR TAX ABATEMENT PAGE 3 OF 3 INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR P. O. BOX 2508 CINCINNATI, OH 45201 Employer Identification Number: Date: 93-1155559 NAB DLN: 17053030720009 COMMUNITY PARTNERS FOR AFFORDABLE Contact Person: HOUSING THOMAS E O'BRIEN ID# 31187 PO BOX 23206 Contact Telephone Number: TIGARD, OR 97281-3206 (877) 829-5500 Our Letter Dated: February 1995 Addendum Applies: No Dear Applicant: This modifies our letter of the above date in which we stated that you would be treated as an organization that is not a private foundation until the expiration of your advance ruling period. Your exempt status under section 501(a) of the Internal Revenue Code as an organization described in section 501(c)(3) is still in effect. Based on the information you submitted, we have determined that you are not a private foundation within the meaning of section 509(x) of the Code because you are an organization of the type described in section 509(a)(1) and 170(b)(1)(A)(vi)'. Grantors and contributors may rely on this determination unless the Internal Revenue Service publishes notice to the contrary. However, if you lose your section 509(a)(1) status, a grantor or contributor may not rely on this determination if he or she was in part responsible for, or was aware of, the act or failure to act, or the substantial or material change on the.part of the organization. that resulted in your. loss of such status, or if he or she acquired knowledge that the Internal Revenue Service had given notice that you would no longer be classified as a,-section 509(a)(1) organization. If we have indicated in the heading of this letter that an addendum applies, the addendum enclosed is an integral part of this letter. Because this letter could help resolve any questions about your private foundation status, please keep it in your permanent records. If you have any questions, please contact the person whose name and telephone number are shown above. Sincerely yours, District Director Letter 1050 (DO/CG) FOR AFFORDABLE HOUSING, INC. • PO Box 23206 • Tigard OR 97281-3206 • Tel:503.968.2724 • Fax:503.598.8923 • www.cpahinc.org • info@cpahinc.org City of Tigard Application for Tax Abatement February 19,2M7 Tangela Single Family Rental Home 9330 SW Tangela A. Property Description B. Project's Charitable Purpose C. Certification of Resident Income Levels D. How Tax Exemption Will Benefit Residents E. Tax Exempt Status F. Verification of Information G. IRS Letter A. Property Description Community Partners for Affordable Housing, Inc. acquired the single family "Tangela House" at 9330 SW Tangela in Tigard, on December 31, 1999, with assistance from the Washington County CDBG program and a loan from Washington Mutual Savings Bank. It is located just two blocks from CPAH's multifamily project, Greenburg Oaks Apartments. The two story 1,916 square foot house sits on a 5,450 square foot lot and is zoned R-7 residential. CPAH converted an upstairs bonus room into a 5th bedroom and completed other necessary repairs after initial acquisition. In late 2006, the long term resident of the house gave notice that her family was growing and moving out and her Section 8 certificate was being reduced. She gave notice and moved into a smaller house consistent with her reduced Section 8 subsidy. We consider this a very successful outcome of a long term occupancy providing a stable neighborhood environment to raise a family that had previously experienced transient and sub-standard housing. The house has undergone more than $5,000 in repairs and replacements and has been re-rented to another large low income family. Legal Description: Barbee Court, Lot 1, Tigard, County of Washington, State of Oregon. Tax Lot: 1 S 135DC-05300. B. Project's Charitable Purpose The mission of Community Partners for Affordable Housing, Inc. (CPAH) is to promote a healthy community through the development of permanent affordable housing, sustainable economic growth, and community-based partnerships. CPAH acquired the four-bedroom single family home in order to assist the County and the Good Neighbor Center Shelter in meeting a "replacement unit" requirement triggered by the Uniform Relocation Act when the shelter acquired its current site and demolished a single family home housing a low-income family. CPAH completed needed repairs and upgraded the home to a five- bedroom dwelling, in order to provide a rare opportunity in our community - an affordable single-family rental house for a very large family. The home is proximate to CPAH's Greenburg Oaks property, where management and resident services are available to the household. These services include a computer center, community room, neighborhood watch, Individual Development Account grants, and other programs. The resident services coordinator and property management staff visit the home on a regular basis to ensure that the property is well managed and to maintain an ongoing relationship with the residents. The home is located within a census tract (309) which has a higher than average concentration of low-income rental households. The number of residents without a high school diploma is notably higher than for Tigard as a whole (15% vs. 9%). This area boasted the second highest APPLICATION FOR TAX ABATEMENT PAGE 2 OF 3 concentration of children under 9 of the eight census tracts in Tigard. While this area represents 9% of Tigard's population base, it is home to nearly 16% of the city's minority households. C. Certification of Resident Income Levels Resident income level is verified upon application, and must be less than 60% of the area's median income. Income is recertified annually. The current tenant holds a Section 8 certificate and is also recertified by the Housing Authority of Washington County for continuing qualification for that program. We certify that all residents served by this property earned at or below 60% of the AMI. D. How Tax Exemption Will Benefit Residents 100% of the property tax exemption is passed on as a direct subsidy for the residents. Every dollar reduction in operating costs results in a reduction in the scheduled rents. Some costs, such as the cost of operating our youth programs, must be funded from outside sources. Without property tax abatement, we would have to shift some of our fundraising efforts from developing sources for these programs and use them instead to cover basic operations. It can be argued that using property tax revenues to subsidize well managed affordable housing units results in a net savings of public resources. Fewer and less-severe police calls, healthier students, and stably housed social service consumers, all provide a direct reduction in the demand for government funded services. E. Tax Exempt Status CPAH is direct owner of the Tangela property and is a nonprofit 501(c)(3) organization. Our operations are audited annually to, among other things, confirm that we are in compliance with our charitable status and with requirements of the County grant and Washington Mutual loan documents. Verification of Information I hereby certify that the information in this application for tax abatement is accurate and complete to the best of my knowledge. Income Property Management Company performs day-today management of the property and is responsible for certifying income levels of each resident for compliance with program guidelines. Martin Soloway, Deputy Director, Housin Date APPLICATION FOR TAX ABATEMENT PAGE 3 OF 3 w INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR P. O. BOX 2508 CINCINNATI, OH 45201 Employer Identification Number: Date: 93-1155559 IIAB i 1 INS DLN : 17053030720009 COMMUNITY PARTNERS FOR AFFORDABLE Contact Person: HOUSING THOMAS E O'BRIEN ID# 31187 PO BOX 23206 Contact Telephone Number: TIGARD, OR 97281-3206 (877) 829-5500 Our Letter Dated: February 1995 Addendum Applies: No Dear Applicant: _ This modifies our letter of the above date in which we stated that you would be treated as an organization that is not a private foundation until the expiration of your advance ruling period. Your exempt status under section 501(a) of the Internal Revenue Code as an organization described in section 501(c)(3) is still in effect. Based on the information you submitted, we have determined that you are not a private . foundation within the meaning of section 509(a) of the Code because you are an organization of the type described in section 509(a) (1) and 170(b)(1)(A)(vi)'. Grantors and contributors may rely on this determination unless the Internal Revenue Service publishes notice to the contrary. However', if you lose your section 509(a)(1) status, a grantor or contributor may not rely on this determination if he or she was in part responsible for, or was aware of, the act or failure to act, or the substantial or material change on the part of the organization that resulted in your loss of such status, or if he or she acquired knowledge that the Internal Revenue Service had given notice that you would no longer be classified as a section 509(a) (1) organization. If we have indicated in the heading of this letter that an addendum applies, the addendum enclosed is an integral part of this letter. Because this letter could help resolve any questions about your private foundation status, please keep it in your permanent records. If you have any questions, please contact the person whose name and telephone number are shown above. Sincerely yours, c~- ~.4" District Director Letter 1050 (DO/CG) NOW- FOR AFFORDABLE HOUSING, INC. 9~r~ • PO Box 23206 • Tigard OR 97281-3206 • Tel:503.968.2724 • Fax:503.598.8923 • www.cpahinc.org • info@cpahinc.org City of Tigard Application for Tax Abatement Febn.l 19, 2007 Greenburg Oaks (formerly Villa La Paz) Apartments 11875 SW 91 stAvenue, Tigard A. Property Description B. Project's Charitable Purpose C. Certification of Resident Income Levels 1D. How Tax Exemption Will Benefit Residents E. Tax Exempt Status F. Verification of Information G. IRS Letter A. Property Description Greenburg Oaks Apartments (Tax account # R-276472),11895 SW 91" Avenue, is just off Greenburg Road and Pacific Highway. The site sits on 3.01 acres and consists of 84 units in four buildings: 12 one-bedroom/one-bath 564 square foot units, 60 two-bedroom/one-bath 839 square foot units, and 12 three-bedroom/one-bath 1,007 square foot units. In 1998, CPAH added a community facility to the complex. The center houses a computer center, library, multipurpose room and property management office. In 2005/2006, CPAH completed a $3.5 million dollar rehabilitation of the apartment interiors, building exteriors and project site. Highlights of the rehab include: replacing all building siding and windows, re-configure and repave the parking lot, replace all property landscaping, upgrade the recreation facilities, renovate and upgrade project site lighting and signage. Interior work included replacing all waterlines and drains, replacing all cabinets, countertops, light fixtures and most appliances (refrigerators, dishwashers, hot water heaters) with Energy Star rated devices, replacing all window coverings and many carpets, re- texture and repaint all apartments. The project featured energy saving appliances, compact fluorescent light fixtures, better insulation, and low volume plumbing fixtures, all of which have reduced tenant energy costs. The rehab work was done without displacing any tenants and with only minimal rent increases. The project has now achieved full stable occupancy, has experienced reduced maintenance and energy costs, and, after many years of operating deficits, has paid off all its accounts payable and has positive cash flow each month. Financing for the project came from a number of public and private grants and low income housing tax credit investments. No new debt was taken on. Approximately $10,000 of the funding was provided by the City of Tigard Affordable Housing Fee Assistance program. Other funding came from the Meyer Memorial Trust, the Paul Allen Foundation, the Oregon Community Foundation, Washington County Office of Community Development through the CDBG and HOME investment programs, and the State of Oregon. Key Bank increased its investment by over $2 million dollars. Legal Description: The site is located in the southeast'/4 of Section 35, Township 1 South, Range 1 West (Willamette Meridian). Tax Lot: The Washington County Map shows the site as tax lot 23-74-2000, Parcels 1, II, and III. B. Project's Charitable Purpose The mission of Community Partners for Affordable Housing, Inc. (CPAH) is to promote a healthy community through the development of: permanent affordable housing, sustainable economic growth, and community-based partnerships. CPAH's acquisition and renovation of the complex has ensured that the previously neglected property is professionally managed as safe, decent, and affordable housing for families with a shrinking number of housing options. Our property has significantly reduced the housing burdens of our families. The efficient delivery of our services has improved the health and prospects of all APPLICATION FOR TAX ABATEMENT PAGE 2 OF 4 household members, and served to break the multi-generational cycles of poverty. CPAH's commitment to 40 years of affordability for those at 50 and 60% of median income guarantees that these apartments will be affordable effectively for the life of the buildings. CPAH maintains active partnerships with the Tigard Police Department, Tualatin Valley Fire & Rescue, Tigard Libraries, and the Tigard School District to enhance the safety and quality of life for residents and to be sure that our programs are well-coordinated with other community resources. Partnerships with Community Action, Good Neighbor Center, Luke-Dorf, HopeSpring, Lifeworks NW and other organizations to provide information and referral as well as emergency services like food boxes and rent and utility assistance. Coordination agreements with these agencies enhances ongoing case management and has provided a fresh start to many families facing significant barriers to moving from homelessness to permanent housing. Several families each year are being reunited with their children as a result of receiving a housing opportunity at Greenburg Oaks. The Community Center at Greenburg Oaks is the focal point of the support, skill building, and community building activities offered by CPAH through its resident services programs. CPAH's on-site six-computer leaming center is used by youth for homework, research, e-mail, and educational games; and by adults for job search activities and Internet access. The Tigard Library has twice obtained grant resources to purchase children's material for our on-site library. CPAH offers a variety of adult services as well. These include classes in support of parenting skills, budgeting and other financial literacy skills, and nutritional shopping and cooking. The community center is also host to a number of general community activities including rent readiness courses, HopeSpring parenting classes, financial literacy classes, parenting safety skills and budget and nutrition classes. The community center hosts weekly meetings for AA, NA, and Alanon groups. The rehab project was designed to extend the functional life of this project by at least another 30 years. The affordable rents covenant with the state was extended for another 40 years. No households have been displaced as a result of the rehab. Rents at the project will remain affordable to households earning 50% of less of the area median income. Three of the apartments will be reserved for low income families with at least one member in active recovery from alcohol or drug addiction C. Certification of Resident Income Levels Resident income levels are verified upon application for tenancy and are recertified each year. CPAH has covenants with the state and with Washington County to use the property exclusively for low income rentals for a period of at least 40 years. These covenants require that all households have earnings at or below 60% of the area median income. Some units are restricted to households earning at or below 50%. Compliance with these covenants is monitored by the State of Oregon Department of Housing and Community Services and by theWashington County Office of Community Development. We certify that all apartments in this property are targeted to and remain affordable to households earning at or below 60% of the Area Median Income. D. How Tax Exemption Will Benefit Residents 100% of the property tax exemption is a direct subsidy for the residents.. Every dollar reduction in operating costs is passed on as a reduction in the scheduled rents. Some costs, such as the cost of APPLICATION FOR TAX ABATEMENT PAGE 3 OF 4 operating our youth programs, must be funded from outside sources. Without property tax abatement, we would have to shift some of our fundraising efforts from developing sources for these programs and use them instead to cover basic operations. It can be argued that using property tax revenues to subsidize well managed affordable housing units results in a net savings of public resources. Fewer and less-severe police calls, healthier students, and stably housed social service consumers, all provide a direct reduction in the demand for government funded services. E. Tax Exempt Status CPAH is general partner of the Villa La Paz Limited Partnership, a single asset entity established for the purpose of acquiring the apartments and qualifying for low-income housing tax credits. CPAH's IRS Determination Letter is attached. CPAH undergoes a full independent audit of its books annually, as does Villa La Paz, LP. Both the State of Oregon Housing and Community Services Department and the U.S. Department of Housing and Urban Development review the project and resident files annually. F. Verification of Information I hereby certify that the information in this application for tax abatement is accurate and complete to the best of my knowledge. Income Property Management Company performs day-to-day management of the property and is responsible for certifying income levels of each resident for compliance with program guidelines. 7,0 D2 Martin Soloway, Deputy Director, Housin Date APPLICATION FOR TAX ABATEMENT PAGE 4 OF 4 INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR P. O. BOX 2508 CINCINNATI, OH 45201 Employer Identification Number: Date: 93-1155559 MAR DLN : 17053030720009 COMMUNITY PARTNERS FOR AFFORDABLE Contact Person: HOUSING THOMAS E O'BRIEN ID# 31187 PO BOX 23206 Contact Telephone Number: TIGARD, OR 97281-3206 (877) 829-5500 Our Letter Dated: February 1995 Addendum Applies: No Dear Applicant: _ This modifies our letter of the above date in which we stated that you would be treated as an organization that is not a private foundation until the expiration of your advance ruling period. Your exempt status under section 501(a) of the Internal Revenue Code as an organization described in section 501(c)(3) is still in effect. Based on the information you submitted, we have determined that you are not a private foundation within the meaning of section 509(a) of the Code because you are an organization of the type described in section 509(a)(1) and 170(b)(1)(A)(vi)'. Grantors and contributors may rely on this determination unless the Internal Revenue Service publishes notice to the contrary. However, if you lose your section 509(a)(1) status, a grantor or contributor may not rely on this determination if he or she was in part responsible for, or was aware of, the act or failure to act, or the substantial or material change on the.part of the organization, that resulted in your loss of such status, or if he or she acquired knowledge that the Internal Revenue Service had given notice that you would no longer be classified as a,•section 509(a)(1) organization. If we have indicated in the heading of this letter that an addendum applies, the addendum enclosed is an integral part of this letter. Because this letter could help resolve any questions about your private foundation status, please keep it in your permanent records. If you have any questions, please contact the person whose name and telephone number are shown above. Sincerely yours, District Director Letter 1050 (DO/CG) Application for property tax exemption under Chapter 3.50 of the Tigard Municipal Code. 1. Description of the property: a. Legal owner: Hawthorne Villa Limited Partnership b. Tax account number: 8282429 c. Address: 7705 SW Pfaffle, Tigard 97223 d. Date partnership formed: 1996 e. Original funding source: Tax exempt bonds and 4% tax credits f. Managing General Partner: Tualatin Valley Housing Partners 6160 SW Main Beaverton, OR 97008 General Partner: Hawthorne Associates Limited Partnership c/o PNC MultiFamily Capital 121 SW Morrison, Suite 1300 Portland, OR 97204-3635 g. Type of use: 119 multi-family rental apartments consisting of 30 studios, 83 one-bedroom, 5 two- bedroom, and 1 house (used as community center for resident services programs) 2. Charitable purpose: 100% of the units are rent-restricted by the investor, lender, and State of Oregon (with a restrictive covenant recorded on the deed) to residents earning less than 60% of the Portland area median income (AMI). However, a majority of the tenants at Hawthorne Villa frequently fall well below this income restriction. The maximum rental rates that may be charged are limited to 30% of the income of a family earning 60% of AMI. Rental rate maximums are set annually by HUD. TVHP's mission is: Tualatin Valley Housing Partners promotes self-sufficiency through affordable housing for low and moderate income people throughout the Tualatin Valley. We. accomplish our mission by meeting our objectives: • Acquiring, renovating & preserving existing affordable housing • Building partnerships with for-profit, non-profit & public sector entities in developing new affordable housing • Creating computer centers that provide residents with increased access to information & job skills • Design housing sited to increase access to job opportunities & services via public transportation • Expand on-site resident-centered services that increase access to community resources 3. TVHP hereby certifies that all of the residents at Hawthorne Villa meet the requirement of IRS Section 42 income restrictions for projects limited to those earning 60% or less of Area Median Income. 4. Resident benefits of the property tax exemption: Ongoing tax exemptions will contribute to more efficient property operations and continued affordable housing by: a) reducing or eliminating annual rent increases that are often necessary to avoid/offset increasing property operating costs and deficits. - b) stabilization of the tenant population by enabling continued residency for those who could not afford significant rent increases c) being able to deliver resident services programs 5. A copy of the IRS 501 (c) (3) exemption is attached. I hereby certify that the above information is correct. Hawthorne Villa Limited Partnership By: Tualatin Valley Housing Partners, its Managing General Partner Tom Benjamin, E cutive Director INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR 2 CUPANIA CIRCLE MONTEREY PARK, CA 91755-7406 Employer Identification Number: Date: AFAR 1 D t'W 93-1152592 Case Number: 954334068 TUALATIN VALLEY HOUSING PARTNERS Contact Person: C/O WASHINGTON COUNTY COMMUNITY JOYCE DARBY ACTION ORGANIZATION Contact Telephone Number: 451 SO FIRST AVENUE SUITE 700 (213) 725-6619 HILLSBORO, OR 97123 Accounting Period Ending: June 30 Foundation Status Classification: 509 (a) (1) Advance Ruling Period Begins: March 8, 1994 Advance Ruling Period Ends: June 30, 1998 Addendum Applies: Yes (see page 5) Dear Applicant: Based on information you supplied, and assuming your operations will be as stated in your application for recognition of exemption, we have determined you are exempt from federal income tax under section 501(a) of the Internal Revenue Code as an organization described in section 501(c)(3). Because you are a newly created organization, we are not now making a final determination of your foundation status under section 509(a) of the Code. However, we have determined that you can reasonably expect to be a publicly supported organization described in sections 509(a)(1) and 170 (b) (1) (A) (vi) Accordingly, during an advance ruling period you will be treated as a publicly supported organization, and not as a private foundation. This advance ruling period begins and ends on the dates shown above. Within 90 days after the end of your advance ruling period, you must send us the information needed to determine whether you have met the require- ments of the applicable support test during the advance ruling period. If you establish that you have been a publicly supported organization, we will classi- fy you as a section 509(a)(1) or 509(a)(2) organization as long as you continue to meet the requirements of the applicable support test. If you do not meet the public support requirements during the advance ruling period, we will classify you as a private foundation for future periods. Also, if we classify you as a private foundation, we will treat you as a private foundation from your beginning date for purposes of section 507(d) and 4940. Grantors and contributors may rely on our determination that you are not a private foundation until 90 days after the end of your advance ruling period. If you send us the -required :information within the 90 days, grantors and contributors may continue to rely on the advance determination until we make a final determination of your foundation status. Letter 1045 (DO/CG) -2- TUALATIN VALLEY HOUSING PARTNERS If we publish a notice in the Internal Revenue Bulletin stating that we will no longer treat you as a publicly supported organization, grantors and contributors may not rely on this determination after the date we publish the notice. In addition, if you lose your status as a publicly supported organi- zation, and a grantor or contributor was responsible for, or was aware of, the act or failure to act, that resulted in your loss of such status, that person may not rely on this determination from the date of the act or failure to act. Also, if a grantor or contributor learned that we had given notice that you would be removed from classification as a publicly supported organization, then that person may not rely on this determination as of the date he or she acquired such knowledge. If you change your sources of support, your purposes, character, or method of operation, please let us know so we can consider the effect of the change on your exempt status and foundation status. If you amend your organizational document or bylaws, please send us a copy of the amended document or bylaws. Also, let us know all changes in your name or address. As of January 1, 1984, you are liable for social security taxes under the Federal Insurance Contributions Act on amounts of $100 or more you pay to each of your employees during a calendar year. You are not liable for the tax imposed under the Federal Unemployment Tax Act (FUTA). Organizations that are not private foundations are not subject to the pri- vate foundation excise taxes under Chapter 42 of the Internal Revenue Code. However, you are not automatically exempt from other federal excise taxes. If you have any questions about excise, employment, or other federal taxes, please let us know. Donors may deduct contributions to you as provided in section 170 of the Internal Revenue Code. Bequests, legacies, devises, transfers, or gifts to you or for your use are deductible for Federal estate and gift tax purposes if they meet the applicable provisions of sections 2055, 2106, and 2522 of the Code. Donors may deduct contributions to you only to the extent that their contributions are gifts, with no consideration received. Ticket purchases and similar payments in conjunction with fundraising events may not necessarily qualify as deductible contributions, depending on the circumstances. Revenue Ruling 67-246, published in Cumulative Bulletin 1967-2, on page 104, gives guidelines regarding when taxpayers may deduct payments for admission to, or other participation in, fundraising activities for charity- Contributions to you are deductible by donors beginning March 8, 1994. You are not required to file Form 990, Return of Organization Exempt From Income Tax, if your gross receipts each year are normally $25,000 or less. If you receive a Form 990 package in the mail, simply attach the label provided, check the box in the heading to indicate that your annual gross receipts are normally $25,000 or less, and sign the return. Letter 7.045 (DO/CG) -3- TUALATIN VALLEY HOUSING PARTNERS If you are required to file a return you must file it by the 15th day of the fifth month after the end of your annual accounting period. we charge a penalty of $10 a day when a return is filed late, unless there is reasonable cause for the delay. However, the maximum penalty we charge cannot exceed $5,000 or 5 percent of your gross receipts for the year, whichever is less. We may also charge this penalty if a return is not complete- So, please be sure your return is complete before you file it. You are not required to file federal income tax returns unless you are subject to the tax on unrelated business income under section 511 of the Code. If you are subject to this tax, you must file an income tax return on Form 990-T, Exempt Organization Business Income Tax Return. In this letter we are not determining whether any of your present or proposed activities are unre- lated trade or business as defined in section 513 of the Code. You need an employer identification number even if you have no employees. If an employer identification number was not entered on your application, we will assign a number to you and advise you of it. Please use that number on all returns you file and in all correspondence with the Internal Revenue Service. In accordance with section 508(a) of the Code, the effective date of this determination letter is March 8, 1994. This determination is based on evidence that your funds are dedicated to the purposes listed in section 501(c)(3) of the Code. To assure your continued exemption, you should keep records to show that funds are spent only for those purposes. If you distribute funds to other organizations, your records should show whether they are exempt under section 501(c)(3). In cases where the recipient organization is not exempt under section 501(c) (3), you must have evidence that the funds will remain dedicated to the required purposes and that the recipient will use the funds for those purposes. If you distribute funds to individuals, you should keep case histories showing the recipients, names, addresses, purposes of awards, manner of selec- tion, and relationship (if any) to members, officers, trustees or donors of funds to you, so that you can substantiate upon request by the Internal Revenue Service any and all distributions you made to individuals. (Revenue Ruling 56-304, C.B. 1956-2, page 306.) If we said in the heading of this letter that an addendum applies, the addendum enclosed is an integral part of this letter. Because this letter could help us resolve any questions about your exempt status and foundation status, you should keep it in your permanent records. Letter 1045 (DO/CG) -4- TUALATIN VALLEY HOUSING PARTNERS If you have any questions, please contact the person whose name and telephone number are shown in the heading of this letter. Sincerely yours, Richard R. Orosco District Director Enclosure (s) Addendum Form 872-C Letter 1045 (DO/CG) MEMORANDUM TO: Bob Sesnon FROM: Duane Roberts RE: CPAH Applications for Tax Exemption DATE: 3/20/07 The Tigard-based Community Partners for Affordable Housing (CPAH) has submitted separate applications for low-income housing tax exemptions for three properties it owns and manages inside the City. The three include the 26-unit Village at Washington Square, the 84-unit Greenburg Oaks, and a four-bedroom single family house located two blocks from the Greenburg Oaks units. TMC 3.50.020, "Nonprofit corporation low income housing; exempt criteria", provide standards for considering exemption requests. These criteria and whether and how the CPAH applications meet each criterion are reviewed below. 1. The property is owned or being purchased by a corporation that is exempt from income taxes under section 501(c) (3) or (4) of the Internal revenue Code A copy of an Internal Revenue Service letter, dated March 11, 1999, verifies that CPAH qualifies as a 501(c) organization. 2. Upon liquidation, the assets of the corporation are required to be applied first in payment of all outstanding obligations, and the balance remaining, in cash and in kind, to be distributed to corporations exempt from taxation and operated exclusively for religious, charitable, scientific, literary or educational purposes or to the State of Oregon. The list of submittal requirements under TMC 3.50.040 does not include any reference to information on asset liquidation, and the CPAH applications do not contain any such information. The director has verbally confirmed to staff that the organization's incorporation papers do, if fact, include a provision of this kind. 3. The property is occupied by low income persons. The TMC defines low income as household income at or below 60% of area median. According to the CPAH submittals, in the case of all three of its projects, tenant income is verified upon application and is re-certified on an annual basis. Household income at or below 60% of median is the cut-off for continued eligibility. Within each of its applications, CPAN certifies that all residents served by the three properties in question earn at or below the 60% level. 4. The property or portion of the property receiving the exemption, is actually and exclusively used for the purposes described in section 501 (c) (3) or (4) of the Internal Revenue Code The applications certify and a staff visit to the two apartment complexes confirms that all the property is exclusively used for the intended purposes. 5. The exemption has been approved as provided in section 3.50.050 This criterion relates to the required City process for handling exemption requests. Conclusion: CPAH-owned properties have qualified for tax abatement every year since 1996. According to the applications submitted for FY 07/08 abatement, no changes in circumstances have occurred that would disqualify the non-profit housing provider from continuing to receive the exemption. The "Affordable Housing Program", adopted 9/03 as "a complete and official statement of the City's overall affordable housing program", includes tax abatement as one of the City's strategies for facilitating affordable housing in the community. Its purpose is to allow the operators of low- income housing to decrease annual operating expenses, thereby allowing them to serve lower- income households. According to the CPAH applications, if granted, 100% of the property tax exemptions would continue to be passed on as a direct subsidy for its residents. Therefore, granting the exceptions to CPAH would be consistent with the applicable TMC standards and also with adopted City housing policies. MEMORANDUM TIGARD TO: Bob Sesnon FROM: Duane Roberts RE: TVHP Application for Property Tax Exemption DATE: 3/20/07 SUBJECT: Applications for Tax Abatement The Beaverton-based Tualatin Valley Housing Partners (TVHP) has submitted an application for a City low-income housing tax exemption for the 119-unit Hawthorne Villa, located at 7705 SW Pfaffle Street in the incorporated Metzger area. TMC 3.50.020, "Nonprofit corporation low income housing; exempt criteria", provides five standards for considering exemption requests. Whether and how the TVHP application meets each of these five is reviewed below. 1. The property is owned or being purchased by a corporation that is exempt from income taxes under section 501(c) (3) or (4) of the Internal revenue Code A copy of an Internal Revenue Service letter, dated March 10, 1995, verifies that TVHP qualifies as a 501(c) organization. According to a copy of a letter dated June 23, 2005, TVHP is the "Managing General Partner" for the property in question. 2. Upon liquidation, the assets of the corporation are required to be applied first in payment of all outstanding obligations, and the balance remaining, in cash and in kind, to be distributed to corporations exempt from taxation and operated exclusively for religious, charitable, scientific, literary or educational purposes or to the State of Oregon. The list of submittal requirements under TMC 3.50.040 does not include any reference to information on asset liquidation, and the TVHP application does not contain any such information. Tom Benjamin, TVHP Executive Director, verbally has advised staff that the organization's incorporation papers assign the organizations assets, upon liquidation, to a 501(c) 3 non-profit, engaged in activities similar to those of TVHP. 3. The property is occupied by low income persons. The TMC defines low income as household income at or below 60% of area median. According to the TVHP Executive Director, tenant income is verified upon application and is re-certified on an annual basis. Household income at or below 60% of median is the cut-off for new and continued rental unit occupancy. Many of the Hawthorne Villa tenants are "case managed", or current clients of public and non-profit social service providers. 4. The property or portion of the property receiving the exemption is actually and exclusively used for the purposes described in section 501(c) (3) or (4) of the Internal Revenue Code The application certifies that the Hawthorne Villa complex is exclusively used for the intend purpose of providing affordable housing to income restricted households. 5. The exemption has been approved as provided in section 3.50.050 This criterion relates to the required City process for handling exemption requests. Conclusion: TVHP was established some years ago by the County Community Action Agency. Hawthorne Villa was the agency's first project. This is the third year that TVHP has applied to the City for tax abatement. The request meets all of the qualifying criteria established in TMC 3.50.020. The "Affordable Housing Program", adopted in 9/03 as "a complete and official statement of the City's overall affordable housing program", includes tax abatement as one of the City's strategies for facilitating affordable housing in the community. Its purpose is to allow the operators of low- income housing to decrease annual operating expenses, thereby allowing them to serve lower- income households. Granting the requested tax exemption to TVHP would be consistent with the applicable TMC standards and also with the adopted City housing policy. Agenda Item # 7 Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Residential Zoning Districts Use Regulations Amendment - Development Code Amendment (DCA2006 00007) Prepared By: Cheryl Caines Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Should the Council approve a Development Code Amendment to amend the Tigard Development Code Chapter 18.510 to allow school bus parking as an accessory use on high school.sites in residential zones subject to location and time restrictions (not within 200 feet of a property line abutting a residential use and not more than three years)? STAFF RECOMMENDATION Staff recommends approving the requested Development Code Amendment as revised to allow school bus parking as an accessory use, if located a minimum of 200 feet from properties with a residential use, and for a limit of three years with extensions beyond that requiring approval through the Conditional Use process. KEY FACTS AND INFORMATION SUMMARY This code amendment was brought before City Council at the hearing on March 13, 2007. The applicant's presentation included a summary of the code amendment and new information addressing concerns that arose during the February 5, 2007 hearing before the Tigard Planning Commission. To address air quality concerns the Tigard-Tualatin School District adopted a written policy and procedures statement regarding bus maintenance and bus idling that is consistent with the Oregon Department of Education guidelines included within Attachment 3 in the 3/13/07 Council Packet. The number and type of buses to be parked at the site was also a concern and the applicant's representative stated the intent to park 14-16 of the District's shorter buses on the site. One neighbor testified in opposition to the proposed code amendment citing noise from the buses in the early morning hours, parking issues around the Tigard High School site, traffic, and inconsistencies in the information presented by the applicant. Discussion followed the public hearing portion of the meeting. Three of the four Council members present were not comfortable with the code amendment as presented because no time limitation was stated in the proposed language. The hearing was continued to April 10, 2007. Staff was asked to modify the code language considering the Council concerns and return on that date to present the new language. OTHER ALTERNATIVES CONSIDERED None CITY COUNCIL GOALS The 2007 City Council Goals are not impacted by this amendment. ATTACHMENT LIST Attachment 1: Ordinance Exhibit A: Recommended Text Change FISCAL NOTES There is no fiscal impact anticipated for this action. All application fees have been paid by the applicant. AGENDA ITEM No. 7 Date: April 10, 2007 PUBLIC HEARING (LEGISLATIVE) TESTIMONY SIGN-UP SHEETS Please sign on the following page(s) if you wish to testify before City Council on: CONTINUATION OF RESIDENTIAL ZONING DISTRICT USE REGULATIONS AMENDMENT (LEGISLATIVE PUBLIC HEARING) - TIGARD DEVELOPMENT CODE CHAPTER 18.510 TO ALLOW SCHOOL BUS PARKING AS AN ACCESSORY USE ON HIGH SCHOOL SITES IN RESIDENTIAL ZONES SUBJECT TO LOCATION AND TIME RESTRICTIONS (NOT WITHIN 200 FEET OF A PROPERTY LINE ABUTTING A RESIDENTIAL USE AND NOT MORE THAN THREE YEARS) Due to Time Constraints City Council May Impose A Time Limit on Testimony I:\ADM\GltEER\CCSIGNUP\PFI'IUS7'IMONY LEG.DOC AGENDA ITEM No. 7 Date: April 10, 2007 PLEASE PRINT Pro onent - (Speaking In Favor Opponent - (Speaking Against) Neutral Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. I G ..S1st ~ - '~1~ I~ C. 0 vJ u iJ I II CA-uy~Se 11 _ i II II iI I I I , 1 I~ Copies to ,eOC,, __,G,,,,__7 .9- f Mayor _L,-" Other: 0, City Ordinance # 07-01 Councilors _yC City Manager March 21, 2007 Council Mail To whom it may concern: Mayor's Calendar My name is Dianna Matthews. I attended my first City Council Meeting March 13, 2007. 1 work for the Tigard/Tualatin School District as the Driver Trainer for the special needs mini buses. I have . worked for the district for five years but have been in school transportation for about 20_ ears. I wanted to give some input of what I heard at the meeting. ~GSXv~G The concerns I heard were: TO 1. Noise of buses 0,16 2. Exhaust of buses o{, '~~o 3. Space for bus parking. P ` I and one other driver met with Judy and two gentlemen from the district one morning at 6:30 am to do a pre-tip on our buses so they could take some readings. The men stood in front of the bus and directly behind the bus to take readings as we turned engines on, checked horns, checked air brakes, and the back up beepers. For your information there are eight air brake buses and eight hydraulic brake buses. The hydraulic brake buses make no appreciable noise when being tested. The question came up about exhaust fumes. Judy Friesz stated that the buses have an annual to check the buses for the state requirements. Exhaust emissions are not tested as part of the annual bus inspection. Mechanics check the brackets, pipes, bolts to make sure they are secure. They also check for leaks. I am including a copy of the State inspection form. Drivers have been told to keep bus idling down and the district has written a policy using the states suggestions on bus idling and exhaust fumes. My biggest concern would be parking in the same place we did before and that they were looking for a permanent parking lot for the buses. The district, that I am aware of, has been looking for a permanent parking space for at least five years. When I first came to the district we did park at Tigard high school but we had fewer and smaller buses. The space that we used is not large enough for the fleet of buses we now have and the special needs transportation program is growing. I have taken some measurements of buses, and our shed, and estimated how much room we would need to safely maneuver and park the buses. 1 am including these measurements. 1 believe the best solution would be a limited time for the district to find or purchase property for their permanent school bus parking. Tigard High School is not the answer for long term. I recommend granting a variance on a short term 1-3 years to allow the District to find a reasonable and cost efficient permanent solution- if you have any questions or would like to contact me. My Cell number is 503-481-4699. Thank you 'i✓c3 c} 7 Dianna Matthews I OREGON DEPARTMENT OF EDUCATION Office of Educational Support Services' 255 Capitol Street NE Pupil Transportation Services Salem, OR 97310 503-378-3600 ANNUAL VEHICLE INSPECTION AND MAINTENANCE REPORT SCHOOL COUNTY BUS NO. DATE YEAR & MAKE TYPE & CAPACITY ID NO. LICENSE NO. ODOMETER READING CONTRACTOR INSTRUCTIONS Each vehicle used to transport pupils shall be inspected annually. Complete and sign this form in duplicate for each vehicle. Forward the original to the district superintendent. to be kept on file. The mechanic or contractor will keep the other copy on file. The original and copy must be retained for not less than three years and be available to Oregon Department of Education personnel upon request In the "OK" column mark "O" for items that do not apply and under the "Repaired Date' column indicate the date of the actual repair. The certification of inspection and completion of repairs must be completed and submitted to the Department of Education by September 1 each Year. Page Numbers are referenced to the Maintenance manual. OK Repaired OK Repaired Date Date C. INSIDE BUS A. CHASSIS (remove wheels) 1. Emergency Equipment (Pg. C 1-2) 1. Front Suspension (Pg. A 14) 2. Neutral Safety Switch (Pg. C 3) 2. Steering (Pg. A 5.8) 3. Steering (Pg. C 4) 3. Front Brakes (Pg. A 9.12) - 4. Shifter (Pg. C 5) Left Front _/32 Right Front !32 (Pg. ) 4. Engine/Trans. Mount, Starter Mounting (Pg. A 13).. 5. Engine Controls C 6-7 5. Transmission (Pg. A 14-16) 6. Gauges, Dash and Warning Lights, Buzzers (Pg. C 8-9) 6. Fluid Leaks (Pg. A 17) 7. Fuel Tanks (Pg. A 18) 7. Public Address System (PG. C23) 8. Air Brake System (Pg. C 10-13) 8. Propane Tanks (Pg. A 19) 9. Brake Equipment (Pg. A 20-21) 9. Hydraulic Bakes (Pg. C 14-19) 10. Windshield Wipers & Washers (Pg. C 20) 10. Drive Line (Pg. A 22-23) 11. Heaters, Defrosters & External Dash Fan(s) 11. Rear Suspension (Pg. A 24-27) 12. Rear Brakes (Pg. A 28-31) (Pg. C 21-22)........................................................... 12. Dome and Stepwell Lights (Pg. C 23) Left Rear _132 Right Rear 132 13. Body Securements 8 Structure (Pg. A 32-33) 13. Service Door (pg. C 24) 14. Exhaust Systems (Pg. A 34) 14. Homs (Pg. C 25) 15. Wheels and 15. Mirror Adjustment, Condition (Pg. C 26) Tires (Pg. A 35-37) - Left Front _/32 Right Front 132 16. Driver's Seat and Belt (Pg. C 27) Left Rear Inner _/32 Right Rear Inner 132 17. Passenger Seats (Pg. C 28-30) Left Rear Outer _132 Right Rear Outer _132 18. Emergency Door/Wmdows/Hatches (Pg. C 31-32).. 19. Windshield, Side & Rear Windows (Pg. C 3334).... 20. Wheelchair Lift Door & Securement System 16. Slack Adjuster Pull Measurement Left Front _ Right•frent (Pg. 35-36) Left Rear _ Right Rear 21. Interior Wiring, Cab Hoses & Wall Seals (Pg. C 37) 22. General Condition, Bus Interior (Pg. C 38-40)......... B. ENGINE COMPARTMENT D. 'OUTSIDE BUS 1. Batteries (Pg. B 1-2) 1. Headlights, Turn Signals, Side Marker, Brake, Tail, 2. Fluid Levels and Conditions (Pg. B 3-4) Park and Backup Lights, Backup Alarm (Pg. D 1-3) 3. Bells and all Hoses (Pg. B 5-6) 2. Clearance 8 ID Lights, Reflectors, Strobe Light 4. Accessory Mounting and Condition (Pg._B 7-B).:..... 5. Wiring (Pg. B 9) . (if Equipped) (Pg. D 4).................-----....................... 3. School Bus Safety Lights (Pg. D 5) 6. Fuel Systems and Lines (Pg. B 10) 4. Stop Arts (Pg. D 6) 7. Radiator (Pg. B 11) 5. General Condition, Bus Exterior (Pg. D 7-10).......... INSPECTED OR REPAIRED BY DATE ANNUAL COMPLETED Form 581-2255•M (Rev. 7/03) ORErON DEPARTMENT OF EDUCATION Office of Finance and Administration 255 Capitol Street NE Pupil Transportation and Fingerprinting Salem, OR 97310 503-947-5600 NEW SCHOOL BUS CHECKLIST Date District & No. County Contractor Bus No. License No. Chassis Make Year Style Chassis ID No. Body Make Capacity ✓ Meets Standards o Does Not Meet Standards N Does Not Apply X Maintenance Item B = Body Dealer Responsibility C = Chassis Dealer Responsibility Driver's Compartment Pupil Compartment Chassis 1. Steps B 1. Floor.................................................. B 1. Fenders C 2. Service door: B 2. Seats upholstery fire block 2. Axles: front- rear C a. Head bumper B a. Spacing B 3. Tires: size_ rating C b. Hinge guard B b. Anchorage................................. B 4. Wheels: size- type C 3. Grab handle (20" min & no B c. Padding B 5. Bumpers............................................ C 4. Barriers B d. Belts/restraints........................... B 6. Tow hooks: front- rear............ C 5. Drivers seat & belt-locking type B e. Cushion retention B 7. Steering & hoses.............. C 6. Service brake C 3. Aisle width......................................... B 8. Springs C 7. Parking brake C 4. Ceiling height.................................... B 9. Shock absorbers C 8. Steering C 5. Windows: 10. Frame................................................ C 9. Horn C a. Split sash opening- inches B 11. Undercoating.............................. B & C 10. Instrument panel: 6. Emergency door & windows: 12. Drive shafts guards C a. Speedometer & odometer............ C a. Latch B 13. Exhaust system................................. C b. Oil C b. Buzzer....................................... B 14. Fuel tank & shield.............................. C c. Water temperature C c. Lettering, reflective tape............ B 15. Reserve tanks: d. Fuel C d. Instructions................................ B a. Air/drain valves.......................... C e. Ammeter/voltmeter C e. Lower glass, rear....................... B b. Vacuum C f. Dash (panel light) C f. Side door................................... B 16. Brakes: g. High beam indicator C g. Head bumper (front & side)....... B a. Compressor............................... C h. Turn signal indicator C 7. Roof hatch/s...................................... B b. Power assist (hyd)..................... C i. Air or vacuum gauge C a. Lettering, reflective tape............ B c. Brake lines................................. C j. Low air or vacuum warning.......... C b. Instructions B 17. Air cleaner......................................... C k. Buzzer & light C 18. Fuel & oil filter.................................... C 1. Tachometer C Outside Body 19. Battery C m. Temp. gauge (auto transmission) C 1. Headlights B or C 20. Alternator........................................... C 11. Hand throttle- fast idle C 2. Turn signals B 21. Engine: 12. Bus Safety Lights 3. Clearance & ID lights B a. Gasoline- diesel- propane C a. Switches- identified-........... B 4. Stop lights- tail lights- B 22. Transmission: b. Indicators B 5. Back-up lights- alarm- B a. 'Automatic- standard......... C 13. Heaters: 6. Amber & Red flashing lights B a. Flow control (shut offs) 2 7. Stop arm: Special Equipment Supply- return _ B a. Lights & operation B 1. Lift...................................................... B b. Hose shield B b. Windguard................................. B 2. Platform size...................................... B 14. Defrosters left & right B 8. Reflectors.......................................... B 3. Warning system, green light.............. B 15. Dome lights (1 per 2 rows) B 9. Color B 4. Hand rail 2......................................... B 16. Panel lights- rheostat- B 10. Lettering: 5. Padding material B 17. Step-well light B a. "School Bus" & reflective 6. Platform end barrier........................... B 18. Mirror- sun visor, guard B background B 7. Positions forward facing B 19. Windshield B b. District and company name....... B 8. Restraints.......................................... B 20. Windshield washers- wipers-... B c. Numbers B 21. Fire extinguisher (2A, 1013C) B d. Emergency exits & reflective Optional Equipment 22. First aid kit B outline, rear- side B 23. D.O.T. reflectors B e. "Unlawful to Pass" sign B FMVSS 217 Total egress sq in 24. Body fluid kit B 12. Mud flaps B 25. Insulation B 13. Windshield access steps & handle B FD sq in RD sq in 26. Ventilator B 14. Rub rails............................................ B RPOW sq m 27. Pupil regulations (16) B 15. Mirrors............................................... B 28. PA system inside- outside- B Direct or indirect visibility LSD sq in RSD sq in 29. Belt cutter, B requirements meet FMVSS 111........ B g_ RH sq in SSOw sq in Inspector Form 581-2242-P (Rev. 5/06) BUS PARKING SPACE LENGTH OF THE LONGEST BUS PLUS 5 FEET PARKING LINES 12 FEET APART [SPACE 1.5 FEET ON EACH SIDE] [16 buses] [SPACE FOR TAIL SWING OF BUS] BUILDING 24 FEET WIDE INCLUDING SPACE FOR STAIRS 30 FEET LONG MAY NEED MORE SPACE. NEED TO GO MEASURE SPACE OF LOT TO BE USED AND MANUVER BUSES IN SPACE TO CHECK SAFETY. SIXTEEN BUSES # 2 = 31 FEET 162'plus 5' =67'1 must be the width of lot # 6 @ # 4@ # new bus in june = 25 FEET # 3 @ # 5 = 22 FEET # 19 @ #20 @ #21 @ #27 @ #28 = 28 FEET #23 @ #24 @ #25 @ #26@ #22 @ #29 = 24 FEET Dianna Matthews 03-15-07 Agenda Item # Meeting Date April 10, 2007 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title An Ordinance Granting a Cable Franchise to Verizon Northwest, Inc. Prepared By: Tom Coffee Dept Head Approval: / City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall City Council grant a cable franchise to Verizon Northwest, Inc.? STAFF RECOMMENDATION Staff recommends granting the franchise to Verizon Northwest, Inc. as recommended by the Metropolitan Area Communications Commission. KEY FACTS AND INFORMATION SUMMARY The key facts are set out in the MACC Staff Report (Attachment 2). OTHER ALTERNATIVES CONSIDERED Do not grant the franchise. CITY COUNCIL GOALS N/A. ATTACHMENT LIST Attachment 1: Ordinance Granting a Non-Exclusive Cable Franchise to Verizon Northwest, Inc. Attachment 2: MACC Staff Report Exhibit A: MACC Recommending Resolution Exhibit B: Proposed Verizon Cable Television Franchise Exhibit C: Comcast/Verizon Franchise Comparison Chart Exhibit D: MACC Verizon Cable Questions and Answers Attachment 3: MACC Response to Comcast 2-12-07 Letter FISCAL NOTES There is no cost associated with this Ordinance. If approved, the Verizon franchise requires the payment of franchise fees that would generate an undetermined amount of revenue for the City. \\6g20\jnetpuh\tig2O\wwwroot\forTns\form doakuuncil agenda item summary sheet 07.doc Attachment 2 MACC C0--%,1N1U`\11GAJ_10NS L OM 0iSSi0N REPRESENTING THE COMMUNITIES OF BANKS,. BEAVERTON, GROVE, , HILLSBORO, KING CITY, LAKE OSWEGO, NORTH PLAINS, RIVERCROVE, •D AND WASHINGTON COUNTY CAW TV FRANCLiiSE RECULAYON • TELECOMMUNICATIONS Adviu ANd SUppow • Pubtie CCM1MUNICATIONS NETwo. o IPCN) MACC STAFF REPORT VERIZON CABLE TV FRANCHISE RECOMMENDATION TO THE CITY OF TIGARD Prepared by the Metropolitan Area Communications Commission February 2007 The Board of Commissioners of the Metropolitan Area Communications Commission (MACC) have recommended that your City, and other affected MACC members, grant Verizon Northwest, Inc. (Verizon) a 15-year cable television franchise (Exhibit A, MACC Recommending Resolution). Verizon is currently upgrading its "copper" telephone system into an all Fiber-To-The- Premise (FTTP) network, which allows them to offer high-speed Internet service, cable service, and improved telephone services. This service, which Verizon calls FiOS, would compete directly with Comcast's cable services, as well as with their Internet and telephone service, "Comcast Digital Voice." Verizon proposes to initially offer these services to eleven of the fourteen MACC jurisdictions in the areas where Verizon has Oregon PUC authority to operate their current telephone service. (See "Service Area" under "The Proposed Agreement" below.) A copy of the proposed franchise agreement is enclosed with this report (Exhibit B). When you consider these issues, MACC staff and representatives of Verizon will be available to present this recommendation and answer your questions. How will your decision affect your jurisdiction and citizens? If your City and the other affected MACC members grant Verizon a cable franchise, the company plans to construct a Video Hub Office (VHO) in the next 12 months in the Hillsboro area. This will enable Verizon to begin offering cable services - estimated to begin in Spring 2008. The entire franchised service area will have cable service available within four years of the date when Verizon first offers service. Once operating, Verizon's FiOS system will offer your citizens their first wire-based competitive choice for cable television services. Currently only Comcast Cable is franchised to provide cable service in the MACC area. We expect that Verizon's entry into this market should result in more stable prices. However, the two greatest benefits of this new competition should be: 1) choice among three (including satellite) providers, and 2) better customer service. Background Verizon began upgrading their telephone plant in 2004 in those portions of the MACC area where they are authorized by the Oregon Public Utility Commission to provide telephone services. At this time, Verizon has upgraded most of its network to FTTP '1815 NW 169th Piace, Suite 6020 9 Beaverton, Oregoi-I 97006-4886 9 mone (503) 645-7365 * FAX (503) 645-0999 9 web site: www.tnaccoi-.org PRovidkq SERVICE. SINCE 19$0 in Hillsboro, Beaverton, Aloha/West Union (unincorporated Washington County), Durham, King City, and Tigard, and is beginning work in the Tualatin area. They expect to complete this upgrade in 2008 to most of their Tualatin Valley service area. At the urging of MACC in early December 2005, Verizon formally requested a franchise to use the FTTP network for cable television. On December 15, 2005, the Commission directed staff to enter into negotiations with Verizon. Those negotiations began a month later, in January 2006. MACC's negotiation team consistently received guidance from the MACC Commissioners throughout the negotiations. Negotiations successfully concluded on January 18, 2007. On February 8, 2007, the Commission, after a public hearing, voted to recommend this proposed franchise agreement to the affected MACC member jurisdictions. Now, all affected jurisdictions will consider adoption of that franchise. By the terms of the MACC Intergovernmental Agreement, to which your jurisdiction is a party, every affected MACC jurisdiction must adopt the franchise, as recommended, to give Verizon the authority to provide cable service in any of the jurisdictions - if one jurisdiction votes no, it vetoes the franchise for the others. The Proposed Agreement - The proposed fifteen-year Verizon franchise agreement is modeled on agreements Verizon has been awarded in over 650 other jurisdictions around the country now serving approximately 253,000 cable television subscribers. That said, specific requirements are very similar to the Comcast franchise. The Comcast franchise requires that other franchises granted in the MACC territory must be "reasonably comparable" as to their material terms. The enclosed Comparison Chart (Exhibit C) compares the material terms of the Verizon and Comcast agreements. Highlights of the Verizon Agreement Service Area/Build out - Verizon will provide cable services to eleven of the fourteen MACC jurisdictions - the Initial Service Area. That area includes all of Verizon's current telephone service area exce t for Banks, Gaston, and some rural areas of Washington County. However, MACC and Verizon will meet at least every two years to review whether technology changes or increases in population density will allow service to be extended into these areas. North Plains, most of Lake Oswego, and portions of Beaverton and unincorporated Washington County will not be served under this agreement because Verizon has no authorization from the PUC to provide service in those areas (Qwest is the authorized telephone provider in those areas - Qwest has yet to request a cable franchise). We are confident that the combination of the proposed franchise's density requirements, the Urban Growth Boundary, the way Verizon constructs its facilities, and the economic incentives to provide service to every serviceable location, will ensure there is aggressive and widely-deployed availability. Areas inside the Initial Service Area (including new developments) will have Verizon service available as long as the area meets the franchise density requirement (generally the same density requirement as Comcast). The choice of where to provide service is based in this case, not on income levels of particular areas (often referred to as "cherry-picking" and prohibited by Federal Law) but rather is based on the physical characteristics of potential service areas and on the existing telephone service areas of Verizon. Federal Law requires that local governments not unreasonably refuse to grant a competitive franchise such as this one, and do not require build-out of entire jurisdictions beyond Verizon's telephone service area. Customer Service - We are pleased that, following guidance from the Commission, Verizon agreed to meet substantially the same customer service standards required of Comcast. We expect that competition, if Verizon is awarded a franchise, would result in both companies working to maintain the best customer service possible. MACC will closely monitor both companys' customer service performance for compliance. The MACC office will play an important role during Verizon's deployment of cable services, working closely with them to eliminate or reduce problems. We will also be working closely with our jurisdictions and citizens to redress any problems they may experience before, during, and after the deployment. Fines - Fines that could be levied against Verizon for failure to meet performance requirements in the franchise are proportionate to the company's projected subscriber base. Along with the competitive pressure to satisfy customers, these fines are adequate to give Verizon incentive to meet franchise standards. Even at this level, the agreement's fines are substantially higher than those found in other Verizon franchises, and in most Comcast franchises nationwide. The high level of fines in the 1999 Comcast franchise resulted from the prior cable operators' (TCI and AT&T) violation of the telephone answering standards of the agreements for the three years prior to the 1999 renewal. Fines under the renewed franchise continued to be applied to AT&T until Comcast took over the operation of the cable system in 2003 and finally cured the telephone answering problem. Institutional Network - MACC's institutional network, constructed by Comcast's predecessor and called the Public Communications Network (PCN), is a unique requirement of the original 1982 Storer Cable franchise. AT&T agreed to upgrade the PCN to an all-fiber network in 1999. As part of AT&T's upgrade agreement, PCN User fees will repay the cable operator over the 15 year term of the Comcast agreement for the upgrade, operation, and maintenance of the PCN. Comcast's monthly PCN service fees are designed to recover all of Comcast's costs to provide the network. Since all area schools and most local governments are PCN Users, there is no market for another institutional network offered by Verizon. Therefore, in consultation with the Commission, we did not require Verizon to duplicate the PCN. PEG/PCN Financial Support - Verizon will support Public, Education, and Government (PEG) programming and the PCN by paying $1.00 per subscriber per month for that support. Comcast's franchise provides an identical amount. Incidental Payment - Verizon.has also agreed to pay MACC an Incidental Payment of $149,600 over four years. Comcast's Incidental Payment was significantly higher due to the unique circumstances that existed during the 1999 renewal of its franchise agreement. Some of those circumstances were: 1) The significant reduction of cable operator PEG funding support from the old franchise to the new agreement. 2) The upgrade of the PCN to all fiber and the increased service costs to PCN Users. 3) In 1999, Comcast had almost 120,000 cable subscribers - Verizon starts at zero subscribers and only projects acquiring about 20% of Comcast's current market share. Early Termination - The proposed franchise has a clause whereby Verizon could terminate this agreement within four (4) years of the effective date with notice to MACC and subscribers. All Verizon cable franchises granted to date (more than 650) contain this (usually 3 year) provision. MACC staff believes it is very unlikely this provision will ever be exercised due to Verizon's success in obtaining franchises and its growing number of subscribers (currently over 253,000). However, we recognize the many issues involved in beginning a new venture, and agree this is prudent for both Verizon and the jurisdictions. What specific action does MACC recommend? MACC recommends that your City grant Verizon the proposed cable television franchise. MACC provided a model ordinance for use by your jurisdiction to adopt the franchise and has worked with your staff to prepare it for your consideration. Comcast is, of course, very interested in the terms and conditions of Verizon's franchise. In a recent letter they sent to City Councilors, Comcast detailed some concerns. We would be happy to answer questions. However, MACC staff and legal counsel remain confident that the franchise agreements are, as required, "reasonably comparable" as to their material terms. Thank you for considering this important and ground-breaking franchise agreement. We look forward to meeting with you to discuss it and to answer any questions you may have. We have also attached a Verizon Questions and Answers memorandum that addresses typical questions (Exhibit D). In the meantime, please contact your MACC representatives, Sally Harding or Nancy Werner, or Bruce Crest, MACC Administrator, if you have any questions. Enclosures: Exhibit A - MACC Recommending Resolution Exhibit B - Proposed Verizon Cable Television Franchise Exhibit C - Comcast/Verizon Franchise Comparison Chart Exhibit D - MACC Verizon Cable Questions and Answers EXHIBIT A METROPOLITAN AREA COMMUNICATIONS COMMISSION RESOLUTION 2007-01 A RESOLUTION RECOMMENDING TO THE AFFECTED MEMBER JURISDICTIONS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION THAT THEY GRANT VERIZON NORTHWEST, INC. A CABLE SERVICES FRANCHISE WHEREAS, in 1980 the Metropolitan Area Communications Commission (hereinafter MACC) was formed by Intergovernmental Cooperation Agreement, amended in 2002 and now an Intergovernmental Agreement (hereinafter IGA) to work cooperatively and jointly on communications issues, in particular the franchising of cable services and the common administration and regulation of such franchises; and, WHEREAS, today the member jurisdictions of MACC consist of Washington County and the cities of Banks, Beaverton, Cornelius, Durham, Forest Grove, Gaston, Hillsboro, King City, Lake Oswego, North Plains, Rivergrove, Tigard, and Tualatin; and, WHEREAS, the IGA authorizes MACC and its jurisdictions to grant one or more nonexclusive franchises to construct, operate, and maintain a cable service system within the combined boundaries of the member jurisdictions; and, WHEREAS, the IGA requires that each member jurisdiction in which cable service will be provided under the franchise must formally approve any requested franchise; and, WHEREAS, MACC and its member jurisdictions have previously granted a cable franchise to TCI Cablevision of the Tualatin Valley, Inc., in 1999, and that franchise is now held by Comcast Corporation, the grantee's lawful successor in interest; and, WHEREAS, Verizon Northwest, Inc. (hereinafter Verizon), formally requested a franchise authorizing the provision of cable services to several MACC member jurisdictions; and, WHEREAS, the MACC Board of Commissioners adopted Resolution #2005-15 on December 15, 2005, authorizing the MACC staff to negotiate a cable services franchise with Verizon, and to investigate Verizon's legal, financial, and technical qualifications to own and operate a cable system as authorized by federal law; and, WHEREAS, MACC, on behalf of its member jurisdictions, has considered the qualifications of Verizon to own and operate a cable system under a new franchise and after concluding such consideration, analysis, and deliberation as are required by law, has determined it should recommend approval of Verizon's request for a franchise; and, WHEREAS, MACC, on behalf of its member jurisdictions, has negotiated a cable services franchise based on the community needs of the affected MACC member jurisdictions, and the material provisions of the proposed franchise are "reasonably comparable" to the franchise currently held by Comcast Corporation as required by that franchise; and, WHEREAS, MACC has provided adequate notice and opportunities for public comment on the proposed new cable services franchise including a public hearing held on February 8, 2007; and, WHEREAS, after careful consideration, the MACC Board of Commissioners is prepared to recommend to the affected member jurisdictions where Verizon seeks a cable services franchise that they grant Verizon such a franchise. NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION THAT: 1. MACC and Verizon have negotiated a cable services franchise to serve the MACC member jurisdictions of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, Tualatin, and Washington County. 2. The proposed franchise reflects the community needs of these member jurisdictions. 3. Verizon has the legal, technical, and financial qualifications to own and operate the proposed cable services system. 4. MACC recommends to these member jurisdictions that they concur with its findings and grant Verizon a cable services franchise based on the terms and conditions contained in the proposed franchise attached hereto as Exhibit A. 5. The affected member jurisdictions' grant of a franchise shall be contingent on the affirmative vote of each affected jurisdiction's governing body. 6. The grant of a cable services franchise to Verizon by the member jurisdictions shall become effective upon Verizon's fulfillment of the franchise acceptance provisions contained in the franchise and upon the formal determination by the MACC staff that the jurisdictions have approved the franchise. ADOPTED BY THE BOARD OF COMMISSIONERS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION THIS 8TH DAY OF FEBRUARY, 2007. 9A4 Herb Hirst, Chair Attachment: Exhibit A - Verizon Cable Services Franchise Exhibit B CABLE FRANCHISE AGREEMENT Between THE CITY OF TIGARD AND VERIZON NORTHWEST INC. CABLE FRANCHISE AGREEMENT between WASHINGTON COUNTY, the cities of BEAVERTON, CORNELIUS, DURHAM, FOREST GROVE, HILLSBORO, KING CITY, LAKE OSWEGO, RIVERGROVE, TIGARD, and TUALATIN AS PARTICIPATING MEMBERS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION AND VERIZON NORTHWEST INC. 2007 TABLE OF CONTENTS ARTICLE PAGE 1. DEFINITIONS ..............................................................................................................2 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS ......................................9 3. PROVISION OF CABLE SERVICE 12 4. SYSTEM OPERATION ..............................................................................................14 5. SYSTEM FACILITIES 14 6. PEG SERVICES 15 7. FRANCHISE FEES .....................................................................................................19 8. CUSTOMER SERVICE 21 9. REPORTS AND RECORDS 21 10. INSURANCE AND INDEMNIFICATION 23 It. TRANSFER OF FRANCHISE 25 12. RENEWAL OF FRANCHISE 26 13. ENFORCEMENT AND TERMINATION OF FRANCHISE 26 14. MISCELLANEOUS PROVISIONS 29 EXHIBIT A - INITIAL SERVICE AREA/FRANCHISE AREA 34 EXHIBIT B - ORIGINATION POINTS 37 EXHIBIT C - QUARTERLY FRANCHISE FEE REMITTANCE FORM 38 EXHIBIT D - CUSTOMER SERVICE STANDARDS 39 EXHIBIT E - FRANCHISEE PARENT AS OF JANUARY 24, 2007 49 EXHIBIT F - QUARTERLY CUSTOMER SERVICE STANDARDS PERFORMANCE REPORT 50 MACC 1 Seattle-3338555.9 0010932-00100 THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered into by and between the Metropolitan Area Communications Commission (the "Commission"), Member Jurisdictions, and Verizon Northwest Inc., a corporation duly organized under the applicable laws of the State of Washington (the "Franchisee"). WHEREAS, Grantor and Member Jurisdictions wish to grant Franchisee a nonexclusive franchise to construct, install, maintain, extend and operate a cable communications system in the Franchise Area as designated in this Franchise; WHEREAS, Grantor and Member Jurisdictions are "franchising authorities" in accordance with Title VI of the Communications Act (see 47 U.S.C. §522(10)) and are authorized to grant one or more nonexclusive cable franchises; WHEREAS, Franchisee is in the process of installing a Fiber to the Premise Telecommunications Network ("FTTP Network") in the Franchise Area for the transmission of Non-Cable Services pursuant to authority granted by the State of Oregon; WHEREAS, the FTTP Network will occupy the Public Rights-of-Way within the jurisdictional boundaries of the Commission's Member Jurisdictions, and Franchisee desires to use portions of the FTTP Network once installed to provide Cable Services (as hereinafter defined) in the Franchise Area; WHEREAS, Grantor has identified the future cable-related needs and interests of the Commission, its Member Jurisdictions and their citizens, has considered the financial, technical and legal qualifications of Franchisee, and has determined that Franchisee's plans for its Cable System are adequate in a full public proceeding affording due process to all parties; WHEREAS, Grantor and Member Jurisdictions have found Franchisee to be financially, technically and legally qualified to operate the Cable System; WHEREAS, Grantor and Member Jurisdictions have determined that the grant of a nonexclusive franchise to Franchisee is consistent with the public interest; and WHEREAS, Grantor and Franchisee have reached agreement on the terms and conditions set forth herein and the parties have agreed to be bound by those terms and conditions. NOW, THEREFORE, in consideration of Grantor and Member Jurisdictions' grant of a franchise to Franchisee, Franchisee's promise to provide Cable Service to residents of the Franchise Area pursuant to the terms and conditions set forth herein, the promises and undertakings herein, and other good and valuable consideration, the receipt and the adequacy of which are hereby acknowledged, THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS: 1. DEFINITIONS Except as otherwise provided herein the following definitions shall apply: MACC 2 Seattle-3338555.9 0010932-00100 1. 1. Access Channel: A video channel, which Franchisee shall make available to Grantor without charge for non-commercial public, educational, or governmental use for the transmission of video programming as directed by Grantor. 1.2. Additional Service Area: Shall mean any such portion of the Service Area added pursuant to Section 3.1.2 of this Agreement. 1.3. Affiliate: Any Person who, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, Franchisee. 1.4. Basic Service: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522, which currently states, "any service tier which includes the retransmission of local television broadcast signals." 1.5. Cable Operator. Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(5), which currently states, "any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system." 1.6. Cable Service or Cable Services: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(6), which currently states, "the . one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service." 1.7. Cable System or System: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(7), which currently states, "a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Communications Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent that such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for operating its electric utility systems." Subject to Section 2.10, the Cable System shall be limited to the optical spectrum wavelength(s), bandwidth or future technological capacity that is used for the transmission of Cable Services directly to Subscribers within the Franchise/Service Area and shall not include the tangible network facilities of a common carrier subject in whole or in part to Title II of the Communications Act or of an Information Services provider. MACC 3 Scattlo-3338555.9 0010932-00100 1.8. Channel: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(4), which currently states, "a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation)." 1.9. Commission: The Metropolitan Area Communications Commission, its officers, agents and employees, and, for purposes of this Agreement, its affected Member Jurisdictions which are the Oregon cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin, together with Washington County. The Commission was created and exercises its powers pursuant to an Intergovernmental Cooperation Agreement, as authorized by state law (particularly ORS Chapter 190) and the laws, charters, and other authority of the individual member units of local government who are members of the Commission. The powers of the Commission have been delegated to it by its members and although it may exercise those powers as an entity, it remains a composite of its members. 1.10. Communications Act: The Communications Act of 1934, as amended. 1.11. Control: The ability to exercise de facto or de jure control over day-to- day policies and operations or the management of corporate affairs. 1.12. Days: Calendar days unless otherwise noted. 1.13. Designated Access Provider: The entity or entities designated by the Grantor to manage or co-manage the Public, Education, and Government Access Channels and facilities. The Grantor may be a Designated Access Provider. 1.14. Educational Access Channel: An Access Channel available solely for the use of the local public schools in the Franchise Area and other higher level educational institutions in the Franchise Area. 1.15. Effective Date: The effective date of this Agreement shall be upon the Grantor's written certification of approval of all its Member Jurisdictions and Franchisee's unconditional written acceptance of this Agreement. If either event fails to occur, this Agreement shall be null and void, and any and all rights of Franchisee to own or operate a Cable System within the Franchise Area under this Agreement shall be of no force or effect. 1.16. FCC: The United States Federal Communications Commission, or successor governmental entity thereto. 1.17. Force Majeure: An event or events reasonably beyond the ability of Franchisee to anticipate and control. This includes, but is not limited to, severe or unusual weather conditions, strikes, labor disturbances, lockouts, war or act of war (whether an actual declaration of war is made or not), insurrection, riots, act of public enemy, actions or inactions of any government instrumentality or public utility including condemnation, accidents for which Franchisee is not primarily responsible, fire, flood, or other acts of God, or documented work delays caused by waiting for utility providers to service or monitor utility poles to which MACC 4 Seattle-3338555.9 0010932-00100 Franchisee's FTTP Network is attached, and documented unavailability of materials and/or qualified labor to perform the work necessary to the extent that such unavailability of materials or labor was reasonably beyond the ability of Franchisee to foresee or control. 1.18. Franchise Area: Those portions of the unincorporated area of Washington County and the incorporated areas (entire existing territorial limits) of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin as shown in Exhibit A, and such additional areas as may be included in the corporate (territorial) limits of Member Jurisdictions during the term of this Agreement or are added pursuant to Section 3.1.2. 1.19. Franchisee: Verizon Northwest Inc., and its lawful and permitted successors, assigns, and transferees. 1.20. Government Access Channel: An Access Channel available solely for the use of Grantor and other local governmental entities located in the Franchise Area. 1.21. Grantor: The Metropolitan Area Communications Commission (MACC) created in 1980 which is the local franchising authority for the Oregon cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin, and Washington County, or the lawful successor, transferee, or assignee thereof. 1.22. Gross Revenue: All revenue, including any and all cash, credits, property, or consideration of any kind, as determined in accordance with generally accepted accounting principles which is earned or derived by Franchisee and/or its Affiliates received from Franchisee's provision of Cable Service over the Cable System in the Franchise Area. Gross Revenue shall be reported to Grantor using the "accrual method" of accounting. Gross Revenue shall include the following items so long as all other cable providers in the Service Area include the same in Gross Revenues for purposes of calculating franchise fees: (a) fees charged for Basic Service; (b) fees charged to Subscribers for any service tier other than Basic Service; (c) fees charged for premium Channel(s), e.g. HBO, Cinemax, or Showtime; (d) fees charged to Subscribers for any optional, per-channel, or per-program services; (e) charges for installation, additional outlets, relocation, disconnection, reconnection, and change-in-service fees for video or audio programming; (f) fees for downgrading any level of Cable Service programming; (g) fees for service calls; (h) fees for leasing of Channels; (i) rental of customer equipment, including converters (e.g. set top boxes, high definition converters, and digital video recorders) and remote control devices; (j) advertising revenue as set forth herein; (k) revenue from the sale or lease of access Channel(s) or Channel capacity; (1) revenue from the sale or rental of Subscriber lists; MACC 5 Seattle-3338555.9 0010932-00100 (m) revenues or commissions received from the carriage of home shopping channels; (n) fees for any and all music services that are deemed to be a Cable Service over a Cable System; (o) revenue from the sale of program guides; (p) late payment fees; (q) forgone revenue that Franchisee chooses not to receive in exchange for trades, barters, services, or other items of value; (r) revenue from NSF check charges; (s) revenue received from programmers as payment for programming content cablecast on the Cable System; and (t) Franchise fees. Advertising commissions paid to independent third parties shall not be deducted from advertising revenue included in Gross Revenue. Advertising revenue is based upon the ratio of the number of Subscribers as of the last day of the period for which Gross Revenue is being calculated to the number of Franchisee's Subscribers within all areas covered by the particular advertising source as of the last day of such period, e.g., Franchisee sells two ads: Ad "A" is broadcast nationwide; Ad "B" is broadcast only within Oregon. Franchisee has 100 Subscribers in the Franchise Area, 500 Subscribers in Oregon, and 1,000 Subscribers nationwide. Gross Revenue as to the Grantor from Ad "A" is 10% of Franchisee's revenue therefrom. Gross Revenue as to the Grantor from Ad "B" is 20% of Franchisee's revenue therefrom. Gross Revenue shall not include: 1.22.1. Revenues received by any Affiliate or other Person from Franchisee in exchange for supplying goods or services used by Franchisee to provide Cable Service over the Cable System in the Franchise Area; 1.22.2. Bad debts written off by Franchisee in the normal course of its business, provided, however, that bad debt recoveries shall be included in Gross Revenue during the period collected; 1.22.3. Refunds, rebates, or discounts made to Subscribers or other third parties; 1.22.4. Any revenues classified, in whole or in part, as Non-Cable Services revenue under federal or state law including, without limitation, revenue received from: Telecommunications Services; Information Services, including without limitation Internet Access services; charges made to the public for commercial or cable television that is used for two-way communication; and any other revenues attributed to Non-Cable Services in accordance with applicable federal and state laws or regulations; 1.22.5. Any revenue of Franchisee or any Person that is received directly from the sale of merchandise through any Cable Service distributed over the Cable System, notwithstanding that portion of such revenue that represents or can be attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of such merchandise, which portion shall be included in Gross Revenue; MACC 6 Seattle-3338555.9 0010932-00100 1.22.6. The sale of Cable Services on the Cable System for resale in which the purchaser is required to collect cable franchise fees from purchaser's customer; 1.22.7. The imputed value of the provision of Cable Services to customers on a complimentary basis including, without limitation, the provision of Cable Services to public buildings as required or permitted herein; 1.22.8. Any tax of general applicability imposed upon Franchisee or upon Subscribers by a city, state, federal, or any other governmental entity and required to be collected by Franchisee and remitted to the taxing entity (including, but not limited to, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes, and non-cable franchise fees and revenue); 1.22.9. Any forgone revenue that Franchisee chooses not to receive in exchange for its provision of free or reduced cost cable or other communications services to any Person, including without limitation, employees of Franchisee and public institutions or other institutions designated in the Agreement; provided, however, that such forgone revenue that Franchisee chooses not to receive in exchange for trades, barters, services, or other items of value in place of cash consideration shall be included in Gross Revenue; 1.22.10. Sales of capital assets or sales of surplus equipment; 1.22.11. Reimbursement by programmers of marketing costs incurred by Franchisee for the introduction of new programming pursuant to a written marketing agreement; or 1.22.12. Directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement, and electronic publishing. 1.23. Information Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. §153(20), which currently states, "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." 1.24. Initial Service Area: The area depicted as the Initial Service Area in Exhibit A. 1.25. Internet Access: Dial-up or broadband access service that enables Subscribers to access the Internet. 1.26. Member Jurisdictions: Washington County and the member cities of the Commission that are within the Initial Service Area, specifically the cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, Rivergrove, Tigard, and Tualatin. MACC 7 Scattle-3338555.9 0010932-00100 1.27. Non-Cable Services: Any service that does not constitute the provision of Video Programming directly to multiple Subscribers in the Franchise Area including, but not limited to, Information Services and Telecommunications Services consistent with FCC rules and orders by courts of competent jurisdiction following all appeals. 1.28. Normal Business Hours: Those hours during which most similar businesses in the Franchise Area are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. 1.29. Origination Points: Locations from which PEG programming is delivered to the PEG Access Headend for transmission as set forth in Exhibit B. 1.30. PEG: Public, educational, and governmental. 1.31. Person: An individual, partnership, association, joint stock company, trust, corporation, or governmental entity. 1.32. Public Access Channel: An Access Channel available solely for use by the residents and others in the Franchise Area, as authorized by Grantor. 1.33. Public Communications Network ("PCN') / Institutional Network: The separate communications network provided by Comcast Inc. or its successor in interest, designed principally for the provision of non-entertainment, interactive services to schools, public agencies, or other non-profit agencies for use in connection with the ongoing operations of such institutions. Services provided may include video, audio, and data to PCN subscribers on an individual application, private channel basis. This may include, but is not limited to, two-way video, audio, or digital signals among institutions. 1.34. Public Rights-of-Way: The surface and the area across, in, over, along, upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways, alleys, and boulevards, including, public utility easements and public lands and waterways used as Public Rights-of-Way, as the same now or may thereafter exist, which are under the jurisdiction or control of the Member Jurisdictions, to the full extent of the Member Jurisdictions' right, title, interest, and/or authority to grant a franchise to occupy and use such streets and easements for Telecommunications Facilities and Cable Service. Public Rights-of- Way shall also include any easement granted or owned by the Grantor or Member Jurisdictions and acquired, established, dedicated or devoted for public utility purposes. Public Rights-of- Way do not include the airwaves above a right-of-way with regard to cellular or other nonwire communications or broadcast services. 1.35. School: Any educational institution, public or private, registered by the State of Oregon pursuant to ORS 345.505-.525, excluding home schools, including but not limited to primary and secondary schools, colleges and universities. 1.36. Service Area: All portions of the Franchise Area where Cable Service is being offered, including the Initial Service Area and any Additional Service Areas. MACC 8 Seattle-3338555.9 0010932-00100 1.37. Service Date: The date that Franchisee first provides Cable Service on a commercial basis directly to more.than one Subscriber in the Franchise Area. Franchisee shall memorialize the Service Date by notifying Grantor in writing of the same, which notification shall become a part of this Franchise. 1.38. Subscriber: A Person who lawfully receives Cable Service over the Cable System with Franchisee's express permission. 1.39. Telecommunications Facilities: Franchisee's existing Telecommunications Services and Information Services facilities and its FTTP Network facilities. 1.40. Telecommunication Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. § 153(46), which currently states, "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 1.41. Title IT Title II of the Communications Act. 1.42. Title VI: Title VI of the Communications Act. 1.43. Video Programming: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(20), which currently states, "programming provided by, or generally considered comparable to programming provided by, a television broadcast station." 2. GRANT OF AUTHORITY: LIMITS AND RESERVATIONS 2.1. Grant of Authority: Subject to the terms and conditions of this Agreement, Grantor and Member Jurisdictions hereby grant Franchisee the right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way-within the Franchise Area in order to provide Cable Service. No privilege or power of eminent domain is bestowed by this grant; nor is such a privilege or power bestowed by this Agreement. 2.1.1. This Agreement is intended to convey limited rights and interests only as to those streets and Public Rights-of-Way in which the Member Jurisdictions have an actual interest. It is not a warranty of title or interest in any Public Right-of-Way, it does not provide the Franchisee any interest in any particular location within the Public Right-of-Way, and it does not confer rights other than as expressly provided in the grant hereof. Except as set forth in this Agreement, this Agreement does not deprive Grantor or Member Jurisdictions of any powers, rights, or privileges they now have or may acquire in the future under applicable law, to use, perform work on, or regulate the use and control of the Member Jurisdictions' streets covered by this Agreement, including without limitation, the right to perform work on their roadways, Public Rights-of-Way, or appurtenant drainage facilities, including constructing, altering, paving, widening, grading or excavating thereof. 2.1.2. This Agreement authorizes Franchisee to engage in providing Cable Service. Nothing herein shall be interpreted to prevent Grantor or Franchisee from challenging the lawfulness or enforceability of any provisions of applicable law. MACC 9 Seattle-3338555.9 0010932-00100 2.1.3. To the extent Franchisee uses other parties (whether or not affiliated) to fulfill its obligations hereunder, Franchisee will insure such parties comply with the terms and conditions of this Agreement. 2.2. Regulatory Authority Over the FTTP Network: The parties recognize that Franchisee's FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities for the provision of Non-Cable Services. Jurisdiction over such Telecommunications Facilities is governed by federal and state law, and Grantor and Member Jurisdictions do not and will not assert jurisdiction over Franchisee's FTTP Network in contravention of those laws. Therefore, as provided in Section 621 of the Communications Act, 47 U.S.C. § 541, Grantor and Member Jurisdictions' regulatory authority under Title VI of the Communications Act is not applicable to the construction, installation, maintenance, or operation of Franchisee's FTTP Network to the extent the FTTP Network is constructed, installed, maintained, or operated for the purpose of upgrading and/or extending Verizon's existing Telecommunications Facilities for the provision of Non-Cable Services. Nothing in this Agreement shall affect the Grantor or Member Jurisdictions' authority, if any, to adopt and enforce lawful regulations with respect to the Public Rights-of-Way, subject to 2.9 below. 2.3. Term: The term of this Agreement and all rights, privileges, obligations, and restrictions pertaining thereto shall be from the Effective Date of this Agreement through the fifteenth (15') anniversary thereof, unless extended or terminated sooner as hereinafter provided. 2.4. Grant Not Exclusive: This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements, permits, easements or licenses granted by Grantor or Member Jurisdictions to any Person to use any street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever, including the right of the Member Jurisdictions to use same for any purpose they deem fit, including the same or similar purposes allowed Franchisee hereunder. Member Jurisdictions may, at any time, grant authorization to use the Public Rights-of-Way for any purpose not incompatible with Franchisee's authority under this Agreement, and for such additional franchises for cable systems as the Grantor deems appropriate. Any such rights which are granted shall not adversely impact the authority as granted under this Agreement and shall not interfere with existing facilities of the Cable System or Franchisee's FTTP Network. 2.5. Effect of Acceptance: By accepting the Agreement, the Franchisee: (1) acknowledges and accepts the Grantor's and Member Jurisdiction's legal right to issue the Agreement; (2) acknowledges and accepts the Grantor's legal right to enforce the Agreement on behalf of its Member Jurisdictions; (3) agrees that it will not oppose the Grantor intervening or other participation in any proceeding affecting Cable Service over the Cable System in the Franchise Area; (4) accepts and agrees to comply with each and every provision of this Agreement; and (5) agrees that the Agreement was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary. 2.6. Franchise Subject to Federal Law: Notwithstanding any provision to the contrary herein, this Franchise and its exhibits are subject to and shall be- governed by all MACC 10 Seattle-3338555.9 0010932-00100 applicable provisions of federal law and regulation as they may be amended, including but not limited to the Communications Act. 2.7. No Waiver: 2.7.1. The failure of Grantor on one or more occasions to exercise a right or to require compliance or performance under this Franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by Grantor, nor to excuse Franchisee from complying or performing, unless such right or such compliance or performance has been specifically waived in writing. 2.7.2. The failure of Franchisee on one or more occasions to exercise a right under this Franchise or applicable law, or to require performance under this Franchise, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse Grantor from performance, unless such right or performance has been specifically waived in writing. 2.8. Construction of Agreement; 2.8.1. The provisions of this Franchise shall be liberally construed to effectuate their objectives. 2.8.2. Nothing herein shall be construed to limit the scope or applicability of Section 625 Communications Act, 47 U.S.C. § 545. 2.8.3. Notwithstanding any provision to the contrary herein, this Franchise is subject to and shall be governed by all applicable provisions of federal and state law as they may be amended, including but not limited to the Communications Act. Should any change to state and federal law after the Effective Date have the lawful effect of materially altering the terms and conditions of this Franchise to the detriment of one or more parties, then the parties shall modify this Franchise to ameliorate such adverse effects on, and preserve the affected benefits of, the Franchisee and/or the Grantor to the extent possible which is not inconsistent with the change in law. If the parties cannot reach agreement on the above- referenced modification to the Franchise, then, at Franchisee or Grantor's option, the parties agree to submit the matter to mediation. In the event mediation does not result in an agreement, then, at Franchisee or Grantor's option, the parties agree to submit the matter to non-binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The non-binding arbitration and mediation shall take place in the Franchise Area, unless the parties' representatives agree otherwise. In any negotiations, mediation, and arbitration under this provision, the parties will be guided by the purpose as set forth below. In reviewing the claims of the parties, the mediators and arbitrators shall be guided by the purpose of the parties in submitting the matter for guidance. The parties agree that their purpose is to modify the Franchise so as to preserve intact, to the greatest extent possible, the benefits that each party has bargained for in entering into this Agreement and ameliorate the adverse effects of the change in law in a manner not inconsistent with the change in law. Should the parties not reach agreement, including not mutually agreeing to accept the guidance of the mediator or arbitrator, this Section 2.8.3 shall have no further force or effect. To the extent permitted by law, MACC 11 Seattle-3338555.9 0010932-00100 if there is a change in federal law or state law that permits Franchisee to opt out of or terminate this Agreement, then Franchisee agrees not to exercise such option. 2.9. Police Powers: In executing this Franchise Agreement, the Franchisee acknowledges that its rights hereunder are subject to the lawful police powers of Grantor or Member Jurisdictions to adopt and enforce general ordinances necessary to the safety and welfare of the public and Franchisee agrees to comply with all lawful and applicable general laws and ordinances enacted by Grantor or Member Jurisdictions pursuant to such power. Nothing in this Agreement shall be construed to prohibit the reasonable, necessary, and lawful exercise of Grantor or Member Jurisdictions' police powers. However, if the reasonable, necessary and lawful exercise of Grantor or Member Jurisdictions' police power results in any material alteration of the terms and conditions of this Franchise, then the parties shall modify this Franchise to the satisfaction of all parties to ameliorate the negative effects on Franchisee of the material alteration. If the parties cannot reach agreement on the above-referenced modification to the Franchise, then Franchisee may terminate this Agreement without further obligation to Grantor or Member Jurisdictions or, at Franchisee's option, the parties agree to submit the matter to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. 2.10. Termination of Telecommunications Services. Notwithstanding any other provision of this Agreement, if Franchisee ceases to provide Telecommunications Services over the FTTP Network at any time during the Term and is not otherwise authorized to occupy the Public Rights-of-Way in the Franchise Area, Grantor may regulate the FTTP Network as a cable system to the extent permitted by Title VI. 3. PROVISION OF CABLE SERVICE 3.1. Service Area: 3.1.1. Initial Service Area: Franchisee shall offer Cable Service to significant numbers of Subscribers in residential areas of the Initial Service Area, and may make Cable Service available to businesses in the Initial Service Area, within twelve (12) months of the Service Date of this Franchise, and shall offer Cable Service to all residential areas in the Initial Service Area within four (4) years of the Service Date of the Franchise, except: (A) for periods of Force Majeure; (B) for periods of delay caused by Grantor or Member Jurisdictions; (C) for periods of delay resulting from Franchisee's inability to obtain authority to access rights- of-way in the Service Area; (D) in areas where developments or buildings are subject to claimed exclusive arrangements with other providers; (E) in developments or buildings that Franchisee cannot access under reasonable terms and conditions after good faith negotiation, as determined by Franchisee; and (F) in developments or buildings that Franchisee is unable to provide Cable Service for technical reasons or which require non-standard facilities which are not available on a commercially reasonable basis; and (G) in areas where the occupied residential household density does not meet the density requirement set forth in Subsection 3.1.1.1. 3.1.1.1. Density Requirement. Franchisee shall make Cable Services available to residential dwelling units in all areas of the Service Area where the average density is equal to or greater than ten (10) occupied residential dwelling units per quarter mile as MACC 12 Seattle-3338555.9 0010932-00100 measured in strand footage from the nearest technically feasible point on the active FTTP Network trunk or feeder line. Should new construction in an area within the Initial Service Area meet the density requirements after the time stated for providing Cable Service as set forth in Subsection 3.1.1, Franchisee shall provide Cable Service to such area within ninety (90) days of the date that the Franchisee's Franchise Service Manager is notified of a request from a potential Subscriber and verification that the density requirement is satisfied. Franchisee has an ongoing obligation to notify Grantor of any changes to the name and contact information for the Franchise Service Manager. 3.1.2. Additional Service Areas: Aside from the Initial Service Area, Franchisee shall not be required to extend its Cable System or to provide Cable Services to any other areas within the Franchise Area during the term of this Franchise or any renewals thereof. If Franchisee desires to add Additional Service Areas within the unincorporated areas of Washington County or the territorial limits of the Member Jurisdictions, Franchisee shall notify Grantor in writing and provide a map of such Additional Service Area at least thirty (30) days prior to providing Cable Services to such Additional Service Area which shall then become part of the Franchise Area. Notwithstanding the foregoing, the parties acknowledge that the addition of the cities of Banks, Gaston, or North Plains as an Additional Service Area shall be subject to reasonable approval by Grantor and the affected jurisdiction. Franchisee shall meet with Grantor at least once every two years, beginning with the Effective Date, to discuss whether technology and development warrant extending the service area to include Banks, Gaston, North Plains and additional areas within Member Jurisdiction boundaries not included in the Initial Service Area. As a result of each of these meetings, Franchisee will either (a) negotiate in good faith an amendment to the Agreement to expand service to one or more of these areas, if an amendment is necessary, or (b) explain why, in Franchisee's sole discretion, expansion of service is not yet justified. Franchisee shall not be required to disclose confidential information in conjunction with these discussions. 3.2. Availability of Cable Service: Franchisee shall make Cable Service available to all residential dwelling units and may make Cable Service available to businesses within the Service Area in conformance with Section 3.1 and Franchisee shall not discriminate between or among any individuals in the availability of Cable Service. In the areas in which Franchisee shall provide Cable Service, Franchisee shall be required to connect, at Franchisee's expense (other than a standard installation charge) all residential dwelling units that are within one hundred twenty-five (125) feet of trunk or feeder lines not otherwise already served by Franchisee's FTTP Network. Franchisee shall be allowed to recover, from a Subscriber that requests such connection, actual costs incurred for residential dwelling unit connections that exceed one hundred twenty-five (125) feet and actual costs incurred to connect any non- residential dwelling unit Subscriber. 3.3. Cable Service to Public Buildings: Subject to 3. 1, Franchisee shall provide, without charge within the Service Area, one service outlet activated for Basic Service to each unserved (by any cable operator) fire station, School, police station, and public library as may be designated by Grantor; provided, however, that if it is necessary to extend Franchisee's trunk or feeder lines more than one hundred twenty-five (125) feet solely to provide service to any such School or public building, Grantor shall have the option either of paying Franchisee's direct costs for such extension in excess of one hundred twenty-five (125) feet, or of releasing MACC 13 Seattle-3338555.9 0010932-00100 Franchisee from the obligation to provide service to such building. Furthermore, Franchisee shall be permitted to recover, from any School or other public building owner entitled to free service, the direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than one hundred twenty-five (125) feet of drop cable; provided, however, that Franchisee shall not charge for the provision of Basic Service to the additional service outlets once installed. Cable Service may not be resold or otherwise used in contravention of Franchisee's rights with third parties respecting programming. Equipment provided by Franchisee, if any, shall be replaced at retail rates if lost, stolen or damaged. No more than 150 complimentary service outlets shall be required to be served under this provision. In addition, Franchisee shall provide without charge one service outlet activated for Enhanced Basic Service and one set-top box as necessary to receive digital signals to each of the following locations: the Commission's offices and the Commission's PEG Access Headend. 4. SYSTEM OPERATION As provided in Section 2.2, the parties recognize that Franchisee's FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities. The jurisdiction of Grantor or Member Jurisdictions over such Telecommunications Facilities is restricted by federal and state law, and neither Grantor nor the Member Jurisdictions asserts jurisdiction over Franchisee's FTTP Network in contravention of those limitations. 5. SYSTEM FACILITIES 5.1. System Characteristics: The Cable System must conform to or exceed all applicable FCC technical performance standards, as amended from time to time. Franchisee's Cable System shall substantially conform in all material respects to applicable sections of the following standards and regulations to the extent such standards and regulations remain in effect and are consistent with accepted industry standards. 5.1.1. The System shall be designed with an initial analog and digital carrier passband of between 50 MHz and 860 MHz. The System shall be capable of analog, standard digital, HDTV, VOD, as well as other future services. 5.1.2. The System shall have a modern design, when built, utilizing an architecture that will permit additional improvements necessary for high quality and reliable service throughout the Franchise Term. 5.1.3. The System shall have protection against outages due to power failures, so that back-up power is available at a minimum for at least twenty-four (24) hours at each headend, and conforming to industry standards, but in no event rated for less than four (4) hours, at each power supply site. 5.1.4. All work authorized and required hereunder shall be done in a safe, thorough and workman-like manner. The Franchisee must comply with all safety requirements, rules, and practices and employ all necessary devices as required by applicable law during construction, operation and repair of its Cable System. By way of illustration and not limitation, MACC 14 Seattle-3338SSS.9 0010932-00(00 the Franchisee must comply with the National Electrical Code, National Electric Safety Code, and Occupational Safety and Health Administration (OSHA) Standards. 5.2. Inspection of Facilities: The Grantor may inspect upon request any of Franchisee's facilities and equipment to confirm performance under this Agreement upon at least twenty-four (24) hours notice. In all instances, a qualified representative of Franchisee must be available to accompany the tour to insure that no privacy requirements are violated. 5.3. Emergency Alert System: 5.3.1. Franchisee shall comply with the Emergency Alert System ("EAS") requirements of the FCC in order that emergency messages may be distributed over the System. 5.3.2. In the event of a state or local civil emergency, the EAS shall be activated by equipment or other acceptable means as set forth in the State and Local EAS Plans. Member Jurisdictions shall permit only appropriately trained and authorized Persons to activate the EAS equipment through the EAS Local Primary Stations (LP 1 or LP2) and remotely override the audio and video on all channels on the Cable System.. Each Member Jurisdiction shall take reasonable precautions to prevent any inappropriate use of the EAS or Cable System, or any loss or damage to the Cable System, and, except to the extent prohibited by law, shall hold harmless and defend Franchisee, its employees, officers and assigns from and against any claims arising out of use of the EAS by that Member Jurisdiction, including but not limited to, reasonable attorneys' fees and costs. 6. PEG SERVICES 6.1. PEG Access Channels: 6.1.1. All PEG Access Channels provided for herein shall be administered by the Grantor or its designee. Grantor or its designee shall establish rules and regulations for use of PEG facilities consistent with, and as required by, 47 U.S.C. §531. Franchisee shall cooperate with Grantor or its designee in the use of the Cable System for the provision of PEG Access Channels. 6.1.2. In order to ensure universal availability of public, educational and government programming, Franchisee shall provide Grantor, within thirty (30) days of the Service Date of this Agreement, six (6) dedicated Public, Educational, and Government Access Channels ("PEG Access Channels"). All PEG Access Channels will be on the Basic Service Tier and will be fully accessible to Subscribers, consistent with FCC regulations. Franchisee shall ensure that the signal quality for all PEG Access Channels is in compliance with all applicable FCC technical standards. Franchisee will use equipment and procedures that will minimize the degradation of signals that do not originate with the Franchisee. Franchisee shall provide regular and routine maintenance and repair/replacement of transmission equipment it supplies necessary to carry a quality signal on the PEG Access Channels and from the Origination Points provided for herein. iACC 15 Seattle-3338555.9 0010932-00100 6.1.3. Within ten (10) days after the Effective Date of this Agreement, Grantor shall inform Franchisee of the general nature of the programming to be carried on the initial PEG Access Channels set aside by Franchisee. Grantor and Member Jurisdictions authorize Franchisee to transmit such programming within and outside the Franchise Area. Franchisee shall assign the PEG Access Channels on its channel line-up as set forth in the notice from Grantor to the extent such channel assignments do not interfere with Franchisee's existing or planned channel line-up. If Grantor later changes the programming carried on a PEG Access Channel(s), Grantor shall provide Franchisee with at least ninety (90) days notice of the change(s). 6.1.3.1. If a PEG Access Channel provided under this Article is not being utilized by Grantor, Franchisee may utilize such PEG Channel, in its sole discretion, until such time as Grantor elects to utilize the PEG Access Channel for its intended purpose. 6.1.3.2. Grantor shall require all local producers and users of any of the PEG facilities or Channels to agree to authorize Franchisee to transmit programming consistent with this agreement in writing and to defend and hold harmless Franchisee and Grantor from and against any and all liability or other injury, including the reasonable cost of defending claims or litigation, arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity, which result from the use of a PEG facility or PEG Access Channel. 6.1.4. If all of Franchisee's video programming is delivered in a digital format, then, Franchisee shall reserve six (6) additional PEG Access Channels, for a total of twelve (12) PEG Access Channels. Franchisee shall activate the reserved PEG Access Channels following a written request from Grantor when the following criteria have been met for each additional PEG Access Channel: 6.1.4.1. Grantor must have a documented need for additional programming capacity that cannot be fulfilled by existing PEG Access Channels; 6.1.4.2. the existing PEG Access Channels must be utilized for PEG programming within the Franchise Area as follows: 6.1.4.2.1. Public Access Channels: During any eight (8) consecutive weeks, the Public Access Channel is in use for Locally Produced, Locally Scheduled Original Programming 80% of the time, seven (7) days per week, for any consecutive five (5) hour block during the hours from noon to midnight; or 6.1.4.2.2. Educational Access Channels: During any eight (8) consecutive weeks, the Educational Access Channel is in use for Locally Scheduled Original Programming 80% of the time, five (5) days per week, Monday through Friday, for any consecutive five (5) hour block during the hours from 6:00 a.m. to 11:00 p.m.; or MACC 16 Seatde-3338555.9 0010932-00100 6.1.4.2.3. Governmental Access Channels: During any eight (8) consecutive weeks, the Governmental Access Channel is in use for Locally Scheduled Original Programming 80% of the time, five (5) days per week, Monday through Friday, for any consecutive five (5) hour block during the hours from 6:00 a.m. to 11:00 p.m.; 6.1.4.3. all cable providers within the Franchise Area similarly provide such additional PEG Access Channels; and 6.1.4.4. as long as the signal source location is the PEG Access Headend, any additional PEG Access Channel shall be made available within one hundred twenty (120) days following Grantor's request (which shall constitute Grantor's authorization to transmit the PEG Access Channel within and outside the Franchise Area) and verification of compliance with each of the foregoing conditions. If the signal source location is not the PEG Access Headend, the timing of the availability and other conditions will be by mutual agreement of Grantor and Franchisee. In no event shall the origination point be located outside the Franchise Area. 6.1.5. For the purpose of Section 6.1.4: 6.1.5.1. "Locally Produced" means programming produced in Clackamas, Multnomah, or Washington Counties, or the Vancouver/Clark County, Washington metropolitan area; and 6.1.5.2. "Original Programming" means Programming in its initial cablecast on the Cable System or in its first or second repeat; and 6.1.5.3. "Locally Scheduled" means that the scheduling, selection and or playback of Original Programming on a per-program basis is determined in consultation with, or pursuant to the operating procedures of, the Designated Access Provider or, with respect to programming received from an Interconnection, the provider transmitting the programming over the Interconnection. However, carriage on any PEG Access Channel of all or a substantial portion of any non-local programming which duplicates programming otherwise carried by Grantee as a part of its Basic or expanded Basic Cable Services shall not be considered "Locally Scheduled." 6.2. Connection of PEG Access Headen& 6.2.1. Grantor shall provide suitable video signals for the PEG Access Channels to Franchisee at Grantor's PEG Access Headend located at 11375 SW Center Street, Suite B, Beaverton, Oregon 97005. Upon receipt of a suitable video signal, Franchisee shall provide, install, and maintain in good working order the equipment necessary for transmitting the PEG signal to the channel aggregation site for further processing for distribution to Subscribers. Franchisee's obligation with respect to such upstream transmission equipment and facilities shall be subject to the availability, without charge to Franchisee, of suitable required space, environmental conditions, electrical power supply, access, pathway within the facility, and other facilities and such cooperation of Grantor as is reasonably necessary for Franchisee to fulfill such obligations. MACC 17 Seattle-3338555.9 0010932-00100 6.2.2. Grantor shall have the right to relocate the PEG Access Headend one time during the term of this Franchise as follows: Grantor may relocate the PEG Access Headend to a new location within the Service Area and within five hundred (500) feet of one of Franchisee's active, video-enabled FTTP trunk or feeder lines; provided that Grantor shall provide to Franchisee at the new location: (1) suitable required space, environmental conditions, electrical power supply, access, pathway within the facility, and other facilities and cooperation of Grantor as is reasonably necessary; (2) access to such space at least ninety (90) days prior to anticipated use of the new PEG Access Headend; and (3) reimbursement of up to Fifteen Thousand Dollars ($15,000) for costs associated with the relocation of the equipment necessary for transmitting the PEG signal. 6.3. Origination Points: To facilitate the Grantor's transmission of live video/audio and other PEG programming from certain remote sites, the Franchisee, at its own expense, will provide and maintain fiber connections and the related analog to digital (ADC) transmission/receive equipment necessary between the Grantor's PEG Access Headend and the Origination Points listed in Exhibit B of this Agreement. Grantor agrees it will not use these fiber connections for other purposes. 6.4. PEG/PCN Grant: 6.4.1. Franchisee shall provide an annual grant (the "PEG/PCN Grant") to Grantor to be used in support of the production of local PEG programming and in support of the PCN. Such grant shall be used by Grantor for capital costs for public, educational, or governmental access facilities, including, but not limited to, studio and portable production equipment, editing equipment and program playback equipment, or for renovation or construction of PEG access facilities, and to support the capital and operating needs of PCN users. 6.4.2. The PEG/PCN Grant provided by Franchisee hereunder shall be the sum of $1.00, per month, per Subscriber in the Service Area to Franchisee's Basic Service .Tier. Franchisee shall deliver the PEG/PCN Grant payment, along with a brief summary of the Subscriber information upon which it is based, to Grantor concurrent with the Franchise fee payment. Calculation of the PEG/PCN Grant will commence with the first calendar quarter during which Franchisee obtains its first Subscriber in the Service Area. Franchisee may retain up to twenty-five percent (25%) of PEG/PCN Grant payments until the full amount of the Incidental Payment required in Section 14.5 of this Agreement is recovered. 6.4.3. Grantor shall provide Franchisee with a complete accounting annually of the distribution of funds granted pursuant to this Section. 6.4.4. To the extent permitted by federal law, the Franchisee shall be allowed to recover the costs of the PEG/PCN Grant or any other costs arising from the provision of PEG and PCN services from Subscribers and to include such costs as a separately billed line item on each Subscriber's bill. Without limiting the forgoing, if allowed under state and federal laws, Franchisee may externalize, line-item, or otherwise pass-through these costs to Subscribers. MACC 18 Seattle-3338555.9 0010932-00100 7. FRANCHISE FEES 7. 1. Payment to the Grantor: Franchisee shall pay to the Grantor a Franchise fee of five percent (5%) of annual Gross Revenue. In accordance with Title VI of the Communications Act, the twelve (12) month period applicable under the Franchise for the computation of the Franchise fee shall be a calendar year. Such payments shall be made no later than forty-five (45) days following the end of each calendar quarter. Franchisee shall be allowed to submit or correct any payments that were incorrectly omitted, and shall be refunded any payments that were incorrectly submitted, in connection with the' quarterly Franchise fee remittances within ninety (90) days following the close of the calendar year for which such payments were applicable. In the event any law or valid rule or regulation applicable to this Franchise limits Franchise fees below the five percent (5%) of annual Gross Revenues required herein, Franchisee agrees to and shall pay the maximum permissible amount and, if such law or valid rule or regulation is later repealed or amended to allow a higher permissible amount, then the Franchisee shall pay the higher amount up to the maximum allowable by law, not to exceed five percent (5%) during all affected time periods. 7.2. Supporting Information: Each Franchise fee payment shall be accompanied by a written report prepared by a representative of Franchisee showing the basis for the computation in the form attached hereto as Exhibit C. Grantor shall have the right to reasonably request further supporting documentation and information for each Franchise fee payment, subject to the confidentiality provisions in this Agreement; provided that Franchisee shall not be required to develop or create reports that are not a part of its normal business procedures and reporting or that have been defined specifically within this Agreement. 7.3. Acceptance of Payments: Subject to Section 7.4 below, no acceptance of any payment shall. be construed as an accord by Grantor that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim Grantor may have for further or additional sums payable or for the performance of any other obligation of Franchisee. 7.4. Audit of Franchise Fee Payments: 7.4.1. Grantor, or its designee, may conduct an audit or other inquiry in relation to payments made by Franchisee no more than once every two (2) years during the Term. As a part of the audit process, Grantor or Grantor's designee may inspect Franchisee's books of accounts relative to Grantor at any time during regular business hours and after thirty (30) calendar days prior written notice. 7.4.2. All records deemed by Grantor or Grantor's designee to be reasonably necessary for such audit, which shall include, but not be limited to, all records subject to inspection by Grantor pursuant to Section 9.2 herein, shall be made available by Franchisee in a mutually agreeable format and location. Franchisee agrees to give its full cooperation in any audit and shall provide responses to inquiries within thirty (30) calendar days of a written request. Franchisee may provide such responses within a reasonable time after the expiration of the response period above so long as Franchisee makes a good faith effort to procure any such tardy response. MACC 19 Seattle-3338555.9 0010932-00100 7.4.2. 1. During any audit period when Franchisee has less than 10,000 Subscribers, if the results of any audit indicate that Franchisee (i) paid the correct Franchise fee, (ii) overpaid the Franchise fee and is entitled to a refund or credit, or (iii) underpaid the Franchise fee by five percent (5%) or less, then Grantor shall pay the costs of the audit. If the results of the audit indicate Franchisee underpaid the Franchise fee by more than five percent (5%) during the audit period, then Franchisee shall pay the reasonable, documented, third-party costs of the audit up to Ten Thousand Dollars ($10,000) per audit. 7.4.2.2. During any period when Franchisee has 10,000 or more Subscribers, if the results of any audit indicate that Franchisee (i) paid the correct Franchise fee, (ii) overpaid the Franchise fee and is entitled to a refund or credit, or (iii) underpaid the Franchise fee by three percent (3%) or less, then Grantor shall pay the costs of the audit. If the results of the audit indicate Franchisee underpaid the Franchise fee by more than three percent (3%) during the audit period, then Franchisee shall pay the reasonable, documented, third-party costs of the audit up to Fifteen Thousand Dollars ($15,000) per audit. 7.4.2.3. Grantor agrees that any audit shall be performed in good faith. If any audit discloses an underpayment of the Franchise fee of any amount, Franchisee shall pay Grantor the amount of the underpayment, together with interest as provided in Section 7.7 below. Any auditor employed by Grantor shall not be compensated on a success based formula, e.g., payment based on a percentage on underpayment, if any. 7.5. Limitation on Franchise Fee Actions: The period of limitation for recovery of any Franchise fee payable hereunder shall be three (3) years from the date on which payment by Franchisee is due. 7.6. Bundled Services: In the case of a Cable Service that is bundled or integrated functionally with other services, capabilities, or applications, the portion of Franchisee's revenue attributable to such other services, capabilities, or applications shall be included in Gross Revenue unless Franchisee's books and records that are kept in the regular course of business identify the revenue as being attributable to the other services, capabilities or applications. 7.7. Annual Franchise Fee Report: Franchisee shall, no later than one hundred twenty (120) days after the end of each calendar year, furnish to Grantor an annual summary of Franchise fee calculations, substantially in the form attached hereto as Exhibit C but showing annual rather than quarterly amounts. 7.8. Interest on Late Payments: In the event that a Franchise fee payment or other sum is not received by Grantor on or before the due date, or is underpaid, Franchisee shall pay in addition to the payment, or sum due, interest from the due date at a rate equal to the statutory interest rate on judgments in the State of Oregon. 7.9. Payment on Termination: If this Agreement terminates for any reason, Franchisee shall file with Grantor within ninety (90) calendar days of the date of the termination, a financial statement showing the Gross Revenues received by the Franchisee since the end of the previous calendar quarter for which Franchise fees were paid. If, within sixty (60) days of MACC 20 Seattle-3338555.9 0010932-00100 providing such financial statement, Franchisee has not satisfied all remaining financial obligations to Grantor, Grantor reserves the right to,satisfy any remaining financial obligations of the Franchisee to Grantor by utilizing the funds available in the Letter of Credit provided by the Franchisee under Section 13.6 of this Agreement. 7.10. Costs of Publication: Franchisee shall pay the reasonable cost of newspaper notices and publication pertaining to this Agreement, and any amendments thereto, including changes in control or transfers of ownership, as such notice or publication is reasonably required by Grantor under applicable law. 8. CUSTOMER SERVICE 8.1. Customer Service Requirements are set forth in Exhibit D, which shall be binding unless amended by written consent of the parties. 8.2. If, at any time during the term of this Franchise, "Effective Competition," as defined by the Communications Act, as the term may be reasonably applied to Franchisee, ceases to exist in the Service Area, Grantor and Franchisee agree to enter into good faith negotiations to determine if there is a need for additional customer service requirements. Grantor and Franchisee shall enter into such negotiations within forty-five (45) days following a request for negotiations by Franchisee after the cessation of "Effective Competition" as described above. 9. REPORTS AND RECORDS 9.1. Open Books and Records: Upon reasonable written notice to Franchisee and with no less than thirty (30) days written notice to Franchisee, Grantor shall have the right to inspect Franchisee's books and records pertaining to Franchisee's provision of Cable Service in the Franchise Area at any time during weekday business hours and on a nondisruptive basis at a mutually agreed location within Franchisee's Title II service territory in Oregon and Washington, as are reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the section or subsection of the Franchise which is under review, so that Franchisee may organize the necessary books and records for appropriate access by Grantor. Franchisee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years. Franchisee shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act, 47 U.S.C. §551. If any books, records, maps, plans or other requested documents are too voluminous, not available locally in the Franchisee's Title II service territory in Oregon and Washington, or for security reasons cannot be copied and moved, then the Franchisee may request that the inspection take place at a location mutually agreed to by Grantor and the Franchisee, provided that the Franchisee must pay all travel expenses incurred by Grantor in inspecting those documents or having the documents inspected by its designee, above those that would have been incurred had the documents been produced in Franchisee's Title II service territory in the Portland metropolitan area. 9.2. Proprietary Books and Records: If the Franchisee believes that the requested information is confidential and proprietary, the Franchisee must provide the following documentation to Grantor: (i) specific identification of the information; and (ii) statement MACC 21 Seattle-3338555.9 0010932-00100 attesting to the reason(s) Franchisee believes the information is confidential. The Grantor shall take reasonable steps to protect the proprietary and confidential nature of any books, records, Service Area maps, plans, or other documents requested by Grantor that are provided pursuant to this Agreement to the extent they are designated as such by the Franchisee, consistent with the Oregon Public Records Law. Should Grantor be required under state law to disclose information derived from Franchisee's books and records, Grantor agrees that it shall provide Franchisee with reasonable notice and an opportunity to seek appropriate protective orders prior to disclosing such information. Notwithstanding anything to the contrary set forth herein, Franchisee shall not be required to disclose any of its or an Affiliate's books and records not relating to the provision of Cable Service in the Service Area, or any confidential information relating to such Cable Service where the Grantor and Member Jurisdictions cannot lawfully protect the confidentiality of the information. 9.3. Records Required: Franchisee shall maintain: 9.3.1. Records of all written complaints for a period of three (3) years after receipt by Franchisee. The term "complaint" as used herein refers to complaints about any aspect of the Cable System or Franchisee's cable operations, including, without limitation, complaints about employee courtesy. Complaints recorded will not be limited to complaints requiring an employee service call; 9.3.2. Records of outages for a period of three (3) years after occurrence, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause; 9.3.3. Records of service calls for repair and maintenance for a period of three (3) years after resolution by Franchisee, indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was resolved; 9.3.4. Records of installation/reconnection and requests for service extension for a period of three (3) years after the request was fulfilled by Franchisee, indicating the date of request, date of acknowledgment, and the date and time service was extended; and 9.3.5. A public file showing the area of coverage for the provisioning of Cable Services and estimated timetable to commence providing Cable Service. 9.4. Additional Requests: The Grantor shall have the right to request in writing such information as is appropriate and reasonable to determine whether Franchisee is in compliance with applicable Customer Service Standards, as referenced in Exhibit D. Franchisee shall provide Grantor with such information in such format as Franchisee customarily prepares reports. Franchisee shall fully cooperate with Grantor and shall provide such information and documents as necessary and reasonable for the Grantor to evaluate compliance, subject to Section 9.6. 9.5. Copies of Federal and State Documents: Franchisee shall submit to the Grantor a list, or copies of actual documents, of all pleadings, applications, notifications, MACC 22 Scattlo-3338555.9 0010932-00100 communications and documents of any kind, submitted by Franchisee or its parent corporations or Affiliates to any federal, state or local courts, regulatory agencies or other government bodies if such documents specifically relate to the operations of Franchisee's Cable System within the Franchise Area. Franchisee shall submit such list or documents to the Grantor no later than thirty (30) days after filing, mailing or publication thereof. Franchisee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, state, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or state agency or a request for confidential treatment is pending. To the extent allowed by law, any such confidential material determined to be exempt from public disclosure shall be retained in confidence by the Grantor and its duly authorized agents and shall not be made available for public inspection. 9.6. Report Expense: All reports and records required under this or any other Section shall be furnished, without cost, to Grantor. Franchisee shall not be required to develop or create reports that are not a part of its normal business procedures and reporting or that have been defined specifically within this Section 9 in order to meet the requirements of this Section 9. 10. INSURANCE AND INDEMNIFICATION 10.1. Insurance: 10.1.1. Franchisee shall maintain in full force and effect, at its own cost and expense, during the Franchise Term, the following insurance coverage: 10.1.1.1. Commercial General Liability Insurance in the amount of Three Million Dollars ($3,000,000) combined single limit for property damage and bodily injury; one million dollar ($1,000,000) limit for broadcaster's liability. Such insurance shall cover the construction, operation and maintenance of the Cable System, and the conduct of Franchisee's Cable Service business in the Franchise Area. 10.1.1.2. Automobile Liability Insurance in the amount of Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage coverage. 10.1.1.3. Workers' Compensation Insurance meeting all legal requirements of the State of Oregon. 10.1.1.4. Employers' Liability Insurance in the following amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by Disease: $100,000 employee limit; $2,000,000 policy limit. 10.1.2. Grantor and Member Jurisdictions shall be designated as additional insureds under each of the insurance policies required in this Article 10 except Worker's Compensation and Employer's Liability Insurance. 10.1.3. Franchisee shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Agreement. MACC 23 Seatdc-3338555.9 0010932-00100 10. 1.4. Each of the required insurance policies shall be with sureties qualified to do business in the State of Oregon, with an A- or better rating for financial condition and financial performance by Best's Key Rating Guide, Property/Casualty Edition. 10.1.5. Upon written request, Franchisee shall deliver to Grantor Certificates of Insurance showing evidence of the required coverage. 10.2. Indemnification: 10.2.1. Franchisee agrees to indemnify, save and hold harmless, and defend Grantor, its officers, agents, boards and employees, from and against any liability for damages or claims resulting from tangible property damage or bodily injury (including accidental death), to the extent proximately caused by Franchisee's negligent construction, operation, or maintenance of its Cable System, provided that Grantor shall give Franchisee written notice of its obligation to indemnify Grantor within ten (10) days of receipt of a claim or action pursuant to this subsection. Notwithstanding the foregoing, Franchisee shall not indemnify Grantor for any damages, liability or claims resulting from the willful misconduct or negligence of Grantor, its officers, agents, employees, attorneys, consultants, independent contractors or third parties or for any activity or function conducted by any Person other than Franchisee in connection with PEG Access Channels, use of the PCN, or EAS, or the distribution of any Cable Service over the Cable System. 10.2.2. With respect to Franchisee's indemnity obligations set forth in Subsection 10.2.1, Franchisee shall provide the defense of any claims brought against Grantor by selecting counsel of Franchisee's choice to defend the claim, subject to.the consent of Grantor, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent Grantor from cooperating with Franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense, provided however, that after consultation with Grantor, Franchisee shall have the right to defend, settle or compromise any claim or action arising hereunder, and Franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such settlement does not include the release of Grantor and Grantor does not consent to the terms of any such settlement or compromise, Franchisee shall not settle the claim or action but its obligation to indemnify Grantor shall in no event exceed the amount of such settlement. 10.2.3. Grantor shall hold Franchisee harmless and shall be responsible for damages, liability or claims resulting from willful misconduct or negligence of Grantor. 10.2.4. Grantor shall be responsible for its own acts of willful misconduct or negligence, or breach of obligation committed by Grantor for which Grantor is legally responsible, subject to any and all defenses and limitations of liability provided by law. Franchisee shall not be required to indemnify Grantor for acts of Grantor which constitute willful misconduct or negligence, on the part of Grantor, its officers, employees, agents, attorneys, consultants, independent contractors or third parties. MACC 24 Seattlc-3338555.9 0010932-00100 11. TRANSFER OF FRANCHISE 11.1. Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, no "Transfer of the Franchise" shall occur without the prior consent of Member Jurisdictions, provided that such consent shall not be unreasonably withheld, delayed or conditioned. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of Franchisee in the Franchise or Cable System in order to secure indebtedness, or otherwise excluded under this Article 11. 11.2. A "Transfer of the Franchise" shall mean any transaction in which: 11.2.1. an ownership or other interest in Franchisee is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, so that control of Franchisee is transferred; or 11.2.2. the rights held by Franchisee under the Franchise are transferred or assigned to another Person or group of Persons. However, notwithstanding Subsections 11.2.1 and 11.2.2, a Transfer of the Franchise shall not include transfer of an ownership or other interest in Franchisee to the parent of Franchisee or to another Affiliate of Franchisee; transfer of an interest in the Franchise or the rights held by Franchisee under the Franchise to the parent of Franchisee or to another Affiliate of Franchisee; any action which is the result of a merger of the parent of Franchisee; or any action which is the result of a merger of another Affiliate of Franchisee. The parent of Franchisee is shown in Exhibit E. 11.3. Franchisee shall make a written request ("Request") to Grantor and Member Jurisdictions for approval of any Transfer of the Franchise and furnish all information required by law and/or reasonably requested by Grantor and Member Jurisdictions in respect to its consideration of a proposed Transfer of the Franchise. Member Jurisdictions shall render a final written decision on the Request within one hundred twenty (120) days of the Request, provided it has received all requested information. Subject to the foregoing, if the Member Jurisdictions fail to render a written decision on the Request within one hundred twenty (120) days, the Request shall be deemed granted unless Franchisee and Member Jurisdictions agree to an extension of time. 11.4. In reviewing a Request related to a Transfer of the Franchise, Grantor and Member Jurisdictions may inquire into the legal, technical and financial qualifications of the prospective transferee, and Franchisee shall assist Grantor and Member Jurisdictions in so inquiring. Member Jurisdictions may condition said Transfer of the Franchise upon such terms and conditions as they deem reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective or transferee and to the resolution of outstanding and unresolved issues of Franchisee's noncompliance with the terms and conditions of this Agreement. Mace 25 Seattle-3338555.9 0010932-00100 11.5. The consent or approval of Member Jurisdictions to any Request by the Franchisee shall not constitute a waiver or release of any rights of Member Jurisdictions, and any transferee shall be expressly subordinate to the terms and conditions of this Agreement. 11.6. Notwithstanding the foregoing, the parties agree that the Member Jurisdictions' consent and/or approval to any transfer or assignment of any rights, title, or interest of Franchisee to any Person shall not be required where Verizon Northwest Inc. or its lawful successor which is not a third party transferee remains the Franchisee following any such transfer or assignment. 12. RENEWAL OF FRANCHISE 12.1. The parties agree that any proceedings undertaken by Grantor and Member Jurisdictions that relate to the renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act, 47 U.S.C. § 546. 12.2. In addition to the procedures set forth in said Section 626 of the Communications Act, Grantor agrees to notify Franchisee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of Franchisee under the then current Franchise term. Grantor further agrees that such assessments shall be provided to Franchisee promptly so that Franchisee has adequate time to submit a proposal under Section 626 and complete renewal of the Franchise prior to expiration of its term. 13. ENFORCEMENT AND TERMINATION OF FRANCHISE 13.1. Notice of Violation: In the event Grantor believes that Franchisee has failed to perform any obligation under this Agreement or has failed to perform in a timely manner, Grantor shall informally discuss the matter with Franchisee. If these discussions do not lead to resolution of the problem, Grantor shall notify Franchisee in writing, stating with reasonable specificity the nature of the alleged violation. 13.2. Franchisee's Right to Cure or Respond: Franchisee shall have thirty (30) days from receipt of the written notice described in Section 13.1 to: (i) respond to Grantor, contesting (in whole or in part) Grantor's assertion that a violation has occurred, and requesting a hearing in accordance with subsection 13.3 below; (ii) cure the violation; or (iii) notify Grantor that Franchisee cannot cure the violation within the thirty (30) days, and notify the Grantor in writing of what steps Franchisee shall take to cure the violation including Franchisee's projected completion date for such cure. The procedures provided in Section 13.4 shall be utilized to impose any fines. The date of violation will be the date of the event and not the date Franchisee receives notice of the violation provided, however, that if Grantor has actual knowledge of the violation and fails to give the Franchisee the notice called for herein, then the date of the violation shall be no earlier than ten (10) business days before the Grantor gives Franchisee the notice of the violation. 13.2.1. In the event that the Franchisee notifies the Grantor that it cannot cure the violation within the thirty (30) day cure period, Grantor shall, within thirty (30) days of Grantor's receipt of such notice, set a hearing. MACC 26 Seattle-3338555.9 0010932-00100 13.2.2. In the event that the Franchisee fails to cure the violation within the thirty (30) day basic cure period, or within an extended cure period approved by the Grantor pursuant to subsection 13.2(iii), the Grantor shall set a hearing to determine what fines, if any, shall be applied. 13.2.3. In the event that the Franchisee contests the Grantor's assertion that a violation has occurred, and requests a hearing in accordance with subsection 13.2(i) above, the Grantor shall set a hearing within sixty (60) days of the Grantor's receipt of the hearing request to determine whether the violation has occurred, and if a violation is found, what fines shall be applied. 13.3. Public Hearing: In the case of any hearing pursuant to section 3.2 above, Grantor shall provide reasonable notice to Franchisee of the hearing in writing. At the hearing Franchisee shall be provided an opportunity to be heard, to examine Grantor's witnesses, and to present evidence in its defense. The Grantor may also hear any other person interested in the subject, and may provide additional hearing procedures as Grantor deems appropriate. 13.3.1. If, after the hearing, Grantor determines that a violation exists, Grantor may use one of the following remedies: 13.3.1.1. Order Franchisee to correct or remedy the violation within a reasonable time frame as Grantor shall determine; 13.3.1.2. Establish the amount of fine set forth in Section 13.5, taking into consideration the criteria provided for in subsection 13.4 of this Agreement as appropriate in Grantor's discretion; or 13.3.1.3. Pursue any other legal or equitable remedy available under this Agreement or any applicable law; or 13.3.1.4. In the case of a substantial material default of a material provision of the Franchise, seek to revoke the Franchise in accordance with Section 13.7. 13.4. Reduction of Fines: The fines set forth in Section 13.5 of this Agreement may be reduced at the discretion of the Grantor, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: 13.4.1. Whether the violation was unintentional; 13.4.2. The nature of the harm which resulted; 13.4.3. Whether there is a history of prior violations of the same or other requirements; 13.4.4. Whether there is a history of overall compliance, and/or; MACC 27 Seattle-3338555.9 0010932-00100 13.4.5. Whether the violation was voluntarily disclosed, admitted or cured. 13.5. Fine Schedule: 13.5.1. For violating telephone answering standards set forth in Exhibit D, Section 2.13 for a quarterly measurement period, unless the violation has been cured, fines shall be as set forth below. A cure is defined as meeting the telephone answering standards for two consecutive quarterly measurement periods. Quarterly Telephone Answer Time Fines 1'` Violation 2"d Violation Td Violation Quarterly Fine $ 2,000" $ 4,000' $ 6,000* * If after forty-two (42) months, no fines have been assessed for violations of call answer time standards, these fines shall be reduced b fifty percent (50%). 13.5.2. For all other violations of this Agreement, the fine shall be $250 per day. 13.5.3. Total fines shall not exceed Twenty-Five Thousand Dollars ($25,000) in any twelve-month period. .13.5.4. If Grantor elects to assess a fine pursuant to this Section, such election shall constitute Grantor's exclusive remedy for the violation for which the fine was assessed for a period of sixty (60) days. Thereafter, the remedies provided for in this Agreement are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another remedy, or the exercise of any rights of the Grantor at law or equity, provided that the cumulative remedies may not be disproportionate to the magnitude and severity of the breach for which they are imposed. 13.6. Letter of Credit: Franchisee shall provide a letter of credit in the amount of Twenty Thousand Dollars ($20,000) as security for the faithful performance by Franchisee of all material provisions of this Agreement. 13.7. Revocation: Should Grantor seek to revoke the Franchise after following the procedures set forth in Sections 13.1 through 13.5 above, Grantor shall give written notice to Franchisee of its intent. The notice shall set forth the exact nature of the noncompliance. Franchisee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event Grantor has not received a satisfactory response from Franchisee, it may then seek termination of the Franchise at a public hearing. Grantor shall cause to be served upon Franchisee, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise. MACC 28 Seattle-3338555.9 0010932-00100 13.7.1. At the designated hearing, Franchisee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of Grantor, to compel the testimony of other persons as permitted by law, and to question and/or cross examine witnesses. A complete verbatim record and transcript shall be made of such hearing. 13.7.2. Following the public hearing, Franchisee shall be provided up to thirty (30) days to submit its proposed findings and conclusions in writing and thereafter Grantor shall determine (i) whether an event of default has occurred; (ii) whether such event of default is excusable; and (iii) whether such event of default has been cured or will be cured by Franchisee. Grantor shall also determine whether to revoke the Franchise based on the information presented, or, where applicable, grant additional time to Franchisee to effect any cure. If Grantor determines that the Franchise shall be revoked, Grantor shall promptly provide Franchisee with a written decision setting forth its reasoning. Franchisee may appeal such determination of Grantor to an appropriate court, which shall have the power to review the decision of Grantor de novo. Franchisee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within sixty (60) days of Franchisee's receipt of the determination of the Grantor. 13.7.3. Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce Grantor's rights under the Franchise in lieu of revocation of the Franchise. 13.8. Limitation on Grantor Liability: The parties agree that the limitation of Grantor liability set forth in 47 U.S.C. §555a is applicable to this Agreement. 13.9. Franchisee Termination: Franchisee shall have the right to terminate this Franchise and all obligations hereunder within ninety (90) days after the end of four (4) years from the Service Date of this Franchise, if at the end of such four (4) year period, Franchisee does not then in good faith believe it has achieved a commercially reasonable level of Subscriber penetration on its Cable System. Franchisee may consider Subscriber penetration levels outside the Franchise Area in this determination. Notice to terminate under this Section 13.9 shall be given to the Grantor in writing, with such termination to take effect no sooner than one hundred and twenty (120) days after giving such notice. Franchisee shall also be required to give its then- current Subscribers not less than ninety (90) days prior written notice of its intent to cease Cable Service operations. 14. MISCELLANEOUS PROVISIONS 14.1. Actions of Parties: In any action by Grantor or Franchisee that is mandated or permitted under the terms hereof such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, delayed or conditioned. 14.2. Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, MACC 29 Seattle-3338555.9 0010932-00100 successors and assigns, and the promises and obligations herein shall survive the expiration date hereof. 14.3. Preemption: In the event that federal or state law, rules, or regulations preempt a provision or limit the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent, and for the time, but only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, .amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of Grantor. 14.4. Force Majeure: Franchisee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by a Force Majeure. 14.4.1. Furthermore, the parties hereby agree that it is not the Grantor's intention to subject Franchisee to penalties, fines, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on Subscribers, or where strict performance would result in practical difficulties and hardship being placed upon Franchisee which outweigh the benefit to be derived by Grantor and/or Subscribers. 14.5. Incidental Payment: The Franchisee shall pay the Grantor an Incidental Payment of $149,600 as set forth below as a condition of the Franchise granted by this Agreement. The Incidental Payment will be made to Grantor in four annual payment installments as follows: Commencing on the Service Date, and on the same date in the three (3) following years, the Franchisee shall provide the amounts shown below to the Grantor as an .advance of a portion of the Annual PEG/PCN Grant required in Section 6.4 of the Agreement. Incidental Payment Schedule Year 1 $17,600 Year 2 $35,200 Year 3 $44,000 Year 4 $52,800 These payments shall not be regarded as franchise fees, nor payments in lieu of franchise fees, nor as an offset against franchise fees, and they shall be used by Grantor at the Grantor's sole discretion consistent with applicable law. To recover the Incidental Payment, the Franchisee may retain up to twenty-five percent (25%) of the $1.00 per month collected from Subscribers under Section 6.4 of this Agreement until such time as the total amount of $149,600 is recovered. Once the total amount of the Incidental Payment is recovered, the Franchisee shall pay the Grantor the full $1.00 per month, per Subscriber PEG/PCN Grant. The Grantor may assure the accuracy of these payments by inspecting Franchisee's records under Section 9 of this Agreement or by an audit under Section 7.4 of this Agreement. MACC 30 Seattle-3338555.9 0010932-00100 14.6. Notices: Unless otherwise expressly stated herein, notices required under the Franchise shall be mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party. 14.6.1. Notices to Franchisee shall be mailed to: Verizon Northwest Inc. Attn: Tim McCallion, President 112 Lakeview Canyon Road, CA501GA Thousand Oaks, CA 91362 with a copy to: Mr. Jack H. White Senior Vice President & General Counsel - Verizon Telecom One Verizon Way Room VC43EO10 Basking Ridge, NJ 07920-1097 14.6.2. Notices to the Grantor shall be mailed to: Mr. Bruce Crest, MACC Administrator Metropolitan Area Communications Commission 1815 NW 169`h Place, Suite 6020 Beaverton, OR 97006-4886 14.7. Entire Agreement: This Franchise and the Exhibits hereto constitute the entire agreement between Franchisee and Grantor, and it supersedes all prior or contemporaneous agreements, representations or understanding of the parties regarding the subject matter hereof. Any ordinances or parts of ordinances that conflict with the provisions of this Agreement are superseded by this Agreement. 14.8. Amendments: Amendments to this Franchise shall be mutually agreed to in writing by the parties. 14.9. Captions: The captions and headings of articles and sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. 14.10. Severability: If any section, subsection, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, subsection, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise. MACC 31 Seattle-3338555.9 0010932-00100 14.11. Recitals: The recitals set forth in this Agreement are incorporated into the body of this Agreement as if they had been originally set forth herein. 14.12. Modification: This Franchise shall not be modified except by written instrument executed by both parties. 14.13. FTTP Network Transfer Prohibition: Under no circumstance including, without limitation, upon expiration, revocation, termination, denial of renewal of the Franchise or any other action to forbid or disallow Franchisee from providing Cable Services, shall Franchisee or its assignees be required to sell any right, title, interest, use or control of any portion of Franchisee's FTTP Network including, without limitation, the cable system and any capacity used for cable service or otherwise, to Grantor or any third party. Franchisee shall not be required to remove the FTTP Network or to relocate the FTTP Network or any portion thereof as a result of revocation, expiration, termination, denial of renewal or any other action to forbid or disallow Franchisee from providing Cable Services. This provision is not intended to contravene leased access requirements under Title VI or PEG requirements set out in this Agreement. 14.14. Independent Legal Advice: Grantor and Franchisee each acknowledge that they have received independent legal advice in entering into this Agreement. In the event that a dispute arises over the meaning or application of any term(s) of this Agreement, such term(s) shall not be construed by the reference to any doctrine calling for ambiguities to be construed against the drafter of the Agreement. 14.15. Grantor Authority: Grantor represents and warrants that it is authorized to enter into this Agreement on behalf of its Member Jurisdictions pursuant an Intergovernmental Cooperation Agreement originating in 1980 and in effect in its current form since February 13, 2003, and that the party signing below is authorized to execute this Agreement on behalf of the Member Jurisdictions following certification that the governing bodies of each of the affected Member Jurisdictions have approved this Agreement as required by Section 4.E of the Intergovernmental Cooperation Agreement. 14.16. Franchisee Authority: Franchisee represents and warrants that it is authorized to enter into this Agreement and that the party signing below is authorized to execute this Agreement. MACC 32 Seattle-3338555.9 0010932-00100 AGREED TO THIS DAY OF 22007. METROPOLITAN AREA COMMUNICATIONS COMMISSION By. [Title] VERIZON NORTHWEST INC. By: [Title] EXHIBITS Exhibit A: Initial Service Area/Franchise Area Exhibit B: Origination Points Exhibit C: Quarterly Franchise Fee Remittance Form Exhibit D: Customer Service Standards Exhibit E: Franchise Parent Structure as of January 24, 2007 Exhibit F: Quarterly Customer Service Standards Performance Report MACC 33 Seattle-3338555.9 0010932-00100 EXHIBIT A - INITIAL SERVICE AREA/FRANCHISE AREA A I m yr 10,~ a ;h riff i! 54 tt p l9- 3 y i a~ c14 0 Z MACC 34 Seattle-3338555.9 0010932-00100 .T 1+~j`~r-_r',,~ AFC , - -(qty-~ , f fj ~ ~ r. > , i, } 4 ~ y-"^~,.,'.~ S ~ • } - `i C ~ m c ~ 'J L t~y;r'3 izl.~ I A-43 \R k k rte. " ~'t';(r tc . _ ~~►+v tom/ ! \w tH'~^yprl;'+ 3~ i }~C' ~`•.ti1\'`> ; ~,Y ~T~ ti t ~a i~~,N~.Y~ 4r L ~ Mfr ~ ~'o~ r ~ ~~-r?.~_ _g " _ - ~~'Y j.,?,`,`;,~ ~ • awl ~"f abEx j ~9 ~-~17. _ ~ r ~ s?~f -r+n - ~ O l4- Y+F "~1 $ to Q ao ~ . z - ! Ott s z a ~~a l Ppy~, b a9 0, s} yyp`~J~~ rh~~ ~rr~f Z MACC 35 Seattle-3338555.9 0010932-00100 r~~l J Sad'?~ i7r '~ll~ ~dpRTti~J~3f~ ~ . • tr`~ ~t -~;i(. ,r•/•-rj~LJ ~R~ 77 c u y r g s ~Z l'1't,~_L~d/~~~~-~r. ti ~ ~~7 ~`-jr ` t-ti~ ~~•r . .,j+N,t t~ ~ ~1Z1 _ -r / ~ It ,CY A)\{(L NC~ X', ,~fJ~ `~~'L)~; '4~.~'/~j.-~1 ,"•'7~. jri .`S$'> 1~~1 0000 ~~v ~ •-J=''~ 1 ~`p1?'~~~ ~r '~+~.~1 0.,r S ~ `~,1- fi' -~[ry' J~ (r~4 \~~{x "c S. ~1J t\ ( l yi C q 14 l~ r r• 7Y ' ' Tr ~ ?w.i'S'b';`~. `t; `~YZS~t~r+ '-mac; ~ - ~y H ice. ~'\r 1 ^F-~7"s i r' f/7 N r :~T 71"T ry J"7 - ~,~1J- - ~,`f~,G+by~•! r~~ a ' .}iy~~~`~~'~S a~~ i-~i~n, 711 _ .r . 1 t I) \ i. 7 ~ ~ J. 3 ' \ dL.Jr~ \ T-~ l~r r•}1 ~'~c`~2 • r,\i fit,:` 1 v-.J WIN a s • 0 3 MACC 36 Seattle-3338555.9 0010932-00100 EXHIBIT B ORIGINATION POINTS Alternate City Council "Live" Meeting Sites: Beaverton Library, 12375 SW 5th St., Beaverton, Oregon 97005 Tigard Library, 13500 SW Hall Blvd., Tigard, Oregon 97223 Area Emergency Management Centers: Tualatin Valley Fire & Rescue (TVF&R) Administration, EMC, 20665. SW Blanton St., Aloha, Oregon 97007 WCCCA Emergency Management Center, EMC 17911 NW Evergreen Parkway, Beaverton, Oregon 97006 Washington County EMC Washington County Sheriff's Office, 215 SW Adams Ave., Hillsboro, Oregon 97123 MACC 37 Seattle-3338555.9 0010932-00100 EXHIBIT C QUARTERLY FRANCHISE FEE REMITTANCE FORM MACC FRANCHISE FEE SCHEDULE/REPORT For the Quarter Ending Month 1 Month 2 Month 3 1 Monthly Recurring Cable Service Charges (e.g„ Basic, Enhanced Basic, Premium and Equipment Rental) 2 Usage Based Charges (e.g., Pay Per View, Installation) 3 Other Misc. (e.g., Late Charges, Advertising, Leased Access) 4 Franchise Fees Collected Less: 1 Sales Tax Collected $ $ $ 2 Uncollectibles Total Receipts Subject to Franchise Fee Calculation Franchise Fee Rate 5% Franchise Fee Due Quarter Franchise Fee Monthly PEG Grant Collection Quarterly PEG Grant Remission $ MACC 38 Seattle-3338555.9 0010932-00100 EXHIBIT D CUSTOMER SERVICE STANDARDS These standards shall apply to Franchisee to the extent it is providing Cable Services over the Cable System in the Franchise area. However, for the first three (3) months after the Service Date, Franchisee shall not be required to provide reports under this Agreement and, for the first six (6) months after the Service Date, Grantor will not impose fines if Franchisee fails to meet the customer service standards set forth in this Agreement. This Section sets forth the minimum customer service standards that the Franchisee must satisfy. SECTION 1: DEFINITIONS A. Normal Operating Conditions: Those service conditions which are within the control of Franchisee, as defined under 47 C.F.R. § 76.309(c)(4)(ii). Those conditions which are not within the control of Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of Franchisee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or rebuild of the Cable System. B. Respond: The start of Franchisee's investigation of a Service Interruption by receiving a Subscriber call, and opening a trouble ticket, and begin working, if required. C. Service Call: The action taken by Franchisee to correct a Service Interruption the effect of which is limited to an individual Subscriber. D. Service Interru tion: The loss of picture or sound on one or more cable channels. E. Significant Outage: A significant outage of the Cable Service shall mean any Service Interruption lasting at least four (4) continuous hours that affects at least ten percent (10%) of the Subscribers in the Service Area. F. Standard Installation: Installations where the Subscriber is within one hundred twenty five (125) feet of trunk or feeder lines. SECTION 2: TELEPHONE AVAILABILITY A. Franchisee shall maintain a toll-free number to receive all calls and inquiries from Subscribers in the Franchise Area and/or residents regarding Cable Service. Franchisee representatives trained and qualified to answer questions related to Cable Service in the Service Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day, seven (7) days a week, and such representatives shall be available to receive all other inquiries at least forty-five (45) hours per week including at least one night per week and/or some weekend hours. Franchisee representatives shall identify themselves by name when answering this number. MACC 39 Seattle-3338555.9 0010932-00100 B. Franchisee's telephone numbers shall be listed, with appropriate description (e.g. administration, customer service, billing, repair, etc.), in the directory published by the local telephone company or companies serving the Service Area, beginning with the next publication cycle after acceptance of this Franchise by Franchisee. C. Franchisee may use an Automated Response Unit ("ARU") or a Voice Response Unit ("VRU") to distribute calls. If a foreign language routing option is provided, and the Subscriber does not enter an option, the menu will default to the first tier menu of English options. After the first tier menu (not including a foreign language rollout) has run through three times, if customers do not select any option, the ARU or VRU will forward the call to a queue for a live representative. Franchisee may reasonably substitute this requirement with another method of handling calls from customers who do not have touch-tone telephones. D. Under Normal Operating Conditions, calls received by the Franchisee shall be answered within thirty (30) seconds. The Franchisee shall meet this standard for ninety percent (90%) of the calls it receives at call centers receiving calls from Subscribers, as measured on a cumulative quarterly calendar basis. Measurement of this standard shall include all calls received by the Franchisee at all call centers receiving calls from Subscribers, whether they are answered by a live representative, by an automated attendant, or abandoned after 30 seconds of call waiting. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. E. Under Normal Operating Conditions, callers to the Franchisee shall receive a busy signal no more than three (3%) percent of the time during any calendar quarter. F. Forty-five (45) days following the end of each quarter, the Franchisee shall report to Grantor, using the form shown in Exhibit F, the following for all call centers receiving calls from Subscribers except for temporary telephone numbers set up for national promotions: (1) Percentage of calls answered within thirty (30) seconds as set forth in Subsection 2.D; and (2) Percentage of time customers received a busy signal when calling the Franchisee's service center as set forth in Subsection 2.E. G. At the Franchisee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Franchisee shall notify Grantor of such a change not less than thirty (30) days in advance. SECTION 3: INSTALLATIONS AND SERVICE APPOINTMENTS A. All installations will be in accordance with FCC rules, including but not limited to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the MACC 40 Seattle-3338555.9 0010932-00100 provision of required consumer information and literature to adequately inform the Subscriber in the utilization of Franchisee-supplied equipment and Cable Service. B. The Standard Installation shall be performed within seven (7) business days after the placement of the Optical Network Terminal ("ONT") on the customer's premises or within seven (7) business days after an order is placed if the ONT is already installed on the customer's premises. Franchisee shall meet this standard for ninety-five percent (95%) of the Standard Installations it performs, as measured on a calendar quarter basis, excluding those requested by the customer outside of the seven (7) day period. C. Franchisee shall provide Grantor with a report forty-five (45) days following the end of the quarter, noting the percentage of Standard Installations completed within the seven (7) day period, excluding those requested outside of the seven (7) day period by the Subscriber. Subject to consumer privacy requirements, underlying activity will be made available to Grantor for review upon reasonable request. D. At Franchisee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Franchisee shall notify Grantor of such a change not less than thirty (30) days in advance. E. Franchisee will offer Subscribers "appointment window" alternatives for arrival to perform installations, Service Calls and other activities of a maximum four (4) hours scheduled time block during appropriate daylight available hours, usually beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location exception. At Franchisee's discretion, Franchisee may offer Subscribers appointment arrival times other than these four (4) hour time blocks, if agreeable to the Subscriber. (1) Franchisee may not cancel an appointment window with a customer after the close of business on the business day prior to the scheduled appointment. (2) If Franchisee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. F. Franchisee must provide for the pick up or drop off of equipment free of charge in one of the following manners: (i) by having a Franchisee representative going to the Subscriber's residence, (ii) by using a mailer, or (iii) by establishing a local business office within the Franchise Area. If requested by a mobility-limited customer, the Franchisee shall arrange for pickup and/or replacement of converters or other Franchisee equipment at Subscriber's address or by a satisfactory equivalent. MACC 41 Seattle-3338555.9 0010932-00100 SECTION 4: SERVICE INTERRUPTIONS AND OUTAGES A. Franchisee shall promptly notify Grantor of any Significant Outage of the Cable Service. B. Franchisee shall exercise commercially reasonable efforts to limit any Significant Outage for the purpose of maintaining, repairing, or constructing the Cable System. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, Franchisee may schedule a Significant Outage for a period of more than four (4) hours during any twenty-four (24) hour period only after Grantor and each affected Subscriber in the Service Area have been given fifteen (15) days prior notice of the proposed Significant Outage. Notwithstanding the foregoing, Franchisee may perform modifications, repairs and upgrades to the System between 12:01 a.m. and 6 a.m. which may interrupt service, and this Section's notice obligations respecting such possible interruptions will be satisfied by notice provided to Subscribers upon installation and in the annual Subscriber notice. C. Franchisee representatives who are capable of responding to Service Interruptions must be available to Respond twenty-four (24) hours a day, seven (7) days a week. D. Under Normal Operating Conditions, Franchisee must Respond to a call from a Subscriber regarding a Service Interruption or other service problems within the following time frames: (1) Within twenty-four (24) hours, including weekends, of receiving Subscriber calls about Service Interruptions in the Service Area. (2) Franchisee must begin actions to correct all other Cable Service problems the next business day after notification by the Subscriber or Grantor of a Cable Service problem. E. Under Normal Operating Conditions, Franchisee shall complete Service Calls within seventy-two (72) hours of the time Franchisee commences to Respond to the Service Interruption, not including weekends and situations where the Subscriber is not reasonably available for a Service Call to correct the Service Interruption within the seventy-two (72) hour period. F. Franchisee shall meet the standard in Subsection E. of this Section for ninety percent (90%) of the Service Calls it completes, as measured on a quarterly basis. G. Franchisee shall provide Grantor with a report within forty-five (45) days following the end of each calendar quarter, noting the percentage of Service Calls completed within the seventy-two (72) hour period not including Service Calls where the Subscriber was reasonably unavailable for a Service Call within the seventy-two (72) hour period as set forth in this Section. Subject to consumer privacy requirements, underlying activity will be made available to Grantor for review upon reasonable request. At the Franchisee's option, the above measurements and reporting may be changed from calendar quarters to billing or accounting MF,cc 42 Seanlo-3338555.9 0010932-00100 quarters one time during the term of this Agreement. The Franchisee shall notify the Grantor of such a change at least thirty (30) days in advance. H. At Franchisee's option, the above measurements may be changed for calendar quarters to billing or accounting quarters one time during the term of this Agreement. Franchisee shall notify Grantor of such a change at least thirty (30) day in advance. I. Under Normal Operating Conditions, Franchisee shall provide a credit upon Subscriber request when all Channels received by that Subscriber experience the loss of picture or sound for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber must promptly report the problem and allow Franchisee to verify the problem if requested by Franchisee. If Subscriber availability is required for repair, a credit will not be provided for such time, if any, that the Subscriber is not reasonably available. J. Under Normal Operating Conditions, if a Significant Outage affects all Video Programming Cable Services for more than twenty-four (24) consecutive hours, Franchisee shall issue an automatic credit to the affected Subscribers in the amount equal, to their monthly recurring charges for the proportionate time the Cable Service was out, or a credit to the affected Subscribers in the amount equal to the charge for the basic plus enhanced basic level of service for the proportionate time the Cable Service was out, whichever is technically feasible or, if both are technically feasible, as determined by Franchisee provided such determination is non- discriminatory. Such credit shall be reflected on Subscriber billing statements within the next available billing cycle following the outage. SECTION 5: CUSTOMER COMPLAINTS REFERRED BY GRANTOR Under Normal Operating Conditions, Franchisee shall begin investigating Subscriber complaints referred by Grantor within twenty-four (24) hours. Franchisee shall notify Grantor of those matters that require more than seventy-two (72) hours to resolve, but Franchisee must make all necessary efforts to resolve those complaints within ten (10) business days of the initial complaint. Grantor may require Franchisee to provide reasonable documentation to substantiate the request for additional time to resolve the problem. Franchisee shall inform Grantor in writing, which may be by an electronic mail message, of how and when referred complaints have been resolved within a reasonable time after resolution. For purposes of this Section, "resolve" means that Franchisee shall perform those actions, which, in the normal course of business, are necessary to investigate the Customer's complaint and advise the Customer of the results of that investigation. SECTION 6: BILLING A. Subscriber bills must be itemized to describe Cable Services purchased by Subscribers and related equipment charges. Bills shall clearly delineate activity during the billing period, including optional charges, rebates, credits, and aggregate late charges. Franchisee shall, without limitation as to additional line items, be allowed to itemize as separate line items, MACC 43 Seattle-3338555.9 0010932-00100 Franchise fees, taxes and/or other governmental-imposed fees. Franchisee shall maintain records of the date and place of mailing of bills. B. Every Subscriber with a current account balance sending payment directly to Franchisee shall be given at least twenty (20) days from the date statements are mailed to the Subscriber until the payment due date. C. A specific due date shall be listed on the bill of every Subscriber whose account is current. Delinquent accounts may receive a bill which lists the due date as upon receipt; however, the current portion of that bill shall not be considered past due except in accordance with Subsection 6.B. above. D. Any Subscriber who, in good faith, disputes all or part of any bill shall have the option of withholding the disputed amount without disconnect or late fee being assessed until the dispute is resolved, provided that: (1) . The Subscriber pays all undisputed charges; (2) The Subscriber provides notification of the dispute to Franchisee within five (5) days prior to the due date; and (3) The Subscriber cooperates in determining the accuracy and/or appropriateness of the charges in dispute. (4) It shall be within Franchisee's sole discretion to determine when the dispute has been resolved. E. Under Normal Operating Conditions, Franchisee shall initiate investigation and resolution of all billing complaints received from Subscribers within five (5) business days of receipt of the complaint. Final resolution shall not be unreasonably delayed. F. Franchisee shall provide a telephone number and address clearly and prominently on the bill for Subscribers to contact Franchisee. G. Franchisee shall forward a copy of any rate-related or customer service-related billing inserts or other mailings related to Cable Service, but not promotional materials, sent to Subscribers, to Grantor. H. Franchisee shall provide all Subscribers with the option of paying for Cable Service by check or an automatic payment option where the amount of the bill is automatically deducted from a checking account designated by the Subscriber. Franchisee may in the future, at its discretion, permit payment by using a major credit card on a preauthorized basis. Based on credit history, at the option of Franchisee, the payment alternative may be limited. I. Franchisee shall provide Grantor with a sample Cable Services bill, and shall provide an updated sample bill at least 30 days before any material change is sent to Subscribers. MACC 44 Seattle-3338555.9 0010932-00100 SECTION 7: DEPOSITS, REFUNDS AND CREDITS A. Franchisee may require refundable deposits from Subscribers 1) with a poor credit or poor payment history, 2) who refuse to provide credit history information to Franchisee, or 3) who rent Subscriber equipment from Franchisee, so long as such deposits are applied on a non- discriminatory basis. The deposit Franchisee may charge Subscribers with poor credit or poor payment history or who refuse to provide credit information may not exceed an amount equal to an average Subscriber's monthly charge multiplied by six (6). The maximum deposit Franchisee may charge for Subscriber equipment is the cost of the equipment which Franchisee would need to purchase to replace the equipment rented to the Subscriber. B. Franchisee shall refund or credit the Subscriber for the amount of the deposit collected for equipment, which is unrelated to poor credit or poor payment history, after one year and provided the Subscriber has demonstrated good payment history during this period. Franchisee shall pay interest on other deposits if required by law. C. Under Normal Operating Conditions, refund checks will be issued within the next available billing cycle following the resolution of the event giving rise to the refund, (e.g. equipment return and final bill payment). D. Credits for Cable Service will be issued no later than the Subscriber's next available billing cycle, following the determination that a credit is warranted, and the credit is approved and processed. Such approval and processing shall not be unreasonably delayed. E. Bills shall be considered paid when appropriate payment is received by Franchisee or its authorized agent. Appropriate time considerations shall be included in Franchisee's collection procedures to assure that payments due have been received before late notices or termination notices are sent. SECTION 8:. RATES, FEES AND CHARGES A. Franchisee shall not, except to the extent expressly permitted by law, impose any fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work related to Franchisee equipment necessary to receive Cable Service, except where such problem is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a situation in which the Subscriber reconnects Franchisee equipment incorrectly) or by the failure of the Subscriber to take reasonable precautions to protect Franchisee's equipment (for example, a dog chew). B. Franchisee shall provide reasonable notice to Subscribers of the possible assessment of a late fee on bills or by separate notice. Such late fees are subject to ORS 646.649. C. All of Franchisee's rates and charges shall comply with applicable law. Franchisee shall maintain a complete current schedule of rates and charges for Cable Services on file with the Grantor throughout the term of this Franchise. MACC 45 Seattle-3338555.9 0010932-00100 SECTION 9: DISCONNECTION /DENIAL OF SERVICE A. Franchisee shall not terminate Cable Service for nonpayment of a delinquent account unless Franchisee mails a notice of the delinquency and impending termination prior to the proposed final termination. The notice shall be mailed to the Subscriber to whom the Cable Service is billed. The notice of delinquency and impending termination may be part of a billing statement. B. Cable Service terminated in error must be restored without charge within twenty- four (24) hours of notice. If a Subscriber was billed for the period during which Cable Service was terminated in error, a credit shall be issued to the Subscriber if the Service Interruption was reported by the Subscriber. C. Nothing in these standards shall limit the right of Franchisee to deny Cable Service for non-payment of previously provided Cable Services, refusal to pay any required deposit, theft of Cable Service, damage to Franchisee's equipment, abusive and/or threatening behavior toward Franchisee's employees or representatives, or refusal to provide credit history information or refusal to allow Franchisee to validate the identity, credit history and credit worthiness via an external credit agency. D. Charges for cable service will be discontinued at the time of the requested termination of service by the Subscriber, except equipment charges may by applied until equipment has been returned. No period of notice prior to requested termination of service can be required of Subscribers by Franchisee. No charge shall be imposed upon the Subscriber for or related to total disconnection of Cable Service or for any Cable Service delivered after the effective date of the disconnect request, unless there is a delay in returning Franchisee equipment or early termination charges apply pursuant to the Subscriber's service contract. If the Subscriber fails to specify an effective date for disconnection, the Subscriber shall not be responsible for Cable Services received after the day following the date the disconnect request is received by Franchisee. For purposes of this subsection, the term "disconnect" shall include Subscribers who elect to cease receiving Cable Service from Franchisee and to receive Cable Service or other multi-channel video service from another Person or entity. SECTION 10: COMMUNICATIONS WITH SUBSCRIBERS A. All Franchisee personnel, contractors and subcontractors contacting Subscribers or potential Subscribers outside the office of Franchisee shall wear a clearly visible identification card bearing their name and photograph. Franchisee shall make reasonable effort to account for all identification cards at all times. In addition, all Franchisee representatives shall wear appropriate clothing while working at a Subscriber's premises. Every service vehicle of Franchisee and its contractors or subcontractors shall be clearly identified as such to the public. Specifically, Franchisee vehicles shall have Franchisee's logo plainly visible. The vehicles of those contractors and subcontractors working for Franchisee shall have the contractor's / subcontractor's name plus markings (such as a magnetic door sign) indicating they are under contract to Franchisee. MACC 46 Seattle-3338555.9 0010932-00100 B. All contact with a Subscriber or potential Subscriber by a Person representing Franchisee shall be conducted in a courteous manner. C. Franchisee shall send annual notices to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by Franchisee may be referred to Grantor. A copy of the annual notice required under this Subsection 9.C will be given to Grantor at least fifteen (15) days prior to distribution to Subscribers. D. Franchisee shall provide the name, mailing address, and phone number of Grantor on all Cable Service bills in accordance with 47 C.F.R. §76.952(a). E. All notices identified in this Section shall be by either: (1) A separate document included with a billing statement or included on the portion of the monthly bill that is to be retained by the Subscriber; or (2) A separate electronic notification. F. Franchisee shall provide reasonable notice to Subscribers and Grantor of any pricing changes or additional changes (excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in Cable Services, including channel line-ups. Such notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if within the control of Franchisee. If the change is not within Franchisee's control, Franchisee shall provide an explanation to Grantor of the reason and expected length of delay. Franchisee shall provide a copy of the notice to Grantor including how and where the notice was given to Subscribers. G. Franchisee shall provide information to all Subscribers about each of the following items at the time of installation of Cable Services, annually to all Subscribers, at any time upon request, and, subject to Subsection 10.E., at least thirty (30) days prior to making significant changes in the information required by this Section if within the control of Franchisee: (1) Products and Cable Service offered; (2) Prices and options for Cable Services and condition of subscription to Cable Services. Prices shall include those for Cable Service options, equipment rentals, program guides, installation, downgrades, late fees and other fees charged by Franchisee related to Cable Service; (3) Installation and maintenance policies including, when applicable, information regarding the Subscriber's in-home wiring rights during the period Cable Service is being provided; (4) Channel positions of Cable Services offered on the Cable System; MACC 47 Seattle-3338555.9 0010932-00100 (5) Complaint procedures, including the name, address, and telephone number of Grantor, but with a notice advising the Subscriber to initially contact Franchisee about all complaints and questions; (6) Procedures for requesting Cable Service credit; (7) The availability of a parental control device; (8) Franchisee practices and procedures for protecting against invasion of privacy; and (9) The address and telephone number of Franchisee's office to which complaints may be reported. A copy of notices required in this Subsection 10.F. will be given to Grantor at least fifteen (15) days prior to distribution to Subscribers if the reason for notice is due to a change that is within the control of Franchisee and as soon as possible if not with the control of Franchisee. H. Notices of changes in rates shall indicate the Cable Service new rates and old rates, if applicable. I. Notices of changes of Cable Services and/or Channel locations shall include a description of the new Cable Service, the specific channel location, and the hours of operation of the Cable Service if the Cable Service is only offered on a part-time basis. In addition, should the Channel location, hours of operation, or existence of other Cable Services be affected by the introduction of a new Cable Service, such information must be included in the notice. I Every notice of termination of Cable Service shall include the following information: (1) The name and address of the Subscriber whose account is delinquent; (2) The amount of the delinquency for all services billed; (3) The date by which payment is required in order to avoid termination of Cable Service; and (4) The telephone number for Franchisee where the Subscriber can receive additional information about their account and discuss the pending termination. K. Franchisee will comply with privacy rights of Subscribers in accordance with federal, state, and local law, including 47 U.S.C. §551. MACC 48 Seattle-3338555.9 0010932.00100 EXHIBIT E FRANCHISEE PARENT STRUCTURE AS OF JANUARY 24, 2007 Verizon Northwest parent: GTE Corporation 100% GTE Corporation Parents: Verizon Communications Inc. 92.88% NYNEX Corporation 5.93% (which is 100% owned by Verizon Communications Inc.) Bell Atlantic Global Wireless, Inc. 1.19% (which is 100% owned by Verizon Investments Inc., which is 100% owned by Verizon Communications Inc.) MACC 49 Seattle-3338555.9 0010932-00100 EXHIBIT F CUSTOMER SERVICE STANDARD REPORT METRICS THE FOLLOWING INFORMATION IS PROPRIETARY AND CONFIDENTIAL AND IS CONDITIONALLY EXEMPT FROM THE OREGON PUBLIC RECORDS LAW. THE FOLLOWING INFORMATION QUALIFIES AS PROPRIETARY AND CONFIDENTIAL BUSINESS INFORMATION PURSUANT TO, WITHOUT LIMITATION, OREGON REVISED STATUTE § 192.501(2) AND ANY OTHER APPLICABLE LAW AND SHOULD NOT BE DISCLOSED. Verizon Video Franchise Report: Contract Requirements Jan Feb Mar 1st Qtr April May June 2nd QtrJuly Aug Sept 3rd Qtr Oct Nov Dec 4th Qtr 09FUN u`.'.,a~-.,y_Ai'1' $>tYl~~~~ered Wtthln 3QTS~c1~i'ti-s ^ 3% Calls Rec-tNing' 124 R :laU Y -d 40 mp 7dalnteYriti }HsD'T-ubles c72 x, ari, r. : ryi. - - ! -4 F ~C" i£ff V to IR$,,.~itledfrltofDas. r. o.rk SYa~..~t$n ~rtl~lgst-tlsCampl9t9d wJthln s.oven (7} f u'*i,~ 1' 7 vGS:: iiWr,GN~~P18CBt~~tont Date, or H4~t'1% o Is ~onrdorGreaHorl Da`~'e;,i~d#hfg~aY?na{~~~ s` b ss•' ~i~er Crea~to ,s'~'~ MACC 50 Seanio-3338555.9 0010932-00100 EXHIBIT C COMCASTNERIZON FRANCHISE COMPARISON Metropolitan Area Communications Commission February 13, 2007 FRANCHISE PROVISION COMCAST § VERIZON § SERVICE AREA Build-out/Density All MACC jurisdictions in areas 13.2 All of Verizon's MACC jurisdictions 3.1- Requirement that meet Density requirement meeting the Density requirement 3.2 of 10 homes/quarter mile. of 10 homes/quarter miles except Banks, Gaston, (due to construction cost) and North Plains because it is not served by Timeline: system upgrade Verizon. within three years of franchise 11.1 date. Timeline: System built in initial service area within four years of franchise date. Additional areas to be reviewed every two years. FINANCE Franchise fees 5% of gross revenues 3.1 5% of gross revenues 7.1 Gross Revenue Comparable Net Effect 1.18 Comparable Net Effect 1.23 Definition Audit authority Authority to audit once each 3.6 Authority to audit once every two 7.4 12 months; years; If franchise fees are underpaid Until Verizon has more than by 3% or more, Comcast pays 10,000 subscribers, if franchise the total cost of the audit fees are underpaid by 5% or less, Verizon pays the total costs of the audit up to $10,000; When Verizon has 10,000 subscribers or more, if franchise fees are underpaid by 3% of less, Verizon pays the total costs of the audit up to $15,000. c 2 Letter of Credit $100,000 5.4 $20,000 (approx. 20% of Comcast 13.6 amount due to difference in number of potential subscribers Incidental PEG / $800,000 5.6 $149,600 (see MACC Staff Report 14.5 PCN Payments "Verizon Cable N Franchise Recommendation") Insurance Limits General Liability: $2 million 5.1 General Liability: $3 million 10.1 Broadcasters Liab: $1 million Broadcasters Liab: $1 million Auto BI/PD: $2 million Auto BI/PD: $2 million Employers Liab: $2 million Employers Liab: $2 million PEG PROGRAMMING PEG Channels 6 channels, trigger for 9.3- 6 channels, trigger for additional 6.1 additional channels 9.8 channels PEG/PCN Fee $1.00 per subscriber /month 9.7 $1.00 per subscriber/month 6.4.2 PEG Origination Seven Activated Origination 9.5 Five Activated Origination Points Exh Points Points B CUSTOMER SERVICE Telephone 90% of the calls answered 6.3 90% of the calls answered within Exh Answering within 30 seconds 30 seconds D(2) Local office One center conveniently 6.2 No local office requirement. Exh located in the franchise area to D(3) provide pick up/drop off Verizon must pick up or drop off equipment, bill payment, and equipment free of charge (using complaints representative visit, prepaid mailer, or establishing a local business office) side/side 2/13/2006 3 Reporting Required quarterly for: 3.4 Required quarterly for: 7.2 • Franchise Fees 7.1 . Franchise Fees 9.4 • Complaints 7.4 • Installations Exh. • Construction Activities • Service Call Statistics D • Subscriber Information • Telephone Activity • Service Call Statistics • Telephone Activity On an on-going basis: • Complaints • Other Information "as appropriate and • Other Information "as reasonable." reasonably necessary." Fines Telephone answering: Failure 15.2 Telephone answering: Failure to 13.5 to meet standard - meet standard - $10,000 first violation; $2,000 first violation; $20,000 2"d violation; $4,000 2"d violation; $30,0003 d violation $6,0003 Id violation (Fine amounts reflect differences in number of potential subscribers.) Other Violations: $250/day May be reduced by 50% if no No cap on total fines. fines levied in first 42 months. Other Violations: $250/day $25,000/year cap on total fines. OTHER FRANCHISE REQUIREMENTS Term 15 years 2.3 15 years 2.3 Franchise Comcast may abandon the 16.1- At the end of 4 years, if video 3.9 termination system during the franchise 16.2 services are not commercially term except that Grantors may viable, Verizon must provide operate system temporarily, Grantor and subscribers advance pursue legal remedies to notice to terminate services maintain service and/or re- grant the franchise as applicable. side/side 2/13/2006 r 4 Emergency Must comply with FCC 6.9 Must comply with FCC 5.3 Alert requirements, and local/state requirements, and local/state EAS Plans and remotely EAS Plans and remotely override audio and video on all override audio and video on all channels channels Technical • 550 MHz System Required. 11.1 • 860 MHz System Required. 5 Standards •12-hour Main backup power, 14 • 24-hour Main backup power, 2-hour Remote backup 4-hour Remote backup power. power. • FCC technical performance 12 • FCC technical performance standards apply. standards apply. • NECA, NESC, OSHA 10.1 . NECA, NESC, OSHA Standards apply. 3 Standards apply. • Grantor may inspect • Grantor may inspect facilities. 10.1 facilities. Institutional Upgrade of existing network 11.2 No requirement. There is no n/a Network (PCN) (PCN subscriber service rates MACC-area market for a second reimburse Comcast for PCN I-Net like the PCN. investment over 15 yr. term.) Public Building Complimentary "Standard" 13.3 Complimentary "Basic" service to 3.3 Connections cable service to public use unserved public buildings. buildings. side/side 2/13/2006 EXHIBIT D MACC CO'`vIMU Nii: OOlNS COMMiSSiO N REPRESENTING THE COMMUNITIES OF BANKS, BEAVERTON, CORNELIUS, DDURHANNI, FOREST GROVE, GASTON,. KLLSBORO, KING CITY;. LAKE OSVVEGO_ NORTH PLAINS, RIVERGROVE, TIGARD, TUALATIN AND VJASHIINGTON COUNTY C:AWL TV FRANChISE REgUTATION • Td F.COMMUNICATIONS AdvicE ANd SUppoRT • Public COMMUNICATIONS NETwoRk (PCN) Verizon Cable Franchise Questions and Answers Prepared by MACC February 2007 Q1: Do MACC jurisdictions have to grant additional franchises? A: Yes, if the proposed company has the legal, financial, and technical qualifications to own and operate a cable system, and if their proposed franchise meets the needs of the jurisdictions they seek to serve. The MACC/Comcast Franchise Section 2.5 (and Federal Law) requires that all franchises be nonexclusive. It also requires that any competitive franchises must be "reasonably comparable" to the MACC/Comcast agreement. Q2: Why are these new providers coming here at this time? A: This new cable competition is a result of advances in telecommunications technology. This allows traditional telephone companies to install updated fiber optic networks that can also carry high- speed Internet and cable television signals. Traditional telephone companies need to diversify their systems to offer advanced services since cable companies, like Comcast, are now offering telephone services and are taking customers from traditional telephone companies. Q3: Is Verizon seeking franchises in other areas of the country besides MACC? A: Yes. Verizon has been awarded over 650 cable franchises, mostly on the east coast, in Texas, and in Southern California. However, MACC is the first area in the Pacific Northwest that Verizon has approached for a franchise. The MACC area also represents the largest concentration of Verizon telephone subscribers upgraded to Fiber to the Premise (FTTP) in Oregon with approximately 123,000 of Verizon's statewide 159,000 upgraded subscribers - Verizon has a total of 350,000 telephone customers (traditional and FTTP) in Oregon. Q4: Does Comcast have any influence as to whether you grant additional franchises? A: Not directly. Comcast has, however, provided elected officials with a letter detailing parts of the Verizon franchise that the company believes puts them "at a competitive disadvantage." As they note, the Comcast franchise requires any additional franchises granted be "reasonably comparable" as to the material terms. The MACC Board of Commissioners determined that the Verizon franchise is reasonably comparable to the Comcast franchise. After a review of the Comcast letter, MACC staff remains confident the franchises are, taken as a whole, and recognizing that Verizon starts with no customers, "reasonable comparable." Comcast is, of course, very interested in this process and in the terms granted Verizon. Elected officials in the MACC jurisdictions may also receive personal contacts from Comcast or Verizon during the franchise review process. Because all decisions on the granting of a franchise should be on the record, contacts with interested parties should be avoided, publicly disclosed, and reported to MACC. 1815 NW 169th Place, Suite 6020 4 seaverton, Oregon 97006-4886 * Phone (503) 605-7365 * FAX (503) 645-0999 a Web Site: www.tiiaccoi,.org PRovfdiNG SERVICE SiNcr 1980 Q5: Will our cable franchise fee revenues increase with Verizon's entry into our area? A: Not significantly, since many of Verizon's cable customers will come from existing Comcast customers (Comcast has about 120,000 in the MACC area). Verizon projects acquiring about 20% of Comcast's market share. Verizon should also attract a number of satellite television subscribers and non-cable subscribers to their cable service. This should result in a total increase in the number of all cable subscribers for both companies and potentially some modest increase in franchise fee revenues to MACC jurisdictions. One unknown factor is the affect on franchise fees resulting from reductions in both operators' pricing due to competition (see Q6). Q6: Won't the Verizon Franchise result in significantly lower prices for cable service from both companies? A: Rates for services generally do not drop dramatically with cable competition. However, all franchised operators will probably be more careful in setting rates and charges so, over time, subscribers should benefit from competition. We hope this competition also results in smaller increases in cable rates. Comcast's most recent annual rate adjustment raised rates 7.9% for its most popular service. Customers should also find that competition means more services for their dollar and a choice of different packages or bundles of services. Q7: Will customers receive better service due to cable competition? A: The most significant improvement we expect to see from competition is better customer service from both companies since subscribers will now have a choice in providers. Customers can "take their business elsewhere" if they become dissatisfied with the service offered by one company. Satellite service will remain an option for some subscribers. Q8: Will Verizon build-out their cable system to everyone within their franchise area? A: Yes, because Verizon needs to pay off costs to upgrade their new FTTP network by serving every home that meets the Franchise density requirement. Our Metro Urban Growth Boundary (UGB) also makes MACC's service area very attractive to them since it increases the density inside the Boundary. We don't anticipate any build-out issues, nor do we expect the "cherry picking" practiced by AT&T in many areas where they offer cable-like services in California and elsewhere. Within the franchise area and in new development areas, the Franchise's density requirement (like Comcast's) requires service to any home that meets it. Q9: Why aren't all parts of all MACC communities included in the Verizon agreement? A: Unlike a traditional cable television provider, Verizon's cable service has no cable equipment in the public rights of way. It is simply an electronic signal that is carried on their FTTP telephone network. Because Verizon cannot legally provide service to areas currently served by Qwest (all of North Plains, most of Lake Oswego and portions of Beaverton and unincorporated Washington County), the franchise is limited to existing Verizon telephone areas. Qwest has yet to develop a viable cable service to offer its telephone customers and has not requested a franchise to do so. The Cities of Banks and Gaston, which Verizon is not upgrading to FTTP at this time, are also not included in this franchise, but there are provisions to include them as soon as population growth, economics, and technology make service there practical. 2 Attachment 3 i 6. ICI t i'~l;_! IN 1`: OI'f'! .~~•_5 r,..n it -MACC REPRESENTING THE COMMUNITIES OF • r r• FOREST . r ar•r r r NORTHr •r AND WASHINGTON COUNTY CAbIF 'IV FRANCI'uSE R'ECjUTATIQN • TFIFCOMMUNICATIQNS A(1VICE ANd SUppoRT • Public C.oMMUNI(ATIONs NETWORk'PC,N1 • Tlu(IATIN VAIIE.y C.OMMUNITy TV FEBRUARY 26, 2007 TO: MACC JURISDICTION ELECTED OFFICIALS FROM: BRUCE CREST, ADMINISTRATOR RE: MACC RESPONSE - COMCAST 2-12-07 LETTER REGARDING THE PROPOSED VERIZON FRANCHISE We want to provide you a response to issues raised in a letter sent to you from Comcast's Vice President of Government Affairs, Sanford Inouye, on February 12, 2007. That letter (attached) is in regard to your consideration of the Verizon Cable Television Franchise recommended to your jurisdiction by the Metropolitan Area Communications Commission (MACC). First and foremost, MACC considers the proposed Verizon Franchise to be "reasonably comparable" as to all of its material terms to the Comcast Franchise. MACC negotiated the Verizon Franchise precisely with that requirement in mind and does not believe any changes are necessary. Also, it is important to note that Mr. Inouye does not suggest that it would be appropriate to deny approval of the Verizon Franchise. However, Comcast is clear that they will ask for modifications in their franchise with MACC. We fully expected that Comcast would take this position on the Verizon Franchise. Of course, MACC cannot act on such a request unless it is formally proposed to the Commission. Until the Verizon Franchise becomes effective, Comcast's suggestions are premature at best. Nevertheless, we have prepared the following discussion of each of Comcast's major points. Many of these are also addressed in the staff report and other materials we prepared for your jurisdiction. Finally, Mr, Inouye has been the area's Comcast Government Affairs representative since November 2006. He was not present during the 1999 franchise renewal negotiations between MACC and TCUAT&T (now Comcast) that formulated the current Comcast Franchise, nor has he been involved with any of our other discussions with Comcast related to this agreement for the last 8 years. So, in fairness to him, he may not have had all the background necessary to draw some of the conclusions he made in his letter. Comcast's "Level Playing Field" Argument - Consistently throughout negotiations with Verizon, the Commission worked hard to assure that the material provisions of the Verizon Franchise would be "reasonably comparable" to those ui the Comcast Franchise, as set forth in Section 2.6A of that agreement. That is the standard that must be met. This 1815 NW 169th Place, Suite Ii 61 Beaverton, Oregon 97006-488G Phone (5031645-7365 - FAX . 645-0999 Site: . . . f 25 YEARS Of SERVICE, 1980-2005 L / i 1 i MA CC Response, Page 2 legal requirement should be distinguished from a "level playing field" standard. This standard is often included in state regulations governing franchises for competitive service providers, but this is not the law in Oregon. There is no basis in federal or state law to claim that competing franchise agreements must be identical - instead MACC and the member jurisdictions must determine, in our legislative discretion, that the agreements are competitively neutral when taken as a whole. Given each party's respective position in the market at present, it is entirely reasonable to have differing provisions in the agreements, so long as they are reasonably comparable as required in the Comcast Franchise. MACC Commissioners, staff, and Legal Counsel believe the Verizon Franchise meets that standard, and stated so in their recommendation to you - see Exhibit A to the MACC ' staff report for the recommending resolution. Now, to Comcast's specific points: 1. Equitable Build-out of Facilities and Activation of Services. Comcast believes the franchises are inequitable due to a perceived ability for Verizon to "cherry-pick" service areas. We strongly disagree. As stated in the MACC staff report, the combination of the Verizon Franchise's density requirements, Metro's Urban Growth Boundary (UGB), and Verizon's need to serve every customer they can to recover their cost to build this FTTP network, will result in Verizon providing service to all neighborhoods that meet the density requirement. Verizon also pledges in their franchise that they "shall not discriminate between or among any individuals in the availability of Cable Service." We could find no area in the country where Verizon cable has engaged in so-called "cherry picking." However, we are aware that Comcast and other incumbent cable operators, when challenged by a competitive provider, have accused new competitors of "cherry- picking" wealthy neighborhoods because of the extreme negative connotation the term suggests. In fact, this issue is specifically governed by Federal law. The Communications Act requires that the franchising authority (MACC) "assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides" and sets forth related provisions which shall or may be included in a franchise. [47 U.S.C. § 541(a)(3)-(4)]. Again in this case, MACC staff and Legal Counsel were mindful of the Federal ' requirements that apply in this area when the franchise was negotiated. Verizon Franchise Sections 3.1.1.1 and 3.2 directly address this federal law requirement. The franchise (Section 2.6) is also specifically subject to other applicable Federal laws. A clear look at Verizon's service maps and franchise requirements also clearly show there are no economic or cultural deficiencies in the company's service plans. We AM CC Response, Page 3 continue to maintain that the density requirements of both franchises will produce the same result for subscribers. 2. Termination of Franchise by Verizon. Comcast believes the franchises are inequitable because Verizon would be able to abandon a growing and lucrative market segment, a public commitment, and millions of dollars of investment in the area before the end of the 15 year term of the franchise. Verizon's local franchises (hundreds, nationally) typically contain an early termination provision (usually 3 years) such as that in the proposed agreement. Although we think it is highly unlikely Verizon will exercise that option, we have required adequate notice to MACC and subscribers of that termination. We recognize that new entrants may fail, and we do not want to impose inferior service on subscribers if that service is not economically justified - that only hurts subscribers. This provision is obviously not in the Comcast Franchise, because they are the incumbent operator and therefore never requested such a provision. One thing we do know, Comcast would be pleased if Verizon exercised this termination option and left the MACC market. Additionally, MACC negotiated a beneficial provision countering the early termination option - assuring that any termination is only for economic reasons. And, if state or Federal law (such as is proposed currently at the Federal Communications Commission) allows cable service without a local franchise, Verizon has agreed not to abrogate this MACC Franchise. Comcast does not have a similar obligation. 3.A. Incidental Payment. Comcast believes the required payments incidental to each of the agreements are not comparable. Typically, incidental payment provisions are included in cable franchises to account for circumstances unique to a particular situation. That is the case in both the Comcast and Verizon agreements. As we point out in the MACC staff report, the Comcast Incidental Payment was negotiated in 1999 to help cover the transition costs of two important features of the Comcast Franchise: 1) the increased service costs to users of the Public Communications Network (PCN) - upgraded as part of that agreement; and, 2) the significant decrease in PEG Access TV funding support compared to the old franchise. To help offset these two changes, Comcast agreed to pay MACC $200,000 a year for four years as transitional support to the PCN ($50,000) and PEG Access ($150,000). Contrary to Mr. Inouye's assertion, Comcast did recover this paw. Comcast paid a reduced amount into the PEG/PCN Grant fund of 75 cents per subscriber during the first four years to cover their cost of the Incidental Payment. Verizon's incidental payment has nothing to do with Comcast's. Verizon's payment is simply an advance payment into the PEG/PCN Grant Fund which they fully recover in a manner similar to Comcast (by reducing the PEG/PCN payment from $1 to 75 cents until i AIIACC Response, Page 4 the total amount of the Incidental Payment is recovered). We also considered the fact that at the time of the 1999 renewal, Comcast had about 120,000 subscribers and Verizon will start with none. 3.13. Letter of Credit. Comcast believes the amounts of the required letters of credit for a company beginning with no local customers should equal that of their company - with 120,000 local customers. The Letters of Credit required in both franchises are scaled to the number of potential subscribers and the amount of potential fines. Contrary to Comcast's interpretation, since the Letter of Credit is required in the Verizon Franchise, it would be a material violation of that agreement if Verizon did not provide it continuously throughout the term of the franchise. 3.C. Service to Public Facilities. Comcast believes that services to facilities its predecessor companies installed 10 or more years ago, in most instances, should be duplicated by Verizon. Since Comcast already serves over 100 public sites, we saw no reason why we should require Verizon to provide duplicate cable service to those sites. However, the Verizon Franchise does require the provision of free cable service to any new unserved sites within their service area, thus relieving Comcast from that burden. Based on the continued need for more school buildings and local government facilities, we expect Verizon will be serving a significant number of public facilities during the 15-year term of their agreement, and is required to provide such service to up to 150 sites. Customer Service Requirements: Comcast complains about certain elements of the customer service standards in the Verizon Franchise. Comcast, however, ignores the fact that Verizon's customer service obligations are much more detailed, specific, and complicated than Comcast's current requirements. There are certainly inconsistencies here, but all are based on the fact that we have been working with Comcast and its i predecessors for twenty-five years, and Verizon's cable services operations are completely new. We want to ensure Verizon meets the same general standards as Comcast - to the extent we reasonably can - working with a specific business model and environment at different times in a negotiations setting. Local Office - For example, Comcast makes a great deal of the local office requirement for their company. Verizon has a different model of customer service and negotiated alternatives to the local office requirement (although this doesn't mean they won't have one or more). The Verizon Franchise requires that the company choose from the following to ensure customers receive adequate service: 1. Establish a local office. 2. Mail, at no cost to the customer, the equipment needed for service. i MA CC Response, Page 5 3. Deliver, at no cost to the customer, the equipment needed for service. In addition, Verizon must "arrange for pickup or replacement of equipment" to all mobility-limited customers. Verizon finds this mix of customer service options works well with customers who don't always have the time, or ability, to travel to a centralized business office (we see this same trend with other telephone and cable companies). Comcast requires customers to come to their Beaverton Washington Square-area office to return equipment and does not provide the multiple options available to Verizon customers. We believe, on the whole, and taking into consideration some of the other Verizon requirements not imposed on Comcast (e.g., rigid complaint procedures, stricter outage response times, required notices for planned outages, automatic credits for service interruptions) that the customer service obligations are at least as onerous for Verizon as Comcast. Telephone Response - Comcast objects to Verizon not factoring their Automatic Response Unit (ARU) calls into their telephone response times. The ARU is not discussed in the Comcast Franchise, but is something we separately negotiated with Comcast's predecessor several years ago during the time when they were failing their telephone response standards. We would be willing to discuss Comcast's ARU concerns with them if a Verizon Franchise is approved by the affected jurisdictions. Cap on Fines - Comcast notes that Verizon has a $25,000 annual cap on potential fine amounts and Comcast does not. Comcast never requested a cap at any time during negotiations in 1999. If the Verizon Franchise is adopted, we would discuss a Comcast fine cap, based on the same methodology, if Comcast requests the Commission to do so. Although Comcast tries to point out in their letter areas where they feel their franchise exceeds Verizon's requirements, Comcast does not highlight the many portions of the Verizon Franchise that clearly exceed the requirements of Comcast's agreement. On balance, we believe these two agreements are "reasonably comparable" and that the proposed Verizon agreement will provide consumers with excellent services, and for the first time, a choice between two providers of cable services. We would be happy to answer any questions you have. Attachment: Comcast 2-12-07 Letter c: Comcast, Sanford Inouye Verizon Pam Beery, MACC Legal Counsel As provided to the Washington Co Board of Commissioners 412007 COMCAST / VERIZON Cable Pricing Comparison C] DY) ~~J`~=emu prepared by MACC 4/4/2007 from published rate cards Comcast (MACC) Verizon (National) Price Channels' Cost/Channel Price Channels' Cost/Channel Typically Purchased "Standard" "Premier" Tier of Programming $50.89 76 67¢ $42.99 165 26¢ Largest Available Tier of Programming $112.99 268 42¢ 84.97 252 34¢ HBO $15.99 11 $1.45 $15.99 14 $1.14 Sports Tier $5.99 11 55¢ $7.99 14 57¢ High Definition included2 193 n/a Included2 263 n/a Spanish Programming 15.95 22 73¢ $11.99 25 48¢ • Rates listed are exclusive of FCC, Franchise, PEG and other fees • Both companies offer "bundles" that may affect cable rates 1 Includes total channels available in tier, may require additional equipment. Music channels may be available. 2 HD channels are included at no additional charge to base tier costs s Total HD channels available (may require subscription to higher tiers to receive all HD channels) C1-6v Re(ord&r D '~Gj(/~ SQU e~ Agenda Item # G{(J as III7 Meeting Date April 10, 2007 7 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Way W. Lee General Contractor, Inc. Ballot Measure 37 Claim (M372006-00004) Prepared By: Gary Pagenstecher Dept Head Approval: ~ City Mgr Approval: ISSUE BEFORE THE COUNCIL To consider a Ballot Measure 37 claim for compensation or waiver of development regulations for property located along SW 68`'' Avenue in the City of Tigard. STAFF RECOMMENDATION Adopt the attached ordinance granting Ballot Measure 37 waiver of all development code and Comprehensive Plan policies which are more restrictive than those in effect on the date (August 11, 1980) the Claimant acquired interest in the property through Special Warranty Deed, subject to applying for and receiving site development review approval. KEY FACTS AND INFORMATION SUMMARY Way W. Lee General Contractor, Inc. is seeking a waiver of the current land use regulations and Comprehensive Plan policies that are more restrictive than those in place at the time the subject 4.47-acre property was acquired. The property, located on SW 68`'' Avenue south of Highway 99W, was acquired by the claimant on August 11, 1980. Ballot Measure 37 established a process whereby a property owner or family member who acquired property prior to the adoption of land use regulations can make a claim if the land use regulation has restricted the use of the property and reduced the market value of the property. The unit of government responsible for the regulation must either pay compensation for the reduced property value or waive the regulation. In 1997, the subject property became part of the Tigard Triangle where special site, building, and street design standards are now required for new development. The property is currently vacant. Proposed changes to the site are indicated by the applicant's proposed office building concept (Exhibit B). The Claimant's representative, Steve Morasch with Schwabe, Williamson Wyatt, states the reduction in property value is estimated to be $600,000.00. Documentation supporting this amount was not submitted with the application, but the Claimant reserves the right to supplement the claim with additional materials. Should the City Council choose to grant the waiver, it is suggested that the waiver be granted to Way W. Lee General Contractor, Inc., and not the land. Once a site development review application is filed, the application will be processed under the C-3 or C-G standards in place at the time the property was acquired. Development may occur consistent with any approved site development review. Once Way W. Lee General Contractor, Inc. ceases to be the owner, however, any expansion or major modification beyond development applied for shall be subject to the rules in effect at the time of application. The differences between the codes include mainly site, building, and street design standards required by the Tigard Triangle Design Standards chapter. For example, under the current regulations, the maximum Floor Area Ratio is .4, maximum building height is 45 feet, the minimum setback from streets and environmental features is 0 feet and maximum is 10 feet, buildings must occupy at least 50% of the site's 68`'' Avenue frontage, and 50% of the ground floor walls facing streets must be windows/display areas or doorways, the minimum landscape requirement is 15%, and wider pedestrian and vehicular routes and a backage road north of the Red Rock Creek drainage are required. The previous C-3 and C-G zoning required, among other standards, a 10-foot front yard setback, 10% minimum landscape requirement, a maximum building height of 3 stories or 35 feet whichever is less, and gave the director authority to require right-of-way necessary to conform to the comprehensive development plan upon a finding that a likelihood of an increased need for such improvement is created by the proposed development. OTHER ALTERNATIVES CONSIDERED 1. Deny the waiver and modify the regulation by applying the Design Evaluation alternative to the Tigard Triangle Design Standards. 2. Pay compensation to the land owner, in which case the City may want to obtain its own market assessment of the amount of compensation. CITY COUNCIL GOALS N/A ATTACHMENT LIST Attachment 1: Proposed Ordinance Exhibit A: Staff Report and Vicinity Map Exhibit B: Applicant's Materials FISCAL NOTES The applicant provided a $1,000 deposit to cover application review costs. This deposit will be refunded to the applicant if the claim or waiver is granted. There are no budgeted funds to pay compensation. CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 07- AN ORDINANCE ADOPTING FINDINGS TO GRANT A BALLOT MEASURE 37 WAIVER OF THE TIGARD DEVELOPMENT CODE AND COMPREHENSIVE PLAN POLICIES THAT ARE MORE RESTRICTIVE THAN THOSE IN PLACE ON AUGUST 11, 1980 WHEN THE 4.47 ACRES LOCATED ON SW 68TH AVENUE SOUTH OF HIGHWAY 99W (WCTM 1S136DA, TAX LOT 02400) WAS PURCHASED BY WAY W. LEE GENERAL CONTRACTOR, INC., AND TO ALLOW DEVELOPMENT UNDER THE TIGARD DEVELOPMENT CODE IN PLACE AT THAT TIME, SUBJECT TO APPLYING FOR AND RECEIVING SITE DEVELOPMENT REVIEW APPROVAL (M372006-00004). WHEREAS, the voters of the State of Oregon passed Ballot Measure 37 in 2004; and WHEREAS, Ballot Measure 37 provides the responsible governing body to either pay compensation for reduced property value or waive the regulations where property is owned prior to the adoption of land use regulations; and WHEREAS, a claim was made by Way W. Lee General Contractor, Inc., in the amount of $600,000.00 as the reduction in the value of the property under the current Tigard Development code; and WHEREAS Way W. Lee General Contractor, Inc. has owned the property since August 11, 1980 preceding the current Tigard Triangle Design Standards and other applicable standards. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The attached staff report vicinity map (Exhibit A) and applicant's materials (Exhibit B) are hereby adopted as findings. SECTION 2: A waiver from the Tigard Triangle Design Standards is hereby granted to Way W. Lee General Contractor, Inc. to apply for Site Development Review under the code and zoning that was in place on August 11, 1980. Once Way W. Lee General Contractor, Inc. ceases to be the owner, however, any expansion or major modification beyond development applied for during this ownership shall be subject to the land use regulations in effect at the time of application.- SECTION 3: This waiver applies to the property west of SW 68''' Avenue and south of Highway 99W in the Tigard Triangle legally described as WCTM 1S136DA, Tax Lot 02400. SECTION 4: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. ORDINANCE No. 07- Page 1 PASSED: By vote of all Council members present after being read by number and tide only, this day of 52007. Catherine Wheatley, City Recorder APPROVED: By Tigard City Council this day of 52007. Craig Dirksen, Mayor Approved as to form: City Attorney Date ORDINANCE No. 07- Page 2 EXHIBIT "A" Agenda Item: Hearing Date: Aril 10, 2007 Time: 7:30 PM STAFF REPORT TO THE CITY COUNCIL FOR THE CITY OF TIGARD, OREGON 180 DAY CLAIM PROCESSING PERIOD = 5/28/2007 SECTION I. CLAIM SUMMARY FILE NAME: WAY LEE GENERAL CONTRACTOR, INC. PROPERTY COMPENSATION CLAIM CITY CASE NO'S: Measure 37 Claim (M37) M37-2006-00004 CLAIMANT/ Way W. Lee, CLAIMANT'S Steve Morasch OWNER: General Contractor, Inc REP: Schwabe, Williamson Wyatt 5210 SE 26`h Avenue 700 Washington, Ste 701 Portland, OR 97202 Vancouver, Washington 98660 CLAIM: The amount claimed as just compensation is $600,000.00 AFFECTED REGULATION: Various sections of the Tigard Triangle Design Standards Chapter including 18.620.020 Street Connectivity, 18.620.030 Site Design Standards, 18.620.080 Street and Accessway Standards, and Tigard Triangle Street Plan Drawings. In addition, the following sections of the Off Street Parking and Loading Requirements Chapter including 18.765.020 Applicability of Provisions and 18.765.070 Minimum and Maximum Off Street Parking Requirements. ZONING DESIGNATION: C-G: General Commercial District. The C-G zoning district is designed to accommodate a full range of retail, office and civic uses with a City-wide and even regional trade area. Except where non-conforming, residential uses are limited to single-family residences which are located on the same site as a permitted use. A wide range of uses, including but not limited to adult entertainment, automotive equipment repair and storage, mini-warehouses, utilities, heliports, medical centers, major event entertainment, and gasoline stations, are permitted conditionally. LOCATION: SW 68`h Avenue south of Pacific Highway; WCTM 1S136DA, Tax Lot 02400. APPLICABLE CODE CRITERIA: Municipal Code Chapter 1.20 SECTION II. STAFF RECOMMENDATION Staff recommends that the City Council review the following report and determine whether the claim is valid. Staff fattier recommends that if Council finds the claim to be valid, Council should deny the proposed compensation claim and waive the applicable regulations, subject to site development review to determine the affected regulations. WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 1 OF 7 CITY COUNCIL HEARING 4/10/2007 SECTION III. BACKGROUND The subject 4.47- acre parcel is vacant. Red Rock Creek traverses the lower third of the parcel. The Tigard Significant Wetlands map identifies a .28-acre wetland on the western border of the parcel. The parcel is located within the Tigard Triangle and is subject to the Tigard Triangle Design Standards for public street improvements and new development. These design standards address several important guiding principals adopted for the Tigard Triangle, including creating a high-quality mixed use employment area, providing a convenient pedestrian and bikeway system within the Triangle, and utilizing streetscape to create a high quality image for the area. SECTION III. APPLICABLE CRITERIA AND FINDINGS Section 1.20.030 states a property owner wishing to make a claim against the City under Measure 37 shall first submit a claim to the City. A claim under Measure 37 must be in writing and include: A. Identification of the affected property. Identification may be by street address, subdivision lot number, tax lot number, or any other information that identifies the property. The claimant's representative identifies the property as located on SW 68`h Avenue; WCTM 1S136DA, Tax Lot 02400. B. The name and contact information of the person making the claim, the date the Claimant acquired the property, and, if applicable, the date that a family member of Claimant acquired the property and the names and relationships of family members that are previous owners. The name of the claimant is Way W. Lee, General Contractor. The name and contact information of the claimant's representative is Steve Morasch, of Schwabe, Williamson Wyatt, 700 Washington, Ste 701, Vancouver, Washington . 98660; Phone 360-905-1433. The majority of the property was acquired by the claimant on August 11, 1980 as shown in the Special Warranty Deed for the property (Fee No. 80-27388). A small portion of the parcel at the extreme southeast corner was acquired December 16, 1987 (Fee No. 87-061376). The claimant's proposed development is located on the northerly portion of the subject parcel, entirely on the property acquired in 1980. C. A list of all persons with an ownership interest in or a lien on the property. The tide report identifies the claimant as the sole owner. No liens are identified in the title report. D. Identification of the regulation that is alleged to restrict the use of the affected property and a statement describing how the restriction affects the value of the property. The claimant's representative lists various sections of the Tigard Triangle Design Standards Chapter including 18.620.020 Street Connectivity, 18.620.030 Site Design Standards, 18.620.080 Street and Accessway Standards, and Tigard Triangle Street Plan Drawings. In addition, the following sections of the Off Street Parking and Loading Requirements Chapter are listed: 18.765.020 Applicability of Provisions and 18.765.070 Minimum and Maximum Off-Street Parking Requirements. The claimant's representative states that "these provisions restrict the use of the property and reduce the value of the property by preventing the landowner from constructing a two-story 29,050 square foot office building with surface parking as shown on the conceptual site plan. These provisions prevent all use of certain portion of the property and potential uses allowed under these provisions would be more costly to build than the proposed use. Hence, the restriction on the use would devalue the property because they make it less attractive for a potential developer. We estimate the reduction in value to be $600,000." WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 2 OF 7 CITY COUNCIL HEARING 4/10/2007 NOTE: The "conceptual site plan" referred to above was the subject of a Pre-application conference with the City dated January 31, 2006. E. A statement whether the Claimant prefers compensation or a waiver, suspension or modification of the regulation, and a statement describing the extent to which the regulation would need to be waived, suspended or modified to avoid the need for compensation. A description of the proposed use must be provided. The claimant's representative states that "Way W. Lee, General Contractors, Inc. respectfully demands that $600,000 of compensation be paid pursuant Measure 37. In lieu of payment of just compensation, the claimant would welcome a removal of the land use regulations currently in effect so long as the removal is transferable to subsequent owners and the subsequent owners would be authorized to construct two-story 29,050 square foot office building with surface parking as shown on the conceptual site plan." The claimant's representative does not comment on how the cited regulations might be suspended or modified to avoid the need for compensation. The proposed use was the subject of a Pre-application conference with the City dated January 31, 2006 and is represented in the claim by a site plan (Sheet A1.0, Site Plan-M37, dated November 27, 2006, Ankrom Moisan Architects). The site plan shows development on a portion of the parcel north of Red Rock Creek including an office building (14,525 square foot footprint), associated parking (138 spaces), and access from SW 68`h Parkway and from the Newport Bay parking lot to the north. F. The amount claimed as compensation and documentation supporting the amount. The documentation shall include a market analysis, an appraisal, or other documentation at least equivalent to a market analysis. The amount claimed as just compensation is $600,000.00. The claimant has not provided a market analysis or any other documentation to establish the value of the claim. Instead, the claimant's representative provides a statement that "the [cited] provisions prevent all use of certain portion of the property and potential uses allowed under these provisions would be more costly to build than the proposed use. Hence, the restriction on the use would devalue the property because they make it less attractive for a potential developer." G. The name and contact information of the Claimant's authorized representative or representatives, if applicable. The name and contact information of the claimant's representative is Steve Morasch with Schwabe, Williamson Wyatt, 700 Washington, Ste 701, Vancouver, Washington 98660; Phone 360-905-1433. WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 3 OF 7 CITY COUNCIL HEARING 4/10/2007 Section 1.20.080 outlines the criteria for making a decision on the compensation claim. In deciding the claim, the Decision Maker may take any of the following actions: 1. Deny the claim based on any one or more of the following findings: a. The regulation does not restrict the use of the private real property. Some of the Tigard Triangle Design standards may restrict the use of the property, e.g., the Triangle street standards do require a backage road that would run along the north edge of the vegetated corridor and along the south edge of the proposed development. Under current standards, this road would be deducted from the buildable area of the subject site and may preclude the area from being used as parking as proposed, thus restricting the use of the private real property. b. The fair market value of the property is not reduced by the passage or enforcement of the regulation. The claimant has not submitted a market analysis or other documentation to evaluate the fair market value of the subject property. The claimant's representative asserts that additional development costs associated with meeting the Tigard Triangle Standards would lower the value of the property to prospective buyers/ developers. This assertion is speculative. However, the Triangle street standards, for example, do require a backage road that would run along the north edge of the vegetated corridor. This road would be deducted from the buildable area of the subject site and may preclude the area from being used as parking as proposed. This use restriction may reduce the fair market value of the property. c. The claim was not timely filed. The claim was filed within two years (December 2, 2006) of passage of Measure 37. It was timely filed on November 29, 2006. d. The Claimant is not the current property owner. According to the title information, the claimant is the current property owner. e. The Claimant or family member of Claimant was not the property owner at the time the regulation was adopted. The claimant has owned the property since August 11, 1980. The Tigard Triangle Design Standards were adopted by City Council in 1997 (Ord No. 96-41). The Claimant owned the property at the time the regulation was adopted. f. The regulation is a historically and commonly recognized nuisance law or a law regulating pornography or nude dancing. The Tigard Triangle Design Standards cited in the claim contribute to creating a high-quality mixed use employment area, providing a convenient pedestrian and bikeway system within the Triangle, and utilizing streetscape to create a high quality image for the area. These purposes, ensured by the Tigard Triangle Design standards, are not historically or commonly recognized as nuisance laws. WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 4 OF 7 CITY COUNCIL HEARING 4/10/2007 g. The regulation is required by federal law. The Tigard Triangle standards were adopted by City Council. Clean Water Services regulates vegetated corridors, which would govern the portion of the site along Red Rock Creek. No restrictions are known by staff to be based on federal requirements. h. The regulation protects public health and safety. The Tigard Triangle Design Standards cited in the claim contribute to creating a high-quality mixed use employment area, providing a convenient pedestrian and bikeway system within the Triangle, and utilizing streetscape to create a high quality image for the area. These standards are design standards aimed at improving the quality, convenience, and image of the Triangle and would not be considered public health and safety regulations. i. The City is not the entity responsible for payment. The City is not responsible if the challenged law, rule, ordinance, resolution, goal or other enactment was not enacted or enforced by the City. The City enacted the present zoning designation and is the jurisdiction responsible for enforcing the rules being challenged. j. The City has not taken final action to enforce or apply the regulation to the property for which compensation is claimed. No detailed development plan or land use proposal has been reviewed or final action taken to apply the challenged regulations. Staff suggests that a development plan be filed to determine to what extent the regulations, in fact, affect the property. k. The City has not established a fund for payment of claims under Measure 37. No such fund has been established at this time. 1. The Claimant is not legally entitled to compensation for a reason other than those listed in subsections a through k. The basis for this finding must be clearly explained. Staff finds that the Claimant may be legally entitled to compensation as discussed above. FINDING: Staff finds that there is no basis to deny the claim for the reasons listed in a. through 1., above. 2. Pay compensation, either in the amount requested or in some other amount supported by the evidence. If the City pays compensation, the City shall continue to apply and enforce the regulation. Any compensation shall be paid from funds appropriated for that purpose. The City may require any person receiving compensation to sign a waiver of future claims for compensation under Measure 37 and the City may record that waiver with the County Recorder. Staff finds that the evidence submitted with the claim is insufficient to determine the reduction in fair market value of the subject property. Therefore, Staff recommends that Council deny the proposed compensation claim. However, if the Council finds the claim is valid and wishes to continue to enforce the affected regulations, staff suggests that the City conduct its own market analysis and determine whether funds should be appropriated to pay the compensation claim. WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 5 OF 7 CITY COUNCIL HEARING 4/10/2007 3. Waive or not apply the regulation to allow the owner to use the property for a use permitted at the time the Claimant acquired the property. If Council finds the claim is valid, staff recommends that the Council grant a waiver which shall run with the person and not the land. Any such waiver should be restricted to those standards identified through the site development review process for the proposed development. 4. Modify the regulation so that it does not give rise to a claim for compensation. Any such modification shall be for the specific property only unless the City follows the procedure for a legislative land use decision. If Council finds the claim is valid, Staff recommends that Council applies the Design Evaluation alternative to the Tigard Triangle Design Standards to modify the standards consistent with the purposes of the Tigard Triangle Design Standards Chapter: It is recognized that the [above] design standards are to assist in upgrading and providing consistency to development within the Tigard Triangle. It is recognized that different designs may be used to meet the intent of the standards and purpose statement of the Tigard Triangle Standards. With this in mind, applicants for development in the Tigard Triangle may choose to submit proposed projects which demonstrate compliance with the design standards or request adjustments from the Triangle design standards and submit design plans for review and recommendation by a City Design Evaluation Team. This option allows applicants to propose alternative designs to the Tigard Triangle Design Standards that are consistent with the purpose of the standards 5. Conditionally waive or suspend the regulation subject to receipt of a defined amount of contributions toward compensation by a specified date from persons opposed to the waiver or suspension, such as persons who believe they would be negatively affected by waiver or suspension, with the waiver or suspension being granted if the defined amount of contributions is not received by the specified date. If the contributions are received, compensation shall be paid within 180 days of the date the claim was filed. The specified date shall allow the City time to process the contributions and pay compensation. If the Council finds the claim is valid, it may conditionally waive or suspend the affected regulations subject to the availability of defined contributions payable to the claimant by May 28, 2007, or some negotiated alternative date. However, no such contributions have been identified. The Decision Maker may take other actions it deems appropriate in individual circumstances, may modify the listed actions, and/or may combine the listed actions, consistent with Measure 37. The Decision Maker may negotiate an acceptable solution with the Claimant or may direct staff to negotiate with the Claimant. In the event that the Decision Maker directs staff to negotiate, the matter shall be set for further action by the Decision Maker no less than 175 days from the date of the notice of claim became complete. The Council shall take final action within 180 days of the claim. The Decision Maker shall take actions 2 through 5 only if it determines the claim is valid. If Council finds the claim is valid and wishes to negotiate an acceptable solution with the Claimant, the matter shall be set for further action by Council by May 22, 2005 and for final action by May 28, 2007. A decision by a Decision Maker other than Council shall not be a final decision, but shall be a recommendation to Council. This report represents a Staff recommendation to the City Council and is not a final decision of the City. WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 6 OF 7 CITY COUNCIL HEARING 4/10/2007 SECTION IV. CONCLUSION Staff finds that without information documenting a reduction in the fair market value of the subject property, the Council should deny the proposed compensation claim. However, because the application of the standards could restrict the use of the property as proposed, staff recommends the Council waive the affected regulations, subject to identification of those regulations through a site development review process. C-"' . ;'tz March 21, 2007 PREPARED BY: Ga Pagenstecher DATE Associate Planner March 21, 2007 APPROVED BY: Dick Bewersdorff DATE Planning Manager WAY LEE PROPERTY COMPENSATION CLAIM STAFF REPORT (M37-2006-00004) PAGE 7 OF 7 CITY COUNCIL HEARING 4/10/2007 VICINITY MAP M372006-00004 WAY W. LEE CONTRACTOR, INC 4 P f t 8 war i xi s' <~.-fn Uavel¢~>rne;,+ +'ln i~1ar ? AGO? "r a s aht.G:C APIR EXHIBIT "B" ,vtn<~2~ ,~~j NOV 2 9 2006 . J CITY GP TIGARD PLANNiNG/EV -.!NEER1NG PROCEDUM FOR BALLOT NMASURE 37 p " COMPENSATION CLAIM... . ' Gzyof TigaidPwt* Gmw 13125 SWH4Vul, TWn.j OR 97223 - Photo 503.6394171 Fac: 503..T99.190 The claim mustbe in wnii%g and include the information listed below. The claim shall not be consldemd filed un-iil all of the re turements of the -rocedilm asp met r7 2'OR.~L'F Q1VlLY Casa No.: 4_7 J Q Applicarma Accepted By, Dare: d Date Vemrmiced C=nPkte De-c r_ 1000 tlle~,asrto be zf~ded i4 d~sn b determined m be aslid Sf deism: denied uid nlamurlydevnvisd in valid, the ckimm sbal re,mbuse the C17for s tix COf6 the Cnyi=c is praeessin; da: drom If mmtbt sat etileds 7iL~ dlpair, t6c aEtiu»at abal! Qayacq sdditiem I e ^s~ a zbin 3a days oL 4 d crwd by t5e Qty Y f or EuU -ne 3f cosh arr )as dsutsbe R, r~ diffc~mcn w8 be rL4mdad m sho YM_ MEMEWATION QE AM ~xo~l~ rY PropertyStteecAdam-ss/Loca6*s): SW 68th Parkway 'l"na if~ ac raa got ~ (s): i 5~3~[2P~?4oo ' SA&Vision Lot (s): N/A rl1Af1~A1~J~' tNPORMA'#'1_C3N i p p •c,~s/D~edHv Wag_W. Lee, General Contractor, loc. c/0 Steve Morasch, Sehwa$€,w11lamson-Mml ! Address: Inn Wac ntnnrgp 701 Rbooes_ 503-79£ 2498 0zy/S%zq Vancouver. WasbiagtoQ 98660 Zip (AtrachYstifmnre then one) . Date (7z3as m Uquhd Property 1980 t DaceFir:u7.p? mberofUaia=AcquiedPropesty(sfappkable): n/a Names a2d R_6matUps of Famibr am1>rzs that are Pr9waas Oaraats ;d applicable): (Attach Ustifadditiona space is needled) Lien/Sem-kyTmmt Holes of the affected psopsrr/ Addasr. Pbax; Gcry/Smse: Zip: (Attacbt Use If avn tbza ont:) "'Whea the owner and The applicant Are different ptopk, 3t4 otmers of die affected properCy must sign this application in tha ? spatr provided Qa the back of this. Ryan. if the affected property is otvacd br two or more pcrscrrs and not all cm =-s seek i compensmioin, A owners who do nos seek compeasatioa sW sip a auver of %6e right to comyeasarloa • 4 j i i • 1 i . EGiIl' A.7~g~.RBSTR~C~IIdGUS~ , Idendytae restakl on chic it sllosed co res:ricr use cf mf#ecied properly. Provide a s=e=etc 4!esan'6ing how *e rpac'ictionaffects the vague of die property. (Attach additional niswiiais as recess-A See Attached Y ~T ~,?iyI PiiEFflItEN~, . PION16C a suwrm m o: whtdl= claimmr prefefs coe,peaszioz or a waiver, suspension, or moc'sacaai= of the zepa rdarL s See Attached a Include a snoftueat de=aliag rtte men to wdL'ch the rerjadon Rzuld rmed to be rmVed, suspended, o: mod&wd ro avaid r6 need far compuu aioa A detcciPvcsa o£ the S Haar ix'prov~ed (AUaeh addstioraa2 ma adals a., rreocssazy) See Attached AM~~JNT aP ~'A11~1'ENSA'TIQ~J! The 1mM,n~ c?~aascd as competsaxiorr: $500,000 Provide ctacutne *JWu supporting the amoom Sail{ doe=.enuuon shall mcki& a ma8set a=tysls, appmjal, or othw_r d,ocumet~onat3castegaas►alentroast~etaaalysis. Ciao' d resentattve(s) if app Gcab e. t s -eve y ~asc f~ SXQ ATC) W-cf Mel owner of it* subjet tpcepctty. DAnDthais dayof NoYG/~11~/ ^ 20~ ~i ownea's Sigmutre se'ut-t wr y QaPiC~es's Signatttrn i .i t;lR+att~1$ 4tLlhe 0%7x es Signature i i e\iwplnLna~rm~hcd ue 3W.-Mriea Nbaw rzu,:.•e Y CNimfft=&C v CITY OF TIGA" 11/30/2006 V = 13125 SW Hall Blvd. 10:54:41 AM Tigard, OR 97223 503.639.4171 Receipt 27200600000000005652 Date: 11/30/2006 Line Items: Case No Tran Code Description Revenue Account No Amount Paid M372006-00004 [M37-CD] Measure 37 Deposit 100-0000-229080 1,000.00 Line Item Total: $1,000.00 Payments: Method Payer User ID Acct./Check No. Approval No. How Received Amount Paid Check WAY W. LEE GENERAL KJP 1168 In Person 1,000.00 ✓ CONTRACTOR, INC Payment Total: $1,000.00 I WAY W. LEE.GENERAL CONTRACTOR, INC. WELLS FARGO BANK, N.A. 1168 5210 S.E. 26TH AVE. _ • PORTLAND, OR 97201 PORTLAND, OR 97202-4627 www;wellsfar§o'.COM.. 24-680/1230 11/30/2006 PAY TO THE ` City of Tigard I ~ **l'000.'00 W , ORDER OF One Thousand and 00/100**r***#***********isit~st*+*i*#~i*i***i~wi**i*4stts'**v*s***s***r**K'**ws**************** DOLLARS 8 City of Tigard V 9. WAY W. LEE GENERAL CONTRACTOR, INC. MEMO cReceipt pt r - ^ ^ - - - - - - AUTHORIZED SIGNATURE q Y N VED SCHWABE, WILLIAMSON & WYATT NOV 2 9 2006 ATTORNEYS AT LAW C1TV OF TIGARD + u t,~UNEtH Vancouvercenter, 700 Washington Street, Suite 701, Vancouver, WA 98660 Phone 360.694.75511 Fax 360.693.5574 www.schwabe.com w STEVE C.MORASCH Admitted in Oregon and Washington Direct Line: (360) 905-1433 E-Mail: smorasch@schwabe.com ga November 28, 2006 City of Tigard Permit Center 13125 SW Hall Blvd. Tigard, OR 97223 Re: Measure 37 Claim for Way W. Lee General Contractors, Inc. Dear City of Tigard: We represent Way W. Lee, General Contractor, Inc., who owns real property on SW 68th Parkway in the City of Tigard and are submitting this written demand for just compensation on a: its behalf pursuant to Measure 37. The map number for the property is IS 136DA-02400 and the tax account number is RI 196930. The property is undeveloped, so no street address has been assigned. The property is approximately 4.47 acres in size. A chain of title report from First American Title Insurance Company of Oregon is attached to this letter. Please let us know if you require any further information to process this claim. •t,. As shown in the attached chain of title report, Way W. Lee, General Contractor, Inc. first acquired the property in 1972, but there was a break in ownership, and Way W. Lee, General Contractor, Inc. re-acquired the property on August 11, 1980, and has owned the property . ; . , ' continuously since then. See deed recorded at Fee. No. 80-27388. A small portion of the property was acquired from the City of Tigard on December 16, 1987. See deed recorded at Fee No. 87-061376. n; Way W. Lee, General Contractor, Inc.'s plan for the property is to construct a two-story office building of approximately 14,525 square feet per story, for a total of 29,050 square feet of floor area, with surface parking. A conceptual site plan of the proposed development is enclosed with this letter.. At the time Way W. Lee, General Contractor, Inc. acquired the property the City had no . F~ zoning restrictions preventing the construction of this type of office building as depicted on the conceptual site plan. Since the time of acquisition, the City has adopted zoning ordinances for 4 , this property that restricts the use and reduces the value of the property. Those ordinances . include, but are not limited to the following: Portland, OR 503-222-9981 Salem, OR 503-399-7712 1 Bend, OR 541-749-4044 Seattle, WA 206-622-1711 1 Vancouver, WA 360-694-7551 Washington, DC 202-488-4302 P DX/ 113621 / 151039/SC M/ 1483958.1 City of Tigard November 28, 2006 Page 2 18.620.020 Street Connectivity, including, without limitation, section A.1 a. Design Option. (This section requires public street connections at intervals of no more than 660 feet along 68th Parkway, which would require a road through the creek and wetland on the property, which due to site constraints has the effect of prohibiting the proposed use as planned). 18.620.030 Site Design Standards, including, without limitation, section A.I. Building Placement on Major and Minor Arterials. (This section would require a proposed building to cover at least 50% of the frontage along 68th Parkway, which due to site constraints has the effect of prohibiting the proposed use as planned). 18.620.080 Street & Accessway Standards, including, without limitation, Table 18.620.1 and specifically including (again, without limitation) the requirement on page 18.620-8 for a "Backage Road." ' The Tigard Triangle Transportation Plan, to the extent that it requires a "Backage Road" (or any other road) through the property and also to the extent that it would otherwise restrict the proposed use. The Tigard Triangle Street Plan Drawings shown on the following pages of Chapter 18.620: 18.620-12 Tigard Triangle Street Plan (Urban Design Concept); 18.620-13 Tigard Triangle Street Plan (Local Collector); and 18.620-16 Tigard Triangle Street Plan (Street Sections - Backage Road). 18.765.020 (Applicability of Provisions) and 18.765.070 (Minimum and Maximum Off Street Parking Requirements) to the extent that they would restrict the proposed use as shown on the attached site plan. Any other provision of the Tigard Development Code that would restrict the proposed use as shown on the attached site plan. Any provision of the Tigard Triangle Plan or any provision of the comprehensive plan or any other City plan that prevents the use of the property for the proposed use or that mandates any of the above provisions, including without limitation, Chapters 8, 11, and 12 of the Tigard Comprehensive Plan. These provisions restrict the use of the property and reduce the value of the property by preventing Way W. Lee, General Contractor, Inc. from constructing a two-story 29,050 square- foot office building with surface parking as shown on the conceptual site plan. These provisions prevent all use of certain portions of the property, and potential uses allowed under these provisions would be more costly to build than the proposed use. Hence, the restrictions on the use would devalue the property because they make it less attractive for a potential developer. We estimate the reduction in value to be $600,000. ~'8: P DX/ 1 1 362 1 / 1 5 1 039/SCM/ 1483958.1 City of Tigard November 28, 2006 Page 3 Way W. Lee, General Contractor, Inc. respectfully demands that $600,000 of compensation be paid pursuant to Measure 37. In lieu of payment of just compensation, the Way W. Lee, General Contractor, Inc. would welcome a removal of the land use regulations currently in effect, so long as the removal is transferable to subsequent owners and the subsequent owners would be authorized to construct a two-story 29,050 square-foot office building with surface parking as shown on the conceptual site plan. [Please note the aforementioned amount of compensation is based on the value lost due to the restrictions on the development of a two-story 29,050 square-foot office building with surface parking as shown on the conceptual site plan. If the City of Tigard is unwilling to remove the regulations, and Way W. Lee, General Contractor, Inc. is compelled to seek just compensation, please be aware that a new just compensation figure may be derived based on the most intensive use of the property allowed at the time of acquisition, which may exceed the compensation estimated above.] Please note that the above-listed ordinance sections are the primary land use regulations that restrict the use and reduce the value that we have been able to identify at this time, however, there may be additional land use regulations that also apply. To the extent that the above list of ordinance sections does not fully capture all land use regulations preventing Way W. Lee, General Contractor, Inc. from enjoying all uses available at the time of acquisition, Way W. Lee, General Contractor, Inc. reserves the right to seek relief from, or base their compensation on, additional applicable land use regulations. Additionally, due to the novelty of Measure 37 and the claims of Way W. Lee, General Contractor, Inc. thereunder, we reserve the right to amend or supplement this claim as necessary to satisfy the construction and application of Measure 37. Our position is that any land use regulation (as defined in Measure 37) that prohibits or impairs a property owner's ability to use the property by constructing a two-story 29,050 square-foot office building with surface parking as shown on the conceptual site plan would reduce the value of the property. Under Section 10 of Measure 37, the City of Tigard must either pay compensation or waive the regulations, or Way W. Lee, General Contractor, Inc. will be allowed to use the property as permitted at the time of acquisition. The claimants are aware that the City of Tigard has adopted procedures to implement Measure 37: This claim is not made pursuant to such procedures, nor is it limited to regulations enacted prior to December 2, 2004; however, as a courtesy, we have endeavored to follow the City of Tigard Measure 37 procedures to the extent that they are not inconsistent with the language of Measure 37. Measure 37 claimants are provided a cause of action for compensation if a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation. The property is also subject to land use regulations enacted or enforced by other governmental entities. Appropriate written demands for just compensation are being submitted to those entities as well. We intend to coordinate resolution of those claims with this claim, and encourage the City of Tigard to contact us at the earliest possible time to discuss possible resolution of this claim. Please send your response to Steve Morasch of this firm. 9d PDX/ 113621 / 151039/SCM/1483958.1 City of Tigard November 28, 2006 Page 4 We hope that the City of Tigard would act promptly, fairly, and responsibly to provide Way W. Lee, General Contractor, Inc. the clear benefit it is entitled to under Measure 37. . If you have questions regarding this claim or need additional information, please contact the undersigned at your earliest convenience. Sincerely, Steve C. Morasch SCM:tag Enclosures cc: Timothy V. Ramis (Via overnight delivery w/encl.) ►J'~W PDX/1 1 362 1/1 5 1039/SCM/1483958.1 I z; n r j { I 1 I l I I I I I i 1111 I~AIr j . - - I ITT. L.U i _ b % I I~ I W ~a UZ C= O O i I ~ Z~ n vii _ - b4 { ~u^V , 3 SITE PLAN - v ® htili SITE PLAN ^ A1.0 s'- Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5/16190) Page No. 1 TEE G"U--A- R .~4 N Issued by First American Title Insurance Company of Oregon 222 SW Columbia Street, Suite 4001 Port/and, OR 97201 Title Offl'cer.• Mike Brusco Phone: (503)222-3651 FAX.- (503)790-7858 First American 77tie Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5116(90) Page No. 2 1 , w r FirstAlmerican Title Insurance Company of Oregon C, 222 SW Columbia Street, Suite 400 Portland, OR 97201 First American Phn - (503)222-3651 (800)929-3651 "a~ ~llL Fax - (503)790-7858 LIABILITY: $350.00 GUARANTEE NO.: 7019-932857 FEE: $350.00 YOUR REF.: Recorded Document Guarantee ISSUED BY First American Title Insurance Company of Oregon An assumed business of Title Insurance Company of Oregon Title Insurance Company of Oregon, dba First American Title Insurance Company of Oregon, herein called the Company, subject to the terms and provisions of the application for this Guarantee, the Liability Exdusions and Limitations set forth below and in Schedule A and the conditions contained herein GUARANTEES Schwabe Williamson and Wyatt herein called the Assured, against loss (except attorney's fees or the cost of defense) not exceeding the liability amount stated above which the Assured shall sustain by reason of any incorrectness in the assurances set forth in Schedule A. No guarantee is given nor liability assumed with respect to the identity of any party named or referred to in Schedule A or with respect to the validity, legal effect or priority of any matter shown therein. The Company's liability hereunder shall be limited to the amount of actual loss sustained by the Assured because of reliance upon the assurance herein set forth, but in no event shall the Company's liability exceed the liability amount set forth above. In order for the Guarantee to be valid and effective, the application and agreement for the issuance of a Recorded Document Guarantee executed by the Assured and a copy of each document listed and referred to in Schedule A must be attached hereto. All terms and conditions of the application are hereby incorporated by reference as if fully set forth in this Guarantee. Dated: November 01, 2006 at 7:30 a.m. Title Insurance Company of Oregon dba FIRST AMERICAN TORE INSURANCE COMPANY Or OREGON ! O 1. By. President r QQOR :o Attest: Secretary First American Tide Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (S/16190) Page No. 3 RECORDED DOCUMENT GUARANTEE SCHEDULE A The assurances referred to on the face page are: That according to the Company's title plant records and those records maintained by the County Recorder known as the Grantee/Grantor indices subsequent to November 01, 2006, relative to the following described real property (but without examination of those company title plants maintained and indexed by name), there are no Deeds, Contracts, Assignment of Contracts (hereinafter Documents) describing said real property or any portion thereof, other than those listed below, copies of which are attached hereto and made a part hereof. A. The following Documents or matters disclosed by Documents recorded in the Public Records are specifically exduded from the coverage of this Guarantee, and the Company assumes no liability for loss or damage by reason of the following: 1. Unpatented Mining Claims, reservations or exceptions in patents or in acts authorizing the issuance thereof. 2. Water rights, claims or title to water. 3. Tax Deeds to the State of Oregon. 4. Instruments, proceedings or other matters which do not specifically describe said land. 5. Documents pertaining to mineral estates. B. DESCRIPTION: PARCEL I: A PORTION OF LOT 1, WAY LEE, A DULY RECORDED SUBDIVISION IN WASHINGTON COUNTY, OREGON, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 1; THENCE NORTH 000 26'47" EAST, 658.08 TO A POINT ON THE SOUTH LINE OF THAT PARCEL CONVEYED TO WAY W. LEE, GENERAL CONTRACTOR, INC., AN OREGON CORPORATION, BY DEED RECORDED FEBRUARY 26, 1975 IN BOOK 1012, PAGE 172, WASHINGTON COUNTY RECORDS; THENCE WEST ALONG SAID SOUTH LINE TO ITS INTERSECTION WITH THE WEST LINE OF SAID LOT 1; THENCE SOUTH 000 42'09" WEST, 659.31 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE SOUTH 890 58' S5" EAST, 330.16 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING EAST OF THE WEST LINE OF SOUTHWEST 68TH PARKWAY. PARCEL II: THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 1 WEST, WILLAMETTE MERIDIAN, IN THE CITY OF TIGARD, WASHINGTON COUNTY, OREGON, DESCRIBED AS FOLLOWS: COMMENCING AT AN OLD 3/4-INCH PIPE CALLED THE POINT OF BEGINNING OF COUNTY AS FEE NO. 80-14079, PARCEL III; THENCE ALONG THE NORTH LINE OF SAID PARCEL III ON A BEARING (BASIS OF WHICH IS THE OREGON STATE PLANE COORDINATE SYSTEMS) OF NORTH 88° 12' 15" WEST A DISTANCE OF 150.67 FEET TO THE POINT OF BEGINNING OF THE LAND First American Title Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5/16/90) Page No. 4 TO BE DESCRIBED; THENCE ALONG THE ARC OF A 400.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 040 56' 53", AN ARC DISTANCE OF 34.54 FEET (THE CHORD BEARS NORTH 26 ° 39'01" 34.53 FEET) TO A POINT IN THE EAST LINE OF LOT ONE OF THE PLAT OF "WAY LEE"; THENCE ALONG THE AFOREMENTIONED LOT LINE SOUTH 01° 39' 56" WEST A DISTANCE OF 30.36 FEET TO A PIPE, IN THE NORTH LINE OF PARCEL III AS DESCRIBED IN COUNTY AS FEE NO. 80-14679; THENCE ALONG SAID NORTH LINE SOUTH 080 12' 15" EAST A DISTANCE OF 16,38 FEET TO THE POINT OF BEGINNING. Parcel I Listed Documents: 1. Warranty Deed including the terms and provisions thereof: Recorded: August 22, 1972 in Book 883, Page 833 Grantor: Tigard Pacific-West Properties, a partnership consisting of Fidelity Life Association and Peter B. Bedford Grantee: Way W. Lee General Contractor, Inc. 2. Warranty Deed including the terms and provisions thereof: Recorded: August 22, 1972 in Book 883, Page 836 Grantor: Way W. Lee General Contractor, Inc. Grantee: Pfedco, Inc. 3. Quitdaim Deed including the terms and provisions thereof: Recorded: February 07, 1980 as Fee No. 80004362 Grantor: Way W. Lee, General Contractor, Inc. Grantee: Pfedco, Inc., an Oregon corporation 4. Special Warranty Deed including the terms and provisions thereof: Recorded: August 11, 1980 as Fee No. 80027388 Grantor: Pfedco, Inc., an Oregon corporation Grantee: Way. W. Lee, General Contractor, Inc. Parcel II 5. Warranty Deed including the terms and provisions thereof: Recorded: July 23, 1951 in Book 323, Page 91 Grantor: Paul W. Scheffer and Helen W. Scheffer, husband and wife Grantee: Henry E. White and Dorothy S. White, husband and wife 6. Statutory Warranty Deed including the terms and provisions thereof: Recorded: November 08, 1984 as Fee No. 84-043955 Grantor: Henry E. White and Dorothy S. White Grantee: Donald E. Pollock 7. Rerecorded Statutory Warranty Deed including the terms and provisions thereof: Recorded: August 16, 1985 as Fee No. 85-032075 Grantor: Henry E. White and Dorothy S: White Grantee: Donald E. Pollock First American Title Reccrded Document Guarantee Guarantee No.: 7019.932857 Guarantee Form No. 27 (5/16/90) Page No. 5 8. Warranty Deed including the terms and provisions thereof: Recorded: January 17, 1986 as Fee No. 86-002741 Grantor: 'Donald E. Pollock Grantee: City of Tigard 9. Quitclaim Deed including the terms and provisions thereof: Recorded: December 16, 1987 as Fee No. 87-061376 Grantor: The City of Tigard, a municipal corporation Grantee: Way W. Lee, General Contractor, Inc., an Oregon Corporation First American Title Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5/16/90) Page No. 6 GUARANTEE CONDITIONS 1. DEFINITION OF TERMS the American Arbitration Association. Arbitrable matters may include, but The following terms when used in this Guarantee mean are not limited to, any controversy or claim between the Company and the (a) "Land: the land described, specifically or by reference, in this insured arising out of or relating to this policy, any service of the Company Guarantee. in connection with its issuance or the breach of a policy provision or other (b) "Public Records": those land records designated by state statues for obligation. Arbitration pursuant to this polity and under the Rules in effect the purpose of imparting constructive notice of matters relating to on the date the demand for arbitration is made or, at the option of the said land. insured, the Rules in effect at Date of Policy shall be binding upon the (c) 'Date': the effective date of this Guarantee. parties. The award may include attorneys' fees only if the laws of the state (d) "The Assured": the party or parties named as the Assured in this Guarantee, or in a supplemental writing executed by the Company in which the land is located permit a court to award attorneys' fees to a . (e) "Mortgage": mortgage, deed of trust, trust deed, or other security prevailing party. Judgment upon the award rendered by the Arbitrator(s) instrument. may be entered in any court having jurisdiction thereof. (f) "Lease": any lease or sublease of any estate in the land. The laws of the situs of the land shall apply to an arbitration under the (g) "Assignment": the transfer of the beneficial ownership of any Title Insurance Arbitration Rules. mortgage or lease. A copy of the Rules may be obtained from the Company upon request. (h) "Documents": any Deed, Mortgage, tease or Assignment. Company shall reimburse the Assured for any expense so incurred. 5. GUARANTEE ENTIRE CONTRACT No provision or condition of this Guarantee can be waived or changed 2. NOTICE OF LOSS - LIMITATION OF ACTION except by writing endorsed or attached hereto signed by the President, a A statement in writing of any loss or damage for which it is claimed the Vice President, the Secretary, and Assistant Secretary or other validating Company is liable under this Guarantee shall be furnished to the Company officer of the Company. within sixty (60) days after such loss or damage shall have been determined. 6. If any provision or any part of a provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect 3. PAYMENT OF LOSS- LIMITATION OF LIABILITY the legality, validity or enforceability of any other provision of this (a) The liability of the Company under this guarantee shall be limited to Guarantee. the amount of actual loss sustained by the Assured because of reliance upon the assurances herein set forth, but in no event shall 7. This Guarantee is issued only for the benefit of the named Assured and such liability exceed the amount of the liability stated in this does not provide any other rights or remedies upon any other person or Guarantee. entity. (b) All payments under this Guarantee shall reduce the amount of the liability hereunder pro tanto. 8. NOTICES (c) When liability has been fixed in accordance with the conditions of this All notices required to be given the Company and any statement in Guarantee, the loss shall be payable within thirty (30) days writing required to be furnished the Company shall be addressed to it at its thereafter. main office at 222 SW Columbia St; Ste 400, Portland, Oregon 4. ARBITRATION. 97201-5730. Unless prohibited by applicable taw, either the Company or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of PdIMRDG-0R First American Title Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5/16/90) Page No. 7 APPLICATION AND AGREEMENT FOR THE ISSUANCE OF A RECORDED DOCUMENT GUARANTEE THIS AGREEMENT entered into this Fourth day of November, 2006, between Title Insurance Company of Oregon, dba First American Title Insurance Company of Oregon (hereinafter the Company) and (hereinafter Applicant). Applicant for the purpose of purchase, sale or loan is in the process of investigating the prior uses to which the real property described below (hereinafter Subject Property) has been put. As a part of that investigation Applicant desires information regarding documents found in the Company's Multnomah County Title plant and the Washington County Recorder's Office which has been indexed in the Grantee/Grantor indices which described the real property set forth below or any portion thereof. The Company hereby agrees to provide to Applicant a "Recorded Document Guarantee" (hereinafter the Guarantee) in the form attached hereto and made a part hereof in accordance with the provisions of this agreement. In consideration of the mutual promises set forth herein, the Company and Applicant agree as follows: 1. Providing the Company has an open order on the Subject Property for the purpose of insuring title, the charge of the Guarantee shall be the sum of the number of hours required to research and prepare the Guarantee, times an hourly rate of $50.00. There shall be a minimum charge of $150.00. (In the event the Company does not have an open order placed by Applicant on the Subject Property, then the minimum charge shall be $350.00). 2. The liability assumed by the Company for the correctness and completeness of the information contained in he Guarantee shall be the amount of the liability shown in the Guarantee. It is also understood and agreed that the Company shall not be liable for any loss or damage arising from incorrectness or incompleteness of the Guarantee unless such incorrectness or incompleteness is the result of gross negligence (as opposed to ordinary negligence) on the part of the Company. 3. In no event shall the Company be liable under the Guarantee for loss or damage of any type in excess of the amount of liability shown in the Guarantee including but not limited to consequential damages, attorneys' fees, costs of defense of any action of proceeding, loss of anticipated profits, costs of toxic waste cleanup or any other loss whether or not of the type • specifically mentioned above. 4. Applicant hereby requests the Company to issue the Guarantee reflecting as exceptions only the following indicated recorded documents which described all or a portion of the Subject Property found in the Company's title plant (but without examination of those Company title plant records maintained and indexed by name) and the Grantee/Grantor indices maintained by the County Recorder for the County of Washington which documents were recorded subsequent . [ ] All Recorded Documents [ X ] Deeds [ X J Contracts [ X ] Assignment of Contracts [ ) Deeds of Trust [ ] Mortgages [ ) Leases [ ] Sublease [ ] Easements First American Ttte Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5/16/90) Page No. 8 The search conducted by the Company, or at its direction for the purpose of securing the requested documents will be the customary method used by the Company in the County where the described land is located and will include only those documents which described all or a portion of the described land. The search will not include documents indexed by name in the public records unless such documents described all or a part of said land. Applicant specifically instructs the Company to disclose in the Guarantee only those documents indicated above. Applicant understands that during the course of searching the records covered by this Agreement and the Guarantee, the Company may find recorded documents of a type other than those indicated above by Applicant to be included in the Guarantee. Even if the Company knows or would have reason to know Applicant may have an interest in these other documents, Applicant imposes no duty or responsibility on the Company to disclose those documents or their content to Applicant either through the Guarantee or otherwise. 5. THE GUARANTEE TO BE ISSUED IS NOT A COMMITMENT TO ISSUE TITLE INSURANCE. 6. THE GUARANTEE TO BE ISSUED IS NOT AN EXAMINATION OF TITLE AND IS NOT TO BE RELIED UPON BY THE APPLICANT OR ANY OTHER PERSON AS A REPRESENTATION OF THE STATUS OF THE TITLE TO THE REAL PROPERTY. 7. In the event that any provision or any part of any provision of this Agreement is held to be illegal, invalid or unenforceable, said illegality, invalidity or unenforceabiiity shall not affect the legality, validity or enforceability or any other provision or part hereof. 8. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person or entity, other than the parties hereto, any rights or remedies arising under or by reason of this Agreement. 9. This Agreement shall be governed by and construed in accordance with the laws of Oregon. 10. BY THE SUBMISSION OF THE APPLICATION TO THE COMPANY, THE APPLICANT ACKNOWLEDGES AND SUBMITS: THAT APPLICANT IS AWARE OF THE LIMITED SCOPE OF THIS GUARANTEE; THE APPLICANT HAS READ AND UNDERSTANDS THE CONDITIONS OF THE APPLICATION; THE APPLICANT HAS READ AND UNDERSTANDS THE CONDITIONS AND EXCLUSIONS OF THE GUARANTEE. 11. The Subject Property is described as follows: PARCEL I: A PORTION OF LOT 1, WAY LEE, A DULY RECORDED SUBDIVISION IN WASHINGTON COUNTY, OREGON, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 1; THENCE NORTH 000 26'47 EAST, 658.08 TO A POINT ON THE SOUTH LINE OF THAT PARCEL CONVEYED TO WAY W. LEE, GENERAL CONTRACTOR, INC., AN OREGON CORPORATION, BY DEED RECORDED FEBRUARY 26, 1975 IN BOOK 1012, PAGE 172, WASHINGTON COUNTY RECORDS; THENCE WEST ALONG SAID SOUTH LINE TO ITS INTERSECTION WITH THE WEST LINE OF SAID LOT 1; THENCE SOUTH 000 42' 09" WEST, 659.31 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE SOUTH 890 58' 55" EAST, 330.16 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING EAST OF THE WEST LINE OF SOUTHWEST 68TH PARKWAY. PARCEL II: THAT PART OF THE SOUTHWEST QUARTER OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 1 WEST, WILLAMETTE MERIDIAN, IN THE CITY OF TIGARD, WASHINGTON COUNTY, OREGON, DESCRIBED AS FOLLOWS: First American Tide ~ j Recorded Document Guarantee Guarantee No.: 7019-932857 Guarantee Form No. 27 (5/16/90) Page No. 9 COMMENCING AT AN OLD 3/4-INCH PIPE CALLED THE POINT OF BEGINNING OF COUNTY AS FEE NO. 80-14079, PARCEL III; THENCE ALONG THE NORTH LINE OF SAID PARCEL III ON A BEARING (BASIS OF WHICH IS THE OREGON STATE PLANE COORDINATE SYSTEMS) OF NORTH 880 12' 15" WEST A DISTANCE OF 150.67 FEET TO THE POINT OF BEGINNING OF THE LAND TO BE DESCRIBED; THENCE ALONG THE ARC OF A 400.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 04° 56' 53", AN ARC DISTANCE OF 34.54 FEET (THE CHORD BEARS NORTH 26 ° 39'01" 34.53 FEET) TO A POINT IN THE EAST LINE OF LOT ONE OF THE PLAT OF "WAY LEE"; THENCE ALONG THE AFOREMENTIONED LOT LINE SOUTH 01° 39' 56" WEST A DISTANCE OF 30.36 FEET TO A PIPE, IN THE NORTH LINE OF PARCEL III AS DESCRIBED IN COUNTY AS FEE NO. 80-14679; THENCE ALONG SAID NORTH LINE SOUTH 080 12' 15" EAST A DISTANCE OF 16,38 FEET TO THE POINT OF BEGINNING. Dated: Applicant: First American Title Pte' 4 r~~' .~~f4. ':i.. ar .r: ~ a ' . . ' 9817 ' . _ *RAAfl&WYY 'DEED. DATED: .alit 21+ 1972. F.90tlI TIOARD PACIPIC-•,EST PROPER".'ICS, a partnership ! ; consisting, of F3dnlSty C1f0:Aseooia:lon -fins! ?-tore Pddtard, hoi•dlnaffer oallsd ^Crencory r' ' L,-:1~N k .f TO Y: N. LFF AE'.NBRAL CQttTRAFTOR;' NC_'.h&relnaf't&r ' i~~.; - -called °Oratltos. ';:,T. .E.T. H<.. - =:c:^ y.k•..,_. • rantOr tOn70 a to'G. .j-., .I:~: • Y rantea' ill thet'-:t:eal' _b• . ' ••ty:'.;;. ultueGed In Nashingtal Coort7..Orcio'r.,,'debci}tiaa.Ac 3611ow9: t.a-r .:ro PARCEL Part ;of'4ot-]'`lri "Seotlon 36;':oanahi`pi.l Sou 4~ >~'+r~ Ra e. I - Wett -Ani d art'. ns D of tMe TD04ea A:, Donation tefid_Cla1m in Saotinh 36 PawialLp ;l -r:'.i' >'',je•?~ 9i) South; Range"1.4ea't of:the VS11a1,JftEe'ltb di'an;:: `I r~.'F' ":Xaahington County.; OreQoA:.and:beglnningTata':.-.{ 1r 4Yr ~.DOSat:,2:70ahs1"ns:?Jrast of the HartDveet!ocrfxL::-":-,:•,=_;-_:•.~yz the`East hair "of:.ttie -36;. thtnoe North; 0.875:-chalitsyto;: t r•. ccni6r -or t ie,Taylors''Perry Ra'ad as surveyed by A. A. Horrll Pebruary -28, 1907; then-3e :17orth 65e 18' East,.. 3.15 chains' along j-, the oenter line ot.the Taylors Ferry, Road; thetnoo tiorth• 670 Fast, 4r80,e~ainn to n:pioee ,c of bas pipe InAhe..gen:er of the 8014.2aylore, .Ferry Road; thongs South-II.lj.'ohain&; thence:' West •10.18 obvilus, more or lasei to. the polot'br. a' . Ddginnlnlc,. . A p.x. I:ot 3ran4 1 1 a:: 3 fIG In the Northoas. Quarter r or Section 36, Township 1 South, Range 1 West, • a111nnette s:eridian,*-:fk3hlrgton Oaunty, Ore¢on, and.being a.pyrtlon of that propertydosorlbed that deed to NnahSngcon .0ountv.: recorded'An Book 111, Pages •gB_a4d.99 of Vaahingtan y,.. by Records o: Decide; the said pircel being that:, :portion of said property included 1nstrlD.... of land 30 feet in width: lying on: tde Southerly:Y'..''; : r? jy o]de of, that certain oenter line; dedorib . im " smad'-Washington County deee and lying Southerly : or a line whioh is parallel to ind•80 feet Southerly or,.tho center line or ttie Piclrle high- " 'way West. lihioh oenter ISne`le deecribed'aa, foliowd: - Bcs innin etc S Engtneer'e center, line . Station 199486.9R said ataelon trelnC.on the [F. EQAV 11 ne of aala 9eetton. 36. at a point 898.6 - .:'feet North of the -last. quarter. eorner' of sstd' Section 361 thence loath Ts• 06' 30^ sleet, Gawk- ' PAM Wt7 ,,.'',i• 83.1 feet; thence an n-a splral.earve ioft:(the long chord of wylah bears South-721•34' 29°i: ,°y., west), 4.?9-leet'to Station 20 C99 Dack'eque~e`' - - ¢+.33:ti•atieae; tAenodoontlnuln4 alop6:'sa1d~'::;;•' ,f.:,r: :eplrnlqurva.lalt (ttx lortg chord,:or_whieti bears South 'S8°'42".34° West)- Jl:.feet; thence.'., ' t')~•( on. a 2291.83 foot-.;ndiua. purrs left 1ttiC long 1-' x::;•:.: ; chord nf-which be ' - •:a:.•.i< Vii';... lr".'1~ dre 6outh 64W-0 4 -30 Vo'Bt)•r,' 30%-feec.•-tbenco-.on''B s Irnl; ' 'tc'~' p curve left: (t5e.• 9 B ot`xhieh beara-'soutb $6 .0$!;•30. ' •.:;,:.;•`i;y :ter lfoat),.500fees to:.Stetsop:lq+08:q. etid"obvanerita''thac:fie;ie .bo` Nriei'-of P- ,tAe aboverdeaorlb'~1p-..:: ,,1.. kroperty':lree: or Fall oncumbraacgs esoepi_ the follbilling `s *~fi= ' property ,tayes.Ldr=the ''La:E:,y.egrJ:19.72=7,3::';: . 'rlghtq PC t6e p iio fn` and' to.,that ;yortiop ,y•~ :°j oI'tAe above property lyina:wlthln tha•limitik oj.,rvadi::' eye _3. '•/ur'eaaomept;'•Sneludi the trip;and oro'laiona'- -r .Q.. Kn Ch.reor 'dared:HWZe ':1g.4a; r yJ9_ - `reootded *n :on J.une.:1T; 00~^Sri_:::. ''.c•,, J ' ;8OOlc 1'9O•'of the 'records ; of'3se?a :of--. laahingtoo• Coui,tj>.:qt,q :peas; 388; in favor of 'YaMClo •1`e le hoiie' end 261e5i1?D" Coon}. aiiy. y .'for• xI 11.ty- purpd;ea over, said . property x~~' -~F' 'An eaeooent, Inclu, ing. the terms and.provlslous..:' ..i:: ti4a thereof; datod Peoruar•,/ 11', 1959, recorded: on Aarc6:'.6,--. !5q - 0 1n book 415 of the records of deeds oC 6aahinaton,County: at.'••; - •,'i 1. •r. . 'pogo 308, in favor of .Portland General 3lectria, fcr ut}llty' { purpoaee -over said property-.. 4;.= ~5. 'limlted n0coer'and rostrlotiona In a ae-i d from' •r~ the State o. Oregon, by and t hrough Its.State. Nighway Commle;. I,w';, r• ^at!'tin;:rlcoi;ded"May- J.' 107;• In Dook 600 of" the reoordet of-.:; y .deeds of Yashington County. at page 319, which provides; that. .,~k,L~ =no1`yrSghQ`br`eaaenent at right`of`aooeeo to/ from or Ycroaa- :+v' jthe Stesie:Highway other than expreoaly -theiein'.provided T'i'^6L4Tl,attach;•to the abutUn6'property• WON 1 - r . {all Orantor• will warrant-and : def end: the above=desorilir'd'.,' ~,prgper.Ly:,agalnatal]'pereona Mho_ bay:2aMrully~: Clain-the'`s'ame,^;•~t:•';••:'.:-,r. except, an: providod . nt;ova. `•F-':" ^i .'1Ts'con_aidaretioq.-for''tj~iertrdnafe~~e,~7~e qua : ±.Z.. .265.000. ef~ p'Sfx;~:o z:~".:.:..:. ,~x f 1tt it - , Ago to xe ucaytliin'-~ ; •_i wnrranty'•dce6 ea of the~day,-andc year'tlrst xrl Vten above ` rcY'ya` ::'l.':'~ f'''' ai: A ~j' d •PACIP C;4EST-PRq _ ,'s: :-•t` :~a. `fir; ~ ••'~'~:~"'-:u~Y,i^ `,:r PID6LI2l::I-?Fli•A3SOCIAiIOB;•~",~-.~_•'`'~' j ~`;c t • x: ee Free LdenVA.•;;jOjW=--. i"- •S ,r'!Am OP' CAI I1aANIA ) : nt 'r~:Syr ' COlIWM a7 'CONTRA COSTA l On July..21,'1472; before me." the d;:,-•':'.gotary✓;bee `iii=ttnd for said State; pareonally`appeureG { v 3;a:'~:~ b~i~S:a"1eLOr, B'.=$ed;ord; 'khown'to'ne to . be Cho"porson_eitiosa'iiaiio' .a,A31 7 st P':.4! aor20ed _t<r tho within inatroaent.and ackiinv'ledged ?'i.:ct=:`?~ ;AloY1* ~~;':::c:Q~ttieL_Ce'exeeuted:.tTn•aema. - _ v,,;-:~- w''-~=^t:•.`yl~~.,'}e.~`~ HIT82S5hand and orriciil ;eed~._ "SSaRIO G-YNft7tR q.4"`:' lawrivaJt-truiuaw +:I~.i - •1"i`'~:~..~"•~`~-: ~'~'yff• .y.a'.. ; rO .-`.iii ~:y~. s Oounty:af. Cook' ' ) - J' `tb4 paUreipod,.a Notary toblit In and for tde aormty amt state afonNLd. Do'1 ~t Q='b7: C* tify' tbat•.)ohn C.** havii; pardawly knaa b. so; to li tha Vita Traitdmt . '1 tt -aT:[QlLITT Ltra aifOCylTWX.' ai4 pertvftlly mown to. t:. Di tM F ,dhaii.ara' L aalaert►tt to ,ha [vtgolaa laattv..ot, apptarid Nfero as chL 47 - 'tiv,joa',i.od-i.!•aeoltdatd thtGha slaa.d, atald ash 4t1 t_r.0 flat .eta •loatr~ut 14:;t.. ,f • 'hf~%[~a•. ace :isleatar7;aot, aad N the [rot cad rolwat.ry act a::a d.ad of acid `•`n =..a~ i1t(o~-dot, the, a"a cad rimotee theviln ►vt rwrt%. }'•R~' <q l.asj. aae'tl[Io1a1 ewl thla 26th 4y .l 1v 1972. pvS.~G ~I . `'11rlr~,ltitaw oplrtt t/»~!. m 883 ma835 . ~S.'.OC)1Rvx [•.m~~i t•:_ac~1r1'.•ru J', ~~:.41~J'i.K ~ J 7.4 ~it'•-„1~, •r~i' _ `$j}a~'~.C '.ff.'"1~*t:1-=J i•'t•~fj'. •,}".'n`~.•`!1F rc.: vr. i'3,i`~~``r-+ r : I','."r :i ~':il. P•v°'•'C+.c~l•,t.. r~; 1;'.k-fir,:,: ',~~••,%.:?fr~'~~ • i.,J~ . :•r• Y WARRANTYO8E0(CORPORA710N~ WAY 4.. LEE- gunAL QDMZA - LRO. - •'~:.F. ' . :;cit. 5'. - ooipgration;MrsH+ifur N21pfmtar;ton "i•:' 4:.r','s, '`•ac" '(5mm iJ:ncorpor~aaN - I? :S:':•%r9:"': tl..'-c::; f~. 9ropsrtYakwtid In + ~eul►lattoa Coony+Seatr o/ Oreaoet dnelWd ae F~.X` "F'• )tl ID(ta17-"A^~aT7At7RD IfdaL}O..AJtO MAat'A PAaY D41bP • t '~11;:.T-.. - •u:'~:6E01IBIS:'•. • ; r: X44 .:i; cDESCRIp'[LOY'..-.;.. .,?:J' : ~•~-.r ..p.r, ':;Pisf:'of.?Wt`-1='le•S•'zeiLon.~36~ •Tornahip ~1-•swth' Rartiti•L'Wgerbi'dG ~ 2 `•r$'4 . Of``the'•ILacas.l,;_SeoCt Doo~elon laad:Claiu,:in;8aetioir, . ast ppa~rrtt 1".past:of.'thi YlLlataacC~ :Miiidicn•; ~.N~ahLigdi►'',•+, erT.. . • lpitttihip ::1.:South:.'~ ~ t ! Ofe m' ro+d`•~o8ltming'it .a pdipG;'~2:T5;abain! '(178:20 ~ta~:: ' eist`:oC)Cbe gocrtwe•r cotri►er -of the 'east.'holC' o!'•tlie° eucbeboc-_ rtar...'t..a;~. oGeald' Ssetioa.36; theaea North 4,875 chains:-(322.050 feat). to a .o c,to`the center of th•.isylore Pari7r Agadas aurveytid bA;ki:' ;.;`~_,•r., `korrJl' Bcbruaq 28. 1907.; theace.North 65 16' east 7.15 9b'feat) a orkg the eentar live 'of the iayl6f3'Tirry Road.:! "tl~itice.North 67,6.4.80.ehhiaa .016.804460 to-a piece-:of;i• ppippi'itt•thi;eevXer.of-the„said Tayl6ia;'Fp "id' thence ' B~ath•11':lfi:cheins (471.90 fait); thatiak tteat!~•L8 cluiaa(671.g8'_,;"`; ter, re. or; Iiia.:.to,-th4'point of'bagitmitig.. _ •A'parcal^of`land,lyTriogIn the Nor-thaast quavtsr.ol;!.Sectioit`36,':~ iotmshiQ 1-.Soueb; Range .I Nest,, Willamstee.haridiao. Wishis too- Ceahtyi::~i., n•'and,baln8 a.portion-of that prepotty described Yia9'thet`,'daTto Nashinaton Co..ty,'rocorded n Book._lilpages , ° ' _ ' `1 198`iiad?99;of.4ashinatoa Caenty Raeords•of De,-eds,;',the esid p{reel beiiig-:tDacvaition of'aaid pR ett77 _ipc gdad, in a -a trip of- IsAd 30 Lase 'in trideb .lying on: cAe ' S- 9WtierleYof -that eercain euater line-des eitbed in said. Y.s3l;14toq;Cduattyy dead sad Iritnt~g Southarly'of a line. iih ch is. ssa let _to and. 80 feet SLCh Center outherly o_f the canter line of' 1< :Mimi{ S.ahMS~ineec,s1teitterr Its* Station 199+86 9',said , bei on the east line of said SeetLa►,76, at a .point on; 36; t. i . et~ .16, f ng: 848eet Nord of t o east quarter corhncOr. e amidS.cti thence. Bauch 74 06 30 Nast, 87:1 lost p CheM 4ep~)sp4291(eat to t' "~Yl ((thou laamag' chord of tdiich bears South •72°.34'29 ?t. 5 thou back sgqwwLa 3t33.4 !5 ~i ahead; thincs.contiauing.alori6 said spiral cui-v left (the long h7 q chord of trbleh bears:,Soutlt 68 4 t14" Gost) 71 feathiehnbears 2291:83.boo~:radiue curve left Ith• long chord of v Sauth.64 04 30"Yost) 304 fecti.fhsno• 8n • sDiral•curvo left.-.. S 1•: (the lgya chord of vhich•.bear• South S6 05!]0. West 500 feet co'. 9 tative 14+08.1, 1 c~ !;.+;t. `i:•w• 'rte '.r ~ r`4 .~:~-5`•t._." [ i9C i "-e:. •';),:,''q:- :a :~~aal .)5.[. ..S:'•.. r; qt i •1..t., Zs :nt,.•4..~,~t;fi~'•; )'.i A «•r.'i5'•: ^:1e~:id. t' ~.t~: . f . i~ '°Yl , c. ' t'E'~ s 74. ti ff ~ .:]"i ;.9. i'~!`0:¢ ytay.~ ~ A. ~~,p +I:L TG'•.~:"fr r: a.,, "Y}:.l' •u'' / { . ~I, WWI ;~r. :,a.;~:'. n,'r•° ms~ss{{ ~ t, ;y' r; ''.t i ~4 1 •1 e l Y 1{ r~.Q fV s f;. "t. F r- r •n . 1 ,ray.: „t..~ S ~~"i ~ yV -a :1: ,',a.,s s w$ fi L 's 'I~ t'. ~r. }:..JI -14 a: 1 w »Lt yA p . t: ~t"::~?.;.a 'ii•'. jy.i'', ..~'i~ ?p`'~..`.~jC'•'tjQ7 ..~~~;~r ~t~. ..a y. ~3.. '~~r g I1 ~.l.; ~fM;+ti• .'t:`,~s:• '4; `yF .'9 .,;J rL AU' 1.7. • 7 ~j. .O+ i / ..j i~-'~: .1 .N.:• ~t.~`. F'!~,~~ '.r~• .•.1 A/V..//'~.•.l J': ~.3[•; ?aril: ~':Ca~ .~i -ni. .'f,' .r':~rY. t. „w! F t.. .,,d^j7.• 7~~ (~j ~P f} J't~'a.. ~t:~•.`.~'%:• wJn'~ ~fi1%~r... .h. ~'l'..Tn;. 4 '.fir: y h~, 1 ,:Ky`~,v:~i"-~ •h;~`~r 4 '1:-~ ia• .1 = 1 , K HILLSBORO ~.I •.~l - :Z~~s/i.~ e.:^Z~.. ~'.~..'_•SST.L'S'L~:.S~:-:4~T..SS'S~T.L'ffi!!fa.~fm _.....-_...._-r. n.... -44 j, C~ Q a : , a t $ ~ilLll , t11t,~ r~ aaa a 1 t• V ~ g ~S 1 il~~ ~ Y•S i 2 1 "i~~ M ~ 6 17~~Y 1 e1 D k V1, lot ri•'a :3 :F.si i •v ,p .•SI 'tli ~ 1 ~ a~ ; ~o , HILLSBORO 4. dh 115W ai'9YIf ° N~aISM~✓pp♦~1 N N JH Y ii Va . • aMMMM.~s .a«M M a C ~Y s "s ~ yy ~ orr Ha J1~~ III 1::1 «e ~O~«• V✓~0..5• 6 •~N~ L~OPO M .~pa - ' :'~.i 6 u.. +~37i ~~i6v~~y y~M y• ~ ~ ,~,g ~r^~ 3~~~~ ■E■E~• ~•'i,:,=t o ~$'d~..~.°.^ ~s«•°+ ~~d1~19S =~8e ,•i~ ~ $ • Y ~ Ny ~ « ~ Y~ 3 Y~ Y`nP ■a O I., q 9~ Is yytM ~ ~ a O.~ ~O Y O I~• M M■ss L Yg !1 Y. ~v~ p `f .J7 a« ~ _ M~ M°AS .y~ •Qpti•. 8 as N •~.~:r YO •~i P1O ~nM } .Y_rOMM MQ M ~MO~ b• .Op4=aMY ip d;•J ( 1 •.r''. `i„y • 71 b0~~~~='Om °~p ~ •y~.ziY 7 .A•I g~° ~ f I O ~ Qy S ~ 1 O :i ~I1 ~O /1~ O ppe O 1 Y Y O ~i ~ ~ • V~ ~ V i ' Y O V• O J O M s ~ `J Y ~ ~ r Y •1 ° O M b X~ C I t I. f• O O O ~Ya ~ O ~ ~ L Y ~ ~ ~ ~a ~ ° ~y ~ p ~ My «Y ~ ~ ,~,1 ~ yYy ~ V Y ~ ~tl ~ n O Mqp ~ Y ~ •l0 ~ ~ I jji , 5: . i. w t d p 3 p N • Y~ ~tl ~ 6 , ..:t p~ • Y•s .lmm MT•~ ~ M Y OY/y044 A1.~ ~GGw.i ~M«, e ~ ~l p •!!~{1' i0y{0 •~a ~°o!/ .'~1y:~'~o>y ~~3~p~~~ ~g •^o 7 « •'~"`~~~'7~~"'Y« ~ ~ . ~ •q~ '1_ - I i }Q ~v Y MN~pp O ~N.1 •b yyyy 4^aj~~ ff'Y{ it <N maV oV..~OM M) A •mOAA• ti 41 100 ~1M w13 ~~V N.~'140w ~nM '7p ) ~ ! ~ ~ 1V r I 11 y ` . s1 p 4 , 11 Lsr ~ ai ~ ! o a 1 - ;:i ~~IFr _ .~--CJl 1 ALL j HILLSBORO s r J AX. R ~y HILLSBORO _ '~•A ~ s„~•a,~~~ ~ Y H - ~ a 3- E-_~ asp r a ~ El Nt yes 8 3yysz s H~ ss se: aqs• a } i E N IIj~~~ -~-"'J•~~'o .s r e~ 8 • n'•es~8:. J ~$E~~+'^ V r. B 8 E9s"a •~•r~ '~i'e~~wsMar ' n s~ •~~~,.e 34 w' y ~~9~x s~ :~g~'~p 5~~~~s~a•~=gzsx C ~ w e ro. ~ •d.. Rt= i . voi1 3EL •?3$~.~.~I~sx= 0, y rE HILLSBORO ! •y~iy~ ~•°a' R. s.~ wi'iti Yew' ' a~t~4 ~6~ . ( qq 1 { t 3t L` 1 ti o u C t • 1~ Y ~ ~li l 4 M ~Y .0 .0 10 4 4ta ~ a LL ' a A F a ~ «t t 3 ~i.,t ,•l~=r_ i ~ ~ t i'J~D; vCCCV { ~C~' 1101ROW Au~1 cqq ar mac {lr~r Z ~.11_,•..tlv-haCta[r~__ crt A, dahofyor bu - lnav.Jd..Nhnd.tpelr~ tlLo.11S1ilL~A.'L0.11.r19A'L[!t11 _ Dotw.• N chori A.;d b7. Ijonr;-"r:. :thlt~ qn•1 kalU.t:.T_t1....ihXt.4._r;1:~.tiu'i..'~n_~ _r~Lrg.. J.eo. bnrAr N.M. b.M•14 «•u wed amr+r ue./o ..Id dour.::..-.7.b1t.A';.nd u:,rn eL~ ......+l:L.s, huzLm.1 ^nd ~17'e . ....Moir 7Li. and WS(Irm .a NI. tdl..In1 nmr p.....rr..kh ti. ft-osil, A...dl.anrnr. .wI •ge.M.wr.r.a ,nwrud In the Co-O of Waalllb9t4n - d Stt.l. d 0..?.n, eo.wdrd.b GvID.d r /.rk.S,...vn. PAAOEL•I: Bagionlor. at 471 01-1 t j 7aoh pipe at tho Northwest corner at* the Thst half or the Boutheest quarter or rication )o" To nallip 1 South. Range 1 goat* o:,tho O.q., thanoc Eeat 15III 2 rt. elan. th. Most and West quarter Lino throarA •eid see%ion )o toe !nc Di Pe n44 deelr~ tqd nr lblat At then.* eantimulan @..3t 3A.9 ft, t%) s In plon-un-1 th. tru" foist or begignine; thAnoo acetinuint: Enat 166 rt, to on old 1 inch vivo; thnbe South 0 20' Most. 66O,.r _Ln a plpa• theace -Joftt rt.; th.nar :forth 0' 201 hest 6611 ft. to the trio saint of lrorlnnlnr. PAIMXL IIr A rirJrt of toy for 1ARTSas sod orross only le Z;votion -36. Tann- ahly 1 Sonth, hnAF•e 1 :lest or the 1134.- Odra vorttealurly doaoribeA tc folloce: borl7mlm: at the Above de'al(rnntnd 110171% A e44 t•unninrt North 00.40' :fact to a saint in the South rlrht gr %my line at the :7outhvo.~t-?nalrio high pny, Abid r11;11t of any lint, -betni 20 rt, wido and the deot bounrlnr7 thereof borinninr. At said Point-A. PAl tex, III A Fight of WAY to Section 70 `rovnshlp 1 Louth, Iw yco 1 "cwt of tile '!.L• ; uora vertic.lurly Ceesribad as tolloaal Bonin, nt tha Above dr.7irueted Point A; thane vaut 10 ft, to the true paint of bApinnin-.; thence eontibuinn Rest 334.8 ft. to n is Inoh A1.0; tbi.no. Jouth Oe L1)r pant 8 rt.; th.nas :oat 3)4;a n.; %benaa North d 30• revt 's ft. to. the true point of bertnotar,. ro Non end r NoAf rAr .e... Jt...rlb.d r.I ~r.r.I r.nde ..a dr w . vnl^• S. Whit. wad Lorot4y.3wttt►Lte, hua4aad.an4..%.Ira.._ _ l And..._.~::71.~....-in:.-i::~r_.1~JLl-::4lLA..:~+.1lnh1ltn2...A13ebur~.uln7 ll o...•_^ 1 .e..+--d Jo All w......+ ro wed **ft 71s .e..•. erard frrd.r . [::air 7+tn rrp. Ow- .Lhe7• haMa__._ e.dwry -lead 7. Iw -#a*#. of A..Mw prv.d M.nJ.rr..lw IM .eon • board ew.edx. A.h% r.a+al. end .MdnMr.~ti /..a ......our ww Ar...r d l rd d...e.w dr.n.d rw.r a.d.n+r Nt, r4 trout derr>l..d k I du 1-fW ad- r.d J..r.1r WNw.r.~°!1i hrd t. sod - dr ✓_Sc1Y 1e51_ 6rav..d H U.. rnw.wa r 7 (sot) i 1 srArs of ommo.N , C-gy • Ud rr iffmcMULhlo, rho w /A7. NIX .19 53, E.I.n r, fM ..wl~d..{ N.Mry !'ulrb G, rd, lr .dI Cemy na Jf..c. P.. f G"W J Uw wW.". ....r,.d _ ....P.n7-K..Setrft.s..naS_RaLn.Yf3cDel'[~r...twaEW .nd..vlf~ !Para lo•a toL Ow. f/r.tkW fnp.tA.J a: Ac.rrM./ f. wd rF. -cad d. ~F64 Annrrp .iw ' s4w~r7jrl M a 906 r.- u..y y.f . nfwW- i ` IrI r43TWOfrr.w , ! be fNrWO'M m hw -d dlx4 A, .r.f flan I/Nfaw J p! 1 a r1 N.f.r, Poar.. A. o..a D I t~ '3t tom Q ~ ~ ~ -F 1 ,1 E ~ ~ _Za BTATMR WARRANTY f.` wrws~smdwarrintito M daaibed ree prwwtt Tree of Una! Ono awUpnhnexra. r.►ynr n ti+n'"Iv alt fbnh'herifa 5eq►nn./n* At AV) old'L-W laeh•pL'ps•:at iii.Mortbvest ooteat at the tae t.::;; hell. .of 'toe .fauthaist oaa.ter ci. Jee•l0w 2Qt ;:i.wligir L 'Lwt:t. 'ISaQa 2' - N, :'•vast of tbjs vi'2Lete~ts nsridLen, wae►47ejteo.CaLuett. Otstont tbawos.,cast 13f'.2 `.fait alias the Mast- awd Ms•t -14octet .1tes through sa,4d.800 tloa JO 'to a,1~1•Lagh'p/ye sad dselgoee*0 Joint Af jhemce;: eoatlaale*' teat 3»-0 -:teat to a• I-V2' Lwdli- 'pipe and'-• the' teme: •poLrit '.bsglnalagv thaacw' '•5 ocnlLayYwg.sast..lbd teat:-'te am, old'1%2.took 'elpit thsmas south 0020,- cost "a test to a' pipei tb4ao4*.e48',t.'164 teats*:th►eoe laitb 4.20! Most 600 teat to."a:erue'point. of beglaA TOORTMLR W M a right-of-vap'tos Lattaee'~nd-ayr~wa ealj,.ln Ssetloa 24. !ovaablp 1 South. Aawgs t Matt, nag$-psrOLOOl!rlY dajatLbsd ds.tOtlovsl Saglsalmg at the abase dsslgeatsd pains A. and roaming wortM,a440t. last to .n.peiat Lti the caatb rlgbt-of-war lia..at tb:.auttiwo t. Faatito . wisbrar. iald eltbb-et.-rar 21aei of tAs to a root waaltlo't'1'tbrar; Itid.-ritbt-of-.rer beloq ,20 toot.Nldi And the that baasaatr• tharaof' •beglaatnj. at eald point Xf,"aiid a rlgb4-ot-;r 4T.Lw-aaottoa Si. lovaship:1 Qas~h.'ltsi*e '1 vast, pore, ytirt LcatsslY dssotibid -as tollowot lagteaioq at the. above daaigwatsd Point it thence ,trU... test to the tree silos of'-betlanlnts thanoa- ssatiaulap. Rant 234.9:feev.to. 4: elks sad . ooa- bill Lppb iron. pipes thence loath 0010' toot 6 ``toots' 'the' d:.': Moat 334.0 _ tests thence worth 0.30, vast • toot to the true place of bstienipt.'„ Rfv-,. F'..... ,.^iriwY~. 1~. •1-+. Y~1 ~'.1KJ•+-s.Y'~f N'\~u'VTT~.Mw..•vi.r~.,•-. 1 f :99l,.0 tamm a lion t1ne. L.I.D. in:tbe a Kxr.t of 3%,447.00 with int arch fzoa lbedar 1. 1980 km *m as the 159th AvenCU@ 1r-l B,-,etoeat District. - Rtattttory para:s ozd assesataeatto of tAtifiad sewerage Agency. ' Ile xigbts of tto pjlic in and to that pmtirat of the prmdses hanin 9-=23ad lying _ wLthia tba I'mite of oNd and hi9tways. EUMent tp tbw City of Tbpr+d Dttad July 18, 1968 xeo= ed Cutaber 11. 1468 in: book .720, ~ pagr, 53]. - 'twat Deed 4abed lpril 1, 1975 reoaatiad April 1, 1975 in Book 1036'me 695, in fawn . :i or Fred Meyer Savings aid lawn Association. "THIS INSTRUMEw vow Mn OUARANTM THAT ANY PARTICULAR USE MAY, BE MADE OF THE PRIM PF.RTY.DESCR18Fb IN THIS INSTRUMENT.A BUYER SHOULD CHECK WITH THE APPROPRIATE CITY ON _ COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES." This property Is free of fkna and amuenbraaw, EXCEPT` •ArAL yY FX(N V*' faX_ m FEE ftM DAT:. ~ -The true aon*knalon for lldt camcpace Is Z Mm hadod 02=&d •pATED IS y f 19. / All CORPORATE ACJCNOWi;DOMENT' i STATn OFOltem", Comaty of fmAhIn# = )a- STATE O•F OREAON. County of The folWS bttrumew, }rt41 ackay~►f23ja4 before The forrsvbq Instrument. oat. acknowkw before. I me: this ~ r"- day of JvR' 8010 me this .day of. i9 by by Han > by - ' r a corpormtiom om behalf of the corperatton.' j ' Lary Publtn for Onsoa Notary Public W-Onmda - - hly eoatmi ten etpltaf_ k•16-86 W oowd*&'uDi'u: . •SHAI . aTATa of 00900 k as 9' 353 N`ion ClrictwQt Thle Order No.._:,-. ~.~AZ-' , t.oo,vwwl• Auan,.nt Ot Gbn Eawow No. end T.,.wn and Q-omcta'Fib a lw wrr.cee for eab wvnb. dpAMabt7 Matrhi ~►aaraal OM wINM'Yri4uatnrl or AMr rv r mm. W5'. , : • ' - - YfO .epoO!d In bafi d aletld oouMy. . i ~~,4L ~~.~m tpo,;a10•w.`a~on.,oMirt~.d ~ Z812S..Iti. AMVOx17Q4 • 'Areaao.rA.uiie't s+' . NAMS. ADAM= Zlr W*d • fire 1•'rwmold 48 IM k%!!ra'A4 W Mm io W R*b bt ide,o+.. G Q • ' . • YaczlanG...~1900..~~--.--_.._......__ {98LAOY ^8 :PM: 6t.23 ~ 1\ r HAMS, ADMIZ Zlf - ~n1rr IMP b I ewe uelpoeo 6 tit aalnxar WAL moo 11 ~~•t"'•''r Ob043955 4M' fiTAT M@ V WAHt1A1vrff itmj 86Q8~Oyd ORKY 1ft HMO did 1b1 WtY a, fatal comafisadvurr.u a. 'bafAf41L tbl~prk „ • tvuNOr, • cherriesof ffKttstd redo _ • a,Wq, fw+ghao/tkraa+laKx~r~twca,tmpntprclAuA/ujfoirO►Ht►al AGMalay an An old 1-6/4 Lnoh rlpa et She Mort►+aaa aoroor wf the flesh belt of tbo Ooathaeot %darter at lootiae 1o, hovaahLP I loath, $data I West at the flitilmotte 06rL4I44t, tlalaiettun llaualp, brdyonl theaoe Neot t6s.1 foot 4104v tbs 1103 aa4 volt gd•rter line tbrasyll said watiea la to • 1/t lamb pipe 4s4 '*a '4o" as poise At abeame eeaalaMLay Nut 1A4.0 t•et to it 1-1/1 look pipe one tbo tree polat at bsylanioyf thaaao adatldvLaa llrt lot toot to an 014 1/2 ineh plyet thaaao awash 0-21' peat aof toot td a plpot t►onea Mout 160 (,tell thsnue tlartb 141' Moot 160 teat to be tons Point of tovinaleu. "411" Nn WITH a right-of-way far lagraa/ sad ayrrso only in fllotton te, ♦oratb Lp 1 Month, narya 1 Meat. More pertlaalnrty a•saelbed as W iiovdf 0e9laetay At the shove asoLgaatod Polat A sold ruaatay Mort► 0-40' y0a to a point ►o the 0noth fly►t-of-Way Liao of the ooutboset 1aa4fia 110►v4y. 0e/0 rlyat-of-vaP line at the lwaheawt Paattta l4yAvay, oaL4 right-ol-vey belay 10 lost vide and the Went boandarl thereat begiaing at said Veto% A. 0n4 d right-wt-way In sett/oa ld, ynva•►lp l Qoaeb, Menge 1 Vogl, mars partlostariy 4664W O04 as tullosa, %&giant" dt t►s above daelye4oe4 Point ►1 thssue toot 10 toga -0o.ebo true Pleas of boltAcaLayf t►sase omflaatdg r11aC ffd.Y ftlt to t ' Pat and as/- . toil lash L!0• pipe/ taeroo enoeb 0. 0• Nast a easel timmum*:•MeRtY-814.11 faosr thonow Mwseh 0.40' vast a flat .tu ales Itvs plooe of 149 oAL40i l\/ 1 ub MWIS owe a lieu ttttu 14 flexA In fire eMA" 61 1400 with tntnntat flea ltMlwm 1+ 148! knGwu ►e Me Wilt A ovo MAO. hVruw-14 hint~ Dwarf os1 MWAM MU of t"whA /lafalwia (r1tw0+ blr ido" of 1110 Uttilfo la turf to tlrb Lwcttnn of the vLvWooo Itowin Moulk" Who WON ll» lleeit4 of Lwm ArA by _ . rao+w" to the OU of Theca! rntoas my 100 1400 DworAoa oood,or u, 19411 iu ftk tao, V" On. Yu 1+ 19A ►nontateA lltrAl 1. 19Y0 IN Ifat11 10111 two 6611 !u lAMtlC 'Atmt Ib A dam b Of iMA *QkV JkWinlpe Mq 9M IrKWU146 "aN4t 1N►TRU►4AN OM tiUY' OMRAMI Mi t11A7 ANY lMnICULAN ellU MAY Uk MAUO f W 1 1101 PRO. pn%y 1 Rest IWa14A Nt 11i181N0111lUlUMT~ A 1tUVHR NUMA.1t L311r11rZ WMI nW AHMw1YA1A1 O IM Y OK CTWfl PLAWItM11b11ARIMIWf tb1'IM" AMOVI O 1111!.° ' r°m`n~+i tf+r t dt Aro0r0 h lieu of tYe. Nd mewabtrten. Ulttall~ft RaL ` I tt1tD UOf]il1K+ JA fN~13l0fe11N1'PO tK10t>af 9t1H tU lA0 ..,,s. 0 ttxu oN,lam" at t11H p1Y11+uuro+ + 1. . I Ilan r ~~1baRwnnci 1~ l 9W ltutdCD4 SGQ11tRn0 4011Aii: NAJ`y'c1~'•~c ate~llr ...Its WRMIAAY11AacNOwl.mtlun9ar } 0tAY11tWtri1flUt)N.MiMlar.3}tlAloptAl>_...)u, N1'A1HU1'UAt!tllltl~lp~yof..... .-..»...M~ + tM rhia►pyt11 lgwnmtoy ec 4 cs Wwe lei fbrc{ohy INWOM t wa ftlwWlc4.'M Laws mo tiff . de of .ilt au ldb . Qq of . . l0 . _ . . boy -0 M: by by. / r eaomilomanbddfdtkotwo utbo. + I~idle hr fftur Ptblb fm Omw _ • MIleae4ar 1-06•!1 WwwdnbnnyeeM atlAS. w • . ri e1Mte p 0eeMM I q • + . Wwh~/1fIW~M+N.w+ a01d A" a ltts`a~J •tal l1tul qm" W of dk" as ' w, ra 11 ft. fM►vlrttion0we0f (hY1tll11W t1k wow.AOUt~w tr a.owew...NNYI6leMeM M8"10A$ e..w..... 'rvl~j' ~ . ~A t mov -1 is to 13 i 11 i ~ i y u. i t • ~ 4 It 1 41..n y , ~~Adfc` 1 COO - 86002741 ' LEGAL DESCRIPTION OF 1`114EAl"i TV BE RELEASED, WARRA)Rf DEED - STATUTOAY FORM ' Individual - Grantor Oonatd E. Pollock, Grantor, caavays,and warrants to City of Tigard. v'rantee, thr. foliotrinj described reel property' free of encaabranea: rscept c as spocfficAlly, set forth herein situated in Washington County, Oregon., •to'wit:•.- - - Parcel A Tliot:Fart of the Southeast Quarter of Saction 36, Township 1 South. Range 1 West,. Wi)laMette Meridian, in the City of Tigard, Washington County.. E _ Oregon, described as follows: . f~ •.toaruinciag at an old 3 4-fich pip* tailed the point of mitnaing of County kecai-der's Fw lid. a0-14674;-Percet~lll; tlre+ece-almip.tlie rmrth line of- i _ _,said'Parcel..Itl an a b4ping (basis of which is the Oregon State Plane $ Coordinate System) of )sort( B8 degrees 12 minutes 18 seconds West a dis- tance 9(:/8.36 feet to the point of beginning of the land to be described; VWnce along the arc of a 340.00 toot radius curve to the right; through a "central angle of 37 degrees 03 minutes 50 seconds, an ant 'distance of 219.94 feat:(the chard beers tMA% 16.4egrees 61 minutes 59 seconds West 216.13 feet) to a-point of tangency; thence North 01 Ceiree 39 ieinutes 66 _ suftoods:East along a line parallel with east boundary of Lot One of the -recorded:Plat of Vey Lee" a distance or 341.20 feet to a point of curva- "ture;~.thancq along the arc of a 200,00 foot radius verve to the left... ..d - through a central angle of 21 degrees 47 minutes-16 seconds, an:arc dis- fence of 4 .41 feet. (the chord bears (forth 9 degrees 13 ninutes 41 seconds _ cow- 4est 105.83 fret} to a point to the, east- lien of Lot One. of the plat of - - 'Way Lee`; thence along the foreo eon ti lot line South n) degMel 39 Rlnuces 66 seconds West a distance of 619,44 feet to a point ot'. eurvatrue; thence elona the arc of a 400.00 foot radluc curve to the left, through a Mae= loom r t % ..ral .arylc e. S 'cs -i: cinNtes ba,c~;.mdE; an arc .dimi;aca`ofs3:54_ e feet (the chord besrt south 26 degrees 99 atnutas 01 seconds east 34.53. fast) to t Point in the north line o: Parcel III as described in County ' . ~eeordsr's Feo No. 80-146791 thence along said oorlh..line South 88 degrees 12 minutes 15 seconds Eett a distance of 72.31 feet to the point of : beginning: Containinp.an area of 0.380 acres, mare or less. - That part of the Southwest Quarter "of Settlen 36. Township 1 south, Range 1 West,'Will ame9te Merl dlen, in the Clty of Tigard, Vashingtor.County,_.. O~eson. 0&..eribed az follons: y eoocxneing at an old 314-inch pipe called the point of beginning of County Recorder's Fee No. 80-14079: Parcel III: thence along the north line of : ''saiu :areal I:S,Hr_a.beartng (basis of which Js the Oman State '••Coordtna:e System) of KW/ th 88 degrees 12 minutes 15 seconds west.d ' distance of 150.67 feet to fM point of beginning of tha."land to be desi:Hbed; thence along the aft of a 400.00 foot radius curve to the right.. through a* central angle of 04 degrees 56 minutes S3 seconds,-4q .arc distaocn of `34.64 feet (the chord bears North 26 degrees ,39 minutes 01 1 seconds 34.63 feet) to a point in the east line of lot One of the Plat of 'Nay,'lae`: thence along tho aforementioned tot line South O1 degree 39 ! minutes 56 seconds West a distance of 30.36 feet to a pipe, in the north ,.Iirr of Parcel III as described in County Recorder's Fee No. 80-14679; . thenca along'said north line south 88 degrees 12 sinutes •1S seconds East. a:- distance of 16.38 feat to the point of beginning. Containing nn.arsa of U.006 acres, more, or less. = The said property 1s free from all encumbrances except... LT! ~r_. I T.ho truce ;;rnsldaration for this conveyance-is ;41,987.50 (Hera comply ei h the requirements of ORS 93.030) given as a credit In the S.K. 68th Pars: V Locbi' inyrovament District No. 36 dated this .78 daffy of THIS IKSTRWEWT DOES NOT GUARIUITEE tMT ANY DARTICULM USE HAY BE MADE ~sr7.•~~tr _ j Of Ti's PROPERTY DESCRIBED IN THIS INST90-LLMT. A BUYER SWULD CHECK . If [TH.THE -APPROPRIATE CITY OR COUNTY -PLANNING DEPARTMENT TO VERIFY APPROVED USES. STATE OF,-OREGON, County of 9i+--mna 11y. aPDcartthc .ahaic'-noted _ 57 and atknovledped the foregoing instrueent to be voluntary ac had deed. t ' (Ofricial Seal) Before see: , j Notary Public for Oregon, " I{y coiaalssion expires: Approves as ro form this day of ncYr~ .1485. i ~Attwrnj City of Tigard Approved -a' 'to legal 'description this Z¢y of 6c6sr og5 city - City of Tigard . of 1, wapr _ C r; yJ~ cauq q`~yl he City Council this • day of ,enM6:a.,.•. 1985. 'i• CITY COUNCIL, CITY of TIGARD,49E.: . d , ;<c,s•E A L ' . t OF,Y 3 City ~ftwd.r of Ti9,id ' ~f3!(~i'»df~~diT11~i:~,IWiflittffiL:.!~I~I!.:;i1'~1~ifi.#uE2dl~iL,!~S'>f$~~32:El~~Qik4~blFLI~C~!!~ltiak~'..I~lifu~~:l+:~sktE§sad:{ik::°#~'.:o.itlv7>.Yi;is!fi~ Ail~` ~ c a• ;aT• •ti~~`k sr 3•.47F ~ i ~ir=~ ~~{~I S• 'fC• ~ ~ to QQQ 3. y ~ m ..r.•3s:r "~i• e ; f . it 2 ~ o •.k~p o ~,a'; ~.b~ "ice q ~ itsr~~p't R P m jr n r' IL Er 51, ice in. ; it tmO:1 f t I' i 1~ ! % :.ate' h 1tt~( kkIIjj per. i'~ I"111~'_j';.,~,~~I~ 'I .1 'y {'~i., ~•ry..~•t ( t:`'i7~' "~.'i'.5.s''•ir.i.~y Al' ~I ',rylggli.•~i'd~It~+I +i; ii.~ lil hll,li i1M1~ i! II 16 lll+ •1 I i~' ii ,lilli 11.11114 Illl~ Gii~[I~i~ 1Iit11U1A6Q3➢YiiifSiiLi`~if~~, ? I lb.A` I' ,~+~+-~t1k~@ti,_ t,~f~'...1'~•!•.~`.._ + '.Z j;,gyp y•Cpv Ci\!: i~~t ' '•~'7 ! x~~' ~ ;~'~~~i I~ i j ~ i~SS~t 3'1 ~~~M~,• t _ i~~'t t~~•a.r ~ t~~ 1 fi O 006 € 0047 ' + t ! i ~e'+; E r {~bE3 } { 31 a ilia ;4 j Atip f } +1•.v'F7,P R i. 1 1, -,~~1'. ((J. ~'FRI , ! 1~.. I 1. t 1 I 1!9uil, r9. ti +!2, #Yll, I ,p I , 1. I, I 'EMRIE, 7-1- mope 0. 1 Two Parcels Of land situ■ted in the Met one-half of Section 26, T. 19.. R'. 1N:'W. it., V14 of Tigard, Washlwglon County, Oregon, described s■ follows: Parcol 1, TRACT "A", ■ 1.00 foot by 60.00 foot street plug, as shown on the ded p = let of said countY• Plot records, plwt of WAY LE[, ■ recor - C Pared 2, TRACT "8" a Reserve strip, as shown on the plot of WAY LEE, a reaorded plot of said county's plot records. wln6n i -Aga War! - Vr PF- ZE Rot 'Irv ;Fmk EKNIerr a - - - That part of the soathwst Quortsr of section 16, Township I South, Rsrpo 1 West, Willamette Meridian, in the City. of TLgard, Weshington County, Oregon, described as fall" n.. Cosneneing -at an 'old 1/4-Inch pipe called the pulht of beginning of County Reeordar's Fee No. 90-14079, paraol III$ thence along the north line of said Parcel III o„ a bearing (basis of which is the Oregon State Plano Coordinate, 9ystsm) of North 19 dograss.It minutes 15 ssEcnds west a distance of 150•,671' foot to. the point of beginning of the lard to be doscribodi thenco slung tho' ` arc of a 400.00 foot radius curve to Use right, through a central angle of 04 ~ degrees s6-einutes 41 sscords, an arc distance of 14.54 foot ( the chord bears ' y e North 24 degrees 39 silnutas 01 seconds 74.51 foot) to a point in the east line of Let One of the Plot of "May Lee', theme along the aforaaontloned lot line South 01 degree 39 ainutea 96 seconds last a distance of 30.16 feet to a.pipa, In the north line of Parcel III as described In Corasty Recorder's fee No. SO-0479, thence along skid north lino South 01 degrees U alnutes 15 seconds East'is distariea of 16,71 rest to the point of beginning. or leas. Tie City of ore stains a perpetw nt for the allot v repair or } roronstrwe an the embankment sl of th 1!r raadray aD tensnces ~ within th pares veyed by thf dneue4nt. P yyy. ~r EV.I R go American Title Insurance Company of Oregon COMPANY OP ORF(30 ¢.i'r . An assuawd bua+am nano ofTITL.E IN This map is provided as a convenience In locating property b A~lilriean Tills fnsurwe Company assumes no liabilityfor any variations to may edisclosed by an actual survey :Kite { IS 136DA 02400 -Reference Parcel Number i. I '6 ZX. ~'.~t`i.1,, 7-~,~ :.0r,G, t '1. '.•~l-: .••.'.l: J~. .~y ~ ,~"(/jj~~~e//)~~,, 1 'A~ 41 .1.•:i, ~y...I_ " too ijl i;'c Y ` 'Q \'',•f • • i'' ~Y''~ jr . S'.(Ej~o~ J ♦ 1 ; .1 • '•%j / ' to ,,t/; { \ tL.c - - • ....rte.'- r 93 •>i+~.f,:^"k'' 2000 ~ :rt1: I I I~ ~ ~ I ~,m i 1 1 ;••S'•'~ ~qjjFFr ,IY { ~ 11 2000 y7 Swam - - - - - - - - - - - - - - - - - - - - M e 23-81 I~: its' ' 11 I " - - 2300 1 i e 0, l Ism