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City Council Packet - 12/10/2013 TIGARD City of Tigard TIGARD CITY COUNCIL BUSINESS MEETING December 10, 2013 COUNCIL MEETING WILL BE TELEVISED I:\Design &Communications\DonnalCity Councillccpktl 13125 SW Hall Blvd. • Tigard, Oregon 97223 • 503.639.4171 TTY Relay: 503.684.2772 • www.tigard-or.gov ipl • (:its of 'Tigard Tigard Business Meeting—Agenda T I CARD • -........ ^.._ TIGARD CITY COUNCIL MEETING DATE AND TIME: December 10,2013 -6:30 p.m. Study Session;7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard -Town 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 beard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171,ext. 2410 (voice) or 503-684-2772 (IDD -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 (TDD -Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA VIEW LIVE VIDEO STREAMING ONLINE: http://live.tigard-or.gov CABLE VIEWERS:The regular City Council meeting is shown live on Channel 28 at 7:30 p.m.The meeting will be rebroadcast at the following times on Channel 28: Thursday 6:00 p.m./ Sunday 11:00 a.m. Friday 10:00 p.m./Monday 6:00 a.m. ie • City of Tigard TIGARD Tigard Business Meeting—Agenda TIGARD CITY COUNCIL MEETING DATE AND TIME: December 10,2013 - 6:30 p.m. Study Session;7:30 p.m.Business Meeting MEETING LOCATION: City of Tigard-Town Hall- 13125 SW Hall Blvd.,Tigard,OR 97223 6:30 PM •STUDY SESSION A. Discuss Two Non-City-Initiated Requests to Name Parks •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. 7:30 PM 1. BUSINESS MEETING A. Call to Order B. Roll Call C. Pledge of Allegiance D. Council Communications &Liaison Reports E. Call to Council and Staff for Non-Agenda Items 2. CITIZEN COMMUNICATION (Two Minutes or Less,Please) 7:35 p.m. -estimated time A. Follow-up to Previous Citizen Communication B. Tigard High School Student Envoy C. Tigard Area Chamber of Commerce — 1,f rutAmo t ate� D. Citizen Communication—Sign Up Sheet 3. CONSENT AGENDA: (Tigard City Council)These items are considered routine and may be enacted in one motion without separate discussion.Anyone may request that an item be removed by motion for discussion and separate action. Motion to: 7:55 p.m. - estimated time A. Approve City Council Minutes for: •October 15,2013 B. Receive and File 1. Official November 5,2013,Special Election Results for Ballot Measure 34-207 Approving a "Charter Amendment to clarify urban renewal provisions." 2. Council Calendar 3. Council Tentative Agenda for Future Meeting Topics C. Approve and Authorize City Manager to Sign Regional justice Information Network (Reg]IN) Intergovernmental Agreements •Consent Agenda-Items Removed for Sebarate Discussion:Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council/City Center Development Agency has voted on those items which do not need discussion. 4. PROCLAIM DECEMBER 10,2013,AS HUMAN RIGHTS DAY 8:00 p.m. -estimated time 5. APPOINT BUDGET COMMITTEE MEMBERS JULIE PLOTZ AND BILL BIGCRAFT AND BUDGET COMMITTEE ALTERNATE MEMBER TIMOTHY ESAU - RESOLUTION /3 . p , (' 8:05 p.m. -estimated time `'� I 6. APPOINT PLANNING COMMISSION MEMBERS MICHAEL ENLOE AND CHRISTOPHER OUEI.i,F,1'1'E AND PLANNING COMMISSIONER ALTERNATE MEMBERS JOHN GOODHOUSE AND TOM MOONEY--RESOLUTION 8:05 p.m. -estimated time / .3- .5O 7. REQUEST FOR PUBLIC INPUT ON THE CITY MANAGER PERFORMANCE REVIEW CRITERIA 8:10 p.m. -estimated time 8. AUTHORIZE THE CITY MANAGER TO EXECUTE AN EASEMENT RELATED TO THE POTSO DOG PARK PARKING LOT PROJECT 8:20 p.m. -estimated time 9. VIEW A PROMOTIONAL WATER VIDEO PREPARED BY THE LAKE OSWEGO/TIGARD WATER PARTNERSHIP 8:30 p.m. -estimated time 10. REVIEW AND DISCUSS REPORT ON OPTIONS FOR BIG BOX TIGARD MUNICIPAL CODE RELATED AMENDMENTS 8:40 p.m. -estimated time 11. DISCUSS TIGARD'S LEGISLATIVE AGENDA FOR THE 2014 OREGON LEGISLATIVE SESSION 9:00 p.m. -estimated time 12. APPROVE THE THIRD AMENDMENT TO THE LAKE OSWEGO/TIGARD INTERGOVERNMENTAL AGREEMENT (REGARDING WATER SUPPLY FACILITIES, DESIGN,CONSTRUCTION AND OPERATION) TO INCLUDE PURCHASE OF THE MAPLETON PROPERTIES AND SHIFTING OF 4 MILLION GALLONS PER DAY (MGD) OF CAPACITY FROM LAKE OSWEGO TO TIGARD 13. NON AGENDA ITEMS )'Z'eS 9:20 p.m. -estimated time 14. COUNCIL LIAISON REPORTS 15. 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. 16. ADJOURNMENT 9:30 p.m. - estimated time 1 St Li cl cf._ssi On AIS-1529 A. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 15 Minutes Agenda Title: Discuss Two Non-City-Initiated Requests to Name Parks Prepared For: Brian Rager, Public Works Submitted By: Greer Gaston, Public Works Item Type: Update, Discussion, Direct Staff Meeting Type: Council Business Mtg - Study Sess. Public Hearing: No Publication Date: Information ISSUE The council is asked to review two non-city-initiated naming requests and direct staff whether it wishes to formally consider resolutions to name the: •Bagan property as Bagan Park. •Paull properties and Eiswerth property as Forest Meadow Park. STAFF RECOMMENDATION / ACTION REQUEST This information is included in the attached naming request summary for each park. KEY FACTS AND INFORMATION SUMMARY The council adopted the attached City of Tigard Naming& Recognition Policy in September 2013. The purpose of the policy was to provide consistent standards and procedures when naming city property, such as park land. The city has received two requests to name park land. Both requests, along with a naming request summary for each park property, are attached. For these requests, applicable sections of the policy are section B., Naming Criteria, and section D., Non-City-Initiated Requests to Name . . . Property, Including Parks. In general the steps in naming park land include: •Receipt of a naming request. •Preparation of a staff recommendation. •Direction from council on whether it wishes to formally consider the naming request (via resolution) at an upcoming council meeting. •If directed, consideration of a resolution to name the property/properties. OTHER ALTERNATIVES If a majority of the city councilors do not support the naming request, the request will not be placed on an upcoming agenda for formal consideration. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS None DATES OF PREVIOUS COUNCIL CONSIDERATION This is the first time the council has reviewed these naming requests. The requests were mentioned: *During a briefing on the Naming& Recognition Policy at the council's June 18, 2013, meeting. •When the council formally approved the Naming& Recognition Policy at its September 3, 2013, meeting. Attachments Bagan Property Naming Request Summary Request From Mr. Heintz to Name the Bagan Property Paull& Eiswerth Properties Naming Request Summary Request From Mr. Khavari to Name the Paull&Eiswerth Properties Naming&Recognition Policy Non-City-Initiated Naming Request Summary • Bagan Property TIGARD Background In January 2013,the city purchased the Bagan property.The 2.9-acre property was purchased with funds from the$17 million park and open space bond measure and is the site of a future neighborhood park. The property is located south of Highway 217,at 10910 SW Greenburg Road and is adjacent to another city-owned parcel. For many years,the property was inhabited by goats that were often seen by motorists who traveled along Greenburg Road or were stopped in traffic at the Cascade Avenue intersection.The goats are long gone and the dilapidated,old house on the property has been torn down.About one acre of the property could accommodate park amenities;the rest of the site—comprised of a small creek and wetlands—will remain open space. Potential park amenities include parking,picnic areas and community gardens. Naming Request—Bagan Park Mr. Edward Heintz submitted a letter to the city requesting the property be named in honor of John Peter Bagan.The letter from Mr. Heintz is attached. Recommendation, Cost Estimate and Other Information The parks manager supports this naming request. He contacted a representative of the Bagan family who indicated the family is aware of and supports the request.Mr. Heintz did not specify an exact park name, just that the park be named in honor of John Peter Bagan.If the council wishes to formally consider this request,staff suggests the name Bagan Park.This is less cumbersome than John Peter Bagan Park and is consistent with other recent park naming protocols, (e.g.Dirksen Nature Park). The cost estimate to implement the request is nominal and basically involves the cost of signage. The Naming&Recognition Policy established naming criteria;proposed names can be derived from a property owner who donates or sells property to the city.Although Mr.Bagan is did not sell his property to the city directly,representatives of the Bagan family did. Council Direction Needed Does the council want to formally consider a resolution to name the Bagan property as Bagan Park? C:0L; nC (Arr Edward Heintz r`' "'ld 111• • 12120 S.W. 116th Avenue,Tigard,OR 97223•Phone: 503.590.1640 /cA L.r a u 3 March 18th, 2013 SUPPLEM NTAL PACKET FOR - - s City of Tigard, Public Works (DATE OF MEETING) City Council Members (gyp U ri (X ( 0.-t-- 1 n Dear Tigard City Council: ft-f --.- Q.yrL `J The recent acquisition of the 2.9 acre property located south of Highway 217 on Greenburg Road affords the city of . Tigard the opportunity to honor the man who lived on this land for over 60 years. The purpose of this letter is to request that this future neighborhood park be named appropriately after John Peter Bagan. John Peter Bagan was born August 19th, 1924 and passed away on August 10th, 2006. John served in the United States Army during World War II. He lost his leg in France during the war and was awarded a Purple Heart for his service and sacrifice. His prosthetic leg was a fascination to the children of family and friends, who would often give a quick"knock" to his leg to rediscover which was one was real and which one was not. Mr. Bagan purchased the property at 10910 S.W. Greenburg Road in 1946 and lived there until his death in 2006. In the early years, Mr. Bagan tended to his father who lived with him on the property. His father, John Peter Bagan was a veteran of World War I. On the Greenburg Road property, John raised golden and ring neck pheasants. He was also granted a federal permit to raise Canadian geese. The goats on the property were his "lawn mowers" in his later life and were only part of the menagerie of animals that lived on the property at various times in those 60 years. John's collection of animals included exotic birds, ducks, geese, catfish, chickens, rabbits, crawfish, sheep, cats,and goats. The assortment of animals found on the property and in John's pond provided enjoyment and memories for the children of John's family and friends. John Peter Bagan is buried next to his father at St.Anthony's Cemetery on Gaarde Street. John Bagan lived for 60 years at what is now slated to become a city park. He was one of the oldest residents of Tigard and Greenburg Road, but more importantly, he was also a memorable character, cherished by those who knew him. Honoring his memory by naming this park after him only seems appropriate. Sincerely, Edward Heintz ()9 wiee .1J Former resident of 11070 S.W. Greenburg Road and John Bagan's friend and neighbor Non-City-Initiated Naming Request Summary • Paull Properties and Eiswerth Property _ TIGAR D Background In 2012 the city purchased three adjoining properties,commonly referred to as the East Bull Mountain properties.The properties,totaling 10.2 acres,were purchased with funds from the$17 million park and open space bond measure and are the site of a future neighborhood park. The properties are located at the terminus of Alpine Crest Way and to the west of Greenfield Drive. Entrances to the properties are located along Alpine Crest Way and Woodshire Lane. The site is comprised of woods,open space and riparian areas along a small creek.There is a vacant home on the one of the properties.Local neighbors have formed a group,called Friends of East Bull Mountain Park,and are actively organizing volunteer efforts to remove invasive plants and build new wood chip trails throughout the property. Potential park amenities include pathways,shelters,a playground,interpretive elements and the removal or repurposing of the vacant residence. Naming Request—Forest Meadow Park Mr.Toaj Khavari,chairperson of the Friends of East Bull Mountain Park,submitted a letter to the city requesting the properties be named Forest Meadow Park.The group actually conducted a poll whereby people could vote on various park names;the name Forest Meadow Park received the most votes.The letter from Mr. Khavari is attached. Recommendation, Cost Estimate and Other Information The parks manager supports this naming request,particularly because many of those interested in the park were able to vote on and select the proposed name. The cost estimate to implement the request is nominal and basically involves the cost of signage. Note that although the name East Bull Mountain Park may seem a logical choice,staff wanted to avoid confusion with the similarly named East Butte Heritage Park. The Naming&Recognition Policy established naming criteria;proposed names can be derived from a physical or unique characteristic of the property. Council Direction Needed Does the council want to formally consider a resolution to name the Paull properties and Eiswerth property as Forest Meadow Park? Friends of East Bull Mountain Park (EBMP) 4 i 13293 SW Woodshire Ln Tigard, Oregon 97223 Nov. 4 2013 Mr.Steve Martin, Parks and Facilities Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Dear Steve: As we discussed,the Friends of East Bull Mountain Park (FEBMP) would like to recommend a permanent name for what has been called East Bull Mountain Park,aka, Paull Property Park. "Forest Meadow Park" is the clear winner by popular vote. The alternate vote by majority is "Bull Mountain Family Park." We initiated a name change for the park after learning that it is confusing for the City/ Metro to have two Tigard parks so closely named; East Butte... is very similar to East Bull... Friends of East Bull Mountain Park consider it a privilege to participate in renaming the Park, now that we have spent hundreds of volunteer hours there. Clearly,there is a 'sense' of what the Park means to each of us. Our approach was to begin with a discussion at the open Friends of East Bull Mountain Park meeting held on August 22, 2013. We requested those in attendance to consider what the park should be called and that they ask others who do not typically attend the meeting for their input. We also included an article in the October issue of the Friends of East Bull Mountain Park Newsletter, released in September, entitled, "What's In a Name?"This was used to introduce the idea to its readers and provide process information. During the meeting held on September 26, 2013, recommendations were presented by those in attendance, which included the three on the ballot. The fourth selection was a 'write in'. Bruce Harbison worked with a secured on-line internet survey service provider, in order to enable one vote per internet user. This was publicized through the Friends of East Bull Mountain Park Newsletter, posted on the Friends' social networks, by word of mouth and emails. By using these methods, we are certain that at least 168 people, including our student volunteers, had access to the voting process. The survey company and social networks were enabled with the ballot for the entire month of October. The results of the vote are that 49 ballots were completed, which is 293/ representation of the neighborhood. Of the 49 votes received, 23 were for "Forest Meadow Park". For a complete summary, please see the following; Page 1 Proposed names on the ballot Forest Meadow Park-23 votes Alpine Park - 2 Forest Legacy Park - 2 Write In Voting East Bull Mountain Park-2 Paull Forest Park 1 Forest Meadow Legacy Park-1 Tigard Highlands Park-1. Our Backyard Park-1 Bull Mountain Family Park-16 (from slightly different IP Addresses,which indicates an organized collection of computers;such as the Library or School) On behalf of the Friends of East Bull Mountain Park,we appreciate having had the opportunity to participate in naming the Park. As we continue to work with the City to establish a neighborhood park, you can clearly see, by some of the write-in votes,the attachment and ownership reflected by the voters. We concluded the "What's In a Name" article by appealing to the neighborhood, "Friends, help us present a recommendation to City of Tigard that will represent the generations to come in the use of this park;that all may enjoy." Thank you for your assis ance and consicration. Sincerely, / l / Toraj Khavari Chairperson of FEBMP Email:torai.khavari @gmail.com Mobile: 503-706-3548 P.S.To learn more about the FRIENDS of EBMP at the following sites. D Yahoo® User Group- http://groups.yahoo.com/group/FEBMPj • Face book®-htto://www.facebook.com/FEBMP D Park Security - http:!/groups.yahoo.com/group/EBMPNWC/ Page 2 11 City of Tigard I r Naming & Recognition Policy TIGARD Effective September 3, 2013 A. Purpose The purpose of this policy is to provide consistent standards and procedures to: • Name city key features, buildings and property. • Install items on city property to recognize an individual,group or event. B. Naming Criteria for City Key Features, (such as open-air shelters, sports fields, gardens, rooms, trails, etc.), Buildings and Existing Property, Including Parks 1. All requests to name city key features,buildings and existing property must be reviewed by the parks manager and approved by formal action of the City Council. 2. To assist the public in identifying and locating key features,buildings and property, proposed names should be descriptive in nature or should contain a descriptive element, such as the Fanno Creek House, Dirksen Nature Park, Woodruff Bridge or John Anderson Baseball Fields. 3. Proposed names shall recognize one or more of the following: - A physical,historical, or unique characteristic of the key feature,building or existing property. - An event that had a significant impact to the city. - An individual or individuals,living or dead (memorial),who made a significant contribution to the city, either historically, financially or through civic duty. - A group or groups that made a significant contribution to the city,either historically, financially or through civic duty. - A property owner(s) who donates or sells property to the city. C. City-Initiated Requests to Name City Key Features, (such as open-air shelters, sports fields,gardens,rooms, trails, etc.), Buildings and Existing Property, Including Parks 1. The process to consider a city-initiated request is as follows: a. A city councilor or designee,city board or committee, or city staff member,"City Requestee,"interested in naming a key feature,building or property must submit a written request—including specific information as to the purpose,proposed location (if applicable) and significance of the name—to the parks manager. b. The parks manager will prepare a recommendation,including a cost estimate to implement the name. c. The request and recommendation will be placed on a council agenda for informal discussion by the City Council. d. At the discussion the council will either: - Direct the parks manager to prepare a resolution to formally adopt the name. If applicable, staff will assist the council in identifying and selecting a city funding source to implement the name. - Determine that a majority of the city councilors do not support the name,and the request will not move forward. e. With council support, a resolution naming the feature,building or property will come before council for formal action. f. If the resolution is adopted, the parks manager will implement the name. D. Non-City-Initiated Requests to Name City Key Features, (such as open-air shelters, sports fields, gardens, rooms, trails, etc.),Buildings and Existing Property,Including Parks 1. The process to consider a non-city-initiated request is as follows: a. An individual or organization, "Requestee,"interested in naming a key feature, building or property must submit a written request—including specific information as to the purpose,proposed location (if applicable) and significance of the name—to the parks manager at the following address: Parks Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 b. When applicable,and if the name is intended to recognize an individual(s), group(s) or event, the parks manager will attempt to verify that the recognition is acceptable to the individual(s),group(s) or event, or the appropriate representative of the individual(s),group(s) or event. c. The parks manager will review the request and prepare a recommendation and cost estimate to implement the name. d. The request and recommendation will be placed on a council agenda for informal discussion by the City Council. e. At the discussion the council will either: - Direct the parks manager to prepare a resolution to formally adopt the name. Under this option, the council will also need to determine whether the Requestee or the city will be financially responsible for the costs to implement the name,including a plaque or signage (if desired). If the city assumes the costs, staff will assist the council in identifying and selecting a city funding source to implement the name. - Determine that a majority of the city councilors do not support the name, and the request will not move forward. f. With council support, a resolution naming the feature, building or property will come before council for formal action. g. If the resolution is adopted, the parks manager will work with the Requestee to implement the name. E. Changing the Name of City Key Features, (such as open-air shelters, sports fields, gardens, rooms,trails,etc.), Buildings and Existing Property, Including Parks 1. Irrespective of how the existing name was initiated or funded (city/non-city), the City Council has the authority to change the name of any city key feature, building or property. 2. The process to change the name of a previously named key feature,building or property is as follows: a. A city councilor or designee, city board or committee,or city staff member, "City Requestee," interested in changing the name of a key feature, building or property must submit a written request—including specific information as to why the name should be changed and the purpose and significance of the new name—to the parks manager. b. The parks manager will prepare a recommendation,including a cost estimate to implement the name change. c. The request and recommendation will be placed on a council agenda for informal discussion by the City Council. d. At the discussion, the council will either: - Direct the parks manager to prepare a resolution to formally change the name; if applicable, staff will assist the council in identifying and selecting a city funding source to implement the name change. - Determine that a majority of the city councilors do not support the name change,and the name will not be changed. e. With council support, a resolution changing the name will come before council for formal action. f. If the resolution is adopted, the parks manager will implement the name change. F. Naming Requests for Properties under Acquisition,Including Parks 1. For tracking and record keeping purposes, the City Council recognizes it is preferable to name a property early in the acquisition process, typically as a part of the real property transaction discussed in executive session. 2. The city's Property Acquisition Workbook acknowledges that naming rights are frequently desired by those selling property to the city. After consulting council, staff may use naming rights as a non-monetary negotiation tool when attempting to purchase property. 3. During acquisition, the process to name a property is as follows: a. The parks manager will prepare a list of potential names for council consideration. The names will be generated by city staff involved in the acquisition and—when feasible as part of an executive session discussion on real property transactions— by: - The Park and Recreation Advisory Board (for park and open space properties). - The City Center Development Agency (for Downtown or urban renewal properties). - Other appropriate city agencies, boards or committees that play a role in the acquisition of city property. b. In correspondence or as part of the City Council's executive session discussion on real property transactions to purchase the property, the parks manager will provide the council with a list of potential names developed under this section. City councilors may also propose names for the property. c. During the City Council's executive session discussion on real property transactions to purchase the property, the City Council will direct staff to incorporate a property name into the purchase agreement (or comparable document). d. The council will take formal action on the name when it takes action on the purchase agreement (or comparable document) at a council business meeting. e. If the purchase agreement (or comparable document) is approved by council, the parks manager will implement the name. G. City-Initiated Requests to Install Recognition Items, (such as benches,picnic tables, trees and shrubs) 1. The process to consider a city-initiated request is as follows: a. A city councilor or designee,city board or committee, or city staff member,"City Requestee," interested in having the city install an item must submit a written request—including specific information as to the purpose,proposed location, significance and type of item requested—to the parks manager. b. The parks manager will prepare a recommendation,including a cost estimate to purchase and install the item. c. The request and recommendation will be placed on a council agenda for informal discussion by the City Council. d. At the discussion, the City Council will either: - Direct the parks manager to install the item on behalf of the city. (No formal council action required.) If applicable, staff will assist the council in identifying and selecting a city funding source. - Determine that a majority of the councilors do not support the request, and the item will not be installed. e. If so directed, the parks manager will install the item. H. Non-City-Initiated Requests to Install Recognition Items (such as benches, picnic tables, trees and shrubs) 1. All items installed on city property must be approved in advance by the parks manager. The parks manager has sole discretion regarding the approval of the installation of all items submitted under this section. 2. The process to consider a non-city-initiated request is as follows: a. An individual or organization, "Requestee," interested in installing an item must submit a written request—including specific information as to the purpose, proposed location, significance and type of item requested—to the parks manager at the following address: Parks Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 b. When applicable, and if the item is intended to recognize an individual(s), group(s) or event,the parks manager will attempt to verify that the recognition is acceptable to the individual(s),group(s) or event, or the appropriate representative of the individual(s),group(s) or event. c. The parks manager will review and approve or decline the request. d. If the request is approved, the parks manager will: - Notify the Requestee. - Collect payment from the Requestee to purchase and install the item. Requestees are financially responsible for all costs associated the item,including a recognition plaque (if desired). Specific information on plaques is outlined below. -Will work with the Requestee to install the item. e. If the request is declined, the parks manager will attempt work with the Requestee to amend the request so it is acceptable to both parties. If no agreement can be reached,the item will not be installed. 3. The parks manager will allow the following types of items: a. Benches must be contoured style or another approved style,designed for outdoor use and constructed of materials approved by the parks manager. Once approved,benches must be purchased through a Parks Division-approved manufacturer. A brass or bronze plaque, no larger than 2 '/z x 6 inches, may be affixed to the bench. b. Picnic Tables must be an approved style,designed for outdoor use and constructed of materials approved by the parks manager. Once approved,tables must be purchased through a Parks Division-approved manufacturer.A brass or bronze plaque, no larger than 2 '/z x 6 inches,may be affixed to the table. c. Trees and Shrubs must be a size and species approved by the parks manager. Plaques for trees and shrubs: - Must be made of bronze. - Can be no larger than 8 1/z x 11 inches. - Cannot be free standing,but must be affixed to a concrete,aggregate rock or boulder foundation. The parks manager will review the design of the proposed plaque and foundation and can provide examples of acceptable plaques. 4. The installation of comparable items, (other than those specifically mentioned listed in this section), may be proposed by the Requestee and will be considered by parks manager. 5. The parks manager may alter the proposed location of the item to ensure ease of maintenance and to prevent conflicts with other park features. AGENDA ITEM NO. 2-D CITIZEN COMMUNICATION DATE: December 10, 2013 (Please keep remarks to around 2-5 minutes. If a large number of citizens have signed in,the Mayor may ask that testimony be kept to around 2 minutes.) 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: t A A/2 LA/ I d 2 Oct FicKeit Al 0 ,N jn!'� ICU l� Also,please spell your name as it sounds,if it will f �2 3 /' help the presiding officer pronounce: _ Pfd 6 /&, Address 13 t/1J LA-' • 7 y '�/T'-e City I 1 5 m State 0 f Zip 'i? 2.2 Phone No. __510..? —70 l/ - a()Name: S��'v�, 61 ' Ji 1( Also,please spell your name as it sounds,if it will / help the presiding officer pronounce: j 6 nl' 4, 5 Address /357-0 5kA' 1224 /Cite „, p 0-T ` City T) State [A- Zip 53Z7.3 Phone No. 5,23 33 Z 2d7 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 l-P rif2mcck—iz Ja��,� THS Monthly City Council Report December 10th 2013 'Tarot '—iihcht 0 �ue�e`J+�- Things going on at THS: 6nYv 1 • Boys football lost in the Semi-finals against Central Catholic aR • Girls and Boys Basketball, swimming and wrestling have started • Tigerettes won 3 1st place trophies in Scappoose • Choir Concert Tonight and some THS students are performing at the Grotto Next Tuesday • Winter Assembly is next Friday, December 20th - Wide range of Acts! • Sadie Hawkins Dance this Saturday at 7 • Winter BREAK! Happy Holidays! -Tigard High School AIS-1564 3. A. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): Consent Item Agenda Title: Approve City Council Meeting Minutes Submitted By: Cathy Wheatley, Administrative Services Item Type: Motion Requested Meeting Type: Consent Agenda Public Hearing: Publication Date: Information ISSUE Approve City Council meeting minutes. STAFF RECOMMENDATION / ACTION REQUEST Approve minutes as submitted. KEY FACTS AND INFORMATION SUMMARY Attached council minutes are submitted for City Council approval. (Dates of meetings are listed under "Attachments" below.) OTHER ALTERNATIVES N/.1 COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS N/.1 DATES OF PREVIOUS COUNCIL CONSIDERATION N/,1 Attachments No file(s)attached. AIS-1555 3. B. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): Consent Item Agenda Title: Receive and File: Election Results, Council Calendar and Council Tentative Agenda Submitted By: Cathy Wheatley, Administrative Services Item Type: Receive and File Meeting Type: Consent - Receive and File Public Hearing: No Publication Date: Information ISSUE Receive and file the official election results for the November 5, 2013, City of Tigard special election for a "Charter amendment to clarify urban renewal provisions." Receive and file the Council Calendar and the Tentative Agenda for future council meetings. STAFF RECOMMENDATION / ACTION REQUEST No action is requested; this is a receive and file summary for information purposes. KEY FACTS AND INFORMATION SUMMARY •When the City Recorder canvasses the votes as required by the Washington County Elections Division, a copy is filed with the City Council to officially "receive and file" the information. •As detailed in the Abstract of Votes, the following are the results of the election for the City of Tigard: •Ballot Measure 34-207 Charter amendment to clarify urban renewal provisions - Approved (75% yes; 25% no) •Attached are election results by precinct and a City of Tigard Precinct Map. Voter turnout for Washington County was 31%;voter turnout for the City of Tigard was about 23%. •Also attached are the Council Calendar and the Tentative agenda for future Council meetings. OTHER ALTERNATIVES N/A COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS N/A DATES OF PREVIOUS COUNCIL CONSIDERATION N/A-Receive and File Items Attachments Canvass of Votes -November 5,2013,Special Election -Tigard Urban Renewal Charter Amendment Precinct Map Three-Month City Council Meeting Calendar Tentative City Council Agenda Schedule WASHINGTON COLiN TV .., r OREGON November 20, 2013 City Recorder City of Tigard 13125 SW Hall Blvd Tigard, OR 97224 Enclosed you will find a copy of the Abstract of Votes for City of Tigard relating to the Special Election held on November 5, 2013. In accordance with ORS 255.295, please canvass the votes and notify the Washington County Elections Division within thirty (30) days of receipt by signing and returning the bottom portion of this letter to: Washington County Elections Division . 3700 SW Murray Blvd. Suite 101 Beaverton OR 97005 Thank you very much. Sincerely, Mickie Kawai Elections Manager M K/tk K I have canvassed the votes for City of Tigard, relating to the Special Election on November 5, 2013. By signing this canvass letter, I concur with the final results. CCQ. AUTHORIZING SIGNATURE 0 DATE Department of Assessment&Taxation, Elections Division 3700 SW Murray Blvd #101; Beaverton OR 97005 Phone: 503/846-5800 Fax: 503/846-5810 Website:www.co.washington.or.us/elections E-mail:electionRco.washington.or.us NUMBERED KEY CANVASS Washington County, Oregon Official Final Special Election RUN DATE:11/18/13 11:57 AM November 5, 2013 REPORT-EL52 PAGE 0006 VOTES PERCENT VOTES PERCENT 34-207 City of Tigard - Charter Amendment VOTE FOR 1 01 - Yes 5.231 75.47 03 = OVER VOTES 0 02 = No 1,700 24.53 04 - UNDER VOTES 8 01 02 03 04 0400 400 473 167 0 1 0402 402 186 58 0 0 0403 403 714 278 0 1 0404 404 461 178 0 0 0405 405 926 268 0 0 0406 406 569 193 0 1 0408 408 1076 311 0 3 0409 409 425 120 0 0 0416 416 308 93 0 2 0427 427 2 2 0 0 0450 450 11 3 0 0 0454 454 80 29 0 0 CO/i/SS,4 V2 ). Q-, c0U�\\`-,, 14-1,-,-.,ap'^'' 1,-, ' SUMMARY REPORT Washington County. Oregon Official final Special Election November 5. 2013 Run Date:11/18/13 11:56 AM VOTES PERCENT PRECINCTS COUNTED (OF 66) 66 100.00 REGISTERED VOTERS - TOTAL 103.179 BALLOTS CAST • TOTAL 32.433 VOTER TURNOUT • TOTAL . 31.43 34-205 Cornelius Library • GOB VOTE FOR 1 Yes 666 47.30 No 742 52.70 Over Votes 0 Under Votes 2 34-206 Hillsboro School District • GOB VOTE FOR 1 Yes 9,492 45.48 No 11.379 54.52 Over Votes 1 Under Votes 24 3-434 Lake Oswego School District LOL VOTE FOR 1 Yes 20 62.50 No 12 37.50 Over Votes 0 Under Votes 0 • F COM* . 34.207 City of Tigard • Charter Amendment VOTE FOR 1 Yes 5.231 75.47 - No 1,700 24.53 Over Votes 0 r, '• .. �}' R rr ! Under Votes 8 \ ;��• .• - c-'5? o 34-208 Cornelius Rural Fire Protection • LOL C OU NV ' VOTE FOR 1 Yes 311 77.56 No 90 22.44 Over Votes 0 Under Votes 1 • CERTIFIED TO BE A TRUE AND CORRECT OPY OF THE ORIGINAL 34-209 City of Sherwood - Annexation VOTE FOR 1 DOW // Yes 1.389 39.52 WASHINGTON Cory No 2,126 60.48 I ELEC'/ =DIVISION Over Votes 0 Under Votes 3 BY . � NUMBERED KEY CANVASS Washington County, Oregon Official Final Special Election RUN DATE:11/18/13 11:57 AM November 5. 2013 REPORT-EL52 PAGE 0001 TOTAL PERCENT TOTAL PERCENT 01 - REGISTERED VOTERS - TOTAL 103.179 03 = VOTER TURNOUT - TOTAL 31.43 02 - BALLOTS CAST - TOTAL 32.433 • 01 02 03 0303 303 831 . 274 32,97 0304 304 2766 . 788 28.49 0307 307 1638 . 596 36.39 0308 308 161 . 65 40.37 0309 309 4207 1481 35.20 0310 310 272 . 110 40.44 0313 313 5 . . 2 40.00 0314 314 191 . 86 45.03 0315 315 911 . 395 43.36 0316 316 763 . 301 39.45 0317 317 642 . 276 42.99 0318 318 2456 . 836 34.04 0319 319 1095 . 269 24.57 0322 322 269 . 102 37.92 0323 323 2972 . 755 25.40 0325 325 3 . . 1 33.33 0326 326 296 . 109 36.82 0327 327 3291 . 987 29.99 0328 328 1326 . 502 37.86 0329 329 3509 1113 31.72 0330 330 1171 . 356 30.40 0332 332 1926 . 776 40.29 0333 333 275 . 50 18.18 0334 334 118 . 51 43.22 0335 335 4387 1720 39.21 0336 336 2680 . 936 34.93 0337 337 3802 1174 30.88 0338 338 4357 1410 32.36 0341 341 183 . 86 46.99 0343 343 4246 1622 38.20 0344 344 3877 1186 30.59 0345 345 28 . 12 42.86 0346 346 279 . 141 50.54 0347 347 50 . 18 36.00 0348 348 31 . 12 38.71 0356 356 935 . 241 25.78 0358 358 1299 . 398 30.64 0370 370 2179 . 801 36.76 0373 373 310 . 104 33.55 0374 374 10 . . 4 40.00 0394 394 139 . 20 14.39 0398 398 51 . 17 33.33 0400-4-or.-- 1-6174-0 8222822 . 641 22.71 0402 402 4 1029 . 244 23.71 0403 403 "" 3788 . 993 26.21 0404 404 it 2623 . 639 24.36 0405 405 '; 4361 1194 27.38 0406 406 4 3039 . 763 25.11 0408 408 4263 1390 32.61 0 9 409 << 2654 . 545 20.54 0410 41 10 . . 1 10.00 0416 416 Tr yo r c. 1656 . 403 24.34 0422 422 16 . . 5 31.25 0424 424 4113 1497 36.40 0426 426 249 . 113 45.38 0427 427 j;;ty 22 . . 4 18.18 NUMBERED KEY CANVASS Washington County, Oregon Official Final Special Election RUN DATE:11/18/13 11:57 AM November 5, 2013 REPORT-EL52 PAGE 0002 TOTAL PERCENT TOTAL PERCENT 01 = REGISTERED VOTERS - TOTAL 103.179 03 - VOTER TURNOUT - TOTAL 31.43 02 R BALLOTS CAST - TOTAL 32,433 (CONTINUED FROM PREVIOUS PAGE) 01 02 03 0430 430 1622 . 691 42.60 0431 431 210 . 86 40.95 0435 435 3677 1419 38.59 0439 439 102 . 53 51.96 0440 440 1407 . 310 22.03 0450 450:5-90_4-6 69 . 14 20.29 0452 452 556 . 141 25.36 0454 4,,54 Tick pa..j 688 . 109 15.84 0457 457 2127. 602 28.30 0460 460 2139 . 393 18.37 447 R;;kC i4t.;41'' ^ } N \............. 'y COUNV• CERTIFIED TO SE A TRUE AND CORRECT s PY OF THE ORIGINAL Date 4/ lii /0 .. /.2J WASHING ON COUNTY ELECT • S DIVISION BY .c. .. IF imws lir ' illig f (,)--' .- in 1 ,L___i_ewe;IL lf,:}illiP•17 :.7.77;j"--— - 1_, ,_,—,,:rf_L__4_ 1 _ .1 r ../....:\ ...,._._, ,4,:.,.79 .7 71 !T..,/-1)15 --- 0 . 7 I '1 41-2, 7 A It , ,,,I1.._. ' -; :•) :''- , 380.,-,-,`.■- '• -I ----I E -,1 -2 ') ' / ' f \ • : ;-A4_2',. .- ' 1 ' '' , - - ,1 1),.„'.". I-- -,,--':-_L- Lj,,LL- -_; r L' '');--• ) ..,, VI `) hb 1 , 388 es Voting ' ' - - - -- r- 4,.. ,.. ,;yr 10. , 1 -7sr -/ ._,,. ..v 7:- - .. -, c (7-1--%, 2 rs i Precincts sem.: Ji - — ? - ..\\„, - \---_-r--Ths ii ,Lj . i 1 1„ 7-1 -Flf i Ein' • L, ,/ • V ri Lifi ----\--,1\'1 ' - _-1-,IY F.:,--,:,--) 9---:-'---• PP" . . . - -•... -----1, 390 is.. .. 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OR 97223 503 839-4171 ______1 s . www.tigard-or.gov 425 '----, . ;1"-1 11 ' r r.r ,, rr V/7 b■I it umm..• t• "34 z I Agenda Item No. _ For Agenda of December 10.2013 • III MEMORANDUM TIGARD TO: Honorable Mayor&City Council/City Center Development Agency Board FROM: Cathy Wheatley,City Recorder RE: Three-Month Council/CCDA Meeting Calendar DATE: November 25,2013 December 3 Tuesday City Center Development Agency–6:30 p.m.,Town Hall 10* Tuesday Council Business Meeting- 6:30 p.m.,Town Hall 17* Tuesday Council Workshop Meeting–6:30 p.m.,Town Hall 24* Tuesday Council Business Meeting–Cancelled 25 Wednesday Christmas Holiday–City Hall Offices Closed January 1 Wednesday New Year's Day Holiday–City Hall Offices Closed 7 Tuesday City Center Development Agency–6:30 p.m.,Town Hall 14* Tuesday Council Business Meeting-6:30 p.m.,Town Hall 20 Monday Martin Luther King,Jr.Holiday–City Hall Offices Closed 21* Tuesday Council Workshop Meeting–6:30 p.m.,Town Hall 28* Tuesday Council Business Meeting–6:30 p.m.,Town Hall February 4 Tuesday City Center Development Agency–6:30 p.m.,Town Hall 11* Tuesday Council Business Meeting-6:30 p.m.,Town Hall 17 Monday Presidents Day Observed–City Hall Offices Closed 18* Tuesday Council Workshop Meeting-6:30 p.m.,Town Hall 24* Tuesday Council Business Meeting-6:30 p.m.,Town Hall Regularly scheduled Council meetings are marked with an asterisk M. 1:\adm\city council\council calendar\3-month calendar for c mtg 131210.doc Meeting Banner ❑ Business Meeting ❑ Study Session 11 Special Meeting Consent Agenda 0 Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 12/2/2013 2:23 PM - Updated Form Meeting Submitted Meeting Inbox or Date By Type Title Department Finalized 1330 12/10/2013 Carol Krager AAA December 10, 2013 City Council Business Meeting 1529 12/10/2013 Greer Gaston ACCSTUDY 15 Minutes - Discuss Two Non-City-Initiated Requests to Public Works MartyW, City Name Parks Manager 'Total Time: 15 of 45 minutes have been scheduled 1534 12/10/2013 Debbie ACONSENT Consent Item - Authorize the Mayor to Execute an Financial and Smith-Wagar Intergovernmental Agreement with Metro Regarding a Information CET Grant for the River Terrace Community Plan Services 1552 12/10/2013 Carol Krager ACONSENT Consent Item - Approve and Authorize City Manager to City Management 11/25/2013 Sign Regional Justice Information Network (RegJIN) Intergovernmental Agreements 1555 12/10/2013 athy ACONSENT Consent Item - Receive and File: Election Results, Council Administrative !Wheatley C, City Wheatley Calendar and Council Tentative Agenda Services Recorder — —_ _— -- — — -- 11 1482 12/10/2013 J Bengtson ICCBSNS 1 5 Minutes - Proclaim Human Rights Day City Management 11/18/2013 1468 112/10/2013,Liz Lutz ICCBSNS 2 5 Minutes - Appoint Budget Committee Members FIS 12/02/2013 1554 12/10/2013 Tom McGuire CCBSNS 3 5 Minutes - Planning Commission Appointments Community 12/02/2013 Development 1510 12/10/2013 Sandy CCBSNS 4 5 Minutes - Request for Public Input - City Manager City Management 12/02/2013 Zodrow Performance Review Criteria 1559 12/10/2013 Carol Krager CCBSNS 5 10 Minutes - Consider Authorizing the City Manager to City Management 11/26/2013 Execute an Easement Related to the Potso Dog Park Parking Lot Project 1544 12/10/2013 Greer Gaston CCBSNS 6 10 Minutes - View a Promotional Water Video Prepared Public Works MartyW, City by the Lake Oswego Tigard Water Partnership Manager 1455 12/10/2013 C Wheatley CCBSNS 7 20 Minutes - Options for Big Box Code Amendments City Management MartyW, 1528 12/10/2013 Liz Newton CCBSNS 8 20 Minutes - Discuss Legislative Agenda for 2014 City Management 12/02/2013 Legislative Session Total Time: 80 of 100 minutes have been scheduled 1 I 1' is\adm\carol\tentaty ag\2013\december 2 2013.docx Meeting Banner ❑ Business Meeting ❑ Study Session 0 Special Meeting Consent Agenda ❑ Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 12/2/2013 2:23 PM - Updated II 1331 12/17/2013 Carol Krager AAA December 17, 2013 City Council Workshop Meeting II 1442 12/17/2013 Cheryl CCWKSHOP 1 30 Minutes - Tigard Triangle Strategic Plan Update Community Asher, K, Caines (Joint meeting with the Planning Commission) Development Community Development Dir. 1492 12/17/2013 Lloyd Purdy CCWKSHOP 2 15 Minutes - Economic Development Quarterly Update Community Purdy, L, Econ Development Development Mgr 1239 12/17/2013 Greer Gaston CCWKSHOP 3 15 Minutes - Briefing on Capital Improvement Plan Public Works Rager B, Asst. PW Projects Director 1456 12/17/2013 Cathy CCWKSHOP4 30 Minutes - Review City Survey Results City Management 'Newton L, Wheatley Assistant City Manager 1483 12/17/2013 C Wheatley CCWKSHOP 5 55 Minutes - Strategic Plan City Management MartyW 1511 12/17/2013 Sandy CCWKSHOP 6 35 Minutes - Annual Performance Review for City City Management Zodrow S, HR Zodrow Manager (Executive Session) Director - .1 _. .,� _ e d II 1425 01/07/2014 Cathy AAA January 7, 2014 City Center Development Agency Wheatley Meeting - No items scheduled as of 12/2/2013 II 1426 01/14/2014 Cathy AAA 'January 14, 2014 City Council Business Meeting Wheatley j I 1472 01/14/2014 Carissa ACCSTUDY 20 Minutes - Review and Evaluation of the FY 2015-19 Financial and Collins C, Sr Mgmt Collins Capital Improvement Program Priorities Information Analyst (Fin Adm) Services 1530 01/14/2014 Greer Gaston ACCSTUDY 15 Minutes - Briefing on the First Amendment to an Public Works Stone Mike, City Agreement with Clean Water Services Regarding the Engineer Derry Dell Sewer Project 1542 01/14/2014 Cathy ACCSTUDY 10 Minutes - Council Travel Policy Administrative MartyW, City JI Wheatley Services Manager 2IPag is\adm\carol\tentatv ag\2013\december 2 2013.docx Meeting Banner ❑ Business Meeting ❑ Study Session ❑ Special Meeting Consent Agenda ❑ Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 12/2/2013 2:23 PM - Updated I –II 1553 01/14/2014 Renee ACONSENT 0 Minutes - Consider Resolution to Approve a Nature in Public Works Martin S, Parks I Ferguson Neighborhoods Metro Grant Application _ Manager — — ......_____.._., - II 1520 01/14/2014 Cathy CCBSNS 1 30 Minutes - Mayor Cook's State of the City Address Administrative Wheatley C, City I Wheatley Likely to be moved to another venue. Services Recorder 1540 01/14/2014 Cheryl CCBSNS 2 20 Minutes - Annexation of City Property (E Bull Mtn.) Community Caines C, Assoc Caines and portions of right-of-way (Wilmington Ln and Locust Development Planner St) ; 1512 01/14/2014 Louis Sears CCBSNS 3 25 Minutes - Hold for MACC Comcast cable franchise Financial and renewal Information Services 1545 01/14/2014 Carol Krager CCBSNS 4 20 Minutes - Adopt the City's 2014 Legislative Agenda City Management Newton L, Assistant City ' Manager II 1427 01/21/2014 Cathy AAA January 21, 2013 Workshop Meeting - Mayor Cook Wheatley Absent i — -- II 1506 01/21/2014 Liz Lutz CCWKSHOP 75 Minutes - Second Quarter Budget Committee meeting Financial and Lutz L, Conf Exec Information Asst Services 1514 01/21/2014 John CCWKSHOP 15 Minutes - Briefing on a Joinder Agreement for Public Works Goodrich J, Utility Goodrich Willamette Water Supply Program J Div Manager 1547 01/21/2014 Liz Lutz CCWKSHOP 45 Minutes - River Terrace Finance Report and Discussion Financial and LaFrance T, Information Fin/Info Svcs Services Director Total Time: 135 of 180 minutes have been scheduled 3I l' `, is\adm\carol\tentaty ag\2013\december 2 2013.docx Meeting Banner ❑ Business Meeting ❑ Study Session U Special Meeting Consent Agenda ❑ Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 12/2/2013 2:23 PM - Updated I II 142801/28/2014 Cathy AAA January 28, 2014 City Council Business Meeting - Mayor Wheatley Cook absent. , I II 1507 01/28/2014 Greer ACCSTUDY 1 20 Minutes - Executive Session on Real Property Public Works 11/04/2013 Gaston Negotiations 1561 01/28/2014 Greer ACCSTUDY 2 15 Minutes - Executive Session on Real Property Public Works 12/02/2013 Gaston Negotiations 1543 01/28/2014 Cathy ACCSTUDY 3 10 Minutes - Discuss the Tree Board Administrative MartyW, City Wheatley Services Manager I--- _-. -- ---- _—_ _ -- _..__----ll 1533 01/28/2014 Renee ACONSENT Authorize the City Manager to Execute the First Public Works Stone Mike, City Ferguson Amendment to an Agreement with Clean Water Services Engineer Regarding the Derry Dell Sewer Project 1449 01/28/2014 Loreen CCBSNS 20 Minutes - Public Hearing - Amending Tigard Municipal City Management Mills L, Asst to City Mills Code Title 15.06 Franchise Utility Ordinance Manager 1486 01/28/2014 Carissa CCBSNS 20 Minutes - FY 2014 Second Quarter Supplemental Financial and Collins C, Sr Mgmt I Collins Budget Amendment Information Services Analyst (Fin Adm) 1515 01/28/2014 John CCBSNS 10 Minutes - Authorize the City Manager/Mayor to Execute Public Works Goodrich 3, Utility I Goodrich a Joinder Agreement for Willamette Water Supply Program Div Manager 1548 01/28/2014 John Floyd CCBSNS 60 Minutes - Tigard Parks Zone Project DCA2013-00003 Community Floyd 3, Associate I Development Planner I II 142-9 02/04/2014 Cathy AAA February 4, 2014 City Center Development Agency Wheatley Meeting - Nothing scheduled as of 12/2/2013 II 4 I I' ,, g t. is\adm\carol\tentaty ag\2013\december 2 2013.docx Meeting Banner ❑ Business Meeting ❑ Study Session ❑ Special Meeting Consent Agenda ❑ Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 12/2/2013 2:23 PM - Updated 1430 02/11/2014 Cathy AAA February 11, 2014 City Council Business Meeting Wheatley I II 1524 02/11/2014 Greer ACCSTUDY 30 Minutes - Briefing and Discussion on the Development Public Works Koellermeier D, Gaston of a Willamette River Water Supply in Conjunction with Public Works Dir the City of Sherwood Total Time: 30 of 45 minutes have been scheduled I II 1274 02/11/2014'Kristie CCBSNS 20 Minutes - Consider a Resolution to Adopt the Westside Public Works Martin S, Parks I Peerman Trail Master Plan Manager 1556 02/11/2014 Cathy CCBSNS 110 Minutes - Presentation from Community Action of Administrative Wheatley C, City I Wheatle y Washington County Services Recorder Total Time: 30 of 100 minutes have been scheduled I - I 1431 02/18/2014 Cathy AAA February 18, 2014 Workshop Meeting Wheatley Nothing scheduled as of 12/2/2013 F- II 1432 -02/25/2014 Cathy AAA February 25, 2014 City Council Business Meeting Wheatley Nothing scheduled as of 12/2/2013 I II 1433 03/04/2014 Cathy AAA March 4, 2014 City Center Development Agency Meeting Wheatley Nothing scheduled as of 12/2/2013 I —II 1434 03/11/2014 Cathy AAA March 11, 2014 City Council Business Meeting Wheatley I II 1518 03/11/2014 Liz Lutz ACCSTUDY 30 Minutes - Review of 2014 Community Event Funding Financial and Lutz L, Conf Exec I Requests Information Services Asst Total Time: 30 of 45 minutes have been scheduled i 1 51Page is\adm\carol\tentaty ag\2013\december 2 2013.docx Meeting Banner ❑ Business Meeting ❑ Study Session ❑ Special Meeting C Consent Agenda ❑ Meeting is Full II Workshop Meeting ❑ CCDA Meeting II City Council Tentative Agenda 12/2/2013 2:23 PM-Updated 1435 03/18/2014 Cathy AAA March 18, 2014 Workshop Meeting Wheatley II 1493 03/18/2014 Lloyd 'CCWKSHOP 15 Minutes - Update on Economic Development Activity Community Purdy, L, Econ Purdy Development Development Mgr Total Time: 15 of 180 minutes have been scheduled � I 1436 03/25/2014 Cathy AAA March 25, 2014 City Council Business Meeting Wheatley i II 1517 03/25/2014 Liz Lutz CCBSNS 10 Minutes - Consider a Resolution Granting Exemption Financial and Lutz L, Conf Exec from Property Taxes under TMC 3.50 for xx Non-Profit Low Information Services Asst Income Housing Projects _Total Time: 10 of 100 minutes have been scheduled 61 Page is\adm\carol\tentatv ag\2013\december 2 2013.docx AIS-1552 3. C. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): Consent Item Agenda Title: Approve and Authorize City Manager to Sign Regional Justice Information Network (RegJIN) Intergovernmental Agreements Submitted By: Carol Krager, City Management Item Type: Motion Requested Meeting Type: Consent Agenda Public Hearing No Newspaper Legal Ad Required?: Public Hearing Publication Date in Newspaper: Information ISSUE Shall City Council approve and authorize the City Manager to sign Regional Justice Information Network (RegJIN) Intergovernmental Agreements? STAFF RECOMMENDATION / ACTION REQUEST Staff recommends approval and authorization of City Manager to sign the RegJIN Intergovernmental Agreements. KEY FACTS AND INFORMATION SUMMARY The current Tigard Police Department's records management system, Portland Police Data System (PPDS) is outdated and will be replaced soon. RegJIN, the upgraded system, should be fully functional by December, 2014. The City of Portland requests all participating agencies return a signed Master Intergovernmental Agreement by the end of December, 2013, and a signed Participant Intergovernmental Agreement by March, 2014. There are no known technology or legal concerns that would prevent our signing the agreements. The attached Master Intergovernmental Agreement is a final version and the Participant Intergovernmental Agreement is a draft, but it is not expected to change in any substantial way. The User Intergovernmental Agreement will be sent to us after the first of the year. Please note that the cost range for this new system falls at or below what we are currently paying. OTHER ALTERNATIVES N/A COUNCIL OR CCDA GOALS, POLICIES, MASTER PLANS N/A DATES OF PREVIOUS CONSIDERATION N/A Fiscal Impact Cost: N/A Budgeted (yes or no): Yes Where Budgeted (department/program):PD Additional Fiscal Notes: N/A Attachments Overview of Police Records Management System Upgrade ReglIN Master IGA ReglIN Participant IGA III 0 . City of Tigard p , Memorandum To: Honorable Mayor and (:its Councilors From: Alan Orr, Chief of Police cur C�•e- 6 Re: Overview of the Police Records Management System Upgrade • Date: October 16, 3(113 The law enforcement records management system that the'Tigard Police Department currently utilizes, the Portland Police Data System (PPDS),is now operating with obsolete technology. The City of Portland, the agency who hosts the system,is in the process of implementing an upgrade known as the Regional Justice Information Network (Reg lN). Overview The current system is critical to law enforcement operations. PPDS aggregates information based on data collected from officer reports (including crime and accident reports) and makes it available via real-time inquires to officers and command staff as well as records staff. Unfortunately the legacy PPDS system, which went live in thc early 1980s,is no longer supported by the vendor. The upgrade to RegJIN provides continuity of operations and includes the following benefits: • Modernizes law enforcement data collection and record keeping • Creates a fully integrated system reducing redundant data entry and data loss • Increases data sharing and collaboration between a larger number of agencies • Enhances access to crime information and emerging local trends The City of'Tigard Police Department cannot operate without a real-time data management system and is not financially prepared to implement a stand-alone system. 'The City will be renewing its agreement with thc City of Portland to host the upgraded system by the end of December 2(113. _kr the present time, nearly 41 regional agencies representing five counties and two states have indicated that the% will participate (please sec attachment for the full list). In the spring of 2014 the City of'l•igard will implement the officer report writing aspect of the new system. It is anticipated that all jurisdictions will go-live with full implementation by 'November or December 2014. Costs l'he total cost per agency will be finalized once the number of participants has been confirmed sometime in the spring of 2014. The current estimated cost range is S-15 to S75 per sworn officer per month. Based on Tigard's current sworn count of 68 officers, this translates into an annual cost range of 536,720 to 561,2011. I f the current number of participating agencies becomes final, the cost will likely be closer to 555 per sworn officer per year,or S44,88() for Tigard. As of the FY 2013-14 Adopted Budget,Tigard's annual cost associated with the current system, PPDS,is S62,I)42. We will continue to provide updates as we get closer to go-live. • List of current partner agencies RegJIN Partner Agencies (RPA) Organized by County Monday March 25 2013 I I.►kk I t11 \l 1 I8) COL(\WI.%(01 '►'11 17) ie Bathe Ground PO Clatskanie PD dt © Colinas PC Columba City PD o ; :lark County SO tCCSO Columbia County SO La Center PD Rainier PO m Ridgefield PD . Vancouver PD(VPDi Sca0000se PU • Si "elms PD 0 vvasrun gton State University IWSU) Wasnougat PO Vemonra PD NI 1.'1 NUN.■ I(1)1 • . Fairview PD N ASHINC ION CM%Il1121 • Gresham PD(GPO) Banes PD Mutt County SO(MCSO) Beaverton AD • 3 9 �M ,DPS Cornelius PD • ,- Pcrl of Portlano PD rPDX Frrest Grove PO 4 P!ortlaSinC Pouce Bureau IPPt3■ Gaston Pp 9 Portland State university;PSIr • l'NI1Gboro PD . ourridle PD King City PD . North Pains PD Sherwood PD (I.A('k4%1 aS(AI NTl 4.41 Tigard PD 0 Canby PC 7u8latn PD r . Gladstone PD Wasruxgron County SO IWCSO, 0 Lane Oswego PD iLOPD. 0 Muwaurue PG RegJIN PARTICIPANT INTERGOVERNMENTAL AGREEMENT(Draft) O REGIONAL PARTNER AGENCY—FULL ENTRY v1-4/A)4 r ("Agreement")This Intergovernmental Agreement ee ( g ) is made effective on ("Effective Date")by and between the City of Portland, a municipal corporation of the State of Oregon,and its successors or assigns(hereinafter referred to as"City")and (hereinafter referred to as "RPA"), a(n) corporation, by and through their duly authorized representatives. Authority to enter into the Agreement is pursuant to Oregon Revised Statues("ORS")190.003<and Revised Code of Washington ("RCW' 39.34.030 if a Washington State agency, This Agreement may refer to the City and RPA individually as a "Party" or jointly as the"Parties." This Agreement shall be perpetual and remain in effect unless otherwise terminated per the terms of this Agreement. RPA Contact: City of Portland Contact: TEL: ( ) - TEL: (503) - E-MAIL: E MAIL: RECITALS WHEREAS,the City has acquired a law enforcement Records Management System ("System")to maintain a multi-agency, multi-jurisdictional set of law enforcement applications and associated databases; and WHEREAS,the City and the RPA are both signatories to the Intergovernmental Agreement for the User Board of the Regional Justice Information Network(RegJIN); and WHEREAS,the RPA is an Entry RPA as defined in the Intergovernmental Agreement for the User Board of the RegJIN and herein; and WHEREAS, the RPA desires to fully use the System; and WHEREAS,the City and the RPA desire to enter into this Agreement and being fully advised;and NOW THEREFORE,IN CONSIDERATION of the mutual promises and covenants contained herein, it is agreed as follows: 1. DEFINITIONS: The following is a definition of terms used herein: A. "Access" means the authority granted by the City to the RPA's Authorized Users to review or receive information from the System. B. "Agreement" means this Participating Intergovernmental Agreement and all the Terms and Conditions, including all the documents referenced in the Order of Page 1 of 15 Precedence. C. "Amendment" means a written document required to be signed by both Parties when in any way altering the Terms and Conditions or provisions of the Agreement or changing, adding to, or substantially altering a Statement of Work D. "Authorized Use" means functions and capabilities that a User is assigned and able to perform based on User ID and Password. as established by a System Administrator. E "Authorized System User' means any User that has passed the authentication process of the System and is thereby authorized to Use the System s functions and components based on the permissions established by that User s credentials (User ID and password, fingerprints. etc.) F "City Confidential Information' means any information, in any form or media, including verbal discussions.whether or not marked or identified by the City,which is reasonably described by one or more of the following categories of information: (1) financial, statistical. personnel, human resources data or Personally Identifiable Information as described in the Oregon Consumer Identity Theft Protection Act of 2007: (2) business plans, negotiations, or strategies; (3) unannounced pending or future products, services. designs,projects or internal public relations information: (4) trade secrets, as such term is defined by ORS 192.501(2) and the Uniform Trade Secrets Act ORS 646.461 to 646.475: (5) Exempt per ORS 192.501 and/or ORS 192.502 (6) attorney/client privileged communications, (7) exempt per federal laws (including but not limited to Copyright. HIPAA) and (8) information relating to or embodied by designs, plans, configurations, specifications, programs, or systems developed for the benefit of the City including without limitation,data and information systems. any software code and related materials licensed or provided to the City by third parties. processes; applications, codes, modifications and enhancements thereto: and any work products produced for the City. G. 'Confidential Information"means any information that is disclosed in written,graphic. verbal. or machine-recognizable form, and is marked designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential or proprietary at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure Confidential Information does not include any information that is or becomes publicly known through no wrongful or negligent act of the receiving party: is already known to the receiving party without restriction when it is disclosed; is, or subsequently becomes, rightfully and without breach of this Contract or any other agreement between the Parties or of any applicable protective or similar order, in the receiving party s possession without any obligation restricting disclosure; is independently developed by the receiving party without breach of this Contract; or is explicitly approved for release by written authorization of the disclosing party. H 'Criminal History Record Information'.means information collected by criminal justice agencies and stored or available through the System on individuals consisting of identifiable descriptions and notations of arrests, detentions. indictments, information. or other formal criminal charges and any dispositions arising therefrom, including. but not limited to sentencing. correctional supervision, and release 'Criminal Justice Information" means information collected by criminal justice agencies that is needed for their legally authorized and required functions This includes Criminal History Record Information and investigative and intelligence Page2of 15 information It does not include agency personnel or administrative records used for agency operations or management. J "Days" shall mean calendar days, including weekdays, weekends and holidays. beginning at midnight and ending at midnight twenty-four hours later. unless otherwise specified by the Agreement. K "Dissemination (Disseminate)' means the transmission of information. whether in writing, or electronically, to anyone outside the RPA that maintains the information. except reports to an authorized repository L. "Documentation' means User manuals, and other written and electronic materials in any form that describe the features or functions of the System. including but not limited to published specifications. technical manuals. training manuals. and operating instructions M "Entry RPA' means a law enforcement agency that has signed the User Board IGA and this Participant IGA with the City Entry RPA,the City and their Authorized Users enter data into the System. N Equipment's means any hardware, machinery, device. tool, computer. computer components, computer system or other high-technology equipment, including add- ons. or peripherals of tangible form together with the necessary supplies for upkeep and maintenance. and other apparatus necessary for the proper execution. installation and acceptable completion of the System. O. "Error' means any defect. problem, condition, bug, or other partial or complete inability of the System to operate in accordance with the applicable Specifications and Documentation. P. "Interface' means a point of interaction between System components or the device or code which enables such interaction. applicable to both Equipment and Software Q. "Cost Allocation Formula" means the Plan, adopted by the City based on recommendations by the User Board that apportions capital,operation. maintenance, repair and equipment replacement costs and use of grant funding among the Entry RPAs and Inquiry Only RPAs. The Cost Allocation Formula may be amended as provided for in the User Board IGA. R. "Inquiry Only RPA' means a law enforcement agency that has signed a Participant IGA with the City, providing Access to view System data but does not input any agency data into the System. S. "Intelligence and Investigative Information" means information compiled in an effort to anticipate, prevent. or monitor possible criminal activity. or compiled in a course of investigation of known or suspected crimes. T. "Level 1 Error" means a "Level 1 Error' as defined in the System maintenance and support agreement between the City and the System Contractor and at least 75 Users are impacted in the same manner as defined in the System maintenance and support agreement for a level 1 error U. "Level 2 Error" means a "Level 2 Error" as defined in the System maintenance and support agreement between the City and the System Contractor and at least 75 Users are impacted in the same manner as defined in the System maintenance and Page 3 of 15 support agreement for a level 2 error. V `Level 3 Error means a "Level 3 Error' as defined in the System maintenance and support agreement between the City and the System Contractor W. "Level 4 Error" means a "Level 4 Error as defined in the System maintenance and support agreement between the City and the System Contractor X 'Material Breach' means any breach of this Contract that (a) causes or may cause substantial harm to the non-breaching party; or (b) substantially deprives the non- breaching party of the benefit it reasonably expected under this Contract. Y. "Mobile Data Computer (MDC)" means commercial grade mobile computers operating in a law enforcement vehicle or otherwise not connected via a local or wide area network that are capable of Accessing System servers via a CJIS compliant connection Z. "Operation and Maintenance Cost' shall mean the budgeted amount required for the operation, maintenance, and support of the System which may include, but not be limited to the direct cost for license fees, vendor support costs. software and hardware upgrade andior replacement costs. administrative support of the User Board, maintenance. personnel. direct costs. facilities use and rental costs, and training for the upcoming year AA. 'Personal Computer (PC)' means commercial grade desk top computers that are capable of accessing System servers via a CJIS compliant connection BB "Person means an individual of any age, concerning whom Criminal History Record Information is contained in, or accessible through the System CC. "RPA Asset" shall mean hardware. software. equipment. real property and fixtures owned or leased by the RPA. DD "Specifications"shall mean the specifications contained in the contract between the City and the Contractor for the System governing its implementation and use by the City. Entry RPA, and Inquiry Only RPA EE. "System" is the law enforcement records management system acquired and implemented by the City of Portland for use by the Portland Police Bureau and the RPA. FF "System Administrator' shall mean a specially trained Authorized User that is authorized to perform System administrative functions GG "System Manager" is the individual with designated named backups appointed by the City of Portland to manage and operate the System on a daily basis. HH. "Use' means the City authorized Access given to RPA to assign Users. permission levels, enter data. and receive information from the System. I1. 'User' shall mean any person employed by or working on behalf of the City or an RPA. the City's and RPA's Bureaus and Divisions, Officers, Directors, and any person or entity authorized by the City and/or RPA to provide it with Services requiring use of the System, and to use the City's or an RPA's resources in whole or in part. in the course of assisting the City or an RPA. Page 4 of 15 JJ "User Board' shall mean the advisory body for the System that operates under the Intergovernmental Agreement for the User Board of the Regional Justice Information System Network (RegJIN). KK. "User Fees" are fees set by the City for RPA Access and use of the System and as agreed to between the City and a RPA in a Participating IGA. User Fees shall be updated annually based on the Cost Allocation Formula and do not require an Amendment. LL. "Withdrawal Plan" is a plan outlined in the User Board IGA, providing the manner of complete withdrawal of the RPA from this Agreement or for the RPA to change to an Inquiry Only RPA. 2. ORDER OF PRECEDENCE: In the event there is a conflict between the terms and conditions of one portion of this Agreement with another portion of this Agreement, the conflict will be resolved by designating which portion of the Agreement documents takes precedence over the other for purposes of interpretation, except where a clear statement of precedence other than that set forth in this section is included in the document. In this Agreement the order of precedence shall be Exhibit A— User Fees (2014) Exhibit B— Use Policy for LInX Northwest Exhibit C — System Procedures and Use Policy Exhibit D— Equipment and Security Requirements Exhibit E— Placeholder— as needed for additional work Exhibits C and D are available on the System's website at http:/lwww.portlandonline.com/regjinrc/index.cfm?&c=51409. Exhibits C and D will be revised as necessary to conform to updated requirements and procedures. 3. STATEMENT OF PURPOSE: The purpose of this Agreement is to define the terms and conditions under which the System will be Accessed and Used by the RPA. 4. SYSTEM ACCESS The City will contract with the System Contractor and will own all licenses to Access the System. The City will provide the RPA's Users Access to the System. 5. PROVIDED SERVICES: A. Enable Access via Equipment, including PCs. MDC,and other hand held devices for Authorized Use of the System by RPA Users. B. Provide the capability through the System to generate Oregon National Incident Reporting System (0-NIBRS) data for the RPA and to upload the O-NIBRS data to the State of Oregon in the proper format. <replace with Washington NIBRS. or Oregon NIBRS depending on RPA's requirements> Page 5 of 15 C Provide procedures. instructions and other documents to the RPA regarding the methods available and minimum requirements for RPA PCs and MDCs to gain access to the System. D. Provide instructions, documents, and arrange for the necessary training to certify one or more RPA System Administrators to perform limited administrative functions such as adding and removing Users from the System, establishing User IDs and passwords. setting up each User's Authorized Uses, and resetting passwords. RPA System Administrators will be trained as required. but not more than five (5) RPA employees will be trained at any one time E. Support the RPA's System Administrators in the performance of their System related administrative functions F Provide training materials, training mentors and access to the Systems training environment to enable RPA trainers to provide System training and instruction to RPA Users G Maintain and administer the System according to City of Portland Information Technology policies and procedures including backup and restore,operating system patches. and System version upgrades as required and certified by the System Contractor H. Monitor. audit, and trouble-shoot the upload of appropriate information from the System to the Oregon Law Enforcement Data System (LEDS) <W-ACCESS for Washington State agencies>. NCIC. and other interfaced crime and public safety databases and systems including but not limited to LInX Northwest Ensure that audit logs are maintained in the System in accordance with CJIS requirements J. Provide trouble reporting, trouble diagnostics and phone support on a 24-hour. 365 days per year basis K. Acknowledge trouble report calls within 30 minutes of receipt. L Initiate Level 1 error and Level 2 resolution supports within 2 hours or as specified within City labor agreements. whichever is greater Verified System Level 1 and Level 2 errors will be resolved as specified in the City's System's maintenance and support agreement with the System Contractor. M. Initiate Level 3 and Level 4 Error resolution Monday thru Fridays from 0800-1700. excluding recognized City of Portland Holidays. 6. RPA RESPONSIBILITY A. Compliance with Applicable Law. RPA warrants it has complied and shall comply with all applicable law, ordinances, orders.decrees. labor standards and regulations of its domicile and wherever performance occurs in connection with the execution. delivery, and performance of this Agreement. B. The RPA acknowledges and agrees that RPA employees will only use the System for Authorized Uses. Permission to use the information available in or through the System other than for Authorized Use shall be obtained in writing from the City prior to any such use. Page 6 of 15 C. The RPA acknowledges and agrees that RPA employees and subcontractors will only Access the System and information available in or through the System as authorized in this Agreement. Permission to Access the System or information available in or through the System other than as authorized in this Agreement shall be obtained in writing from the City prior to any such Access D. The RPA acknowledges and agrees that the RPA, RPA employees, and RPA subcontractors will not modify through computer programming or other techniques the functions. capabilities, and operations of the System unless written authorization is provided by the System Manager prior to performing such modifications E. The RPA acknowledges and agrees that; pursuant to the directions of the Oregon State Police<Washington State Patrol for Washington State Agencies>and Part IV of the National Crime Information Center (NCIC) Computerized Criminal History. Program Concepts and Policy, the City shall establish policy and exercise management control over all operations of the System. The System Procedures and Use Policy is attached as Exhibit C F RPA Administrators shall be responsible for creating User IDs. passwords, and establishing the Authorized Uses of the System for RPA Users within the constraints of the policies and procedures established by the City for such Users. G. RPA is responsible for providing its own Equipment. including PCs. MDCs, printers, and other RPA located devices required by RPA Users of the System. H. The RPA acknowledges and agrees that all RPA Equipment such as PCs and MDCs with Access to the System will be configured to meet the System's minimum requirements as specified in Exhibit D: Equipment and Security Requirements The RPA acknowledges and agrees that all RPA Users shall meet the Personnel Security requirements specified in Exhibit D: Equipment and Security Requirements. J. RPA is responsible for maintaining RPA PCs and MDCs according to City established requirements as specified in Exhibit D. Equipment and Security Requirements for the System. K RPA is responsible for installing, configuring and providing network access to devices located in RPA facilities and vehicles including, but not limited to printers, scanners. and image capture devices. L. RPA is responsible for providing secure network Access that 1) meets CJIS secunty requirements and 2)enables RPA PCs to reach the Systems network demarcation points M RPA is responsible for providing network connectivity that meets CJIS security policies and for providing all network communication devices and Equipment between RPA MDCs and the System N RPA is responsible for ensuring that all RPA network infrastructure and workstations with Access to the System comply with the most current CJIS security policy including, but not limited to, the physical security of workstations and MDCs that are able to Access the System, access control. identification and authentication. information flow enforcement, and system and information integrity RPA may contact the City to determine how to obtain the most current version of the CJIS security policy document.The RPA is responsible for curing any problems uncovered Page 7 of 15 as a result of an FBI audit. The City reserves the right to verify RPA's compliance with CJIS policies. O. RPA is responsible for correcting any O-NIBRS data identified by the System or by the State. <replace with Washington equivalent language for Washington Agencies> P. RPA is responsible for providing the City with the most current contact information for the RPA's security personnel and any changes thereof within 7 days of the change Q. RPA is responsible for ensuring that all RPA Users that are granted Authorized Use of the System comply with the appropriate CJIS security requirements. R RPA is responsible for checking the accuracy of, and generating standard O-NIBRS data for RPA and for the upload of the O-NIBRS information to the State of Oregon through the System. <replace with Washington NIBRS. or Oregon NIBRS depending on RPA's requirements> S. RPA acknowledges and agrees that data entered into the System by RPA Users shall conform to the standards and procedures established for the System as described in Exhibit C, System Procedures and Use Policy. The City shall notify the RPA in writing if data entered by RPA Users is found to be nonconforming to the established standards and procedures. The RPA shall, at its option, 1)Correct such data using RPA resources as soon as practicable, but not to exceed 30 days. or 2) request assistance by the City and reimburse the City for any costs associated with the City's removing or performing remedial actions on RPA data required to bring the data into conformance with established standards and procedures. 7. LInX NORTHWEST: A The RPA acknowledges and agrees to abide by all use policies set forth for participation in the NCIS Law Enforcement Information Exchange (LInX Northwest) system as stipulated in Exhibit B. Use Policy for LInX Northwest B The RPA authorizes the City to provide the RPA's public records category data that is contained in the RegJIN RMS to LInX Northwest for Access and authorized use by LInX Northwest users. 8. CONFIDENTIALITY: Maintenance of Confidentiality. The City and RPA shall treat as confidential any Confidential information that has been made known or available to them or that an Entry RPA has received, learned, heard or observed; or to which an RPA has had access The City and RPA shall use Confidential information exclusively for the City or RPA's benefit and in furtherance of this Agreement. Except as may be expressly authorized in writing by the City or RPA, in no event shall the City or RPA publish, use. discuss or cause or permit to be disclosed to any other person such Confidential information. The City and RPA shall (1) limit disclosure of the Confidential information to those directors,officers,employees and agents of the City or RPA who need to know the Confidential information, (2)exercise reasonable care with respect to the Confidential Information, at least to the same degree of care as the City or RPA employs with respect to protecting its own proprietary and confidential information, and (3) return immediately to the City or RPA who provided the information, upon its request. all materials containing Confidential Information in whatever form, that are in the City or RPA's possession or custody or under its control. The City and RPA are expressly restricted from and shall not use Page 8of15 Confidential intellectual property of the City or providing RPA without the City or that RPA's prior written consent B. The RPA acknowledge that each RPA is subject to the Oregon or Washington Public Records Acts. as applicable. and Federal law Third persons may claim that the Confidential Information may be, by virtue of its possession by the City or a RPA. a public record and subject to disclosure. RPA receiving a public records request agrees. consistent with its state public records law, not to disclose any information that includes a written request for confidentiality and as described above and specifically identifies the information to be treated as Confidential A RPA's commitments to maintain information confidential under this Agreement are all subject to the constraints of Oregon or Washington and federal laws. Within the limits and discretion allowed by those laws, the City and RPA will maintain the confidentiality of information. C. The RPA acknowledge and agree that the City and each RPA owns its own data in the System. RMS data can only be disclosed by the agency that entered it In the event of a public record request for System data which belongs to the City or another RPA. the City or receiving RPA shall inform both the requestor and the appropriate RPA within two business days that it is not the custodian of record for the requested data and identify the RPA that may be able to comply with the public record request. D. The RPA acknowledge that unauthorized disclosure of Confidential Information will result in irreparable harm to the City or providing RPA. In the event of a breach or threatened breach of this Agreement.the City or affected RPA may obtain equitable relief prohibiting the breach. in addition to any other appropriate legal or equitable relief. 9. LIMITS ON DISSEMINATION: The RPA's Dissemination of Criminal Justice Information available in or through the RegJIN RMS shall follow current Criminal Justice Information policies and procedures and/or other applicable State and/or Federal Laws. 10. INFORMATION CONTROL AND RESPONSIBILITY Additions, modifications, and deletions of information stored in the RegJIN RMS shall be restricted to specifically authorized RPA Users and devices. The City will provide the RPA with a list of RPA sworn personnel. Users and devices that are permitted Access to the System on an annual basis. The RPA shall verify the list and report any discrepancies within 60 days. The responsible Party shall update the list of authorized Users and devices in a timely manner 11. EQUITABLE REMEDIES The RPA acknowledges that unauthorized disclosure of City Confidential Information or misuse of a City computer system or network will result in irreparable harm to the City. In the event of a breach or threatened breach of this Contract. the City may obtain equitable relief prohibiting the breach in addition to any other appropriate legal or equitable relief. 12. SECURITY A Physical Security — the RPA shall be responsible for maintaining the physical Page 9 of 15 security of all devices that are authorized to Access the System, as well as any printed output or System Documentation which might permit unauthorized Access to. or use of the System from within the RPA. B. On-Line Security— The System contains procedures and tools to ensure that only authorized RPA Users and RPA devices can Access the information available in or through the System. RPA Users will be required to enter System User IDs and passwords before gaining Access to the System. System functions and System data. The RPA is responsible for issuing individual System User IDs and passwords to RPA Users. The RPA acknowledges and agrees that RPA employees will not share System User IDs and passwords C Personnel Security—Any individuals that are provided Access to the System by the RPA through the issuing of System IDs and passwords shall undergo the following security checks: 1) A personal background investigation equivalent to a background investigation that would enable them to access the RPA's own confidential information 2) Be fingerprinted and their identification and personal history verified through a check of the System's master name index, Oregon LEDS <or W-ACCESS whichever is appropriate for the Users agency>, the National Crime Information Center, and the FBI's Criminal Identification files. 3) Obtain appropriate certifications from the Oregon State Police <or Washington State Patrol depending on the state in which the User is employed> for any LEDS, <W-ACCESS for Washington State Agencies>. and NCIC transactions for which the User is authorized to perform within the System. D. The RPA acknowledges and agrees to deny Access and to deny issuing a System User ID and password if, upon investigation, any RPA employee requesting a System User ID and password is found to have provided intentionally false information in their personal statements. or who is shown to have been arrested and convicted for committing an offense which, under Oregon or Washington State law. can result in a sentence to a state penal institution for adults. or who is shown to have been arrested and convicted of committing a Class A or B felony as a juvenile in the States of Oregon or Washington within the past five (5) years E. The RPA acknowledges and agrees to immediately deactivate the System USER ID and password of any employee or contractor who is no longer an RPA employee. an RPA contractor, or who no longer requires Access to the System F. RPA shall provide immediate notification to the System Manager of any security breach that affects the System or any other City systems RPA shall provide notification to the System Manager of any incident relating to System integrity such as a computer virus G. Failure to comply with the Security and Access specifications contained in the Agreement and Exhibit D: Equipment and Security Requirements may. at the sole discretion of the City, result in the suspension of the RPA and the RPA Users' Access to the System until such failures are corrected to the City's satisfaction. 13. PROPRIETARY RIGHTS: All trademarks,service marks, patents. copyrights,trade secrets. Page 10 of 15 and other proprietary rights in or related to each Party are and will remain the exclusive property of that Party. 14. PAYMENT A. RPA acknowledges and agrees to pay the City the amount set out in Exhibit A: User Fees. which shall conform to the Entry RPA cost allocations contained in the Cost Allocation Formula in the User Board IGA in effect at the time of billing. B Additional services and/or System functions that are not routinely provided to other Entry RPAs under this Agreement shall be added via Amendment and billed as a separate line item identified in Exhibit A. C. Exhibit A. User Fees, shall be adjusted periodically to conform to changes in the Cost Allocation Formula or in the services and/or System functions provided by the City to the RPA. D. The City will invoice the RPA quarterly in conformance with Exhibit A: User Fees E. The RPA shall submit payment within 30 days of receipt of the invoice from the City F Failure to pay the City as due will suspend the RPA's access to the System until fully paid up G. In order to conform to the Cost Allocation Formula in the User Board IGA and to enable the invoice preparation per Exhibit A. RPA shall provide the City with the RPA's number of authorized sworn personnel plus any correctional deputies that will Access the System by November 1 of the calendar year before the year during which the invoices apply. 15. CITY AUDITS: The City,either directly or through a designated representative. may conduct financial and performance audits. City audits shall be conducted in accordance with generally accepted auditing standards. RPA shall provide the City's internal auditor or external auditor, and their designees with a copy of all reports, including any management letters issued as a result of the specified audits. Access to Records—The City internal auditor or City external auditor. and their designees, shall be given the right, and the necessary access,to review the work papers of RPA audits if the City deems it necessary Copies of applicable records shall be made available upon request at no cost to the City. 16. DURATION, WITHDRAWAL AND TERMINATION A. This Agreement is perpetual and shall continue from year to year unless otherwise terminated B. This Agreement may be terminated by either Party by the provision of a 90-day written notice of termination to the other Parry. Termination notices must be provided in writing and sent by either certified US mail, return receipt requested, or by personal delivery. C. The effective date of termination shall be on January 1 of the year following the year during which the 90-day written notice expired. D Upon the effective date of termination,the RPA may remove its RPA assets from the Page 11 of 15 System including any System data belonging to the RPA. All costs associated with the reasonable removal of the RPA's assets including System data owned by the RPA will be the responsibility of the RPA, unless termination notice is provided by the City in which case the City will either keep the data or the RPA will be responsible for all costs associated with the reasonable removal of the RPA's assets including System data owned by the RPA. E. A minimum of 180 days shall be allocated for the System Manager to withdraw an RPA.s assets including System data owned by the RPA from the System after the date upon which the termination becomes effective. The RPA may, at its option. continue to Access the System during this period F. In the event of termination, RPA shall pay the City for work performed in accordance with the Agreement prior to the effective date of termination 17. FORCE MAJEURE A. In the event that either Party is unable to perform any of its obligations under this Agreement(or in the event of loss of Use)due to natural disaster. actions or decrees of governmental bodies or communications line failure not the fault of the affected Party (hereinafter referred to as a "Force Majeure Event"), the Party who has been so affected immediately shall give notice to the other Party and shall do everything possible to resume performance. B. If the period of nonperformance exceeds fifteen(15)Calendar Days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may, by giving written notice. terminate this Agreement 18. VIOLATIONS OF THE AGREEMENT In the event of violation of the provisions of this Agreement, or violation of the security policy by the RPA, RPA employees. and/or RPA contractors, the City shall have the authority to immediately restrict or prohibit access to the System by RPA Users. RPA PCs, RPA MDCs. and other RPA devices until resolution of the problem to the satisfaction of the City The RPA shall be notified in writing of such action, given 30 days in which to cure the violation before access is restricted or prohibited. and there shall be no charge for Access during any time that Access is prohibited. 19 ROLLING ESTOPPEL: Unless otherwise notified by the RPA, it shall be understood that the City shall have met all its obligations under the Agreement. The City will be conclusively deemed to have fulfilled its obligations, unless it receives a deficiency report from the RPA by the fifteenth (15th)day of the month following the month of the alleged deficiency and the RPA identifies the specific deficiency in the City s fulfillment of its obligations in that report. Deficiencies must be aescribed in terms of how they have affected a specific performance requirement of City 20. DISPUTE RESOLUTION: The RPA shall cooperate with the City to assure that all claims and controversies which arise under this Agreement and which might affect the quality of such Services will be resolved as expeditiously as possible in accordance with the following resolution procedure. A. Any dispute between the City and RPA under this Agreement shall be resolved, if possible by the System Manager or their designee on behalf of the City and on behalf of the RPA. Page 12 of 15 B If the System Manager or the System Manager's designee and RPA are unable to resolve any dispute within three (3) business days after notice of such dispute is given by either Party to the other, the matter shall be submitted to Bureau of Technology Services Chief Technology Officer on behalf of the City and on behalf of the RPA for resolution, if possible C. Should any dispute arise between the Parties concerning this Agreement that is not resolved by mutual agreement above, it is agreed that such dispute will be submitted to mandatory mediated negotiation prior to any Party's commencing arbitration or litigation In such an event, the Parties to this Agreement agree to participate in good faith in a non-binding mediation process The mediator shall be selected by mutual agreement of the Parties. but in the absence of such agreement each Party shall select a temporary mediator and those mediators shall jointly select the permanent mediator All costs of mediation shall be borne equally by the Parties. D. Should an equitable solution not result from the foregoing. the City and Contractor shall be free to pursue other remedies allowed under this Agreement. E. Unless ordered by the City to suspend Access. the RPA shall proceed with Use without any interruption or delay during the pendency of any of the foregoing dispute resolution. During the pendency of any of the foregoing dispute resolution procedures, the RPA shall continue to make all payments that are not in dispute, in accordance with the provisions of the Agreement. 21. NOTICE Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following address or deposited in the United States Mail, postage prepaid. certified mail, return receipt requested, addressed as follows. or to such other address as the receiving Party hereafter shall specify in writing If to the Provider: RegJIN System Manager Portland Police Bureau 1111 SW Second Avenue, Room 1156 Portland, Oregon 97204-3232 If to the RPA Agency Contact Info xxxxxx xxxxxx xxxxxx 22. AMENDMENTS Except as a section or subsection may otherwise specifically provide. limit, or prohibit, the City and RPA may amend this Agreement at any time only by written amendment executed by the City and the RPA Any changes to the provisions of this Agreement shall be in the form of an Amendment No provision of this Agreement may be amended unless such Amendment is approved as to form by the City Attorney and executed in writing by authorized representatives of the Parties. If the requirements for Amendment of this Agreement as described in this section are not satisfied in full, then such Amendments automatically will be deemed null. void. invalid. non-binding, and of no legal force or effect. Page 13 of 15 23. INTERPRETATION: The terms and conditions of this Agreement shall be liberally construed in accordance with the general purposes of this Agreement and according to Oregon law. This Agreement shall be construed according to the laws of the State of Oregon without reference to its conflict of law provisions. Any litigation between the City and RPA arising under this Agreement shall occur,if in the state courts,in the Multnomah County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon. 24. INDEMNIFICATION: To the extent permitted by the Constitutions and laws of Oregon <and Washington>, the RPA and the City shall hold each other harmless and indemnify each other for the negligent acts, actions or omissions to act of their respective entity's, commissioners, officers, employees, and agents in the performance of their respective responsibilities and duties under this Agreement. Notwithstanding the foregoing, neither Party shall in any way be liable to hold harmless or indemnify the other Party for any costs or claims arising directly,or indirectly, out of any System related activities in which they are not participating. 25. ASSIGNMENT: The rights and obligations of each party under this Agreement may not be assigned in whole or in part. Any attempted transfer shall be null and void, of no force or effect. Attempted transfer of this Agreement shall be considered Material Breach of contract. 26. WAIVER: No waiver or any breach of Agreement shall be held to be a waiver of any other or subsequent breach of this Agreement. 27. REMEDIES: The remedies provided in this Agreement are cumulative, and may be exercised concurrently or separately. The exercise of any one remedy shall not constitute an election of one remedy to the exclusion of any other. 28.SURVIVAL: All obligations relating to confidentiality; indemnification; publicity; representations and warranties; proprietary rights as stated in this Agreement shall survive the termination or expiration of this Agreement. 29. NO THIRD PARTY BENEFICIARIES:, The Parties expressly agreed that nothing contained in the Agreement shall create any legal right or inure to the benefit of any third party. This Agreement is entered into for the benefit of the City and RPA. Except as set forth herein, nothing in this Agreement shall be construed as giving any benefits,rights,remedies or claims to any other person, firm, corporation or other entity, including,without limitation, the general public or any member thereof, or to authorize anyone not a party to this Agreement to maintain a suit for breach of contract, personal injuries, property damage, or Page 14 of 15 any other relief in law or equity in connection with this Agreement. 30. SEVERABILITY: The terms of this Agreement are severable and a determination by an appropriate body having jurisdiction over the subject matter of this Agreement that results in the invalidity of any part. shall not affect the remainder of this Agreement 31. INTEGRATION: This Agreement and the User Board IGA contains the entire Agreement between RPA and the City and supersedes all prior written or oral discussions or agreements il _-__ ______ �____. _ -_-' - _: CityoY_po�bnd NRPA: _ _ __ _ __- _- ____ _ - _ [By: I By: --' � - - ---' Name: | Name: -- Title: Title: _ , Date: { | _� | LName: _-_ �_ -_ [Date: [Date: i 3 C, ia /:;oi3 Master IGA Exhibit A RegJIN Records Management System Cost Sharing Formula The RegJIN Project Advisory Committee (PAC) has unanimously approved the following cost sharing formulas for the RegJIN RMS. The first cost sharing formula applies to Regional Partner Agencies ("RPA") that join the RegJIN RMS before initial go-live. The second formula applies to RPA that join after initial go-live. There are four cost sharing levels of RPA that will use the RegJIN System: • Entry Partners ("Entry RPA") with Police • Entry Partners ("Entry RPA") with Sheriff/Corrections Officers • Inquiry Partners ("Inquiry RPA") • Inquiry Fee-Exempt 1. Pre-Go-Live Cost Sharing Methodology a) Entry RPA shall pay full User fees based on the Cost Sharing Formula in e) below. Entry RPAs will make up the remaining costs not borne by Inquiry Only RPAs. b) Inquiry Only RPA shall pay User fees that are 50% of the per User cost for an Entry RPA. Inquiry Only RPAs are bound to an initial minimum of 5 Users and subsequent Users will be bundled in groups of ten. c) Each Sheriff Office Entry RPA's fees are determined based on the same formula as used for Police Entry RPA except that the number of funded non-corrections sworn positions is increased by the number of funded corrections officers divided by 50 rounded up to next whole number. d) Inquiry Exempt shall be waived any User fees. Inquiry Exempt agencies include Prosecuting Attorneys, District Attorneys, Prosecuting City Attorneys, and 911 centers. e) Each Police Department's Entry RPA User fees are calculated as a ratio of the Annual Operational Cost based on the number of funded sworn positions to the total number of all Entry RPA's funded sworn positions. The total number of Entry RPA funded sworn positions equals Police Department funded sworn positions in all Police Department Entry RPA plus, the total number of funded sworn non-corrections positions in Sheriff Office Entry RPA plus, the total number of corrections officers divided by 50 rounded up to next whole number. The following formula is used to determine each Agency's Entry RPA User fees based on their share of the Annual Operational Cost: X = (AOC/12) / (NSWORN+(NIU/2)) Where, • X is the monthly Full User Cost per sworn (and correctional), • AOC is the Annual Operational Cost for RegJIN (sustainment budget) • NIU is the number of Inquiry Only Users that will be charged • NSWORN is the number of Sworn officer augmented by correctional officers This methodology will be reviewed/revised one year after RegJIN go-live, once caseload data is available. At that time,the methodology may be revised to use,for example, a 50/50 formula using caseload numbers along with the sworn/correctional personnel numbers to determine each agency's cost share. 30003644 - MASTER INTERGOVERNMENTAL AGREEMENT FOR THE RegJIN RMS Exhibit A:RegJIN RMS Cost Sharing Formula For Example: X = (AOC/12) / (NSWORN+(NIU/2)) X= ($2,000,000/12) / (2500 sworn officers+ (500 Inquiry Only Users/2)) X=166,666 / 2750 X=$60.60 Entry RPA fees, per User, per month for a total monthly cost $30.30 Inquiry Only RPA fees, per User, per month, for a total monthly cost 2. Cost Sharing Methodology for Agencies that join the RegJIN RMS after Initial Go-Live a) Entry RPA that join the RegJIN RMS after initial Go-Live will be assessed a one-time joining fee, equal to their first year's share of User fees. If the joining Entry RPA chooses, they can appeal to the RegJIN User Board for a reduction of this initial assessment. b) The first year's fees of the Entry RPA will be determined based on the methodology established in Paragraph 1 (Cost Sharing Methodology) of this Exhibit A. c) Joining Entry RPA will not bear the cost of additional Users (software licenses purchased by the City) or the cost of any additions to the City's RegJIN infrastructure that may result by their joining. All RPA will share the cost of any additional Users (software licenses purchased by the City) resulting from a new Entry RPA's participation in the RegJIN RMS, as well as the cost of any additional City infrastructure necessary to support the resulting increases in transaction volumes and any applicable RegJIN RMS Users. d) Starting with the second year, the new Entry RPA's User fees will use the same ratio and methodology as used for all other Entry RPA (Police or Sherriff/Corrections). e) Training costs and initial setup costs (such as interfaces) are the responsibility of the joining Entry RPA and will be negotiated separately in the Participating IGA with the City. 30003644 - MASTER INTERGOVERNMENTAL AGREEMENT FOR THE RegJIN RMS Page 2 is (iD1aol3 Master IGA Exhibit A RegJIN Records Management System Cost Sharing Formula The RegJIN Project Advisory Committee (PAC) has unanimously approved the following cost sharing formulas for the RegJIN RMS. The first cost sharing formula applies to Regional Partner Agencies ("RPA") that join the RegJIN RMS before initial go-live. The second formula applies to RPA that join after initial go-live. There are four cost sharing levels of RPA that will use the RegJIN System: • Entry Partners ("Entry RPA") with Police • Entry Partners ("Entry RPA") with Sheriff/Corrections Officers • Inquiry Partners ("Inquiry RPA") • Inquiry Fee-Exempt 1. Pre-Go-Live Cost Sharing Methodology' a) Entry RPA shall pay full User fees based on the Cost Sharing Formula in e) below. Entry RPAs will make up the remaining costs not borne by Inquiry Only RPAs. b) Inquiry Only RPA shall pay User fees that are 50% of the per User cost for an Entry RPA. Inquiry Only RPAs are bound to an initial minimum of 5 Users and subsequent Users will be bundled in groups of ten. c) Each Sheriff Office Entry RPA's fees are determined based on the same formula as used for Police Entry RPA except that the number of funded non-corrections sworn positions is increased by the number of funded corrections officers divided by 50 rounded up to next whole number. d) Inquiry Exempt shall be waived any User fees. Inquiry Exempt agencies include Prosecuting Attorneys, District Attorneys, Prosecuting City Attorneys, and 911 centers. e) Each Police Department's Entry RPA User fees are calculated as a ratio of the Annual Operational Cost based on the number of funded sworn positions to the total number of all Entry RPA's funded sworn positions. The total number of Entry RPA funded sworn positions equals Police Department funded sworn positions in all Police Department Entry RPA plus, the total number of funded sworn non-corrections positions in Sheriff Office Entry RPA plus, the total number of corrections officers divided by 50 rounded up to next whole number. The following formula is used to determine each Agency's Entry RPA User fees based on their share of the Annual Operational Cost: X = (AOC/12) / (NSWORN+(NIU/2)) Where, • X is the monthly Full User Cost per sworn (and correctional), • AOC is the Annual Operational Cost for RegJIN (sustainment budget) • NIU is the number of Inquiry Only Users that will be charged • NSWORN is the number of Sworn officer augmented by correctional officers This methodology will be reviewed/revised one year after RegJIN go-live,once caseload data is available. At that time,the methodology may be revised to use,for example, a 50/50 formula using caseload numbers along with the sworn/correctional personnel numbers to determine each agency's cost share. 30003644 - MASTER INTERGOVERNMENTAL AGREEMENT FOR THE RegJIN RMS Exhibit A:RegJIN RMS Cost Sharing Formula For Example: X = (AOC/12)/ (NSWORN+(NIU/2)) X= ($2,000,000/12)/ (2500 sworn officers+ (500 Inquiry Only Users/2)) X=166,666 / 2750 X=$60.60 Entry RPA fees, per User, per month for a total monthly cost $30.30 Inquiry Only RPA fees, per User, per month, for a total monthly cost 2. Cost Sharing Methodology for Agencies that join the RegJIN RMS after Initial Go-Live a) Entry RPA that join the RegJIN RMS after initial Go-Live will be assessed a one-time joining fee, equal to their first year's share of User fees. If the joining Entry RPA chooses, they can appeal to the RegJIN User Board for a reduction of this initial assessment. b) The first year's fees of the Entry RPA will be determined based on the methodology established in Paragraph 1 (Cost Sharing Methodology) of this Exhibit A. c) Joining Entry RPA will not bear the cost of additional Users (software licenses purchased by the City) or the cost of any additions to the City's RegJIN infrastructure that may result by their joining. All RPA will share the cost of any additional Users (software licenses purchased by the City) resulting from a new Entry RPA's participation in the RegJIN RMS, as well as the cost of any additional City infrastructure necessary to support the resulting increases in transaction volumes and any applicable RegJIN RMS Users. d) Starting with the second year, the new Entry RPA's User fees will use the same ratio and methodology as used for all other Entry RPA (Police or Sherriff/Corrections). e) Training costs and initial setup costs (such as interfaces) are the responsibility of the joining Entry RPA and will be negotiated separately in the Participating IGA with the City. 30003644 - MASTER INTERGOVERNMENTAL AGREEMENT FOR THE RegJIN RMS Page 2 AIS-1482 4. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 5 Minutes Agenda Title: Proclaim Human Rights Day Submitted By: Joanne Bengtson, City Management Item Type: Receive and File Meeting Type: Council Business Meeting- Main Public Hearing: No Publication Date: Information ISSUE Should Mayor Cook proclaim December 10, 2013 as Human Rights Day? STAFF RECOMMENDATION / ACTION REQUEST Issue the Proclamation. KEY FACTS AND INFORMATION SUMMARY The date was chosen to honor the United Nations General Assembly's adoption and proclamation of the Universal Declaration of Human Rights on 10 December 1948 - the first global enunciation of human rights. The Human Rights Day was formally established at the General Assembly on 4 December 1950, when all member states and other interested organizations were invited to celebrate the day. The day is a high point in the calendar of UN headquarters in New York City, and is normally marked by both high-level political conferences and meetings and by cultural events and exhibitions dealing with human rights issues. December 10 is traditionally the day that the five United Nations Prizes in the Field of Human Rights and the Nobel Peace Prize are awarded. OTHER ALTERNATIVES Not issue the proclamation. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS DATES OF PREVIOUS COUNCIL CONSIDERATION This proclamation has been issued by Tigard's Mayor since 2008. Attachments Human Rights Day Proclamation C°-i►►-7 J ya '_`Sit ° ,'0 '^_ 0 ;w l�,l-,v, . city of DPrd "i.- '.>>` . HUMAN RIGHTS DAY <, a , i 1,;.. y r" _?%... WHEREAS,the General Assembly of the United Nations approved the Universal ...*,r. ' Declaration of Human Rights on December 10, 1948,declaring that"recognition of , ' the inherent dignity and equal and inalienable rights of all members of the human y + '. family is the foundation of freedom,justice and peace in the world";and �' WHEREAS,a recommitment by the United States to the principles and ideals of the r :* Universal Declaration is essential for its promise to ensure equality and justice;and },,tr;,-. WHEREAS,the basic human rights addressed in the Universal Declaration include i• •'b economic,social,and cultural rights,as well as civil and political rights, all considered "«'.. if' I to be equally important in fostering human dignity and freedom;and 1 � . I WHEREAS,the Universal Declaration calls for all people and governments to promote and respect recognized rights,while providing standards of achievement for ' governments throughout the world;and • WHEREAS,each year,the international community commemorates this event and - recommits itself to the broader achievement of human rights;and K WHEREAS,numerous community,civic, religious and non-profit organizations like the Human Rights Council of Washington County and other organizations and • ;1' T 11� individuals work to ensure equal rights and protections for all residents;and te," • r WHEREAS,the City of Tigard and the Human Rights Council of Washington County 4 . share this commitment of civil and human rights for all. 'f :s- w - ,VIP.* NOW THEREFORE BE IT RESOLVED that I,John L.Cook,Mayor of the City of f �' ; v Tigard,Oregon,do hereby proclaim December 10,2013 as, ;`s4 HUMAN RIGHTS DAY i y in Tigard,Oregon and encourage people throughout the city to join me in celebrating �� Human Rights Day on December 10 and Human Rights Week from December 8-14, fir(, v 2013. Dated this day of ,2013 r- ' -',i'+ IN WITNESS WHEREOF, I have hereunto set my hand and caused the Seal of the . '•` f■ Y• "'. - City of Tigard to be affixed. -- . = -, John L.Cook,Mayor ...e,,: • City of Tigard • Attest: . I,, 1 City Recorder •4 AIS-1468 5. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 5 Minutes Agenda Title: Appoint Budget Committee Members Prepared For: Toby LaFrance, Financial and Information Services Submitted By: Liz Lutz, Financial and Information Services Item Type: Resolution Meeting Type: Council Business Meeting- Main Public Hearing: No Publication Date: Information ISSUE Melanie Boekee moved out of the Tigard area and Cameron James' term ends on December 31, 2013. Therefore two vacancies need to be filled on the budget committee beginning January 1, 2014 and one vacancy for an alternate member of the budget committee. STAFF RECOMMENDATION / ACTION REQUEST Approve the recommended appointments to the Budget Committee. KEY FACTS AND INFORMATION SUMMARY Cameron James' Budget Committee term expires on December 31, 2013. Melanie Boekee moved out of Tigard, creating another opening on the Budget Committee. As a result, the Appointments Advisory Committee recently conducted interviews with several citizens who applied to become members of the Budget Committee. The Appointments Advisory Committee interviewed 11 citizen candidates. The committee is recommending the City Council appoint Julie Plotz to fill the last two years of Melanie Boekee's term ending on December 31, 2015. Additionally, the committee recommends Bill Bigcraft to a three-year term beginning January 1, 2014. Lastly, the committee recommends the appointment of Timothy Esau as an alternate for a one-year term beginning on January 1, 2014. OTHER ALTERNATIVES Council could decide to not approve some, or all, of the recommendations. This would necessitate reopening the recruitment. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS City will maximize the effectivenes of the volunteer spirit to accomplish the greatest good for our community. DATES OF PREVIOUS COUNCIL CONSIDERATION NA Attachments Resolution Committee Bio BUDGET COMMITTEE RECOMMENDATIONS BILL BIGCRAFT: Mr. Bigcraft has a Master's in Business Administration. He works as a Healthcare Project Lead/Solutions Architect. He has been involved with United Way and served on the Budget Committee for Mountain Park when he lived in Lake Oswego. He has lived in Tigard for 18 years. JULIE PLOTZ: Ms. Plotz has a Bachelor's degree in Accounting. She is the Senior Accountant for ESCO Corporation. She has lived in Tigard for over 4 years and is interested in getting involved in the community. Additionally, she is a Tigard CERT member. TIMOTHY ESAU: Mr. Esau holds a Master's degree in Information Management from the University of Oregon. He is a Systems Analyst at Intel Corporation. His activities in the community have included teaching Physics for St. Stephens Academy and serving on the Budget Committee for the Tigard-Tualatin Aquatic District. He has lived in Tigard for 25 years. AIS-1554 6. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 5 Minutes Agenda Title: Planning Commission Appointments Submitted By: Tom McGuire, Community Development Item Type: Resolution Meeting Type: Council Business Meeting- Main Public Hearing: No Publication Date: Information ISSUE Shall Council appoint Michael Enloe and Christopher Ouellette as voting members, and John Goodhouse and Tom Mooney as non-voting alternate members of the Tigard Planning Commission? STAFF RECOMMENDATION / ACTION REQUEST Approve a resolution appointing Michael Enloe and Christopher Ouellette as voting members of the Planning Commission whose terms will expire December 31, 2017; and John Goodhouse and Tom Mooney as non-voting, alternate members, whose terms will expire December 31, 2015. KEY FACTS AND INFORMATION SUMMARY There are currently two voting positions on the Tigard Planning Commission that will expire on December 31, 2013. The Planning Commission currently has no alternate members, but would prefer to have at least one. Tom Mooney, Christopher Ouellette,John Goodhouse, and Michael Enloe were interviewed on November 18th by the Mayor's Appointment Advisory Committee. The Committee recommended that Michael Enloe and Christopher Ouellette be appointed to fill the current voting member vacancies, and that John Goodhouse and Tom Mooney be appointed as non-voting alternates. Attachment 1 is a Resolution implementing these recommended appointees. Attachment 2 has biographical information on all four recommended appointees. OTHER ALTERNATIVES None COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS Tigard City Council Long Range Objectives: Tigard citizens are involved in the community and participate effectively. DATES OF PREVIOUS COUNCIL CONSIDERATION N one Attachments Resolution Bios Attachment 2 PLANNING COMMISSION RECOMMENDED APPOINTEES BIOGRAPHICAL INFORMATION On December 10, 2013,Tigard City Council will consider a Resolution to appoint Michael Enloe and Christopher Ouellette as members of the Tigard Planning Commission, and to appoint John Goodhouse and Tom Mooney as non-voting, alternate members. Michael Enloe has resided in unincorporated Washington County for three years. He is currently employed by Tri-County Metropolitan Transportation District of Oregon (TriMet) in an Engineering/Planning position. Prior to that,he worked for approximately 5 years as a Transportation Engineer for Washington State Department of Transportation (WSDOT) and holds a Bachelor of Science Degree in Civil Engineering. He's volunteered as a member of the Tigard Pedestrian &Bicyclist Advisory Committee for the past two years. Christopher Ouellette has been a resident of Tigard for five months,having lived in Beaverton previously. He's worked at the Oregon State Bar for over ten years as a legal assistant/secretary, and holds a Bachelor of Science in Political Science from the University of Oregon. Chris enjoys volunteering- most recently at several area triathlon/endurance races. John Goodhouse has been a Tigard resident for 38 years. He is self-employed as an independent agent in the insurance business. He holds an Associate's Degree from ITT Technical Institute and a Bachelor's degree from Concordia University.John is a board member of the Tualatin Chamber of Commerce, President of the Men's Auxiliary VFW Post 352, and a member of the Tigard Chamber Government&Public Policy committee. Tom Mooney has lived in unincorporated Washington County for 4 years. He's worked as a Deputy Fire Marshal/Fire Investigator with Tualatin Valley Fire& Rescue for the past 4 '/Z years. Tom holds an Associate's Degree in Fire Science as well as a Bachelor's Degree in Fire Protection and Safety Engineering Technology. Tom is a coach and volunteer board member of Tigard Little League. AIS-1510 7. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 5 Minutes Agenda Title: Request for Public Input- City Manager Performance Review Criteria Submitted By: Sandy Zodrow, City Management Item Type: Public Hearing- Informational Meeting Type: Council Business Meeting- Main Public Hearing: Yes Publication Date: Information ISSUE Is there any public input regarding the criteria and/or process that will be used to conduct the annual performance review for the city manager? STAFF RECOMMENDATION / ACTION REQUEST Receive public input regarding the criteria or process to be used for the city manager's performance review KEY FACTS AND INFORMATION SUMMARY On November 26, 2013, the City Council selected the review criteria and process to be used to evaluate the performance of the City Manager. The purpose of this hearing is to provide the public an opportunity to give input on the criteria and process. The process to be used to conduct the evluation will be the completetion of a written evaluation form by each of the Council members, department directors, executive staff, and the City Attorney. The City Manager's evaluation is scheduled to take place during an executive session on December 17, 2013. A copy of the evaluation form containing the performance criteria is attaached OTHER ALTERNATIVES N/A COUNCIL GOALS, POLICIES,APPROVED MASTER PLANS N/A DATES OF PREVIOUS COUNCIL CONSIDERATION November 26, 2013 Attachments City Manager Performance Review Form Council Appraisal of City Manager City of Tigard City Manager: Date: City Councilor: Mayor&Council Appraisal SECTION I: PERFORMANCE MEASUREMENT CRITERIA Please designate a rating in the appropriate box for each item, and include examples and comments which support the rating. Administrative Ability Planning: Ability to anticipate and analyze problems. Maps effective solutions. Exceeds ❑ Fully Effective❑ Developing ❑ Needs Improvement ❑ Comments: Organizing: Ability to arrange work and efficiently apply resources.Recognizes opportunities for management and operational efficiencies. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Timing-Opportunist: Makes decisions when sufficient information is available. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Analytical: In making decisions considers the best available facts,projections,and evidence. To the extent that resources permit,insures that these tools are available. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Job Knowledge: Has a solid understanding of all phases and departments of municipal government. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Personnel Functions Supervision: Builds and motivates a team,provides direction,monitors and adjusts performances as necessary. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Delegation: Effectively assigns work to others to get City business done efficiently. Exceeds El Fully Effective ❑ Developing ❑ Needs Improvement El Comments: Communication with Employees: Listens to employees and openly communicates in order to provide sufficient information to keep the employees motivated and part of the team. Understands their concerns. Exceeds El Fully Effective ❑ Developing ❑ Needs Improvement El Comments: Hiring: Recognizes the value of excellent employees and hires and maintains available staff. Exceeds ❑ Fully Effective ❑ Developing El Needs Improvement ❑ Comments: Labor Relations: Understands contract negotiations and contract administration.Equitably handles problems of grievances among subordinate employees. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Leadership: Motivates,encourages and seeks to develop skills and abilities in staff.Sets the standard for performance accountability by example. . Exceeds ❑ Fully Effective El Developing ❑ Needs Improvement El Comments: Collaboration Skills: Builds collaborative trust with staff. Treats staff with respect. Exceeds El Fully Effective ❑ Developing ❑ Needs Improvement El Comments: Risk Management: Implements effective programs to limit liability and loss. Exceeds El Fully Effective ❑ Developing ❑ Needs Improvement_❑ Comments: Page 2 of 10 Budget and Finance Financial Management: Accurately and concisely reports and projects the financial condition. Management practices and policies are designed to maintain or achieve a sound long-range financial condition. Uses debt cautiously,plans for the long-term replacement and maintenance of equipment and infrastructure. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Operational Efficiency: Obtains the best possible end result for the money spent.Monitors efficiency service improvement and effectiveness for all programs.Most economical utilization of manpower, materials and machinery. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Community Relations Public Service: Commitment to the service of the public. Recognizes and respects the value of public service. Projects a positive image of the City. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Forges Compromises: Has the ability to resolve conflicts with little or no assistance from outside sources. Is a good negotiator.Is credible and builds trust in the community. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Sensitivity: Listens and understands the positions and circumstances of others. Communicates that understanding. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Communication with the Public: Approachable and responsive to the public and takes their concerns and problems seriously,regardless of how insignificant the questions or complaints seem to be.Is able to represent Council at community events and forums.Pursues an outreach style of management as a spokesperson for city issues. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Public Involvement: Involves citizens in city issues and programs. Provides link between the Council and business community. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Media Relations: Develops effective relationships and positive image with public/media.Is able to accurately articulate City Council and community goals. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Page 3 of 10 Relation with Council Communication with Council: Accurately interprets the direction given by the Council. Provides Council with well informed concise oral and written communication. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Accepts Direction: Aggressively responds to the direction of the majority of the Council. Not sidetracked to the minority but recognizes their concerns. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Research: Prepares fully researched materials for Council action including alternatives and recommendations.Analyzes issues and presents policy alternatives to Council with documented justified recommendations.Assures that material is concise and easily understandable. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Intergovernmental Relations Develop Relations: Develops good working relationships with other local,county,regional,state and federal agencies. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Representative: Effectively represents the City on commissions,boards,and committees. Exceeds El Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Resource Developer: Exerts appropriate influence on decisions affecting Tigard from other agencies, gaining resources to benefit the City.Has basic understanding of federal and state grants and appropriations. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Interpersonal Skills Creativity: Implements effective and creative solutions to resolve City problems. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Honest.Fair: Consistently demonstrates integrity and honesty,straightforward and impartial. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement El Comments: Page 4 of 10 Adaptable: Responds positively to a changing work environment and changing local conditions. Does not cling to the status quo for its own sake. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: R esilient: Energy and motivation maintained in spite of constant demands. Handles stress well. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Ethical: Conforms to the high standards of the profession. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Professional Development: Takes action to acquire new knowledge and skills. Encourages employees to do the same. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Judgment: Thinks logistically and utilizes independent thought to make sound decisions. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Economic Growth Economic Development: Identifies and helps Council create conditions which foster economic development.Understands importance of,and knowledge of factors and methods for,maintaining existing businesses,as well as recruiting new ones.Recognizes relationship of local economy to region and beyond. Develops policies and guidelines to reasonably allocate costs of public improvements and services related to economic development between the public and private sectors. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement Comments: CITY WIDE CORE VALUES The City of Tigard is dedicated to setting the standard for service excellence. To that end, the organization is committed to job performance behaviors that demonstrate the City of Tigard's reputational values. Those values are: :• Get It Done • Do the Right Thing • Respect and Care Please provide a rating and appropriate supportive narrative in each of the Core Values that reflects how the employee incorporates these values into their daily work, or where they need to expend greater effort to demonstrate these values in their job. Page 5 of 10 GET IT DONE: Means that we will go the extra mile to exceed people's expectations; meet or beat deadlines; establish clear expectations and timelines so that there are no misunderstandings; offer to help when we see the need; and keep people informed of progress and steps to completion DEVELOPMENT NEEDED SUCCESSFUL EMPLOYEE EXCEPTIONAL PERFORMANCE COMMENTS: Explain how the employee is meeting or not meeting the specific performance expectations in this area. DO THE RIGHT THING: Means that we will focus on solutions, not excuses; if we see a problem we will own it until we take care of it or until we can find the right person to handle it; find opportunities to say"yes"versus"no"; be proactive, rather than waiting for something to become a problem; and look for options and alternative ways to solve problems. DEVELOPMENT NEEDED SUCCESSFUL EMPLOYEE EXCEPTIONAL PERFORMANCE COMMENTS: Explain how the employee is meeting or not meeting the specific performance expectations in this area. RESPECT AND CARE: Means that we will treat people well; welcome suggestions and diverse points of view; greet each other and the customers with a smile and a friendly tone; build collaborative and cooperative relationships with others; treat them with respect; and say thank you. DEVELOPMENT NEEDED SUCCESSFUL EMPLOYEE EXCEPTIONAL PERFORMANCE COMMENTS: Explain how the employee is meeting or not meeting the specific performance expectations in this area Page 6 of 10 SECTION II: ESTABLISHMENT OF GOALS& OUTCOMES FOR UPCOMING RATING PERIOD Outline the goals for the upcoming period and the desired outcomes.The City Manager's goals should be related to the Community goals. The City Manager goal may include a new project or may include a goal that is an ongoing fundamental portion of the position. Any number of goals may be set. The desired outcome is the standard against which performance will be measured. These should be specific and measurable including timeframes. Dargerty Goal: Individual Goal: Desired Outcome: Dept/City Go Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: io Dept/City Goal:- Individual Goa Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal.. . Individual Goal: Desired Outcome: Page 7 of 10 Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: SECTION III: COUNCIL'S SUMMARY COMMENTS The following is an overall performance rating for the City Manager,recommended action by the Council,and sign off. The City Manger's signature does not necessarily mean that the City Manager agrees with the rating, only that the evaluation process has taken place. Summary Comments: Page 8 of 10 Overall Rating(check one): Exceeds: Exceeds expectations in all or majority of categories. 0 Fully Effective: Meets expectations in all categories(may exceed in some) n Developing: does not meet expectations in one or more category n Needs Improvement: Does not meet expectations in majority of categories n City Manager's Signature Date Mayor's Signature Date Page 9 of 10 i AGENDA ITEM No. 7 Date: December 10, 2013 PUBLIC HEARING TESTIMONY SIGN-UP SHEETS Please sign on the following page(s) if you wish to testify before the City Council on: City Manager Performance Review Criteria Due to time constraints there may be a time limit on testimony AGENDA ITEM No. 7 Date: December 10,2013 PLEASE PRINT Proponent—(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. AIS-1559 8. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 10 Minutes Agenda Title: Consider Authorizing the City Manager to Execute an Easement Related to the Potso Dog Park Parking Lot Project Submitted By: Carol Krager, City Management Item Type: Motion Requested Meeting Type: Council Business Meeting- Main Public Hearing: No Publication Date: Information ISSUE Shall the council authorize the city manager to execute an electrical line easement related to the Potso Dog Park parking lot project? STAFF RECOMMENDATION / ACTION REQUEST Staff recommends the council authorizes the city manager to sign the easement. KEY FACTS AND INFORMATION SUMMARY Potso Dog Park is located on a two-acre lot adjacent to Wall Street, south of Hunziker Street, behind Charter Mechanical (formerly COE Manufacturing). The City of Tigard leased the park property from COE Manufacturing for several years before purchasing it in 2011. Funds for the property purchase came from the $17 million park and open space bond measure passed by voters in 2010. The city proceeded to apply for a land use approval to bring the park up to current standards. The adjacent gravel parking area was acceptable at that time, but staff knew that a future phase of the work would be to construct a formal paved parking lot. At present, the onsite park improvements have been completed and now it is timely to complete the formal parking lot. Paving the parking lot requires a "minor modification" of the previous land use approval, which was issued on October 28, 2013. There is an existing PGE utility pole located within the parking lot area. The reconfiguration of the parking lot and drive aisle necessitates the installation of another pole and new guy wire location. Since the pole and associated power lines lie outside of the public right of way, PGE has requested the city grant an easement in order to allow for access to the pole and associated power lines for maintenance. OTHER ALTERNATIVES The council could elect not to authorize the easement and could direct staff to take some other course of action. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS None DATES OF PREVIOUS COUNCIL CONSIDERATION This is the first time this easement has come before the council. Attachments Potso Electrical Easement Potso Exhibit AIS-1544 9. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 10 Minutes Agenda Title: View a Promotional Water Video Prepared by the Lake Oswego Tigard Water Partnership Prepared For: Dennis Koellermeier, Public Works Submitted By: Greer Gaston, Public Works Item Type: Update, Discussion, Direct Staff Meeting Type: Council Business Meeting - Main Public Hearing: No Publication Date: Information ISSUE Shall council view a promotional water video prepared by the Lake Oswego Tigard Water Partnership? STAFF RECOMMENDATION / ACTION REQUEST No action is requested; staff recommends the council views the video. KEY FACTS AND INFORMATION SUMMARY The Lake Oswego Tigard Water Partnership team, in conjunction with the city, developed the video to promote the importance of water. The video was shot at the Tigard Farmers Market in mid-September where market-goers were asked, "What would a day without be like?" The video is a compilation of their responses. The video is/will be aired: •On the city's website. •On the partnership's website. •In the lobby of the library the week of December 16. •At the Intergovernmental Water Board meeting on December 11. •At meetings of various service clubs and civic organizations. •On Tualatin Valley Community Television. Water customers are encouraged to view the video as a Hot Topic on the city's website and via a front page blurb in the winter edition of Know H20, the city's official communication venue for water-related issues and information. The Know H2O newsletter is direct mailed to approximately 26,000 households within the Tigard Water Service Area, including households in Durham, King City, two-thirds of Tigard and sections of unincorporated Washington County within the Tigard Water District. The winter edition will arrive/arrived in the mail in early December. OTHER ALTERNATIVES Not applicable COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS None DATES OF PREVIOUS COUNCIL CONSIDERATION This is the first time this promotional video has come before the council. The council received a memo regarding the video and a pre-publication copy of Know H2O in its November 21, 2013, newsletter packet. Attachments No file(s)attached. AIS-1455 10. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 20 Minutes Agenda Title: Report Responding to Options for Big Box Code Related Amendments Prepared For: Marty Wine, City Management Submitted By: Cathy Wheatley,Administrative Services Item Type: Meeting Type: Council Business Mtg - Study Sess. Public Hearing: Publication Date: Information ISSUE Report from city attorney responding to questions about options for code amendments to regulate big box businesses. In response to requests that the city take action to regulate the business environment or practices of big box retailers, the council reviewed and discussed several possibilities about regulations and focused in on two questions regarding the Tigard Municipal Code: 1) could the city prohibit overnight stays in the parking lots of big box retailers; and 2) could tenants of a development be named at the time of development application, or named if the proposed tenants change. STAFF RECOMMENDATION / ACTION REQUEST Staff recommends that council review and discuss regulatory tools and potential changes to the Tigard Municipal Code and provide guidance for desired next steps. KEY FACTS AND INFORMATION SUMMARY At the April 30 Town Hall meeting and subsequently at the June 11 Council study session, the Council considered what actions a city could take to regulate the business environment of big box retailers. The City Attorney has reviewed the two areas of potential change that the Council wished to explore further: 1) regulating overnight parking lot use; and 2) regulating or requiring disclosure of big box tenants. Council is asked to provide guidance about what policy objectives or activities of concern are desired to be regulated. In both cases, Council is asked to clarify the activity of concern as an important first question for discussion. 1. Overnight parking. TMC 7.80.020 already prohibits camping in public areas and the Council may find that current code meets the policy objectives. Should the Council wish to change the parameters for where and when recreational vehicle (RV) camping is permitted, specific direction to staff is requested. The legal question regarding overnight parking is whether existing code addresses the current issue of concern. If it does, council can direct staff(police or code enforcement) to enforce the camping prohibition. Practically, the complaint of overnight parking would be a fairly low priority call to respond to. If the Council elects to amend the TMC to add "big box parking lots" to the TMC that regulates overnight parking as it relates to "camping," it will be important to clarify how exceptions would be granted. Staff recommends that if TMC is amended, the ordinance should include a maximum number of days (nights) that are allowed. The Tigard Police Department has inquired of neighboring jurisdictions as to any problems or incidents related to overnight parking at big box stores. Tigard has not experienced any incidents or problems with camping or RV parking in current big box parking lots. Should the Council prefer to change to the development code change that specifies circumstances in zoning districts in which people can stay overnight in an RV, a permit would likely be required and this change could be added to the upcoming process and procedures code changes package that is scheduled to begin in 2014. 2. Regulating or requiring disclosure of big box tenants. Council's prior discussion centered on whether the previous situation with a development application could be avoided, in which the developer applied for a Site Development Review (SDR) and named Target as the tenant, and subsequently replaced the tenant (WalMart) without city review or approval. Current city code does not require an applicant to name the tenant. There are potential difficulties in trying to apply regulations requiring disclosure of tenants without complicating the application process. The City could not deny an application based on one tenant over another so the knowledge about the tenant would not be actionable. In the case of WalMart, the developer did disclose their original tenant, Target, but then that proposal fell through. From an applicant's perspective, there could be a down side to requiring tenant disclosure. For example, an applicant interested in flex space may not have a tenant identified and then it introduces complexity into the application if there are changes in the application. If the Council's policy objective is to limit the presence of big box retailers generally, the Council could consider maximum size (square footage) limitations on commercial development in specific zones. This type of cap limits or restricts big box development and does so uniformly. OTHER ALTERNATIVES This item is presented for Council discussion. The Council could choose to take no action, or to explore these concepts further and craft a specific proposal that achieves the Council's policy objectives. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS DATES OF PREVIOUS COUNCIL CONSIDERATION June 11, 2013 Attachments CA memo-big box JORDAN RAM I S PC rk.AT TORNEYS AT LAW 0.� Two Centerpointe Dr 6th Fl Phone: (503)598-7070 Lake Oswego OR 97035 Toll Free: (888)598-7070 www.jordanramis.com Fax: (503)598-7373 LEGAL MEMORANDUM TO: Mayor and City Council FROM: Tim Ramis DATE: October 14, 2013 RE: Big Box Regulatory Issues File No. 50014-36799 PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION INTRODUCTION The City Council directed the City Attorney to provide an overview of potential code changes to achieve two policy objectives. These objectives are to, (a) prohibit overnight stays in the private parking lots of big box retailers, and (b)to require a City review and approval in association with changing big box tenants. This memorandum provides some guidance as to the potential legal and policy considerations associated with amending the code in a manner that is not discriminatory and is narrowly tailored to achieve the desired policy objectives. OVERNIGHT PARKING LOT USE Concerns have been expressed with the overnight use of the parking lots associated with big box retailers. An example of activities that were discussed by the Council is the use of big box parking lots for overnight parking of recreational vehicles. The Council generally has three options on how to proceed. It can either: (1) determine that the existing Tigard Municipal Code ("TMC") already prohibits the activities that are of concern; 50014-36799 Memo to Mayor and Council Big Box Regulatory Issues.DOCXtTRN/10/14/1013 JORDAN RAM I S .'C ATTO AMf Y• AT LAW October 14, 2013 Page 2 (2) provide direction to staff on specific code changes that meet the Council's policy objectives; or (3) take no action. 1. TMC Camping Prohibition The City Code already prohibits camping in public areas. TMC 7.80 states that, "It is unlawful for any person to camp in or upon any sidewalk, street, alley, land, public right-of-way, transit facility or bus shelter, or any place to which the general public has access,or under any bridgeway or viaduct,unless otherwise specifically authorized by this city or by declaration by the mayor in emergency circumstances." TMC 7.80.020. The term "camping" is broad enough to include setting up and use of a"campsite,"meaning, "any place where any bedding, sleeping bag,or other sleeping matter,or any stove or fire, is place,established, or maintained,whether or not such place incorporates the use of any tent, lean-to, shack, or any other structure, or any vehicle or part thereof." TMC 7.80.010(B). One issue that the Council can address is whether or not the existing prohibition on camping already addresses its policy objectives. If the parking lot of a big box retailer is a"place to which the general public has access,"and staying overnight in a recreational vehicle meets the definition of"campsite"(e.g. involves bedding, stove, and a vehicle),then the Council can find that overnight stays in RVs in big box retail parking lots are already prohibited by TMC 7.80.020. Should a majority of Council find that TMC 7.80 already prohibits overnight stays in recreational vehicles in big box parking lots,the Council can provide direction to staff to enforce the code on this point. 2. Amending the TMC Should the Council find that TMC 7.80 does not meet all of its policy objectives, it can amend the code to do so. Such an amendment could be as simple as to add"big box parking lots"to the list of places where camping is prohibited, and specify that staying in a recreational vehicle is considered"camping." 50014-36799 Memo to Mayor and Council Big Box Regulatory Issues.DOCX\TRN/10/14/1013 JORDAN RAM I S PC •TTO■66T• AT LAN October 14, 2013 Page 3 An additional manner of regulating the situation is to define where and how the Council would allow for overnight stays in recreational vehicles. One example of such an approach is the City of Roseburg which specifies which zoning districts people can stay in RVs, and requires a permit be obtained ahead of time. The City of Stayton, Oregon also utilizes a similar approach by prohibiting camping on public property, but allowing the Chief of Police to grant permits for use of RVs that meet certain specifications. Should the Council desire to amend the TMC to further identify the parameters in which RV camping is allowable, the Council should provide as specific direction as possible to the City Staff. Staff can then work with the City Attorney to memorialize that direction in a specific draft amendment to the TMC and identify any legal concerns therewith. The draft amendment would be brought back to the Council at a later meeting. 3. Maintain Status Quo Should the Council find that the current TMC does not prohibit overnight RV stays in big box parking lots, and that it does not desire to do so, the Council can decline to take action on this matter. Such a decision does not prohibit future action by the Council should there be complaints regarding RV camping or any other use of big box parking lots in the City. No formal vote is required to undertake this approach. REGULATING BIG BOX TENANTS Concerns have been expressed that big box development tenants are not adequately regulated by the Tigard Development Code ("TDC"). Specifically. the current TDC could allow an applicant to build a big box development without specifying what tenant will be located therein, and that the owner of an existing big box development could change tenants without a review process and approval from the City. Under the TDC, it is likely that any big box development would be reviewed through the Site Development Review ("SDR") process at TDC 18.360. The standards applicable to SDR review do not require an applicant to identify an intended tenant or occupant of the project, only requiring that when a tenant does move in,that they obtain a business license from the City. It is within the power of the City to amend the SDR code to require applicants to identify intended big box tenants as part of the application process, so that any City land use approval would be limited to a specific tenant, and require additional City review and approval to change that user. Such an approach would ensure that the City has notice of what tenant will use space when the City approves an application, but could have impacts beyond that. If the Council 50014-36799 Memo to Mayor and Council Big Box Regulatory Issues.DOCX TRN/10/14/2013 O RDAN RAM 1 S PC ATTU 88888 AT LAM October 14, 2013 Page 4 decides that it is interested in pursuing this approach, the following two questions should be considered. • Would the City have the authority to approve or deny a project based on the intended user? • Will the requirements be limited to "big box" retail operations? The balance of this memorandum discusses the legal and policy issues associated with these questions. 1. Would the City have the authority to approve or deny a project based on the intended user? This question gets at the intended objective of the City in passing such regulations. Is the City trying to require that applicant only identify the intended tenant beforehand so that the City and other stakeholders are informed before the decision? Or is the City trying to establish approval criteria that are applicable to and distinguish between occupants that are within the same use category (such as "big box" retailers)? If the requirement is simply for an applicant to identify a proposed occupant and perhaps supply a letter of intent for the space,the issue is fairly straightforward. However, if the City is trying to distinguish between different retail operations,the regulatory approach must be crafted in a manner that has a rational and legitimate purpose, and does not allow the City to make arbitrary distinctions between big box retail operations. As noted in the prior memorandum to Council dated May 28, 2013, a case can be readily made for the policy rationale behind regulating big box retailers and their effects on the City economy (e.g. reduced market share for"mom and pop"retailers, lack of ties to the City business community, etc.). However, because any City regulation must have a rational and legitimate purpose, any regulation that seeks to distinguish between big box retailers must do so in a manner that is not arbitrary, or could result in liability to the City. As such, regulations that are more narrowly tailored to target specific retailers are not recommended. 2. Will the requirements be limited to "big box" retail operations? The City could apply a requirement to identify intended occupants to any commercial or industrial development of any size, in the City. However, one consideration in requiring applicants to have an intended occupant is that it effectively prohibits speculative building. On the big box scale, speculative building is less common than smaller retail spaces. For example, it 50014-36799 Memo to Mayor and Council Big Boo Regulatory Issues.DOCXITRN/10/14/1013 JORDAN RAM I S PC LAM October 14, 2013 Page 5 is fairly common that a proposed office building or retail complex will have identified an anchor tenant or tenants, but also be looking to create additional office or retail space that would be leased after development. As such, any requirement to identify future tenants should be limited to only affect the kinds of development that is the source of the Council's concern. If that is big box retailers, a narrowly tailored approach is suggested, so that the City avoids creating additional requirements for smaller operations and landlords trying to change tenants when a lease expires or a business moves. Should the Council desire to amend the TDC to require identification of intended tenants, the Council should provide as specific direction as possible to the City staff. City staff can then work with the City Attorney to memorialize that direction in a specific draft amendment to the TDC and identify any legal concerns therewith. The draft amendment would be brought back to the Council at a later meeting. 50014-36799 Memo to Mayor and Council Big Box Regulatory lssues.DOCX\TRN/10/14/7013 Cathy Wheatley `ef Pl4J1uct From: Liz Newton ��� A I'.fU` I l Q Sent: Monday, December 16, 2013 12:22 PM L To: Cathy Wheatley Subject: FW: Good morning! 1.0). I 0 lao 13 Hi Cathy, Please incorporate Ms. Crichton's email into the record on the big box issue. Thanks! Liz From: Liz Newton Sent: Monday, December 16, 2013 12:21 PM To: 'Karen C'; Councilmail Councilmail Subject: RE: Good morning! Ms. Crichton, Sorry you were unable to attend the council hearing on this issue to present your testimony. Thank you for sending this email summarizing your concerns. I will ask that it be incorporated into our research for the Council's next review. Regards, Liz Newton From: Karen C [mailto:karen c83 @yahoo.com] Sent: Thursday, December 12, 2013 8:56 AM To: Councilmail Councilmail Subject: Good morning! Dear Mayor & Council, I apologize for not being in-attendance at Tuesday's Council meeting, I greatly appreciate that you are starting-up a dialogue regarding development and the new Walmart. You now have an opportunity to set an example for other cities, and to satisfy the many citizens who oppose the new Walmart, by finding & activating tools that will ensure the success of the entire business community. Since I missed the meeting, I hope you will allow my two-cents-worth, here; -1 am concerned that the area's affected businesses are not being invited into this discussion. 1 I had contacted the Management at WinCo, Costco and BiMart, urging them to attend & participate-in this week's Council meeting — did you invite them, as well? These are the people with the hands-on business experience who can help you determine how to have a thriving business community. They can provide you with realistic ideas about how to put all Tigard businesses on a more-level playing field. Deborah Herron (Walmart PR/lobbyist) has had plenty of opportunities to direct your Staff on how to accommodate Walmart, the rest of Tigard's businesses deserve a place at that table as well. You have spent a lot of time & resources on Main St. issues. When the Sherwood & Tigard Walmarts are up & running, many small businesses all along the 99W corridor will be annihilated — there is no other word for what is going to happen to Tigard's small business community, as well as the larger businesses that are more direct-competition for the Walmart. I don't know what you hear from your business community, but what I hear is that they are angry about the Walmart, they are fearful for their own businesses, and they feel betrayed by their City government. It's time you heard from them directly, and *not* through the Chamber or your Staff. -You certainly have the ability to control some of the potential problems through zoning changes. You know, commercial realtors still routinely advertise commercial properties in Tigard as "zoned and suitable for adult entertainment..." The property next-to Babies R Us, is being advertised as such, for example. With the urban sprawl occurring in the area, 99W should no longer automatically be considered home to strip clubs, head shops & check-cashing stores — we can do-better than that. Most of tenants in the Pacific Crossroads Shopping Center on 99W, including Plaid Pantry (an Oregon company), have grave concerns about how the Walmart development will impact their business. They already lose business to congested traffic at that location. Some have already relocated because of the traffic problems affecting their business (Rudy's Barbershop, for one). So Plaid's lease now has a clause stating that they can vacate the lease when the new median is built down Hwy. 99W. Once a vacancy occurs there, it means the leasing agent will be scrambling to find a tenant who is willing to move into an already-troubled location. What action are you willing to take *now*, to prevent the drain of the more family-oriented businesses in the area, and prevent an influx of the businesses one frequently finds in economically-depressed areas? As a long-term project, starting on the day it opens, I will be tracking the economic-impact of the Tigard Walmart. The Sherwood store will figure into this assessment as well, once it opens. With some help, I am creating a system that will be tracking downturns in sales numbers from the other area businesses, business closures, the impact on County/State public-assistance programs, increased traffic delays (& delays for first-responders stuck in that traffic), upswings in crimes around the stores, etc. Walmart has set-up one of their Southern-style monopolies here, and the true impact on the Tigard/Sherwood area will be tracked and well-documented. What would you like Tigard's outcome to show, in such a report? What can I, and our group, do now to help you prevent some of this damage from occurring? 2 I would be thrilled to be part of any dialogue regarding these matters, as long as it is a true-effort to identify and activate mechanisms to create a family-friendly city with a healthy, thriving business community. There are several others involved in Tigard First! - some you already know, some you have not met — who would also be willing to step-up to this challenge. I/we would be happy to talk and/or meet-with any or all of you. We can do so individually, privately, or as a group-effort. Please get in touch any time about this or any other matters, looking forward to hearing from you! Karen Crichton (emails are always fine, or call 503.699.8158 — my private number & voicemail box) DISCLAIMER: E-mails sent or received by City of Tigard employees are subject to public record laws. If requested, e-mail may be disclosed to another party unless exempt from disclosure under Oregon Public Records Law. E-mails are retained by the City of Tigard in compliance with the Oregon Administrative Rules "City General Records Retention Schedule." 3 AIS-1528 11. Business Meeting Meeting Date: 12/10/2013 Length (in minutes):20 Minutes Agenda Title: Discuss Legislative Agenda for 2014 Legislative Session Prepared For: Liz Newton, City Management Submitted By: Liz Newton, City Management Item Type: Update, Discussion, Direct Staff Meeting Type: Council Business Meeting - Main Public Hearing: No Publication Date: Information ISSUE Develop the city's legislative agenda for the 2014 Oregon Legislative Session. STAFF RECOMMENDATION / ACTION REQUEST Discuss the city's legislative priorities for the upcoming session and direct staff to prepare a legislative agenda for consideration and adoption on January 14, 2014. KEY FACTS AND INFORMATION SUMMARY The Oregon State Legislature is scheduled to convene on February 4, 2014 for a short session. This is an appropriate time for council to adopt a legislative agenda to communcate the city's legislative priorities. Staff recommends council consider the following for inclusion in the 2014 Legislative Agenda. From the League of Oregon Cities list of policy issues: Referral regarding the legalization of marijuana Local Improvement Districts 9-1-1 Tax on Prepaid Wireless Water Supply Development Fund Appropriations Labor and Supervisor Management Franchise Fees A summary of these policy issues is attached as Exhibit "A". The scope of legislation considered in the upcoming session will likely be very limited. However there may be one or two ongoing issues of interest the council would like to include in the city's legislative agenda. The city's 2013 Legislative Agenda focused on economic development/jobs, transportation, financial stability and growth and development. A copy of the 2013 legislative agenda is attached for reference. Another issue raised by staff relates to uncertainty around the Vertical Housing Program. The Vertical Housing Program encourages mixed-use commercial / residential developments in areas designated by communities through a partial property tax exemption. The exemption varies in accordance with the number of residential floors on a project with a maximum property tax exemption of 80 percent over 10 years. An additional property tax exemption on the land may be given if some or all of the residential housing is for low-income persons (80 percent of area median income or below). A number of cities, including Beaverton and Hillsboro, are using vertical housing to encourage mixed-use development. This is a potential tool for Tigard to use in partnership with housing developers; however, uncertainty exists as to whether the program will be extended beyond its 2016 sunset. In an effort to coordinate with our regional partners, staff will obtain legislative agendas form Washington County and the cities of Beaverton,Hillsboro, Sherwood and Tualatin and provide them to council as they are available. OTHER ALTERNATIVES N/.1 COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS N/.\ DATES OF PREVIOUS COUNCIL CONSIDERATION N/.\ Attachments League of Oregon Cities Policy Issues of Interest 2013 Legislative Agenda EXHIBIT A 2014 League of Oregon Cities' policy issues of interest: Referral regarding the legalization of marijuana Should the legislature decide to take up the issue of referring to voters a measure legalizing the recreational use of marijuana,the League would like to be involved in those discussions, particularly as they relate to:the governing agency responsible for oversight; public safety; local licensing,siting and zoning authority; production limits and taxation and revenue distribution. Local Improvement Districts Cities rely on local improvement districts to complete important upgrades to infrastructure that benefits a local area within the city's boundaries. The League is concerned that legislation will be brought that will limit the ability of cities to use this financing mechanism that insures that the beneficiaries of specific improvements bear the cost of those improvements and instead lead to the general taxpayer funding these projects from the limited general funds cities currently have available. 9-1-1 Tax on Prepaid Wireless While the legislature extended the sunset date for the 9-1-1 tax on telecommunication services,the prepaid cell phone market remains outside this important revenue source. With prepaid phones becoming an increasing portion of the industry and such phones being used to access the emergency service system, we believe that the work of finalizing the collection mechanism for such a fee must be finished in the 2014 session and the prepaid cell phone users will thereby pay their fair share for this vital service. Water Supply Development Fund Appropriations The League requests a budget note to the budget reconciliation bill,or other appropriate legislation, clarifying the appropriation of lottery bonds from the Water Supply Development Fund.This fund was established in 2013 legislation,which included authorization for two specific projects—the state$1.5 million match for a water reallocation project in the Willamette Basin and a$750,000 fund for a comprehensive basin study for the Deschutes Basin. In 2013,$10 million was appropriated to the development fund and the two projects now need a budget note to finalize the funding outside the loan and grant process as laid out in the authorizing bill. Labor and Supervisor Management The League would once again oppose changes to Oregon's collective bargaining law that would place supervisory employees into collective bargaining units and require mid-term bargaining to be subjected to binding arbitration. Similarly,the League would urge caution in regards to changing Oregon's public contracting code in a short session. Public contracting is an area fraught with complications that require robust deliberations not offered in the time available. Franchise Fees While the League worked on legislation in the 2013 session to address the differences in franchise fees charged to different types of telecommunication companies. While we appreciate the need for equity, the League is concerned about proposed legislation that would alter the statutory basis for franchise fees. We oppose any preemption on local authority related to franchise fees and other right-of-way management policies. We prefer that the discussions started in 2013 continue through a work group and present a solution for possible consideration in the 2015 session. I 2013 itt 70 Legislative Agenda ..e t. Tigard Oregon "She flies with her own wings?' -Judge Jessie Quinn Thornton,1854 Economic Development/Jobs • Jobs/Economic Development Initiative Endorse the League of Oregon Cities (LOC)Jobs/Economic Development Initiative to support three policy options in the Oregon Business Development Department's budget: ❑ The Brownfields Redevelopment Fund for gap funding to clean up industrial sites. Sen. Ginny Burdick ❑ Patient Capital for Industrial Lands Pilot Program for funding to SENATE DISTRICT 18 cities to install infrastructure and conduct feasibility studies 900 Court St. NE,S-213 Salem,OR 97301 needed for sites to be "shovel ready." sen.ginnyburdick @state.or.us ❑ The Employment Site Re-Use/Redevelopment Pilot Program to assist communities with funding incentives to reuse/redevelop existing industrial lands. • Downtown Brownfield Development In addition to supporting the LOC's Jobs/Economic Development Initiative, pursue available federal funding to clean brownfield sites. Rep. Margaret Doherty HOUSE DISTRICT 35 900 Court St. NE,H-282 �7� Salem,OR 97301 Transportation rep.margaretdoherty @state.or.us • Defeat legislation that would extend or make permanent the moratorium on raising existing or levying new local gas taxes and/ or any legislation that proposes to restrict or pre-empt cities' ability to charge any transportation-related fee or tax. Tigard City Council In 2009, legislation was adopted that prohibited local governments Mayor John Cook Council President Marland Henderson from enacting or amending charter provisions, ordinances or Councilor Gretchen Buehner resolutions related to the collection of local motor vehicle taxes Councilor Marc Woodard until Jan. 2, 2014. The legislation did not apply to Tigard because Councilor Jason Snider our local motor vehicle tax was in place. Oppose any legislation 13125 SW Hall Blvd.,Tigard,OR 97223 that pre-empts the city's ability to charge any transportation- councilmail @tigard-or.gov related fee or tax. • Seek additional funding, efficiencies and program support for multimodal transportation and rail projects. Pursue state and federal grants and other funding sources, and regional, state and federal support for multimodal transportation investments including high-capacity transit (HCT) and the Columbia TIGARD River Crossing project. • Tigard Street Trail City of Tigard Work with ODOT Rail and Portland & Western Railroad to secure the %mw.tigard or.goti property rights for the former rail bed land paralleling Tigard Street. Pursue regional, state and federal funds for construction of a trail. 2013 Legislative Agenda I Tigard,Oregon Page 2 Financial Stability • Local Control Amendment This constitutional amendment would allow local voters to consider a local option levy outside of compression and extend the duration from 5-10 years. (HJR 26 in the 2011 legislative session.) • Maintain and strengthen the state's commitment to the State Shared Revenue funding formula. Prevent erosion of the formula for distribution of state liquor, cigarette and gas tax revenue to cities. At a minimum retain the current distribution formula. • Address tax equity issues in the context of state telecommunications laws including removing existing pre-emptions that have led to declining revenues. The predominant system of franchising telecommunications providers has not kept pace with technology. In particular,the shift from land line telephones to wireless technologies has resulted in an erosion of telecommunications revenues in Tigard and throughout Oregon cities. Over the last three years, Tigard has seen a 45 percent decrease in telecommunications franchise revenues. • Allow local governments a more flexible use of transient lodging tax to meet the increased demands placed on both essential services and infrastructure created by tourism activities. Current law prohibits cities from imposing new local transient lodging taxes. Cities' share of state transient lodging taxes may fund city or county services without restriction. Retain the current distribution formula of state transient tax dollars and fund city services without restriction. • 9-1-1 Tax Renewal Renew the 9-1-1 emergency tax beyond its expiration in 2014 and extend the tax to prepaid cell phones and VoIP services. As these services become a higher share of the market, the tax revenues to 9-1-1 centers is declining which shifts the financial burden for operating 9-1-1 centers to cities even though the demand for service increases. It is estimated that extension of the 9-1-1 tax would generate $700,000 for WCCA to pay for increased service demand. iii Growth and Development • Support an urban growth boundary agenda that would provide for a more efficient urban growth management system. Support a requirement that concept and community planning for urban growth boundary expansion areas is conducted by the jurisdiction that will ultimately govern the area, and that those final plans be adopted and annexation occur prior to development. AIS-1565 12. Business Meeting Meeting Date: 12/10/2013 Length (in minutes): 10 Minutes Agenda Title: Lake Oswego Tigard Water Partnership IGA Third Amendment Prepared For: Liz Newton Submitted By: Liz Newton, City Management Item Type: Motion Requested Meeting Type: Council Business Meeting - Main Public Hearing No Newspaper Legal Ad Required?: Public Hearing Publication Date in Newspaper: Information ISSUE Amendment to the Lake Oswego Water Partnership IGA to include purchase of the Mapleton properties and shifting of 4 MGD of capacity form Lake Oswego to Tigard. STAFF RECOMMENDATION / ACTION REQUEST Adopt the resolution approving the third amendment to the Lake Oswego Tigard Water Partnership IGA and authorize the mayor to execute the amendment. KEY FACTS AND INFORMATION SUMMARY In August 2008, the cities of Tigard and Lake Oswego entered in to a partnership regarding the design, construction and operation of water supply facilities to serve both communities. Over the last several months, the cities have been in negotiations to transfer 4 mgd of capacity from Lake Oswego to Tigard, resulting in 20 mgd of the 38 mgd capacity being allocated to Lake Oswego and 18 mgd being allocated to Tigard. The cities have agreed to terms which requires the adoption of a third amendment to the IGA. The amendment to the IGA reflects the shift in allocation, the addition of Mapleton Drive properties as assets, and correction of the original "buy-in" calculations. OTHER ALTERNATIVES N/A COUNCIL OR CCDA GOALS, POLICIES, MASTER PLANS N/A DATES OF PREVIOUS CONSIDERATION Council reviewed proposed contract terms in executive session. Fiscal Impact Cost: 5,131,390 Budgeted (yes or no): yes Where Budgeted (department/program):water bond fund Additional Fiscal Notes: $1,272,846 is the additional "buy-in" for adding the Mapleton properties to the agreement assets and correcting original buy-in calculations. $3,858,544 is to reimburse Lake Oswego for costs paid to date for the 4 mgd transferred to Tigard. Attachments Resolution IGA Amendment Exhibit 6-Tigard Buy-In Exhibit 7 -Cost allocation draft • ►Ci,uso a� 0,14- - tt �`� la ( ID laoo3 46. kv411, Bainbridge Leadership Center Changing the world one leader at a time: Home Coaching Seminars k Consulting Speaking R Media Books Newsletters Annul David EmeraldWomeldorn- Contact Bainbridge Leadership Center Dorms Z ajonc Mailing Address 321 High School Road.Suite D3,PM8 295 { Bainbridge Island,WA 98110 } Donna L7c } Phone;206.780.9300 • ^+ '�• t� Email donna(dbainbridgeleadership.com David Emerald Womeldorff Phone 206 780 0994 Email'davr l t einbridgeleadership.com We'd love to hear from you! Sailboat in Bainbridge Island's Eagie Harbor with view of Seattle looking east cwprpn counesr or henna mioen :.. Luauda.iteaieraL.f C....All e, ...,.ea T•brre De.:ga Pj Making Shifts Happen : From Political Drama to Finding Common Ground October 14, 2013 By Donna Zajonc Donna Zajonc will serve as a presenter for the interactive seminar, "Making Shifts Happen:From Political Drama to Finding Common Ground,"at the Congress of Cities conference on Wednesday, November 13, 2013 in Seattle, Washington. In this era of political drama and breakdown,the need to find common ground is a frequently heard cliché. To reveal common ground means we must give up some of our strongly held views.Why is this so challenging? The very nature of our human operating system is based upon our desire for survival. In order to survive, our neurological system immediately signals to us when danger is near. Consequently,our ancient ancestors,who experienced danger around every corner, had to learn to make proactive snap judgments in order to avoid being eaten for lunch. Given that built-in survival trait, human beings developed a natural tendency to trust our instincts and the way we see the world. Not only do we prefer our own opinions,we go to great lengths to let others know that our opinions are right. This brings up an interesting impasse. If every leader wants to be right,how will common ground ever be discovered and/or created? Finding common ground requires us to relinquish a basic human trait-the need to be right—as well as our tendency to see the world through only our own eyes. This self-reflection requires courage and is often challenging personal work. In the last few decades, leadership has evolved based upon an entirely new premise: how do we transcend our differences and create practical solutions that meet the needs of the many rather than the few? This leadership model places us squarely in conflict with our innate desire to be an independent individual. Hence, each day in our organizations, communities and the news,there is continuous conflict. Recent Congressional battles have become so extreme that fewer and fewer issues are being addressed. The public is wondering, "Will we ever have leaders who can work together to address our country's challenges?" In addition to this struggle, public leaders work in a citizen culture that can be quite confusing. On one hand,citizens often say they want common ground yet polls say they want a strong, even heroic leader who knows the answers and how to fix our problems. If a public leader speaks about common ground, some citizens label them as weak or ineffective on the basis that they are not sticking to firm positions. We are in a transformative era that demands a skillful approach to leadership and problem solving. The stakes are high and the challenges are growing. Come to the"Making Shifts Happen"seminar at the Congress of Cities and learn how to balance the delicate relationship between holding firm on one's point of view and knowing when and how to find common ground. It is one of the most perplexing questions of our time. Confronting this dilemma and being open to practicing the art of finding common ground will serve us all well. I know I am right about that! Donna Zajonc is co-founder of the Bainbridge Leadership Center and Director of the Center's public leadership domain. She is the author of The Politics of Hope:Reviving the Dream of Democracy, a primer for transforming our political system. 9 Making Shifts Happen: From Political Drama to Finding Common Ground By Donna Zajonc MCC In this era of extraordinary political drama and breakdown, the need to find common ground is a frequently heard cliché. To reveal common ground means we must give up some of our strongly held views. Why is this so challenging? The very nature of our human operating system is based upon our desire for survival. In order to survive, our neurological system immediately signals to us when danger is near. Consequently, our ancient ancestors, who experienced danger around every corner,had to learn to make proactive snap judgments in order to avoid being eaten for lunch. Given that built-in survival trait, human beings developed a natural tendency to trust our instincts and the way we see the world. Not only do we prefer our own opinions, we go to great lengths to let others know that our opinions are right. This brings up an interesting impasse. If every leader wants to be right, how will common ground ever be discovered and/or created? This is the challenge we face in our political discourse today. Finding common ground requires us to relinquish a basic human trait -the need to be right —as well as our tendency to see the world through only our own eyes. This self- reflection requires courage and is often challenging personal work. Leadership in the last few decades has evolved based upon an entirely new premise: how do we transcend our differences and create practical solutions that meet the needs of the many rather than the few? This leadership model places us squarely in conflict with our innate desire to be an independent individual. Hence each day we see played-out in our organizations, communities and the news, continuous conflict. Recent Congressional battles have become so extreme that fewer and fewer issues are being addressed. The public is wondering, "Will we ever have leaders who can work together to address our country's challenges?" In addition to this struggle, public leaders work in a citizen culture that is confusing. On one hand, citizens often say they want common ground yet polls say they want a strong, even heroic leader who knows the answers and how to fix our problems. If N a public leader speaks about common ground, some citizens label them as weak or ineffective because they don't stick to their firm positions. We are in a transformative era that demands a skillful approach to leadership and problem solving. The stakes are high and the challenges are growing. Learning to dance with the delicate relationship between holding firm on one's point of view and knowing when and how to find common ground, is one of the most perplexing questions of our time. Confronting this dilemma and being open to practicing the art of finding common will serve us all well. I know I am right about that! Bainbridge Leadership Center Changing the World One Leader at a Time • Making Shifts Happen: From Political Drama to Finding Common Ground Wednesday, November 13, 2013 Facilitated by Donna Zajonc MA, MCC Desired Outcomes for the Session: • Share a deeper and more personal understanding of what common ground means to each participant; • Explore their unconscious assumptions about common ground; • Understand their default perspectives and how to develop new ways of seeing and taking action that will support common ground; • Review what situations trigger the need to be right and win at all costs; • Learn the three key questions that fosters common ground; • Support each participant to fashion their individual behavior change that will be incorporated in their leadership style upon returning home. Agenda 1. What does Common Ground mean to you? 2. Learning to Broaden Your Political Perspective 3. The Three Levels of Listening Essential for Common Ground 4. The Three Vital Questions that Support Common Ground S. Creating your leadership commitments What does Common Ground mean to you? ■ Three Vital Questions of Leadership 1. Where do you put your focus? On problems or common outcomes? Problem Outcome . Problem 411116- . Vision Outcome React Anxiety Baby Ste• Passion AA. , a a Time Time Problem Orientation Outcome Orientation • What we don't want ATTENTION • What we do want • Get rid of or away from the INTENTION • Move toward vision/outcome; problem/anxiety; take out bring into being of being • Roller Coaster; episodic & RESULTS • New, better, breakthrough; short-term change sustainable change Most often is blame, drama- DIALOGUE Shared interests, mutual gain filled & reactive and creative 2 Bainbridge Leadership Center Changing the World One Leader at a Time Reactive Triggers and Strategies that Spark the Need to be Right Think about the situations in which you find yourself in the Problem Orientation. What are the triggers or hooks that typically set you into the problem-based focus, regardless of the situation? Reactive Triggers may be part of the environment or physical space, such as a stuffy room or noisy background. They may be part of the situation, such as time constraints or difficult tasks. Or the triggers may derive from another person, such as aggressive attitudes or opinions vastly different than yours. Each of us has strategies for responding to these Reactive Triggers. These are personal and purposeful, at times varying from one situation to the next. Some examples of Reactive Strategies can range from switching to a more aggressive approach to going silent and withdrawing from others. A Reactive Strategy can also be a change in pace. Some people will speed up their efforts when faced with a Reactive Trigger; others will stall and/or procrastinate. ACTIVITY - List 5 of your Reactive Triggers that set you into a Problem Orientation. In the second column list the Reactive Strategies that you use when reacting to the triggers. No right or wrong answers or judging yourself. Just notice. Reactive Triggers Reactive Strategies 1. 2. 3. 4. 5. 3 2. How are you relating? Do you relate in a way that produces or perpetuates more drama or that creates common ground? The Empowerment Dynamic* (*TED) Karpman Drama Triangle Based on David Emerald's Book The Power of TED* Rescuer Persecutor Creator / / Victim Challenger Coach Listening to be right or listening for Common Ground Level One Listening---To be Right - Attention is on you: "How does this affect me?" - Thinking about what you want to say and winning your point - Listening for who agrees with you - Lacks respect and often distracted. Collaboration impossible Level Two Listening---for Possibility - Attention is on the other person - Attachments or judgments are reduced, listening for possibility, and open to new perspectives - Prospect of collaboration begins at this level Level Three Listening---for Innovation and Creativity (Common Ground!) - Focus is on other person within a larger context - Uses your intuition to access what is not being said - Common vision, inspiration, and collaboration are born in this level • Bainbridge Leadership Center Changing the World One Leader at a Time • 3. What actions are you taking? Are your actions merely reacting to problems or are your actions getting you closer to and clearer about the outcomes you want? Dynamic Tension: The Process of Creating Outcomes and Facilitating the Shift Vision/ • Vision/Outcome Outcome - What do you want? - If you had it,how would you know? - Success Criteria • Current Reality(Balanced Assessment - Supports:things to leverage "Baby Steps" Inhibits: problems/obstacles Current Reality • "Baby Steps" - Immediate/ShortTerm - Actionable/yours to do - learn/Adjust Supports Inhibits 5 Action Steps that Promote Common Ground 1. What do we want? Clarify the common ground. 2. If we had what we want, how would we know it? (Describe characteristics and qualities so everyone is on the same page.) 3. What is going on in the current reality that supports the vision? 4. What is inhibiting it? (Here are the problems that must be addressed.) 5. What is the next step? 1-3 Baby Steps in the next 90 days or less. Leadership Commitments 1. What new awareness have you learned about building common ground? 2. What new attitudes or behaviors are you willing to shift in YOUR leadership style to further common ground in your community? 3. What immediate "baby steps" will you take to put these new attitudes, behaviors or strategies to work in the next 30 days or less? Donna Zajonc MCC is Co-Founder of the Bainbridge Leadership Center, an author, leadership coach, keynote speaker, and seminar leader. She combines her business acumen with her experience as a three-term Oregon Legislator and her party's nomination for Secretary of State. Donna specializes in coaching public leaders, mayors, city councilors, city and county managers as well as facilitates council retreats and planning. She is the author of The Politics of Hope: Reviving the Dream of Democracy. And has achieved Master Certified Coach which is the highest credential granted by the International Coach Federation. You may email her Donna @bainbridge.com or write to her at Bainbridge Leadership Center, 321 High School Rd. D3, #295, Bainbridge Island, WA 98110 206 595 3456 cell and office is 206 780 9300. COLLABORATION MULTIPLIER Enhancing the Effectiveness of Multi-Field Collaboration Collaboration Multiplier is an interactive tool see enhanced food retail as fundamental for a for strengthening collaborative efforts across flourishing community. Collaboration Multiplier diverse fields.A multi-field approach has helps surface these perspectives and forge strategies proven vital for tackling today's complex social that advance their objectives simultaneously. challenges.Whether the goal is promoting health equity,strengthening local economies, Collaboration Multiplier can be used in different reducing greenhouse gas emissions,or enhancing stages of collaboration. It can be used by a newly community safety,improving our well-being formed or established partnership that wants to requires community-wide changes that include strengthen its collective effort,or it can be used strengthening government policies and the by an individual or small set of organizations that practices of key organizations.Multi-field recognize the value of a diverse partnership and collaboration expands available resources, want to think strategically about whom to invite strategies,and capabilities to achieve outcomes to the table. that could not be accomplished by one field alone. The Collaboration Multiplier Process Collaboration Multiplier provides a systematic Collaboration Multiplier occurs in two phases: approach to laying the groundwork for multi- 1) Information Gathering and 2) Collaboration field collaboration.The tool guides organizations Multiplier Analysis through a collaborative discussion to identify activities that accomplish a common goal, In the first phase,the key sectors and fields that can contribute to a solution are identified. Then delineate each partner's perspective and potential key information from the perspective of each field contributions,and leverage expertise and (or prospective field) is collected according to a resources. Collaboration Multiplier is based on the common set of categories.Specific categories vary understanding that different groups and sectors based on the particular collaboration,but typical have different views of an issue and different examples include: reasons for engaging in a joint effort. For example, a collaborative formed to increase access to healthy • Importance: Why is this issue important? food in underserved neighborhoods can more • Organizational Goals: What are the goals effectively engage partners by recognizing that related to this issue? each has their own goals. A grocery store operator • Audience: Who is the primary audience/ might expand fresh food offerings to enhance sales constituency? and profits,a health department would support • Expertise: What unique expertise does this the effort to improve health,and the Mayor might field bring to the collaborative? Prevention 221 Oak Street • Oaklond,CA 94607 • Tel 510.444.7738 • Fax 510.663.1280 Prm:w Institute ,�, ttNa<curdronunrynppK� www.preventioninstitute.org Partner Importance Organizational Expertise Assets& Key Desired Partnership Organizational Goals Strengths Strategies Outcomes Benefit • Assets/Strengths: What resources (skills, Collaboration Multiplier serves as a starting point for staff,training capacity,funding) can be brought appreciating what different fields can bring to the to the table? table and for building effective interdisciplinary • Key Strategies: What key strategies/ efforts through partnership.After completing the activities are currently implemented relevant two-phase process,partners can begin developing to this issue? a comprehensive strategy to achieve their shared • Desired Outcomes: What specific vision.To support strategic efforts,Collaboration results/outcomes are desired as a result of this Multiplier is designed to complement and inform collaboration?What does success look like? Prevention Institute's Spectrum of Prevention, • Data: What data is collected,and how? a tool for developing multifaceted activities • Partnership: Which partners/participants can for effective prevention,and The Eight Steps to be brought to the table to enhance outcomes? Effective Coalition Building, a step-by-step guide • Organizational Benefit:What is the benefit for coalition development and sustainability. of participating in this collaborative? Effective collaboration can be a powerful force for mobilizing individuals to action,bringing Compiling this information can provide a health and safety issues to prominence,forging "big picture"snapshot for partners and lays the joint solutions,and developing effective policies. groundwork for a collaborative discussion. By working through Collaboration Multiplier, partners will see the fruits of their efforts grow In the next phase,the collaborative engages in a exponentially. "collaboration multiplier analysis"to discuss the implications based on the information collected. For more information,visit Prevention Institute's Some key areas of discussion can include: website at www.preventioninstitute.org or e-mail virginia @preventioninstitute.org. • What partner strengths can the collaborative utilize? How do you leverage each partner's expertise? • What results and outcomes can be achieved together? • What strategies/activities can two or three partners work together on? Prevention 221 Oak Street • Oakland,CA 94607 • Tel 510.444.7738 • Fax 510.663.1280 2 Institute Mob ..the Pow a common,q.,,be www.preventioninstitute.org w COLLABORATION MULTIPLIER EXAMPLE: TRAFFIC SAFETY COALITION Goal: Decrease traffic-related crashes and fatalities Phase I: Information Gathering (This is a sample;expected levels of detail would be greater) Expertise Desired Strategies Outcomes Public Health Population-based Reduce unintentional Facilitate prevention approaches injuries among all environmental and data collection of travelers, including and policy changes injury rates drivers, pedestrians, (i.e., pedestrian/ bicyclists, disabled, bicycle-friendly elderly street design, car seats, seat belts, driving under the influence, bicycle helmets) Law Expertise in legal Increase compliance Enforce traffic laws, Enforcement requirements and to traffic safety laws patrol neighborhoods, crash investigations implement check and has the authority points, cite reckless to enforce traffic laws drives, and participate in educational campaigns Transportation Road and sidewalk Prevent traffic crashes Promote safety Engineering design that provides and reduce severity regulations for safe travel for of injuries if a crash occupants and multiple modes of occurs vehicles n Implement transportation street designs that promote safety Optometry Understanding of how • Improve vehicle Utilize color and people visualize traffic displays, traffic design features signs and signals signals, and road to increase driver signage attention to traffic • Better driver signals and signs assessment for licensing purposes Prevention 221 Oak Street • Oakland, CA 94607 • Tel 510.444.7738 • Fox 510.663.1280 3 i nstitute .,,,m .,M.,..w..•.,m.Mry- www.preventioninstitute.org Phase II: Collaboration Multiplier Analysis r Public Health Transportation Engineering Expertise: Expertise: Population-based Road and sidewalk design prevention approaches and Shared Outcomes that provides safe travel data collection of injury • Improved transportation for multiple modes of rates infrastructure and systems transportation • Ability for motorists,bicyclists, Desired Outcomes: pedestrians,people with Desired Outcomes: Reduce unintentional disabilities,and elderly to travel Prevent traffic crashes and injuries among all easily and safely reduce severity of injuries if travelers,including drivers, • Decrease in traffic-related a crash does occur pedestrians,bicyclists, injuries and deaths people with disabilities, Key Strategies: elderly • Promote safety regulations Partner Strengths for occupants and vehicles Key Strategies: •Subject matter expertise • Implement street designs Facilitate environmental •Authority and ability to that promote safety (e.g., and policy changes (i.e., traffic calming)policies and g) pedestrian/bicycle-friendly street design, car seats, environmental changes seat belts,DUI,bicycle •Understanding of motor vehicle patterns and individual helmets) transportation behaviors •Knowledge of street and Law Enforcement vehicle design Optometry Expertise: Expertise: Expertise in legal Joint Strategies/Activities Understanding of how requirements and crash •Incorporate health and safety people visualize traffic signs investigations and has the elements into transportation and signals authority to enforce traffic planning laws •Promote complete streets Desired Outcomes: policies • Improved vehicle displays, Desired Outcomes: •Connect roadways to traffic signals,and road Increased compliance to complementary systems of signage traffic safety laws trails and bike paths • Better driver assessment •Implement smart growth for licensing purposes Key Strategies: strategies,including transit- Enforce traffic laws,patrol oriented developments Key Strategies: neighborhoods,implement Utilize color and design check points,cite reckless / features to increase driver drivers,and participate in attention to traffic signals educational campaigns and signs Prevention 221 Oak Street • Oakland, CA 94607 • Tel 510.444.7738 • Fax 510.663.1280 4 '-':',:l f institute .,•n ..„.....dm ,..a-�, www.preventioninstitute.org Activity: Roles for Governance Prevention Seattle, November 14, 2013 Prevenatinon equity at the center of community well-being No one sector can create a healthier, safer community on its own. The governance sector is an important partner and can support multi-sector collaboration to help achieve the city's priority goals. 1 . Self-Reflect. Spend five minutes reading through this list of possible roles for governance, and check the items you already do or would like to take on. Leadership 17 Insist that the violence ends and make safety the priority for your city. O Establish community health as a priority and integrate this into public remarks and other communications. O Hold others accountable for improving health and safety outcomes. 17 Use the bully pulpit to highlight the value of upstream approaches and/or to reiterate that violence is preventable. Engagement O Ensure that a comprehensive plan to address violence,safety and/or other priority health issue exists,with a focus on prevention. 0 Establish and maintain a vehicle or mechanism for coordination across sectors and with the community. O Clearly communicate with residents about proposed measures to prevent chronic diseases and/or violence,and establish mechanisms for ongoing community input,dialogue and participation. Staffing &Funding 0 Designate staff members responsible for overseeing efforts that address violence and/or promote healthy eating and active living. O Fund multi-sector efforts to prevent violence or chronic disease through the budgetary process, such as by supporting tax measures or engaging philanthropy. 2. Prioritize. Put a star next to the role that is your highest priority. This maybe a priority because no one else in your city can fill this role, because it will have the biggest impact on community health and safety,or help overcome a specific barrier,for example. 3. Plan Ahead. What are three concrete actions you will take when you return home to start filling this role? Write down your next steps. 1. 2. 3. 221 Oak Street, Oakland, CA 94607 510.444.7738 www.preventioninstitute.org The Ideal Deal How Local Governments Can Get More for Their • Economic Development • Dollar • r • 1 1 ...... 4 t1.1141111-.' �,, u�a e-�.`.",w t� nom.. `-'�-'° ,fir �--,...: - r, . ei j[ v,* "7 t� r( 5y' 4bT [ IC . . n v 11 x 0.'a f4k, ilk i.:1, .... i t. ... a 4 _ At. .,- .. -Nt_ *41'- 4\.. _ h ,,.om s ` , fif "; -,,.'t -; .----:=-- r.- ti S , Cry- - w^_ Good Jobs First and the University of Illinois at Chicago Center for Urban Economic Development March 2007 THE IDEAL DEAL: HOW LOCAL GOVERNMENTS CAN GET MORE FOR THEIR ECONOMIC DEVELOPMENT DOLLAR by RACHEL WEBER Urban Planning and Policy Program University of Illinois at Chicago DAVID SANTACROCE University of Michigan Law School Copyright 2007 Good Jobs First UIC Center for Urban Economic Development All Rights Reserved Good Jobs First 1616 P Street NW, Suite 210, Washington, DC 20036 www.goodjobsfirst.org - 202-232-1616 Center for Urban Economic Development University of Illinois at Chicago 400 S Peoria Street, Suite 2100, Chicago, IL 60607 http://www.uic.edu/cuppa/uicued/ - 312-996-6336 • AUTHORS Rachel Weber is an Associate Professor in the Urban Planning and Policy Program at the University of Illinois at Chicago. Dr. Weber is the author of numerous articles and reports in the fields of fiscal policy and economic development as well as the book Swords into Dow Shares: Governing the Decline of the Military- Industrial Complex (2000), which examines the role of financial markets in the defense drawdown following the Cold War. Her primary area of expertise is in evaluating the design and effectiveness of local financial incentives, such as Tax Increment Financing (TIF). She received her master's degree and doctorate in City and Regional Planning from Cornell University and bachelor's degree in Development Studies from Brown University. David A. Santacroce is a Clinical Assistant Professor with the Michigan Clinical Law Program teaching in the general civil clinic. His primary interest is impact litigation focusing on civil rights. He is the former Senior Staff Attorney for the Sugar Law Center for Economic and Social Justice in Detroit. At the Center he worked with advocacy groups and municipalities in the drafting and enforcement of economic development and tax incentive agreements. He also litigated cases that arose from breech of such agreements. Santacroce received an LL.M. from Columbia University School of Law, where he was named a Harlan Fiske Stone Scholar, a J.D. cum laude from Pace University School of Law, where he was managing editor of the Pace Law Review, and a B.A. from Connecticut College. ACKNOWLEDGMENTS The authors wish to thank Patricia Nolan for her assistance with the research for this project and the Center for Urban Economic Development at the University of Illinois at Chicago and the Rockefeller Foundation for financial support. Greg LeRoy, Phil Mattera, and Anna Purinton of Good Jobs First provided very useful feedback on the handbook's content. The authors would also like to thank Karla Walter and Mike Konopacki for their assistance with the design of this handbook. TABLE OF CONTENTS Page Introduction 1 Background 4 Section 1 : Valuing Public Costs and Benefits 7 Section 2: Setting Performance Standards 13 Section 3: Determining Breach of Contract through Monitoring and Disclosure 15 Section 4: Penalties for Breach 27 Conclusion 31 Endnotes 37 INTRODUCTION American states and municipalities have companies often relocate or fail to create provided private companies with economic the jobs and other public benefits development incentives -- property tax promised.' Critics point to empirical abatements, low-interest loans, grants for evidence that incentives cost more than the expansion -- since this country's inception. public benefits they create and redirect Over the last twenty years the practice has monies from other important public goods grown exponentially, and with this growth like infrastructure and education. And has come more complex public financing there is anecdotal evidence suggesting that instruments like Tax Increment Financing incentives poison inter jurisdictional (TIF). Today, it is safe to say that every city, relations, contribute to sprawl, favor large county, and state offers some kind of businesses over small, strain the planning incentive to prospective and existing capacity of local government, and are businesses. The average state provides subject to cronyism and abuse.' Good more than 30 different kinds of economic government advocates and libertarians development subsidies, many of which are alike regularly call for an end to such administered by local or regional bodies. practices. With this growth has also come heavy But demands for federal legislation that criticism from taxpayers accusing the public would eliminate the practice of incentives sector of giving away too much for too have been largely ignored. Critics admit little. Total state and local spending for that, despite their general distaste for jobs is now estimated at more than $50 incentives and the competitive inter- billion a year.' In the Time magazine cover jurisdictional relations they create, such story entitled "What Corporate Welfare programs are difficult to condemn across Costs" the authors found that federal, state the board. Incentives, along with zoning and local incentives cost "every working and land use regulations, are one of the man and woman in America the equivalent few sources of bargaining leverage that of two weekly paychecks" each year.' local governments have over developers and businesses. They use the leverage in It is not clear what taxpayers are getting in attempts to strategically influence site- return. Studies have revealed that state location decisions and the magnitude of and local incentives are often not cost- private investment. Whereas some effective mechanisms for economic jurisdictions are held hostage to demands development because subsidized of businesses and sign off on expensive INTRODUCTION long-term commitments, other states and around to other local governments or cities are able to negotiate better negotiating with their legal departments agreements. These local governments over exact wording. Even when they are absorb relatively little risk and commit seeking to make incentives more relatively little up-front investment in economically efficient, practitioners lack relation to the public benefits created. adequate information about the different legal mechanisms and techniques that Our position is that if economic would allow them to do so. development agencies intend to continue the practice of offering incentives, they This handbook is designed to provide local should do it in a smarter manner. economic development practitioners with Administrators must focus their energies an important tool. It takes the reader step- not on rolling out the red carpet for any by-step through the different elements of interested party, but on ending up with contracts that treat public incentive deals that make fiscal sense and protect packages as a quid pro quo for public the agency (and the taxpayers) in the event benefits. Each section discusses a different of a breach by the incentive recipient. element of the ideal deal: valuation of Some of this might come by pushing for public costs and benefits, performance more detailed statutes and ordinances that standards, disclosure and oversight, and govern the incentive relationship. But the enforcement. In each section we provide most important opportunity-- and most detailed examples of model provisions often squandered -- is the negotiation and used by local governments in their drafting of individual contracts. That incentive legislation, ordinances, and government agencies often overlook contracts -- information that has not before opportunities for promoting the public been obtained or recorded in any good in this process should come as no systematic way. These examples are meant surprise: while such contractual to both illustrate the key principles for mechanisms have been used in Europe for negotiating ideal deals and also serve as decades, they have only recently become templates for actual contract language. accepted practice in the United States. They are supplemented with commentary culled from interviews conducted with Without a comprehensive guide to drafting local government officials, academic contracts that make incentive recipients studies, and reports by watchdog more accountable to taxpayers and organizations around the country. residents, economic development departments must either reinvent the Giving away tax revenues with few strings wheel every time they wish to grant an attached is not an effective way of meeting incentive or rely on standardized policy objectives or managing public "boilerplate" contracts that may not offer finances. Following the best practices them the protection they need because provided in this handbook is a first step they are old or do not sufficiently account toward designing legally enforceable for the particularities of the deal. contracts that can protect public interests Conversations with practitioners reveal and more widely distribute the benefits of that, especially in smaller municipalities economic development. and counties, they waste time calling 2 BACKGROUND Development incentives and regulatory within a private realm) is difficult to environments matter less to companies support given the long history of public when deciding between distinct regions of assistance to business. The recent history the country. The availability and cost of of intense incentive use has blurred the skilled labor, occupancy costs, proximity to boundaries of public and private roles key customers and suppliers, making it impossible to defer to principle transportation and utility costs, and the or precedent. Every case, therefore, must whims of corporate executives are more be negotiated on its own merits. important at this stage. Once a company has narrowed its choice of location to a While contracts will vary, it is clear that particular region, however, it begins to without legally enforceable one specifying consider the tax burden and physical the obligations of the respective parties, an characteristics of potential sites. The site economic development incentive will be location decision could be a relatively considered a gift and not part of a quid pro private affair: the business purchases land, quo exchange. This distinction is not just hires a developer and employees, and pays semantic; it is difficult, if not impossible, to whatever taxes it is determined to owe. tell someone how to use a gift. Consider Aside from obtaining the requisite building the following three examples: permits and complying with existing zoning and environmental regulations, the 4.0.-* business could have little contact with the public sector. The Triangle Corporation decided to move equipment out of its Diamond Tool plant in Negotiations ensue only if the business Duluth, Minnesota after the city issued $10 wants something more from local million in Industrial Development Revenue government, or the local government Bonds to finance the corporation's wants something more from business. acquisition and modernization there. What that "more" is is often contested When the City of Duluth sued, the court because public and private responsibilities found that "while the parties discussed a in economic development are not fixed and restriction which would have required unchanging. The principle, for example, Triangle to guarantee certain employment that a city should not be responsible for levels at the company. . . the party's final the development costs of individual agreement did not contain specific businesses (because this falls squarely employment levels." Any provision to tie 3 BACKGROUND the incentive to the jobs was therefore announced that it would close the entire unenforceable.' downtown loan servicing operation. Luckily, the City of Roanoke had signed a contract with First Union that specified the When the township of Ypsilanti and the number of jobs the bank had promised to County of Washtenaw, Michigan sought to create and maintain and the period of time recover $13.5 million of a much larger over which this promise was to be binding. package of tax abatements from General In addition, the contract contained Motors (GM) Corporation after GM provisions which required that the bank announced plans to close its auto assembly pay the city $400 for each job it did not plant and consolidate production in create. When the bank failed to create the Arlington, Texas.6 The company had promised number of jobs, it refunded the employed 4,500 workers at its Willow Run money it owed and modified the contract plant. with the city to create jobs in a different neighborhood branch. The local governments claimed that GM had a made a binding promise to produce cars at Willow Run in return for the tax abatements. Although the trial court judge The experiences of Duluth, Ypsilanti, and ruled in their favor, GM got the decision Roanoke make clear that contracts play an overturned on appeal. The appellate court important role in holding companies to held that public statements by GM that their promises of job creation and local were previously interpreted as promises investment. Contracts —also known as were actually"expressions of hopes or development, redevelopment, or incentive expectations that operations would agreements — are the focus of this continue at Willow Run." The appeals handbook because they are the court suggested that any company would embodiment of all the different aspects of "tak(e) advantage of statutory economic development deal-making opportunities" to obtain a tax abatement process. and that GM had made no real assurances of continued employment. Drafting a contract that specifies promised benefits and includes enforcement measures is not difficult to do. In fact, the idea is quite simple: if developers and The City of Roanoke,Virginia authorized a companies seek financial assistance from grant of$500,000 to First Union National the public sector in order to start-up or Bank to train 200 new workers and retain expand their operations, they must be 359 existing jobs.' First Union signed a prepared to: (a) invest in the community contract with the City to keep all of these through job creation and capital jobs in its downtown branch for at least investment; (b) treat local governments as five years. After one year the bank had they would any other contracting party; drawn down $326,000 of the grant, yet and (c) expect consequences for breaching there were not only no new jobs, the bank their agreement. Contract law will govern had actually reduced the number of how an agreement is drafted and how previously existing ones. It subsequently 4 THE IDEAL DEAL courts will interpret it. Contract law is, however, state law, and state legislation plays a critical role in drafting and enforcing good contracts. In our federal system, states possess more regulatory powers than municipalities and counties. As such, courts tend to defer to states and their legislatures when enforcing incentive contracts. If the legislature expresses a clear intent to promote specific goals through their economic development programs, even judges who are hostile to these goals will find themselves constrained to a degree to respect that intent. Having state statutes that embody the aforementioned principles allows for the imposition of conditions that could not be attained in contract negotiations but must be accepted as a matter of law. Moreover legislation is uniform throughout the state and establishes identifiable standards that reduce destructive inter-municipal competition. The strongest contracts, therefore, are those whose key provisions are reinforced by similar and strong legislation. In the following pages we offer model language that can be adopted in individual development agreements and contracts local governments sign with subsidized businesses as well as in state statutes and municipal ordinances. Moreover, in each state, special rules will govern the terms of individual contracts. While we choose to focus on some of the most important and generally valid principles, the handbook is not intended to be a substitute for the advice of local legal counsel. 5 SECTION ONE: VALUING PUBLIC COSTS AND BENEFITS Before any subsidy changes hands, local to acknowledge how incentives are often officials should have a solid understanding backed by promises to be paid by future of the value of the expected public benefits revenues, accounts can not be considered and the real public costs of the incentives to be in balance.' offered. Unfortunately, whether due to a perceived lack of technical precision or Indeed, one of the reasons why incentives pressure to approve deals quickly, many are so attractive to local governments is officials do not thoroughly evaluate the that they are often made off budget. costs and benefits of their subsidy Although more than half of all states now programs. For example, a survey of local require "tax expenditure budgets" (that are economic development practitioners intended to record the opportunity costs of showed only 24 percent possessed any uncollected tax revenues in addition to quantitative techniques for analyzing any appropriated expenditures), their deals.' quality and exhaustiveness is uneven. Local governments that wish to better Even when quantitative measures are manage their finances in this area are developed, they often fail to capture the urged to follow the advice listed below. true costs and benefits due to bad accounting practices. Most local Estimate how much the public governments tally benefits on the revenue benefits are "worth" relative to side of the ledger, including property the amount of the subsidy taxes, paybacks and profit sharing. On the Y expense side, however, costs typically Most municipalities and many states do not include only direct cash outlays. They have the expertise to conduct exclude the opportunity costs tied to comprehensive cost-benefit analyses of below-market interest rates, deferred incentive deals to determine whether the paybacks, loan guarantees, and in-kind local benefits justify the loss of tax expenses. revenues. Cost-benefit analysis allows the They exclude tax expenditures, which are analyst to compare the present value of the most important and yet most anticipated public costs (e.g., cash misunderstood type of subsidy. If expenses, foregone revenues and accounting practices do not recognize additional expenditures on services, such these different kinds of expenditures or fail as schools and infrastructure) to the present value of expected benefits (e.g., tax 6 THE IDEAL DEAL revenues and fees, new jobs, revenues information, local governments can cap the generated by salaries of new employees amount of incentives available. The U.S. and multiplier effects) ex ante. Small Business Administration and the U.S. Department of Housing and Urban This form of analysis can determine if the Development have subsidy limits of costs of subsidies are likely to outweigh $35,000 per created or retained job.11 the revenues generated over a particular A handful of states have followed their time period, thus alerting public officials to lead. Illinois' Department of Commerce the fact that a deal may provide too little and Economic Opportunity caps incentives payback for the expected expenses at $10,000 per job created or retained incurred. Cost-benefit spreadsheet through its Community Development programs can help the public sector Assistance Program. Minnesota, determine the "tipping point" (less subsidy, Pennsylvania, New Jersey and West Virginia more public benefits) at which the deal also cap subsidies at $15,000 to $35,000 makes financial sense. per job created. Commercially-available software programs, While analytical tools are helpful, it is such as IMPIAN and Regional Economic important to understand the assumptions Models Incorporated (REM!), or ones underlying the models in order to feel developed by universities, such as the confident of their predictive power. There University of Illinois at Chicago, allow are two areas where the spreadsheet government officials to evaluate both the models could stand to be improved. First, employment and revenue impacts of prospective public benefits like physical potential incentive deals.10 Missouri and improvements and environmental cleanup Indianapolis use cost-benefit programs may be difficult to value because, in most developed by private consultants to instances and without the use of analyze each potential project. Many cost- sophisticated modeling, they have no benefit analyses are really only evaluating obvious market price. Second, many local the fiscal impacts on the local government, costs of subsidies are often shifted to the i.e., the public expenditure and revenue state or federal governments, and these effects of a subsidy, instead of the benefits intergovernmental transfers are not and costs related to the induced and captured by cost-benefit analysis indirect employment ostensibly spurred by conducted only at the local scale. For the corporate relocation or expansion. In example, the use of tax increment Indianapolis, for example, if the fiscal financing (TIF) by local governments may impact analysis shows that it will take more trigger additional transfers of aid from the than four years for a particular project to state to equalize school funding. A more offer a positive revenue return to the city, comprehensive analysis would be inclusive it is not considered a project that is eligible of costs borne by all levels of government. for incentives. Both fiscal impact analysis and cost-benefit Require corporate disclosure of analysis provide a ballpark estimate of how relevant information much each subsidized job or dollar of new revenue will cost. Armed with this Ideally, local governments would know how much bargaining leverage they have 7 VALUING PUBLIC COSTS AND BENEFITS with companies who request their In Illinois, existing businesses seeking assistance. What are other municipalities assistance must provide the state with the or states offering the company, and how prospective plan for which 1,500 full-time important are these incentives to its jobs would be eliminated in the event that investment decisions? Unfortunately, the business is not designated as a "High much of this "market" data is rarely Impact Business" (a designation that allows disclosed. Even worse, many analysts it to access certain state tax exemptions). suggest that, goaded by site selection Proposals for new facilities must provide consultants, companies frequently proof of an alternative non-Illinois site that overstate the role of incentives in would receive the proposed investment determining where companies choose to and job creation in the event that the expand or relocate, and that many even business is not designated as a High Impact decide on their project sites before Business. This increased transparency may governments make subsidy offers.12 In overcome some of the problems associated other words, the financial gap companies with bluffing, and, if staff can check on seek to fill to make a project feasible may counter offers, may deter companies from be much smaller than they would have the playing multiple jurisdictions off each other public sector believe. They can bluff and in order to ratchet up the price of the demand more than is really necessary subsidy. because management has access to relevant information about the firm's own Other incentive programs require that cost structure and hurdle rates to which applicants disclose their development and local governments are not privy. In operating pro forma and identify gaps that practice, the government that is most they are seeking to have filled by public optimistic about the value of economic assistance. Government personnel need to development or has the most lax budget be financially literate enough to make and statutory constraints will be the sense of these spreadsheets, be familiar highest bidder. with current cost estimates, and identify costs that are being overstated. Despite these hurdles, local governments can make some efforts to ensure that the While disclosure requirements may place a incentive is necessary or, at a minimum, burden on the corporate subsidy-seeker to somewhat important to the company's demonstrate that they are serious about location decision. Disclosure requirements relocating, these provisions are generally can allow the public sector to gain more less effective (i.e., legally binding) than knowledge about a business' actual costs those we will discuss in the following and financing needs and may force possible chapters. For example, it is easy to falsify subsidy recipients to demonstrate their or exaggerate a firm's cost structure for interest in a particular location. The city of strategic effect. Development consultants Minneapolis' 1998 living wage ordinance, regularly admit that firms draft separate for example, requires applicants for public pro forma for separate purposes (e.g., contracts or financial assistance to provide understating revenues for incentive and the names of all programs to which they income tax purposes while overstating are applying and the total public cost of them for lenders). the assistance. 8 THE IDEAL DEAL Local governments should be aware that the state department of revenue to begin disclosure requirements are among the proceedings to recover all wrongfully weaker forms of subsidy accountability and exempted state taxes with interest (i.e., although they may be included in clawbacks, a contractual provision we contracts,they offer few substantive discuss in more detail in Section Four). protections. If they are going to be required, they must be used in tandem All of these types of"but for" provisions with impact analysis, performance are intended to protect against the standards, and enforceability mechanisms. possibility that the firm does not really need the subsidy but is taking advantage of Avoid reliance on "but for" its superior bargaining position (the fact provisions that firms are mobile but governments are not) to seek whatever assistance is available. The problem with these Incentive programs often require the provisions is that they create a false sense company to attest to the fact that it would not have considered the municipality as a of security. "But for" clauses are potential location or would have notoriously easy to elude and difficult to eliminated a certain number of jobs but for disprove—so difficult, in fact, that few the incentive. For example, the Michigan states or cities actually enforce them. Economic Growth Act (MEGA) provides How, after all, can one demonstrate that: definitively that the incentive does or does not matter in a firm's location decision? The tax credits authorized under the What constitutes proof that an expansion agreement address the competitive decision was made only because of the disadvantages of locating in Michigan incentive? Research has consistently instead of a site outside of the state; the demonstrated that subsidies are rarely the project will not occur in Michigan deal-makers or deal-breakers; other factors without the tax credits offered by this tend to be much more important in the agreement. If the company location decision-making calculus of a misrepresents itself by making this firm.15 statement, the authority may revoke the company's eligibility for further credits.13 "But for" provisions are very common in state statutes and redevelopment Sometimes these "but for" clauses even agreements despite the fact that they do come with teeth. In Illinois, for example, if not really guard against bluffing. It is a business receives the designation of critical to remember that they are no "High Impact Business" in order to access substitute for strong performance certain state tax exemptions and it is later standards, oversight provisions, and determined that the business would have enforcement mechanisms,topics to which made the investment and created or we now turn. retained the requisite number of jobs without the benefits of the designation, the state department of economic development will revoke that designation.14 It is also supposed to notify 9 SECTION TWO: SETTING PERFORMANCE STANDARDS What is an "ideal deal" from the The MEGA Program was created by the perspective of the local government? That Michigan Economic Growth Authority depends on what the local government Act, Act No.24 of Public Acts of 1995. It hopes to achieve from its economic gives Michigan municipalities the power development programs. While the answer to provide tax credits to businesses to this question may seem obvious ("good involved in manufacturing, mining, jobs," "economic diversification," "a research, development, wholesale, trade stronger tax base"), knowing exactly why a and/or office operations, and enterprise particular community wants economic for the purpose of. . .16 development can be difficult to intuit. Is it more important, for example, to bring in Referencing the authorizing statute new jobs for an underemployed but skilled ensures that there is no ambiguity about labor force or to redevelop a deteriorating the purpose of the contract and the section of the main street that has become authority to make it. It will also put the an eyesore? Input from key stakeholders incentive recipient on notice of any and community residents often provides a statutory obligations that may not be sense of which goals are a priority. Once contained in the contract itself. these goals have been defined, they can then be translated into specific, legally It is important to remember that the binding performance standards. authorizing statute typically sets a floor, not a ceiling, for the amount of control and Identify the authorizing statute the number of conditions a grantor may put on an incentive. This means city, The goals of economic development regional, and state agencies have a certain programs and the authority to give amount of discretion to require behavior incentives are often contained in state from assisted developers and companies statutes, which can be used to guide above and beyond that required by statute municipalities through the incentive or regulation. process. And while the guidance might be very general, it is nonetheless important to refer to the statute in local agreements and mimic its language. For example: 10 THE IDEAL DEAL Articulate performance and loan guarantees of$75,000 or less to standards as specifically as ensure that job creation and wage requirements do not harm start-up possible businesses, particularly those in low- income communities. The law requires The public goals of the incentive must be each incentive-granting agency to submit stated explicitly so that it is possible to their benchmarks to the Department of evaluate the extent to which the firms Employment and Economic Development granted the inducements are complying and for the department to publish them with the conditions imposed. It is annually. generally a mistake to be vague; "stimulating the economy," "creating If a term is ambiguous, its meaning may jobs," and "increasing the tax base" are have to be interpreted by a judge. And suitable as intent language in authorizing courts cannot be counted on to find legally statutes. But they are not appropriate for binding obligations that may seem obvious development contracts because they are so to the contracting parties at the time the open-ended that they impose no effective contract is made but are not written in the constraints on the granting authority nor contract itself. They often defer to the do they give the courts much meaningful Parole Evidence Rule,which excludes any guidance in interpreting contractual evidence of prior or contemporaneous conditions. agreements from consideration in a dispute over the interpretation of a The terms of a contract must be clear in contract. order to be enforceable. Ordinary words should be used in their ordinary contexts. This is especially true for mortgage Technical terms should be defined. If there agreements and other loan documents. is more than one reasonable definition, Courts interpret loan contracts according state which one is intended in the to the principles and purposes of loan document itself. Contracts that rely on security. If the municipality signs a very loose parameters of fulfillment are mortgage agreement with a firm for a low- considered "incomplete" and provide interest loan, it must also specify the wider parties with opportunities to exploit purpose of the incentive or else the court's existing gaps. primary concern will be the company's adherence to conventional loan terms (e.g., Some states have taken steps to limit such making payments on time, collateral gaps. For example, Minnesota requires security). For example, the state of West state agencies and municipalities to Virginia loaned over $64 million to Anchor develop explicit benchmarks for awarding Hocking to help the company keep its plant subsidies. These public purpose open and provide jobs to its employees. benchmarks include standards for job Unfortunately it failed to state these creation and for the wages of the new jobs. purposes in the actual loan documents. Moreover,job retention is only considered The absence of a specific goal, coupled a legitimate criterion "where job loss is with a contractual provision allowing imminent and demonstrable."' The law prepayment of the loan without penalty, includes an exemption for business loans led the court to conclude that the firm 11 SETTING PERFORMANCE STANDARDS satisfied its obligations by paying off the The second kind of provision does not loan.18 provide any funds to the company until the job has been created. "Back-loading" Given these perils, the written contract incentives based on the number of jobs is should represent the complete an attractive option for local governments. understanding between the parties. In the This kind of payment clause can potentially following sections, we provide examples of protect the jurisdiction's investment in the language used in contracts across the case the company is not successful or falls country to describe the different kinds of behind in its hiring schedule. public benefits that local governments may pursue through their use of incentives. The $2.5 million incentive package negotiated between Bismarck, North JOB CREATION AND RETENTION Dakota and Coventry Healthcare contained a provision that gave Coventry Performance standards typically make incrementally larger payments as hiring incentives conditional on employment progressed.22 The city was thus allowed to projections. An early study of nine grant withhold its largest payment until the final and loan programs found that all required group of employees had been hired. recipient firms to specify projected job creation.19 Another example of contract language that requires incentives to be calibrated to Local governments use two kinds of successive employment levels is from payment provisions for securing these Vermont's Small Business Investment Tax benefits. The first sets a threshold job Credit: creation requirement as a condition for receiving public assistance. The second A person may receive a credit against its offers a specific amount of incentive on a income taxes in an amount equal to five per job basis. An example of a threshold to ten percent of its investments within requirement is the Iowa New Jobs and the state of Vermont in excess of Income Agreement, which provides that: $150,000 in plants or facilities and machinery and equipment in the The (subsidized) business must create at applicable tax year according to the least 50 new full-time jobs at the project following: location within five years of the application approval and must maintain 1) A person employing fewer than 150 that level for five years after first meeting full-time employees may receive an that obligation.20 income tax credit equal to ten percent of its investments in plants or A business taking advantage of Michigan's facilities and machinery and Economic Growth Act (MEGA) program: equipment in the applicable tax year. (M)ust create 75 new jobs if it is 2) A person employing between 150 and expanding its facility within Michigan, 250 full-time employees may receive 150 jobs if it is relocating to the state; an income tax credit of six to nine and 25 jobs if the facility is relocating to percent of its investments in plants or a state enterprise zone.21 12 THE IDEAL DEAL facilities and machinery and positions. Generally "full-time" implies equipment in the applicable tax year that employees work a minimum of 35 based on the following proportional hours per week (this is the case, for sliding scale: example, in order to qualify for protection under the Employee Retirement Income (a) a nine percent tax credit for 150- Security Act (ERISA) of 1974). Contracts in 174 full-time employees; Iowa include a definition of a "Full-Time (b) an eight percent tax credit for Equivalent Job" as the equivalent of 175-199 full-time employees; employment of one person for eight hours (c) a seven percent tax credit for per day for a five day, forty-hour workweek 200-224 full-time employees; and for fifty weeks per year.24 The employment (d) a six percent tax credit for 225- tax credit available to financial institutions 250 full-time employees. in Delaware is only applicable for full-time 3) A person employing more than 250 employees who are eligible for health insurance benefits. It is always best, full-time employees may receive an however, not to rely on external sources income tax credit equal to five percent for definitions. The best contracts will of its investment in plants or state the precise number of hours and facilities.23 perhaps necessary benefit levels for a These types of payment clauses are position to count as a "job" under the common with corporate income tax terms of the contract. credits. Standing alone, their inclusion in a Contracts can also prohibit the substitution contract is not an entirely foolproof means of existing employees to meet job of ensuring accountability. Many of the requirements. The Ohio Tax Credit statute "new" positions may have been created in excludes from the calculation of"new jobs" the absence of public assistance; the fact any employee who is hired to replace an that they are created before the public employee who was already employed at assistance changes hands begs the the project location at the time the project question of whether the incentives were was approved. It also excludes employees truly necessary from an operating or employment positions that were standpoint. Moreover, local officials may transferred to the project location from neglect to place effective monitoring and another company operation located in enforcement standards (e.g., clawbacks Ohio.26 discussed later) in such contracts because they feel unduly protected by the presence In 2002, the Kansas Court of Appeals ruled of back-end payment schemes. that "(a) taxpayer business which hires five new employees but dismisses ten existing employees Regardless of which approach the local has not added five employees."' The court's government takes, the contract should decision upheld the denial of a tax define the kinds of jobs that count toward exemption by the Kansas Department of job creation and retention goals. Simply Revenue to a business that failed to requiring a certain number of"jobs" would increase its workforce with enough new leave a court the option of interpreting its employees to qualify for the exemption. meaning as either full-time and part-time This case illustrates the need for contracts 13 SETTING PERFORMANCE STANDARDS that require the hiring of a certain number 85 percent of the average wage for that of employees to also specify their minimum occupation in the given labor market, and period of employment. Otherwise, an that companies pay at least 50 percent of employer could attempt to hire employees health insurance premiums. and then terminate them after qualifying for the subsidy. This is also why, as we will Cities and counties are more likely to use discuss, it is critical to adopt a monitoring poverty measures to set wage system that will allow local governments to requirements. For example, Minneapolis, oversee the manner in which the assisted which imposes wage standards derived company is adhering to the agreement. from either regional industry or occupational averages, also has a living WAGES AND BENEFITS wage law pegged to the poverty rate. The number of jobs may be less important In most cases, market-based wage than the quality of the jobs created and requirements are higher than those based whether or not local residents can fill on poverty standards. For market-based them. As such, local governments are requirements, it is preferable to use a slowly realizing that they must specify median wage measure rather than an other performance standards that go average wage because averages can be beyond job creation and retention targets. skewed by a few employees earning very A 2003 survey found that at least 43 states, high or low wages. Specifying that the 41 cities, and 5 counties —a total of 89 wage is for hourly non-management jobs jurisdictions—now attach job quality also helps ensure that the wage level is not standards to at least one development skewed by a few higher paying jobs. For subsidy, up from just two in 1989.28 example, the Iowa New Jobs and Income Agreement states that "the business must pay Many states now require contracts to a specified median wage for all new full-time specify a particular wage rate. Good Jobs hourly non-management jobs." First reports that wage standards are generally based on one of three types of Temporary construction wages may also be formulas: poverty measures such as the subject to prevailing wage requirements if federal poverty rate or state and federal they are subsidized by public monies. The minimum wages; static dollar amounts; or states of Pennsylvania, Ohio, West Virginia, market rates such as the average wage of a and California require that specific grant- state, region, county, and/or industry. subsidized private construction projects Market-based wage standards are the most comply with the state's prevailing common type found in state incentive construction wage rates. For example, the programs. The Maine Employment Tax Pennsylvania statute provides: Increment Financing (TIF) and Investment Tax Credit programs require that wages If the projects for which Grant funds are must exceed the average per capita income to be used involves the construction, in the county(or "local area") where the reconstruction, demolition, alteration company is located.29 The state's and/or repair work other than Governor's Training Initiative requires that maintenance work, done under contract, employees be paid a wage equal to at least where the estimate cost of the total 14 THE IDEAL DEAL Project is in excess of$25,000, then the Unfortunately states and cities often lack Grantee shall comply with the provisions the resources to effectively monitor of the Pennsylvania Prevailing Wage benefits that are provided as part of Act.30 subsidy deals. Programs may require companies to offer coverage to employees, Contracts may also require that businesses but do not require that employees be provide other benefits to the new or enrolled. retained employees. Indeed such provisions are becoming increasingly IN-STATE PREFERENCES common, particularly at the local level. In 2003, 67 percent of the states with The question of whether incentive standards (43) and 80 percent out of cities programs can require assisted firms to and counties with standards (46) offered at favor in-state suppliers and employees over least one incentive program that requires out-of-state ones (i.e., "buy or hire local") is healthcare benefits be paid at the legally complex. The Commerce Clause of subsidized firm or encourages them by the Constitution (Article I, § 8, cl. 3) gives allowing benefits to count towards wage Congress the power to regulate commerce requirements. For example, the Maine to, among other things, prevent interstate Quality Centers program requires that competition at the expense of the national firms create at least eight new full-time welfare. It has historically been jobs and pay 50 percent of the costs of interpreted to prevent states and health care benefits. An Iowa statute municipalities from intentionally requires the incentive recipient to pay 80 discriminating against out-of-state percent of the cost of a standard medical companies. and dental insurance plan for all full-time employees working at the project. This However, when the local government acts statute also encourages the provision of as a "market participant," rather than as a child-care services for employees.31 "regulator of commerce", an exception may be made. The Supreme Court has held that Many cities allow employers to choose the use of grants and in-kind expenditures, between providing benefits and paying as opposed to incentives offered as higher wages. In 2003, 25 cities and two abatements or credits through the tax counties required companies to pay higher system, may trigger the market participant wages if such companies did not provide exemption in some cases. The rationale health benefits. The average amount for the distinction is that taxation is a basic allotted for benefits was $1.50 per hour, governmental activity representing a ranging from $.83 per hour in Duluth to characteristic exercise of sovereign power, $2.34 per hour in San Diego. Oakland, which can be distinguished from a local Berkeley, Los Angeles, and Richmond, government's voluntary participation in California and Burlington, Vermont all market transactions. When they are not in require employees to receive a certain the business of taxation, local governments number of days off for sick, vacation, or can operate more freely in the national personal leave. market as buyers and sellers.32 15 SETTING PERFORMANCE STANDARDS For example, hiring requirements can contracts for work in connection with sometimes mandate that the subsidized such projects, to the greatest extent business hire workers that are residents of feasible, to eligible business concerns a particular geographic area (a city, state) located in or owned in substantial part by or workers that have been "targeted" for persons residing in the same metropolitan some other socially relevant reason, e.g., area or non-metropolitan county as the individuals transitioning off of public project." assistance or out of prisons. The Ohio Tax Credit Agreement requires that businesses Similarly, Michigan's MEGA Tax Credit either display a "good faith effort" or make Agreement requires a good faith effort on substantial progress toward hiring those the part of the company: most in need of employment. The Ohio statute requires that: to employ, if qualified, Michigan residents at the facility. The company will also "Within three years of the project's initial make a good faith effort to employ or operations, the company must show that a contract with Michigan residents and certain percentage (specified by the agency) firms to construct, rehabilitate, develop, of the new employees are either or renovate the facility.34 disadvantaged persons or minorities(as defined in the statute). The company must Subsidy recipients in Minneapolis, Los maintain this percentage throughout the Angeles, and New Britain, Connecticut term of the agreement." must meet guidelines for local hiring. Cities such as Chicago have required Because it is often unclear whether a subsidized firms to make good faith efforts preference would fall within the market to hire workers from within city limits. participant exception, that question is best left to a lawyer. In cases where it is clear Unfortunately because these are non- that the exception does not apply— and in mandatory hiring guidelines, they some uncertain cases — legislators and guarantee no results. In the end, incentive contract drafters often require a recipient's recipients retain the autonomy to hire best efforts to meet specified goals. While, whomever they please and can easily make in the eyes of the grantor, these terms may the case that none of the targeted be less optimal than out-right applicants were employable. And this may requirements, they are still helpful towards well be the case; employers generally have achieving the desired results. For example, a better sense of who would be a good in Idaho, recipients of Community employee, and there are sometimes Development Block Grants must: mismatches between employment opportunities and the skill levels of local to the greatest extent possible, provide applicants. opportunities for training and employment to lower-income persons Given these issues, it is often preferable to residing within the unit of local include specific job marketing, solicitation, government or the metropolitan area of and training provisions in the incentive non-metropolitan county in which a contract. These "first source" provisions project is located. They must award generally avoid any Commerce Clause 16 THE IDEAL DEAL concerns. They can range from a concerned. An Iowa statute attempts to requirement that a subsidized firm protect local workers from employers with advertise jobs through particular channels poor records with organized labor. It that have the greatest potential to reach provides that: targeted candidates, to a requirement to interview candidates referred from a The employer must represent that it is not specific source. For example, in currently involved in a strike, lockout, or Minneapolis, San Francisco, and Portland, other labor dispute at any of its business Oregon subsidized firms are encouraged to sites in Iowa and that employees receiving sign job linkage agreements, committing training are not replacement workers them to hire new employees through a who were hired as a result of a strike network of placement and training lockout or other labor dispute.36 community agencies and to post job vacancies to the network's database.' Similarly, the William S. Lee Quality Jobs Individual contracts can expressly require and Business Expansion Act passed by the such linkages and periodic hiring reports, North Carolina Legislature provides that: and state repercussions for failing to A taxpayer is eligible for a credit allowed achieve express local hiring goals. under this Article only if the taxpayer Contracts can also require the firm to certifies that, at the time the taxpayer retain a specific level of new hires over the applies for the credit, the taxpayer has no life span of the incentive. pending administrative, civil, or criminal And to the extent a contract calls for enforcement action based on alleged cooperation with an employment or significant violations of any program training agency, the choice of agencies can implemented by an agency of the be left to the grant recipient. The choice Department of Environment and Natural can, however, be limited to agencies pre- Resources, and has had no final qualified by a state or local government determination of responsibility for any that are capable of dealing with the significant administrative, civil, or employment needs of particular types of criminal violation of any program business. This allows the recipient some implemented by an agency of the choice to use its expertise to avoid Department of Environment and Natural turnover and attrition while still achieving Resources within the last five years.37 laudable social goals. This requirement applies to job, worker ENVIRONMENTAL AND LABOR PROTECTION training, investment, and research and development tax credits. Some subsidy contracts require the assisted firm to meet labor and Environmental provisions are often environmental standards, which can be included to protect the value of the higher than those required by existing law property and to protect the lender from or regulation. Others require the liability. Pennsylvania loan agreements, for subsidized company to present a clean bill example, contain provisions requiring of health in so far as unlawful environmental compliance to protect the environmental or labor practices are lender's interest in the property. 17 SETTING PERFORMANCE STANDARDS THE CITY OF CHICAGO'S DEAL WITH FORD The City of Chicago and the State of Both of these developments converted Illinois crafted an incentive package for brownfield properties into new the Ford Motor Company in 2000 that productive uses. The new supplier park has some of the qualities of an ideal was expected to attract approximately deal. Although the Ford plant has 1,000 new jobs and save 2,500 operated in Chicago since 1933, the unionized jobs at the Ford assembly company needed to make a critical plant. The Ford plant and supplier-park decision in the late 1990s due to a facility are expected to provide $1.3 change in product line: to retrofit its billion in tax revenue to the city and Chicago plant or to relocate. The city of state over 10 years. Hapeville, Georgia (where Ford operated its Taurus/Sable assembly plant) made The deal has several caveats. Ford must the decision more complicated by create a minimum of 1 million square offering Ford an attractive incentive feet of building space. The company package. must also guarantee that it will maintain the existing union jobs at the main Despite the offer from Hapeville, Ford plant. Clawback provisions require Ford chose not to leave Chicago. The City of to create a minimum of 500 full-time Chicago and the State of Illinois jobs by the end of 2006 and to maintain negotiated a $115 million incentive these jobs through 2011. If these package with Ford, which includes both provisions are not met, Ford must pay direct and tax expenditures but does not back a percentage of the financing cover the cost of the new plant itself— a proportionate to the percentage of measure that ensures Ford has a promised jobs the company failed to financial stake in the deal. Ford agreed create, and it must repay the city for to develop and own an industrial park infrastructure and road improvements. whose space is leased to its suppliers, Sources:J.McCourt and G.LeRoy, 2003."A Better and the City agreed to develop more Deal for Illinois"Chicago: Good Jobs Illinois;City of than 900 acres land in the Lake Calumet Chicago Department of Planning and Development area on the city's far South Side into an Annual TIF Report(2001);J.Fitzgerald,2002, inter-modal freight transfer center. "Retention Deficit Disorder"Boston:Center for an Urban Future. The standard loan agreement in Ohio also CAPITAL INVESTMENT AND PROHIBITIONS TO requires annual environmental inspections, RELOCATE but like the Pennsylvania template, is primarily meant to guard against sudden In order for all of the above-mentioned depreciation of the asset. benefits to materialize, the assisted firm must continue to invest in its facility and operate in place over a particular period of time. There are various measures to use to 18 THE IDEAL DEAL control this, many of which may be best Minnesota law requires that the assisted used in tandem. They include stating the company obtain the local government's amount of time the company must remain permission to move outside of the in place, employment levels, expected long community if it moves within five years of term capital investment, and levels of receiving the subsidy. This permission can additional square feet of occupancy. Long- only be granted after a public hearing is term capital investment is subject to less held. In Ohio, assisted companies must cyclical variation than employment and maintain their operations at the project more exacting than square footage location for twice the number of years as requirements, and therefore may be a the term of the tax credit.4° Iowa has better benchmark for performance. particularly stringent standards: But whatever combination of these measures one chooses to employ, it should So long as the Business is indebted to Iowa include an explicit "stay-in-place" Department of Economic Development requirement. (IDED)or Community, the Business shall not, without prior written disclosure to the A capital expenditure provision template Community and IDED and prior written from a municipality in Marion County, consent of IDED, directly of indirectly: Indiana provides that: a) assign, waive, or transfer any of The City commits to providing a six year business'rights, powers, duties, or real property tax abatement. . . as a result obligations under this loan agreement; of the Applicants'capital expenditure of not less than $4,950,000 or of not less than b) sell, transfer, convey, assign, encumber, $2,831,400 on leased space associated or otherwise dispose of any of the real with the redevelopment and/or property or other collateral securing the rehabilitation activities.38 loan; What is critical here is the express tying of c) place or permit any restrictions, the abatement to a fixed level of covenants or any similar limitations on investment. the real property and/or other collateral securing the loan; Although optimal, it is highly unlikely that a business would promise to stay in one d) remove from the project site of the state place in perpetuity—just to fulfill its all or any part of the collateral securing obligations for a tax abatement. Still, local the loan; officials should expect a firm to remain in the locality for a reasonable amount of e) relocate its operations,physical time,which is often tied to the length of facilities of jobs (including Created, the subsidy or abatement. For example, a Retained, and Community Base Jobs) Connecticut program prohibits the assisted with the loan proceeds outside recipient 'from relocating during the term the the community or abandon its loan is outstanding or for ten years after operations of facilities or a substantial receiving assistance, whichever is longer."39 portion thereof with the community during the loan term.41 19 SETTING PERFORMANCE STANDARDS States often treat in-state and out-of-state intends to operate for the term of the loan relocation differently. The State of Ohio or project period. This is problematic reduces the penalties if the relocation is because the company will not be made within the state. Connecticut sets no considered to be in violation of the penalty for in-state relocation, but requires contract if it ceases operations before the that "if the business relocates within state, it loan is repaid -- if it intended to operate must offer employment to its employees from the plant for the agreed-upon time period. the original location if employment is available, It also means that the company can pay off or the authority may terminate guarantee of the loan early and leave without penalty.' the loan."42 The Michigan MEGA program Therefore, if a municipality expects a allows in-state relocation only if the facility to remain in the locality for some municipality condones the move. Some time beyond the loan term, it should states, such as Pennsylvania and Iowa, specify those expectations in the contract prohibit in-state relocation altogether and not treat the loan period as the benefit unless it is the result of an expansion that period. does not close or substantially reduce operations at the originally subsidized facility. Moreover, in Iowa a company is eligible for a grant only if it has not closed or reduced operations in one area of the state to relocate in another.a3 Set a benefits period How much time should an assisted company be given to make good on its promises? "Benefit periods" are often set arbitrarily in contracts even though companies have a good sense of how long it will take them to complete specific projects. The company should provide some guidance about the expected project period, after which time the benefits (e.g., new employees hired, amount of capital invested) should have materialized. Without a benefit period, the company will have an indefinite amount of time in which to fulfill its promises. When local governments use loan programs, they expect that the assisted company will not relocate until the loan and interest have been repaid. Some programs require the company to state that, at the time the contract is signed, it 20 SECTION THREE: DETERMINING BREACH OF CONTRACT THROUGH MONTINORING AND DISCLOSURE If a company does not comply with the the agreed-upon number of jobs but not terms and conditions of the contact, it may provide employees filling the positions be considered to have "breached" it. with some other promised benefit. Most Although ceasing operations or relocating often a partial breach does not terminate a out of state may look like clear violation of contract; each party must continue to an incentive agreement, determining when perform its duties and seek redress an assisted firm has breached its contract is through negotiation, the courts, or through not as simple as it may appear. Because a the provisions of the agreement that finding of breach can lead to the provide for such contingencies. imposition of costly penalties and damages Determining what constitutes a "total" and (discussed in the next section), it is "partial" breach is often a nuanced legal important to clearly define what question that requires consultation with an constitutes a breach is in the agreement attorney. What is important here is that itself. parties may anticipate breaches and provide solutions for them in the Define breach of contract agreement,which can eliminate the need to resort to the courts should a breach A breach may be total or partial. Generally, occur. a total breach is failure by one party to perform a significant obligation or If a party does not want a particular breach obligations under the agreement. A total to terminate the entire contract, then a breach entitles the injured party to statement outlining the specific suspend performance of its side of the consequences for the specific violations bargain and consider the contractual must be included in the contract. For relationship dissolved. If the non- example the Indianapolis Economic breaching party continues to carry out its Development Corporation Memorandum of contractual obligations despite the other Agreement (2002) provides: party's total breach, it may waive its right to seek redress for the total breach. The City, by and through the Metropolitan Development Commission, reserves the right A partial breach is a failure by one party to to terminate property tax abatement perform a somewhat less significant deductions for the project if it determines obligation under the agreement. For that the applicant has not made reasonable example, an assisted company may create efforts to substantially comply with all of the 21 DETERMINING BREACH OF CONTRACT THROUGH MONITORING AND DISCLOSURE commitments and the applicant's failure to found to be in breach must be given a substantially comply with the commitments reasonable time to "cure" the default. was not due to factors beyond its control. Minnesota companies receive a two-year grace period to fulfill their contractual In a specific case, breach was further obligations. The two-year period may be defined: extended by one year, but only if the government agency holds a public hearing As used in this agreement, "substantial to review the circumstances. In compliance"shall mean the applicant's Indianapolis, companies that have not met compliance with the following: the outlined performance standards are put (i) making capital expenditures of not less on probation for one year. If during the than $2,689,830 on the leased space; probation period the standards are still not met, the Indianapolis Economic and Development Corporation has the right to (ii)the creation of not less than 95 new cancel the incentive and require the permanent full-time positions with company to repay the percentage of the average hourly wage rates of$12.65; and incentive already received in proportion to (iii) the retention of 119 full-time positions the percent of their obligation they failed with average hourly wage rates of to achieve. $13.54. Define exceptions If the company fails to comply with more than one of the substantial compliance There are exigent business circumstances categories, then repayment may be based that may rightly excuse firms for failing to on the highest level of non-compliance. meet their contractual promises. Such exigencies can be accounted for in the Defining breach in this manner provides contract. For example, in some the parties and, if necessary, ultimately a agreements Ohio excuses a breach for court with some meaningful guidance in failure to create or retain the number of enforcing the specific provisions of the jobs fixed in the agreement if that failure is contract. caused by "market conditions." Under the agreement, the Director of Economic When incentives resemble "normal" Development determines whether market commercial instruments, such as conditions caused the failure. In making mortgages, leases, or loans, defining the determination, the Director must breach is even more important. This is define market conditions in consultation because the intentions of the government with the Federal Reserve Bank of Cleveland agency ("creating jobs") may be different by considering whether the following has from the standard obligations of the occurred: financial instruments, such as making regular loan payments. a) Two consecutive quarters of decline in manufacturing employment in Ohio as a In contract law, an immediate remedy is whole or, when relevant, by available for almost any breach, although in manufacturing sector. The Director must all but the most extreme cases, the party 22 THE IDEAL DEAL rely on employment figures reported by of any proposed change in the business the Ohio Bureau of Employment Services. ownership, structure or control which would materially affect the project. b) A decline, as a whole or by a relevant sector, in twelve of the last thirty six Clauses that require notice only in an event months as detailed in the Federal of a loan default or initiation of litigation Reserve's national industrial production should be avoided. There are a number of index. other adverse events that could forewarn a substantial breach, and notice of these c) A decline within the relevant section of the needs to be expressly provided for in the Standard and Poor's "Industrial Outlook.45 contract. include a notification provision Specify monitoring practices All contracts should include a notice Monitoring is the key ingredient to provision no matter how insignificant it ensuring compliance with incentive may seem. Notification requires that the agreements. Unfortunately, many local company alert the municipality and wider governments are not vigilant once an community to any changes in its agreement has been made, often due to a operations, such as the initiation of any lack of resources. An investigative report lawsuits or bankruptcy proceedings, which of Ohio's enterprise zone program, for might adversely impact the subsidized example, found that no major city there project. It also gives the economic routinely visited subsidized companies to development agency some time to rectify monitor their compliance with legislated problems brought on by these changes— performance standards.46 One official in e.g., to find a new tenant for an abandoned Kansas City noted that "We don't want to be facility, enlist the help of another developer big brother, peering over their shoulders all the to complete the project, or cushion layoffs time. . . We have tried to avoid the whole with placement or retraining assistance. notion of'auditing—.47 And even where attempts are made, subsidized firms are For example, a notice provision used by the less than cooperative or timely. Florida Qualified Tax Industry Program provides that: The public sector needs to do more on this front. Without monitoring, the time and A corporation must notify the state of any care that went into negotiating and developments that impact the agreement. drafting the agreement is worth little. With These may include commencement and full the decision to give an abatement must implementation of the project, project delays also come the commitment to monitor and cancellation of the project. compliance once it has been made. And The Iowa New Jobs and Income Program this commitment to monitor— including Contract goes a step further toward better monitoring means and methodology— should be spelled out in detail in the monitoring: agreement itself. The business shall provide prompt advance notice to the community and the department 23 DETERMINING BREACH OF CONTRACT THROUGH MONITORING AND DISCLOSURE There are two common monitoring from the city's employee earnings tax. It is methods. The first requires that specified easy for state and local economic documents be open to inspection and audit development agencies to request this data by the granting authority. Indianapolis, for and work together with state employment example, requires a notarized annual agencies to track the employment practices report from its subsidized companies. The of subsidized firms. city also conducts spot audits on about 5 percent of subsidized companies, in which Legislation or contracts can also require a company has 24 hours to respond to a companies to disclose deal-specific series of questions about the number of information to the general public. employees,wages,and capital investment Minnesota's Subsidy Reform law requires it has generated since the incentive was every recipient of an incentive to file an awarded. annual report specifying the amount of the incentive, the public purpose to be served, The second method is to impose an the number and quality of jobs to be affirmative obligation on the part of the generated, and any other special treatment business to provide the necessary received. The law requires that each information. This relieves often under- redevelopment agreement set measurable resourced grantors from having to go out two-year goals and assess the corporation's and actually gather the data. Still, caution progress. Failure to meet the goals may is necessary. First, in the contract result in the repayment of the tax break government officials need to be specific with interest. The Minnesota Department about the exact nature of the data desired. of Employment and Economic Second, they need to be aware that these Development (DEED) collects and publishes requirements do not prevent a subsidy every disclosure report each June. The recipient from misrepresenting the facts. reports are readily available to the public Businesses may provide their own from DEED,which also publishes a brief interpretations of their employment and summary of the data. The disclosure form investment data. Requesting the raw data includes specific data on costs and helps avoid this scenario. benefits, including type of subsidy and its value, the number of jobs created, wages Perhaps the best way to guard against such paid, and benefits provided, as well as a possibility is to double check self- other public purposes served by the deal. reported data from subsidized businesses against labor market statistics collected by Amendments made to the Minnesota law in the public sector, preferably the state's 1999 are considered a model for unemployment insurance records. transparency legislation and contain Unemployment records, maintained by several improvements in the state's each state's employment office, reflect not disclosure format, such as: only new hires but also every employee and their wages each quarter. Thus,they • More detailed wage disclosure (instead make for an ideal third-party-collected data of one aggregated average hourly set against which to verify retention and figure, companies must report the wage new hiring. Kansas City checks self- for each new job within wage ranges). reported data against information derived 24 THE IDEAL DEAL • Health care disclosure (the company five years and have not paid back any of must disclose the sum of wages plus the original incentive. the hourly value of employer-paid health care, also in ranges, so that it Other states, including Illinois, North will be obvious if the employer is Carolina, North Dakota, Washington, providing health care and, if so,what Nebraska, and Maine have recently its approximate value is). followed Minnesota's example." Maine's disclosure law requires that corporations • Reporting on all subsidies the company receiving $10,000 or more in state has received from multiple agencies for assistance provide annual reports on total a project. employment,job creation, and the wages and benefits of existing jobs and jobs • Reporting on whether and from where created.49 The Economic Development the company was relocating and why Incentives Commission, created by the new the assisted project was not possible in law, was charged with studying the impact the company's previous location. and cost-effectiveness of corporate subsidies and tax breaks and • Provision of the name and address of recommending reforms that will increase the company's parent corporation, so accountability. that the state will know if multiple subsidiaries of the same corporation In addition to establishing breach, are receiving subsidies. monitoring also allows third parties, such as community organizations and unions, to • Finally, the amended law sets forth ensure that both the firm and the public penalties for companies that fail to sector are complying with the terms of the report by March 1 of each year. If a contract. Four states, Illinois, Ohio, North company fails to report within 14 days Carolina, and Minnesota, now post relevant after the granting agency sends a information on particular deals on the warning, the company must pay a fine internet. Connecticut requires that of$100 a day up to a maximum of assisted companies make incentive reports $1,000. All cities with a population of available to employee representatives if 2,500 or more and all state agencies they request them.S° Reporting must file their reports with the state by requirements become especially important April 1, and they must file a report even when a company is deciding to relocate, if it is only to say they had no downsize or engage in any other form of reportable deals for the year. The state restructuring because employee must warn the agency, and if the representatives can use the report in their agency fails to report by June 1, then own contract negotiations or publicize the the agency loses the right to enter into company's other obligations. Employees more deals until it complies. can also assist municipalities in monitoring The state must include in its final report the firm's behavior and applying additional a list of companies that are ineligible to pressure to adhere to the contract. receive new subsidies because they The public interest in information, have failed to achieve a goal in the last however, faces a countervailing business 25 DETERMINING BREACH OF CONTRACT THROUGH MONITORING AND DISCLOSURE interest in corporate confidentiality. Many contracts have confidentiality clauses to protect "proprietary business information." Public dealmakers should closely scrutinize blanket clauses that leave the public in the dark. Companies have legitimate interests in trade secrets, such as customer lists or profit-loss statements, which in the hands of a competitor could harm a business.5' • However, few subsidy applications, except perhaps business loans, require such information. In other words, the kinds of data required for compliance monitoring in development agreements (e.g., employment levels, local capital expenditures and the like) is not likely to constitute proprietary business information. The onus should be on the company to demonstrate how disclosure of the kind of data called for could disadvantage it with its competitors in order for it to be subject to confidentiality clauses. 26 SECTION THREE: PENALTIES FOR BREACH Contractual mechanisms must impose are freed from the responsibility of penalties on businesses that fail to live up enforcing accountability provisions — a to the promises made in exchange for painful and litigious process. Local incentives. Specifying performance and governments find these kinds of incentives disclosure requirements only solves part of to be easy to use. They are more politically the problem; ensuring compliance requires palatable because the taxpayers are already agreeing to penalties for noncompliance. enjoying the benefits from the project and A breach of contract should trigger a host are perceived to be "sharing" some of the of remedies and damages, many of which increased tax revenues.52 should be specifically laid out in the contract itself. Penalties are particularly Tax increment financing (TIF) deals are important when they are not specified in often structured in this "pay-as-you-go" the enabling state statute or local manner. Such an arrangement means that ordinance. Without guidance from a developer is reimbursed for the money contract language or statute, courts have spent on eligible TIF costs (e.g., the authority to decide what the damages demolition, parcel assembly, infrastructure should be. development) by the municipality on an annual basis as tax increment revenues Opt for "back-loaded" incentives become available. These kinds of TIF agreements have built in performance and whenever possible enforcement controls. The redevelopment Extensive penalty language is less agreement can be written so that in the important when municipalities and states event that a developer fails to make the structure incentives so that they pay out needed investments, the municipality can only when the company meets specified withhold future payments. performance benchmarks. The Each TIF redevelopment agreement benchmarks can be laid out incrementally negotiated by the City of Chicago contains over time, releasing a specified amount of as "Issuance of a Certificate of Completion" the incentive at each stage. Doing so section. It specifies that: generally results in less need to recapture funds because of nonperformance further the City has the right to terminate the down the road. By placing the burden on Redevelopment Agreement, cease companies to prove that they have disbursement of City funds, and seek qualified for the incentives, public officials reimbursement from the development of 27 PENALTIES FOR BREACH City funds if the project is not completed When a company has cash flow issues and per the Redevelopment Agreement. needs funding up-front, they may not be willing to wait around until a government In agreements that include the issuance of agency can evaluate performance public notes or bonds, a provision is measures. However, if project costs are included allowing the City the right to seek incurred and paid out over a longer period reimbursement "provided that the City is of time, a back-loaded structure will be entitled to rely on an opinion of counsel that more appropriate. such reimbursement will not jeopardize tax- exempt status, if any, of the Bonds." Include non-performance A provision in some of the City of Chicago's provisions redevelopment agreements states that if If public funds must change hands up front, the developer fails to complete the project, nonperformance provisions must be the municipality has: written into the contract. And even in the the right (but not the obligation) to pay-as-you go context, one should carefully complete those TIF-funded improvements consider scenarios where a default could that are public improvements and to pay occur after a benchmark has been met. For for the costs of T1F funded improvements example, if a payment is tied to a specific (including interest costs) out of City funds level of employment being reached, what or other City monies. In the event that happens if, after the payment, the company the aggregate cost of completing the TIF discharges most of these new employees? funded improvements exceeds that Non-performance (or, more aptly here, amount of City funds available, the undoing performance) provisions also Developer shall reimburse the City for all make sense in this and many other pay-as reasonable costs and expenses incurred by you-go scenario. the City in completing such TIF-funded Non-performance provisions generally fall improvements in excess of the available into five categories: City funds....' • Similarly, the Michigan Economic Rescission: canceling a subsidy Development Training Grant uses an award agreement if job and revenue schedule that only provides grant funds to projections are not met; the company as it meets certain program • Clawback: recovery of all or part of milestones. The state assumes less of a subsidy costs if performance goals are risk for training workers by holding more not met; of the funds until the program is completed. • Recalibration: adjustment of subsidy to reflect changing business conditions; The use of this kind of structure, however, is not possible in all cases. Performance- • Penalty: additional charges (e.g., the based incentives are less popular with interest accrued on the public's businesses, many of whom prefer to investment) for non-performance or receive lump sum payments to cover relocation; and construction and other start-up costs. 28 THE IDEAL DEAL • Debarment and suspension: prohibiting benefits upon a specified breach by the the non-compliant company from grant recipient. Clawbacks can be tied to receiving incentives in the future. almost anything, including the number of employees, magnitude of capital Non-performance provisions should always: investment, years in residence, or square (a) state when the mechanism is triggered footage of space developed. Once the (i.e. the event that signals the breach); and grant recipient fails to meet a benchmark (b) describe the penalty that will be in the contract, the clawback clause kicks exacted after a specified grace period. in, entitling the grantor to repayment of the benefits conferred or other appropriate RESCISSION remedies. For example, in its deal with Roll-Kraft, Inc., the city of Mentor, Ohio While it is a rare non-performance included the following clawback clause in provision, rescission terminates the its property tax abatement agreement: incentive agreement in the event of non- performance. Unfortunately, if rescission is If Roll-Kraft materially fails to Milli its the only remedy specified, companies can obligations under this agreement,for breach the agreement mid-stream in a way reasons other than downturns of that leaves the granting agency little value economic or business cycles, or if the City for its money. For example, rescission of Mentor determines that the could allow a business to walk away from a certification as to delinquent taxes development mid-stream, leaving nothing required by this agreement is fraudulent, but a partially constructed project of little the City of Mentor shall give at least 60 financial value. Thus, in addition to days written notice thereof to Roll-Kraft. rescission, it is always necessary to include Roll-Kraft shall have the opportunity to other remedies. The following is an cure such default within such period, but example of a rescission provision from the if such default is not cured within such 60 Idaho Community Development Block day period, the City may terminate or Grant Program: modify the exemption from taxation granted under this agreement and may The department shall have the right to require the repayment of the amount of terminate this contract in whole or in taxes that would have been payable had part, at any time before the date of the property not been exempted from completion, whenever it is determined the taxation under this agreement.54 grantee has failed to comply with the conditions of the contract. The The City of Roanoke, Virginia ties the department shall promptly notify the recapture to real estate: grantee in writing of the determination and the reasons for the termination and In the event the company fails to increase the effective date. the square feet of occupancy by 20,000 square feet, the company shall repay to CLAWBACKS the [agency] the amount of five dollars per square foot for each square foot of A "clawback" clause allows a grantor to increase less than 20,000 square feet ss take back previously conferred money or 29 PENALTIES FOR BREACH Iowa ties the recapture to job creation: requirement. What is critical is that each clawback remedy be tied to specific types If the company fails to create and or category of breaches and that the maintain the agreed number of jobs, it magnitude of the clawback has a reasonable must repay a certain portion of the connection to the magnitude of the breach. incentives it received depending on how Courts are very reluctant to impose a well it has complied with the job creation remedy— even if contractually agreed to— goals. The business is not liable for any that amounts to a huge windfall for one amount if it meets more than 90%of its party and a huge penalty for the other. job creation obligations. If the business has met less than 50%of its obligations, RECALIBRATIONS it must repay the same percentage in benefits as it fails to create in jobs. If the Recalibration provisions allow local business created more than 50%but less governments to adjust the incentive to than 75%of its requirement, the business reflect changing business conditions. With must pay one half of the percentage in such modifications,the agreement does benefits as it failed to create in jobs. If not need to be completely terminated if the business creates more than 75%but certain aspects of the relationship change. less than 90%, it must pay one quarter of A contract may provide explicit provisions the percentage it failed to create in jobs.56 for making the recalibration request. In Texas, a business may request a The statutory guidelines for the Ohio Tax modification if: Credit Program tie recapture to the amount of time the company remains in the state: it is required to reduce or eliminate(its( work force because of 1)reductions in The maximum amount the authority can overall employment within an industry;2) recapture depends on the amount of time a substantial change in the skills required the company remained at the project site: to continue the employer's business exists (1)If the company maintained operations because of technological changes;or 3) at the location for one and one-half times other reasonable factors, as determined the number ofyears of the term of the tax by the executive director.S8 credit, up to 25%of the total allowed credits may be refunded; (2)If it Unfortunately,when governments and maintained operations for the term of the firms agree to penalties that can be easily tax credit, the amount required to be modified to fit contingencies, the penalties refunded cannot exceed 50%of the do not provide the same incentive to fulfill allowed credits; (3) If the company the contractual obligations. Still, relocates operations within the term of recalibration clauses have their uses. They the tax credit, the authority may require are most common in low-interest loan the company to refund up to 100%of programs. Local governments have been the allowed credits.S7 able to raise the rate of their loans if the assisted company is not meeting the While these examples are illustrative, it contractual obligations of the loan. should be noted that clawbacks can be tied A Pennsylvania program levies a penalty of to any conceivable contractual two points over the prime rate if a 30 THE IDEAL DEAL THE INTEL DEAL The 1994 incentive agreement signed by precondition to contesting the notice of the Intel Corporation and Washington non-compliance. County shall place the County, Oregon and City of Hillsboro amount in dispute into a trust and agency contained remedies for recovering account pending final resolution, with public funds in the event that the interest accruing to Intel at the rate company failed to comply with the earned if Intel prevails. provisions of the agreement for hiring and making service fee payments to the If in any tax year, Intel fails to pay the local governments. community service fee required under paragraph 2.4, County may collect late The following provisions are excerpted payment penalty and interest on the from the agreement: delinquent CSF payment equal to the same penalty and interest as is charged by the 4.1.3.1. If, in any Hiring Year that such County on all delinquent personal property requirements apply, Intel fails to meet the accounts. In addition to any other remedy, job creation, retention and compensation failure to pay CSF by March 1 shall be requirements of Paragraphs 2.2.1 through basis for a finding of breach and non- 2.2.4, Intel shall pay an amount equal to compliance, and shall require payment to 100%of the net property tax savings of the County of 100%of the net property tax the tax year containing the end of such savings for that tax year. Hiring Year. Intel shall have the burden of documenting 4.1.4. Intel may file an action in compliance with this Agreement. Intel Washington County Circuit Court or shall provide to the County such Federal District Court for Oregon to documentation or information as County contest this determination. Payment of requires to verify compliance with the the amount in dispute shall be a Agreement. company is found to be out of compliance. enforce its fair labor, health, and safety An agency inspector can waive the penalty standards, and states have included similar if the cause of the violation is reasonable, provisions in their public works contracts.60 such as a general economic downturn.59 State incentive programs may bar noncompliant firms from receiving any DEBARMENT AND SUSPENSION future subsidies from a particular program or from receiving any form of future Debarment provisions prohibit a company assistance from the same state. Such from ever doing further business with the penalties, however, are less common at the public agency in the event of a breach. local level. In these matters, the courts Suspension provisions are a similar bar but tend to defer to the states so that the right for a limited term. The federal government to debar should be explicitly authorized by has long used the threat of debarment to statute.61 In Minnesota, for example, 31 PENALTIES FOR BREACH inducement to the local government is $30 Seek support from community million, but the contract provision provides organizations for damages of$60 million, it will not be enforced even if the parties intended to be Grassroots campaigns and negative press bound. However, if enabling legislation can complement measures that local governing the inducement allows or governments take to enforce contracts. requires a penalty so denominated, it may Community groups have organized an override normal contract law.66 Whether increasing number of petition drives and such a statutory provision is valid will referenda to place subsidies and depend on applicable state law, which performance measures on local ballots. varies from state to state. Their power lies in their ability to raise The key point here is that clearly designed community awareness of the deal terms, and drafted clawback clauses can help which may shame companies into better avoid litigation. When a subsidized behavior. For example, after local business is faced with clear penalties for its organizations complained publicly of a deal failure to comply with the requirements of gone bad, ABB Instrumentation announced an incentive package, it should make that it would give back $1.1 million to the financial sense for it to comply within the Monroe County(New York) Industrial terms negotiated. Development Authority when it failed to create the agreed-upon number of jobs. Include a waiver provision Coalitions of community groups have been involved in similar kinds of efforts to All contracts should contain a waiver obtain what are called Community Benefits provision to protect the public sector from Agreements (CBA) from assisted developers losing its rights under the contract if it and businesses.68 A CBA is a legally delays enforcement. Economic enforceable contract signed by community development agencies often hold off organizations and developers. In it the enforcing incentive contracts, attempting developer agrees to provide certain other non-legal means to get the non- benefits and the community organizations performing business to honor its promises. promise support for the project that will It is also possible that a new administration aid in the developer's dealings with those may wish to enforce conditions where its government agencies responsible for predecessor did not." Without a waiver permitting, zoning, and financing the new clause, these delays could be interpreted as development. It is typically negotiated a waiver of the breach by the granting before the actual incentive agreement, but agency. A waiver clause could read: "No can be incorporated into it if all parties failure to insist on the prompt performance by agree. the company of its obligations under the agreement shall be construed as a waiver by In May of 2001, a coalition of labor and the department of its rights under the community-based organizations—the contract." Figueroa Corridor Coalition for Economic Justice — negotiated a landmark CBA for the Los Angeles Sports and Entertainment 34 THE IDEAL DEAL District development, a massive mixed-use the municipality requesting a referendum project located next to the Staples Center upon the question of the issuance of the sports arena. Among other things, the CBA bonds. If such a petition is filed, the required the developer to: bonds shall not be issued until approved by a majority of the electors of the • Provide an assessment of community municipality voting thereon at a general park and recreation needs, and a or special election.69 commit $1 million toward meeting those needs; Moreover, legislation can provide for a private right of enforcement by third • Increase the proportion of affordable parties to the contract. This would allow housing in the residential unit mix and private citizens, unions, and community provide seed money for additional groups legal standing to sue a business affordable units; that violates the law. Without such legislation, third parties often have no such • Provide parking for the adjacent right. residential area; • Assure that 70% of the jobs created in the project would pay the City's living wage; and • Agree to consultation with the coalition on selection of tenants. Formally requiring some sort of public participation in the process from the start allows such groups to gain a sense of ownership over the deal and can lead to a complementary CBA. In some places, taxpayers have demanded that subsidies be subject to the community approval. Wisconsin requires a voter referenda if a portion of the electorate seeks to challenge the subsidy: The governing body may issue bonds under this section without submitting the proposition to the electors of the municipality for approval unless within 30 days from the date of publication or notice of adoption of the initial resolution for such bonds, a petition, signed by not less than 5% of the registered electors of the municipality is filed with the clerk of 35 CONCLUSION Anecdotal evidence suggests that cities and case by returning $1.57 million in tax states are becoming more assertive in their abatements to the agency. incentive negotiations with business. Approximately half of the major cities and Although using performance standards is states in the Midwest have successfully certainly better than giving away subsidies enforced at least one clawback clause in for free, local governments still draft the last 5 years.70 Indianapolis was the contracts too loosely and enforce them too front runner, having found 30 companies weakly to substantially increase the return to be out of compliance since 1993—the on the public's investment. Or economic year in which it established job goals and development practitioners give up before wage standards for all business incentive they start. They figure that even when they programs. For example, Indianapolis write excellent contracts, there is no signed a deal with United Airlines giving it guarantee that businesses will stick to their about $300 million in tax breaks for a new promises. maintenance hub at the Indianapolis International Airport." In return the airline Defeatism is no excuse for ignoring the made two promises: to invest $800 million public's investment in economic by the end of 2001 and to create at least development. Nor is the fear that many 6,300 full-time jobs by the end of 2004. practitioners have of developing a When United failed to meet its first reputation for"aggressive" and "anti- promise, it agreed to pay$31 million to business" behavior. Local officials are Indiana government agencies in prorated often concerned that these contractual clawback fines.'Z mechanisms lower the value of the incentive for the company if the company Other cities have followed suit. For perceives future tussles with the law, a lack example, in September 2002 the Kansas of flexibility on the part of the public City redevelopment agency sued Aquila sector, and additional reporting Merchant Services Inc. to recapture tax requirements and compliance costs. incentives it had awarded the business.73 The suit claimed that the company violated Research has revealed that such fears are an agreement to employ at least 400 likely overstated.74 If firms are aware of workers downtown, and in doing so accountability provisions from the start of activated a clawback designed to reimburse negotiations, formalizing the quid pro quo the incentives. Aquila quickly settled the in a contract can actually clarify the 36 THE IDEAL DEAL expectations of both parties, reducing the uncertainty and potential for arbitrary behavior that plagues incentives. If accountability mechanisms are clear and reasonable, firms may voluntarily repay the incentive if they renege on their promises, obviating the need for any formal legal enforcement. Moreover, if more municipalities and states adopt these kinds of contractual provisions as normal practice, individual governments cannot claim that accountability mechanisms hamper their ability to compete for business relative to those that do not regulate incentives. This handbook has stressed the importance of contractual provisions in protecting public interests. The following box displays selected model legislative language drafted by Good Jobs First that can be adopted for use in specific contracts and municipal ordinances. It brings together several of the main areas of emphasis in this handbook: performance standards, monitoring provisions, and enforcement mechanisms. Our hope is that by including these kinds of legal provisions, practitioners can both perform better in negotiations with companies seeking subsidies and also monitor and enforce these agreements after the incentives have changed hands. Without such protections, the fiscal health of every municipality and state is made more vulnerable. 37 ENDNOTES SBA 504 program code at 13 CFR Sec. development policy in the Midwest." 120.829 and Sec. 120.802. The SBA's Economic Development Quarterly 7, 1993: regulation applies to a Certified 328-340 Development Corporation's overall portfolio, with a waiver up to $45,000 20.Iowa New Jobs and Income Agreement, for designated rural or urban enterprise Iowa Statute 15.330 zones. Both the HUD and SBA subsidy caps are for full-time permanent jobs 21.Michigan Economic Growth Act Tax created and retained. Credit Agreement, Public Act 24, 1995 12.See, for example, Industrial Development 22.Hanson, M. "Counting on Bonds:Achievement of Public Benefit is accountability" The Bismarck Tribune, Unclear. Washington, DC: U.S. General October 31, 2002 Accounting Office/RCED 93-106,April 22, 1993; and Perks Felsenstein, D., 23.Vermont Act Relating to Education, y'J'' Taxation and Education Financing, and W. Wiewel. "How do we know that Public Act 71, Sec. 5930g, 1998 "but-for the incentives"the development would not have 24.Iowa Community Economic Betterment occurred?" Dilemmas of Urban Economic Account (CEBA) Award Contract Development, R. Bingham and R. Mier (eds.), Thousand Oaks, CA: Sage, 28-45 25.Financial Center Development Act. Office of the State Bank Commissioner: 13.Michigan Economic Growth Act Tax http://www.state.de.us/bank/services/ Credit Agreement, Public Act 24, 1995 bnkft/ftintro.html. Cited in J. Carr and 14.Illinois Economic Development for a C. Griffith, "Making tax incentives work Growing Economy (EDGE) Agreement, for job creation." State Tax Notes,July PA 99-; Illinois High Impact Business 25, 2005, 317-321 Program (20 ILCS 655/5.5) 26.Ohio Tax Credit Authority Agreement. 15.Lynch, R. Rethinking Growth Strategies: Ohio Administrative Code122:7 1-05 How State and Local Taxes and Services www odod.state.oh.us/edd/jctc Affect Economic Development. 27.In the Matter of the Appeal of HCA Washington, DC: Economic Policy Services, 51 P. 3d Court of Appeals of Institute, 2004 Kansas, 2002 16.Michigan Economic Growth Act Tax 28.Purinton,A. The Policy Shift to Good Jobs. Credit Agreement, Public Act 24, 1995 Washington, DC: Good Jobs First, 2003 17.Minnesota Statutes 116J.994, 1998 29.Maine Employment Tax Increment 18.West Virginia v. Anchor Hocking, No 87-C- Financing (ETIF) guidelines: http:// 759-1 (N.D.W.V. filed June 3, 1988) ww•mainebiz.org/business_assistance/ etif.asp 19.Peters,A. "Clawbacks and the administration of economic 40 THE IDEAL DEAL 30.Pennsylvania Grant Agreement 37.North Carolina Session Law 1999-360 Template; See also Pennsylvania Senate Bill 1115 § 105-129.4 b(3) Prevailing Wage Act (43 Pennsylvania Statute § 165-1 et seq.) 38.Indiana Economic Development Corporation (IEDC) Memorandum of 31.Iowa Code 2001 section 15.329 -2.(c) Agreement 32.This distinction was recently tested in 39.Connecticut Development Authority, the case Daimler-Chrysler Corp., et al. v. Participating Loan Program and Direct Cuno, et al., 386 F. 3d 738. The Sixth Loan Inducements, Master Guarantee Circuit found that Ohio's investment tax Agreement; See also Connecticut Public credit, which Ohio granted to Act No. 93:218 DaimlerChrysler to construct a new assembly plant, violated the Commerce 40.Ohio Corporate Franchise and State Clause because the credit favored in- Income Tax Credits ( §122.17) state economic activity at the expense of out-of-state activity. The fact that the 41.Iowa Community Economic Betterment credit reduced DaimlerChrysler's pre- Program Agreement, Iowa Code existing income tax liability was in 261:22.13 many ways the catalyst for the court accepting the case. On May 15, 2006, 42.Connecticut Development Authority, the Supreme Court issued its opinion, Participating Loan Program and Direct holding that Ohio taxpayers did not Loan Inducements, Master Guarantee have standing. Agreement; See also Connecticut Public Act No. 93:218 33.Idaho Community Development Block 43.New Jobs and Income Act Investment Grant guidelines http://adm.idaho.gov/ Credit; Iowa Code 15.333(1) adminrules/rules/idapa09/0201.pdf 34.Michigan Economic Growth Act Tax 44.West Virginia v.Anchor Hocking, No. 87- Credit Agreement, Public Act 24, 1995 C-759-1 (N.D.W.V , filed June 3, ]988) 35.Molina, F. Making Connections: A Study 45.Ohio Enterprise Zone Request for of Employment Linkage Programs. Waiver of Relocation Restrictions Washington, DC: Center for Community 46. Roe, S. "Tax breaks and broken Change, 1998; G. Hernandez and T. promises." Toledo Blade December 8, Wertheim, First in Line:An Evaluation of 1996:A7 San Francisco's First Source Hiring Program, San Francisco: Urban Institute, 47.Weber, R. "Do better contracts make August 2004 (www.picsf.org/ better economic development documents/documents.htm) incentives?"fournal of the American Planning Association 68, 2002: 43-55 36.Iowa Jobs Training Program (260F) http://www.Iegis.state.ia.us/lsadocs/ TopicPres/2005/PPMDF001.PDF 41 ENDNOTES 48.For a catalogue of best practices in 59.Pennsylvania Industrial Development subsidy disclosure, see http:// Authority, Statement of Policy, Sections www.goodjobsfirst.org/pdf/ 303.61 to 303.65 disclosure chart.pdf 60.Merlin() Construction Co. v. City of Seattle, 49.Now incorporated into Chapter 761 of 741 P.2d 34 (Wash. Sup. 1987) the Maine Public Laws An Act to Encourage Accountability and Return on 61.But see Callanan Industries., Inc. v. White, Investment for Maine Taxpayers from 118 A.D.2d 167 (1986), absent statutory Economic Development Initiatives. The authorization, the Department of text can be found at Transportation did not have authority www.janus.state.me.us/legis. to debar contractor. 50.Connecticut Development Authority, 62.Minnesota Public Assistance to Participating Loan Program and Direct Business; Wage and Job Requirements Loan Inducements, Master Guarantee (Minn. Statue, Chapter 224, Sec. 58, Agreement; See also Connecticut Public 116J.991 Act No. 93:218 63.See United Steelworkers of America v. 51.Black's Law Dictionary, West Publishing, United States Steel, 631 F.2d 1280 (6th 1990 Cir. 1980).The union at the U.S. Steel plant presented a novel theory based 52.Interview with John B. Sternlicht, Policy on property law, rather than contract and Legislation Director for Virginia law, to prevent the company from Economic Development Partnership, closing its Youngstown, Ohio plant. The 1998 union argued that the longstanding relationship between the corporation 53.City of Chicago, Department of Planning and the people of Mahoning County and Development TIF Redevelopment created a property right in the steel Agreement Application, 2002 industry on the part of the Youngstown community, and a corresponding 54.City of Mentor Redevelopment obligation on the part of U.S. Steel to Agreement operate the mills.Although the federal 55.City of Roanoke Fifth District court of appeals (6th Circuit) was Employment and Training Consortium sympathetic to the notion that "certain vested rights have arisen out of this Agreement long relationship and institution," the 56.New Jobs and Income Act Investment court regretted, "the mechanism to Credit, Iowa Code 15.333(1) reach this ideal settlement, to recognize this new property right, is 57.Ohio Revised Code § 122.17(K) not now in existence in the code of laws of our nation." 58.The Texas Smart Jobs Fund Program, Tex. Gov't Code Ann. Sec. 481.151 42 THE IDEAL DEAL 64.See Drews Co. v. Led with—Wolfe Assoc., 69.Wisconsin Statutes Section 66.521 371 S.E. 532 (S.C. 1988); Dan Dobbs, Handbook on the Law of Remedies § 70.Weber, R. "Do better contracts make 3.3 (1973) better economic development incentives?"fournal of the American 65.See City of Yonkers v. Otis Elevators. 844 Planning Association 68, 2002: 43-55 F.2d.42 (2nd. Cir., 1988). Here the City of Yonkers was only able to ask for 71."United Airlines to Pay Indiana About reliance damages for the costs it $32 Million," Wall Street Journal,January incurred in condemning and razing the 2, 2002 property it provided to the Otis Corporation. In other cases, it may be 72.Government officials were seeking possible to seek lost opportunity another$100 million in penalties, damages where use of federal or state which are held up in bankruptcy court resources by a municipality for an as part of the airline's Chapter 11 incentive could have been used for reorganization. C. O'Malley, "State other purposes. See also.). B. Russel, pursues Boeing factory-Vacant United "Implied contracts and creating a hub won't be a selling point, but ready corporate tort: One way state and local supply of workers could be"Indianapolis governments are starting to fight plant Star, May 23, 2003. closings", West Virginia Law Review 90, 73.Abouhalkah,Y. T. "City starting -- 1249. rightfully so--to ask for its money 66.Furton, M. "The use of penalty clauses back" The Kansas City Star Sep. 12, 2002 in location incentive agreements", 70 Indiana Law journal 1009 (1995). Furton 74.Weber, R. "Do better contracts make argues that the common law rule better economic development invalidating penalties should not be incentives?"fournal of the American applied in the case of incentive Planning Association 68, 2002: 43-55; contracts. Purinton,A. The Policy Shift to Good Jobs. Washington, DC: Good Jobs First, 2003 67.See In re Hooper's Estate, 359 F.2d 569 (3rd Cir. 1966), cert. denied, Marine National Exchange Bank v. Government of Virgin Islands, 385 U.S. 903 (1966). The government of the Virgin Islands sued a business which had wrongly been granted tax exemptions by a prior administration. 68.Gross,J.with G. LeRoy and M.Janis- Aparicio. Community Benefits Agreements: Making Development Projects Accountable. Washington, DC: Good Jobs First, 2005 43