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HomeMy WebLinkAboutCity Council Packet - 09/08/2015 City of Tigard IN Tigard Business Meeting—Agenda TIGARD TIGARD CITY COUNCIL MEETING DATE AND TIME: September 8,2015 - 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 heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (TDD -Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments;and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers,it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting by calling: 503-639-4171, ext. 2410 (voice) or 503-684-2772 (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. .711 ; " City of Tigard Tigard Business Meeting-Agenda TIGARD TIGARD CITY COUNCIL MEETING DATE AND TIME: September 8,2015 - 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. COUNCIL LIAISON REPORTS B. RECEIVE LAND USE PROCESS BRIEFING C. UPDATE ON YOUTH SPORTS LEAGUE AGREEMENT- 6:45 p.m. estimated time D. RECEIVE UPDATE ON TIGARD/BEAVERTON IGA FOR JOINT LAND PARTITION •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. Call to Council and Staff for Non-Agenda Items 2. CITIZEN COMMUNICATION (Two Minutes or Less,Please) A. Follow-up to Previous Citizen Communication B. Tigard High School Student Envoy C. Tigard Area Chamber of Commerce D. Citizen Communication—Sign Up Sheet 3. CONSENT AGENDA: (figard 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: 7:35 p.m. estimated time A. RECEIVE AND FILE: 1. Council Calendar 2. Council Tentative Agenda for Future Meeting Topics B. APPROVE CITY COUNCIL MINUTES: •July 14,2015 C. AUTHORIZE THE CITY MANAGER TO SIGN AN AGREEMENT WITH CLEAN WA TER SERVICES AND BEAVERTON REGARDING BARROWS ROAD SANITARY SEWER PHASE 3. •Consent Agenda-Items Removed for Separate Discussion:Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council/C4 Center Development Agency has voted on those items which do not need discussion. 4. CONTINUATION OF QUASI-JUDICIAL PUBLIC HEARING: APPEAL OF HERITAGE CROSSING ZONE CHANGE AND SUBDIVISION(ZON2015-00002, SUB2015-00001,and VAR2015-00001) 7:40 p.m. estimated time 5. LEGISLATIVE PUBLIC HEARING - CONSIDER ORDINANCE APPROVING CENTURYLINK FRANCHISE AGREEMENT 8:10 p.m. estimated time 6. RECEIVE UPDA'T'E FROM GREATER PORTLAND INC. ON REGIONAL ECONOMIC DEVELOPMENT 8:25 p.m. estimated time 7. 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. 8. NON AGENDA ITEMS 8:40 p.m. estimated time 9. ADJOURNMENT 8:45 p.m. estimated time IIIum City of Tigard ■ Tigard City Council Meeting Agenda TIGARD September 8, 2015 CITY COUNCIL STUDY SESSION A. COUNCIL LIAISON REPORTS 6:30 p.m. estimated time B. RECEIVE LAND USE PROCESS BRIEFING 6:35 p.m. estimated time • City Attorney Ramis C. UPDATE ON YOUTH SPORTS LEAGUE AGREEMENT 6:45 p.m. estimated time • Assistant City Manager Newton D. RECEIVE UPDATE ON TIGARD/BEAVERTON IGA FOR JOINT LAND PARTITION 7:00 p.m. estimated time • Assistant Community Development Director McGuire Administrative Items: 1. January Summerfield Council Gathering Date Change—Assistant City Manager Newton Council Calendar September 1 Tuesday City Center Development Agency Meeting—6:30 p.m.,Town Hall 8* Tuesday Council Business Meeting—6:30 p.m.,Town Hall 15* Tuesday Council Workshop Meeting—6:30 p.m.,Town Hall 22* Tuesday Council Business Meeting—6:30 p.m.,Town Hall October 6 Tuesday City Center Development Agency Meeting—6:30 p.m.,Town Hall 13* Tuesday Council Business and CCDA Meeting—6:30 p.m.,Town Hall 16 Friday Tailgate with Council—Time TBA 20* Tuesday Council Workshop Meeting—6:30 p.m.,Town Hall 27* Tuesday Council Business Meeting—6:30 p.m.,Town Hall November 3 Tuesday City Center Development Agency Meeting—6:30 p.m.,Town Hall 10* Tuesday Council Business and CCDA Meeting—6:30 p.m.,Town Hall 17 Friday Tailgate with Council—Time TBA 24* Tuesday Council Workshop Meeting—6:30 p.m.,Town Hall Regularly scheduled Council meetings are marked with an asterisk(*). AIS-2071 A. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 15 Minutes Agenda Title: Council Liaison Reports Submitted By: Norma Alley, Central Services Item Type: Update,Discussion,Direct Staff Meeting Type: Council Business Mtg- Study Sess. Public Hearing: No Publication Date: Information ISSUE Council will present liaison reports. STAFF RECOMMENDATION / ACTION REQUEST KEY FACTS AND INFORMATION SUMMARY OTHER ALTERNATIVES COUNCIL GOALS, POLICIES,APPROVED MASTER PLANS DATES OF PREVIOUS COUNCIL CONSIDERATION N/A Attachments No file(s)attached AI S-2356 B. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 10 Minutes Agenda Title: Receive Briefing on Council Procedures for Quasi Judicial Land Use proceedings Prepared For: Marty Wine, City Management Submitted By: Carol Krager, Central Services Item Type: Update, Discussion, Direct Staff Meeting Type: Council Business Mtg - Study Sess. Public Hearing: No Publication Date: Information ISSUE Receive a briefing from the city attorney during study session for a discussion on the process for quasi-judicial land use hearings. STAFF RECOMMENDATION / ACTION REQUEST Receive the briefing and indicate whether additional discussion at a future meeting is desired. KEY FACTS AND INFORMATION SUMMARY As the economy recovers, the city is now seeing more land use hearings and appeals coming before the Council. The hearings may also be more contentious as they have been in the past, as residents react strongly to proposed changes in their neighborhoods. The Council has conducted quasi-judicial hearings with procedures that are fairly informal, and specific suggestions are made for improving the quasi-judicial hearings process at Council. The City Attorney will provide a refresher and update on the processes used in for quasi-judicial land use hearings. OTHER ALTERNATIVES COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS DATES OF PREVIOUS COUNCIL CONSIDERATION n/a AIS-2290 C. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 10 Minutes Agenda Title: Update on Youth Sports League Agreements Prepared For: Liz Newton, City Management Submitted By: Norma Alley, Central Services Item Type: Update, Discussion, Direct Staff Meeting Type: Council Business Mtg - Study Sess. Public Hearing: No Publication Date: Information ISSUE Update on the Cook Park Field Use Agreements between the city and Tigard Little League and the city and Southside Soccer. STAFF RECOMMENDATION / ACTION REQUEST Discuss the terms of the draft field use agreements between Tigard Little League and the city and Southside Soccer and the city and provide direction to staff to finalize the agreements. KEY FACTS AND INFORMATION SUMMARY Over the last year, staff has been working with representatives of Tigard Little League and Southside Soccer on field use agreements for Cook Park. We have reached agreement on language and present the attached draft agreements for council review. The agreements reflect some key assumptions summarized below: •Tigard Little League and Southside Soccer retain priority treatment for reserving fields. •The leagues will not be charged for regular season use of the fields recognizing that they provide recreational opportunities to Tigard youth, defined as residents of the city that also meet other requirements for participation. •Fields, parking lots and pavement surfaces are city property; the city assumes responsibility for maintenance and liability for condition of property and structures. •The city determines the date(s) the fields will open and close for the season, will be closed for maintenance and closed temporarily during the season if field conditions warrant. •The leagues are responsible for the cost and operation of their programs. While substantially in agreement with all of the provisions of the proposed language, Tigard Little League (TLL) offered some suggestions in their last review of the draft: •TLL expressed concern that the wording in Section 17 - 'TERMINATION might allow the city to cancel the agreement with notice but without mutual agreement, leaving TLL without facilities. Staff explained that it is possible that due to unforseen financial circumstances, the city would be unable to substantially meet its obligations under the agreement over the long term. Staff proposed the language in 17(d.) to reflect that occurrence. TLL is not opposed to that provision given the other termination provisions. •TLL suggested that the term of the agreement be 15 years with two potential renewals rather than the ten years with three additional renewals proposed in Section 2 - TERM. In initial conversations, councilors expressed a preference for a ten year initial term which is more typical, but staff would have no objections should council choose a 15 year initial term. •TLL had concerns with the time to cure a contract breach (Section 17 b.) Staff had originally proposed 14 days. TLL suggested 60 days given the nature of a volunteer organization that has an offseason, believing that would give more than enough time to cure a breach but also provide more time for communication among board members. The city attorney recommends 30 days,which is reflected in the attached. This allows the leagues more time to cure the breach and minimizes any exposure the city might have. Southside Soccer has been provided draft agreements generally identical except for Section 5. SOUTHSIDE OBLIGATIONS. Staff has been in contact with Southside representatives several times. They have not offered suggestions for modifications to the agreement, nor have they provided specific comments on the most recent draft. Based on council direction, staff will finalize the agreements for council consideration on September 22, 2015. OTHER ALTERNATIVES Suggest other revisions to the proposed language. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS N/A DATES OF PREVIOUS COUNCIL CONSIDERATION May 26, 2015 Study Session Attachments Draft Tigard Little League Field Agreement Draft Southside Field Use Agreement Cooperative Agreement Regarding Cook Park Facility Use Between the City of Tigard and Tigard Little League This Agreement is made and entered into by and between the City of Tigard ("City"), an Oregon municipal corporation and Tigard Little League ("TLL"), a non-profit corporation,all hereinafter collectively referred to as the"Parties." RECITALS The Parties agree upon the following recitals: A. WHEREAS, in 1998,the City entered into an agreement with Atfalati Recreation District, Inc. ("ARD"), an Oregon non-profit corporation, ("1998 Agreement")whereby ARD contributed $150,000 towards the purchase of the Gray/Lamb Cook Park Addition ("Property")over a ten- year period and received priority scheduling at the Cook Park fields. B. WHEREAS,the 1998 Agreement was amended twice in April 2003 ("Second Amendment"). The Second Amendment extended the time period in which ARD had to repay the$310,045.86 contribution to 2013, established credits against that amount for acquisition and development of the Property, allowed ARD to apply to the City for community event grants, and allowed ARD to operate a concession stand on the Property. C. WHEREAS,the 1998 Agreement was amended in May 2010("Third Amendment")to assign ARD's interest to TLL and Southside Soccer Club, modify the termination process,and add working together to develop operating parameters for the use of the Property facilities as a goal of the 1998 Agreement. D. WHEREAS,the obligation of TLL to repay to the City the original contribution towards the City's purchase of the Property, as well as all development costs, has been fulfilled as of 2013. E. WHEREAS,the City terminated the 1998 Agreement, as amended,and in accordance with the process established in the Third Amendment, in March 2013 and effective in October 2013. F. WHEREAS,the City recognizes the historical partnership it has with TLL regarding the use and maintenance of the sport fields at Cook Park as well as TLL's overall contribution to youth sports in the community. The Parties,through this Agreement,wish to continue this relationship. G. WHEREAS,the Parties wish to jointly and finally resolve all issues between them regarding the ownership of the Property by acknowledging that the City has full ownership of the Property. H. WHEREAS, in recognition of TLL's contributions to the City,the Parties now wish to develop a new Agreement which reflects the relationships of the Parties, preserves TLL's priority scheduling, and establishes the Parties'obligations regarding use of the Cook Park Sports Fields. City of Tigard—Tigard Little League Cook Park Field Agreement--1 AGREEMENT NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, it is agreed by and between the Parties as follows: 1. COOK PARK SPORT FIELDS. This Agreement shall apply to the sport fields located at Cook Park ("Sport Fields"), as more particularly illustrated in the attached Exhibit A. 2. TERM. This Agreement shall be effective upon final execution of all Parties and shall remain in effect for a period of ten (10)years,ending September 1, 2025. This Agreement may be renewed for three (3)additional five-year periods if such an amendment is mutually agreed to, in writing, by the Parties. At the Annual Meeting prior to the expiration of this Agreement,TLL shall meet with the City Manager or the City Manager's designee and the Parties shall determine if they wish to renew the Agreement. 3. ANNUAL MEETING. The City will offer to TLL an optional annual meeting in November of each year for the Parties. The purpose of the annual meeting is to discuss: a. The dates which TLL wishes to reserve the Sport Fields ("Playing Season"), as well as any proposed dates for tournaments. TLL may use the Sport Fields at no charge for practices and games during the Playing Season according to the schedule approved in advance by the City and for one tournament. Fees for additional tournaments shall be charged in accordance with Section 9 of this Agreement. b. Any issues or concerns related to this Agreement. c. Proposed improvements or operational capital projects,consistent with the City's Cook Park Master Plan. d. The dates which the Sport Fields are available for use by TLL. e. Other topics of mutual interest to the Parties. 4. CITY OBLIGATIONS. The City agrees to: a. Provide garbage collection, including refuse cans and dumpsters,and electrical,water, and sewer service to Cook Park. b. Maintain Cook Park, including the Sport Fields,facilities, and appurtenances located thereon at a base level. This includes, but is not limited to, mowing,watering, and fertilizing the fields and keeping structures in good repair. TLL acknowledges that the City's ability to provide base level maintenance is contingent upon sufficient funding,as determined in the City's annual budget process. The City will notify TLL if the budget process does not fund adequate maintenance for the upcoming year. c. Consider facility improvement requests from TLL pursuant to Section 11 of this Agreement. d. Provide two small equipment storage rooms to be shared by TLL and Southside Soccer Club. e. Provide TLL with access to the existing outdoor electrical outlets for use during its Playing Season. f. Maintain sports field irrigation systems. g. Maintain basic infrastructure (including bleachers, irrigation, dugouts,fences, picnic shelters,etc.). h. Maintain baseball fields, including: i. Turf area maintenance: City of Tigard—Tigard Little League Cook Park Field Agreement--2 1. Mowing,watering/irrigating,weeding,fertilizing, applying herbicides/pesticides. 2. Annual reconditioning of the outfield, including fertilizing, seeding, applying a top dressing, and aerating as needed. 3. Regular mowing of infield and infield turf to maintain a playable surface. 4. Edging of warning track and infield dirt edge. ii. Dirt infield areas: 1. Pre-season and mid-season leveling using an eyeball-level standard. 2. Laser leveling, at least every three years. 3. Dragging fields once a week,typically on Thursday or Friday morning, during the TLL's Playing Season. 5. TLL OBLIGATIONS. TLL agrees to: a. Submit field reservation requests to the City prior to December 1 for Sport Field reservations for the upcoming year. b. Chalk and apply base lines, as desired by TLL,and furnish the machinery/equipment required to perform this work. c. Provide and apply Turface, as desired by TLL. d. Install bases. e. Furnish the machinery/equipment required to perform its responsibilities including chalking equipment,wheelbarrows,etc. f. Collect and dispose of litter in designated trash receptacles after TLL's use of fields, especially after games. g. Maintain the storage room and adjacent facilities in a neat and clean manner. h. Rake/brush after games: i. Fill holes at bases; and ii. Replace soil and turf i. Bring any requests, issues or feedback to the attention of the City Manager or the City Manager's designee so the items may be placed on the agenda for the Annual Meeting. j. Comply with all current Park Rental and Use Regulations and the City's annual Park Calendar in effect at the time the reservation was made. k. Ensure that the Sport Fields are in substantially the same condition after TLL use as it was before. TLL will be financially responsible to City for the costs of repairs necessitated by TLL's use of Cook Park, but not including normal maintenance resulting from everyday wear-and-tear. 6. SPORTS FIELD AND FACILITY CLOSURES. The City may, at its sole discretion,close Cook Park or any facilities therein, including Sport Fields, if the condition of the facilities is rendered unsuitable for its intended purpose,unsafe, or if the use of the facility will create conditions which will render the facility unsuitable for use in the future. TLL will not use the Sport Fields for practice or games before the City has opened the Sport Fields or after the City has closed the Sport Fields for the season or on dates the City has closed the Sport Fields due to field condition. Generally,the Sport Fields will not open prior to March 1 and will close October 31. 7. CONCESSION STAND.The City authorizes TLL to operate one concession stand during its Playing Season. The City shall approve the type and placement of any concession stand or temporary structure. The existing concession stand has been designated for use by TLL during its Playing City of Tigard—Tigard Little League Cook Park Field Agreement--3 Season. TLL agrees that it will adhere to all applicable state and local laws and codes and will obtain all necessary permits. The City Manager, or the City Manager's designee may, at his or her sole discretion,revoke the authority of TLL operate a concession stand at Cook Park. 8. PRIORITY USE OF SPORT FIELDS. a. TLL shall have priority in scheduling the Sport Fields for requests submitted prior to December 1 of the previous year. Scheduling requests must be made to the City on the City's Field Use Application form. b. TLL shall only submit a scheduling request to the City for TLL's actual, planned field use for practices,games,and rain delays. TLL shall not request additional use of the Sport Field above TLL's projected actual usage. c. TLL's priority scheduling is subject to compliance with all current Park Rental and Use Regulations in effect at the time the reservation was made or at the time the rental takes place. d. Within the Park Rental Season,TLL acknowledges that the City is free to rent Cook Park sport fields and facilities to other park users when those fields and facilities have not been rented by TLL. e. TLL shall notify the City as soon as practicable of any days which TLL had reserved and which it will not need. Upon notice to the City,TLL releases its reservation for that scheduled time. f. At the Annual Meeting,TLL will provide the City with a schedule of preferred days and times for the City to conduct renovations of the Sport Fields.The City will make a good faith effort to accommodate the preferred dates, but has sole discretion over closures, including but not limited to Sport Field closures for renovations. In the event the City must close a field for emergency repairs on a day which has been reserved by TLL,the City shall provide notice to TLL as soon as practicable. The City is not liable for any damages as a result of the cancellation. g. Notwithstanding TLL's priority scheduling, City sponsored events shall have priority for the use of Cook Park, including all fields, parking lots, and covered structures. The City will attempt to avoid scheduling City events on the dates TLL has reserved the Sport Fields if doing so will exceed the capacity of Cook Park. 9. TOURNAMENTS. a. TLL may schedule one tournament each season at no cost. The date(s)for the tournament must be submitted with the reservation for the regular season. In the event the date of the tournament needs to change,TLL will notify the city as soon as practical and the city will accommodate the date change based on field and park availability. b. TLL will comply with the current Park Rental and Use Regulations for all tournaments, at the time the application is made c. Additional tournaments may be requested at any time during the season using the City's reservation forms. ILL will be charged a tournament fee and TLL's request will be approved based on field and park availability. TLL must have an account in good standing in order to make additional reservations for tournaments. d. All fees due, and other requirements such as insurance, must be paid 30 days in advance of the tournament or the tournament will be cancelled. 10. PROGRAM OPERATION. TLL is responsible for the cost and operation of its programs. TLL is not eligible for City grant funds or subsidies for program operating expenses or tournaments held as City of Tigard—Tigard Little League Cook Park Field Agreement--4 part of a regular season. Notwithstanding,TLL may request special event funds for regional, state, or national tournaments held outside of TLL's regular season. Requests for special event funding must follow the City's application process. 11. FACILITY IMPROVEMENTS. TLL may request facility improvements by the City at any time. The City will consider the requested improvements on a case-by-case basis and will consider such factors as whether the improvement is consistent with the Cook Park Master Plan,whether funds are available, and whether the improvement will be included in the Parks Division budget request for the upcoming year. 12. TIGARD MEMBERSHIP. TLL agrees that the majority of its participants are residents of the City of Tigard. Upon request by the City,TLL shall provide evidence of such to the City. Failure to provide such documentation to the City or failure to maintain a majority of Tigard residents as participants is a breach of this Agreement and grounds for termination pursuant to Section 17 of this Agreement. 13. MUTUAL RELEASE OF CLAIMS. TLL acknowledges that the City is the sole owner of the Property. The Parties forever waive, release, and covenant not to sue another Party, heirs,executors, assigns, agents, and employees with regard to any and all claims, damages, and injuries of whatever nature,whether presently known or unknown, arising out of the subject matter of the ownership interest in the Property or Sport Fields,or which could have been filed in any action or suit arising from said subject matter. 14. INSURANCE. TLL agrees to comply with all City insurance requirements in effect at the time the reservation was made or at the time the rental takes place. TLL will maintain, in full force and effect during its Playing Season, insurance that meets the City's requirements for sport field rentals. Failure to maintain adequate insurance shall be grounds for the City to deny reservations to TLL,or cancel existing reservations,and may be grounds for termination of this Agreement. 15. INDEMNIFICATION. TLL agrees to indemnify, defend, and hold harmless the City and its officers, agents, employees,and volunteers against all liability, loss, and costs arising from actions,suits, claims or demands attributable in whole or in part to the acts or omissions of TLL and TLL's officers', agents', and employees'use of Cook Park. 16. DISPUTE RESOLUTION. a. If a dispute arises between the City and TLL regarding this Agreement,the Parties shall attempt to resolve the dispute first through an in-person meeting between the City Manager or the City Manager's designee and an official representative of TLL. The Parties may have legal assistance at any of the meetings in this process. b. The Parties may agree to mediate at any stage of the dispute resolution process. c. The informal dispute resolution steps in subsection a. above are required prior to either Party pursuing arbitration or a court action. 17. TERMINATION OF AGREEMENT. a. Any Party may terminate this Agreement by giving notice to the other Party at the Annual Meeting, held pursuant to Section 3 of this Agreement.Termination shall be effective six(6) months from the date of notice.. City of Tigard—Tigard Little League Cook Park Field Agreement--5 b. Nonwithstanding subsection a. above, if TLL breaches this Agreement and fails to cure the breach within fourteen (14)calendar days' notice from the City,the City may terminate the Agreement immediately following the time to cure. c. Nonwithstanding subsection a. above, if at any time TLL ceases to be a Tigard-based non-profit, primarily benefiting Tigard youth,this Agreement shall immediately terminate. d. Any reservations on the books after the date of termination of this Agreement shall be void. In the event TLL wish to use any Sport Field or facility following termination of this Agreement,they may do so pursuant to the City's Park Rental and Use Regulations. 18. AMENDMENTS. Amendments to this Agreement must be made in writing and approved by all Parties. 19. NO PARTNERSHIP. The City and TLL are not partners or joint venturers. None of the parties is responsible for the actions of the others in the use of City property or facilities. 20. NON-ASSIGNMENT. This Agreement may not be assigned by any of the Parties without written consent of the other Parties. 21. NO SUBLETTING. TLL shall not sublet use of the Sport Fields without the prior written consent of the City. 22. NON-DISCRIMINATION. The Parties agree to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules,and regulations. Parties also shall comply with the Americans with Disabilities Act of 1990, ORS 659A.142,and all regulations and administrative rules established pursuant to those laws. 23. AUTHORITY TO EXECUTE.The City and TLL respectively represent that the person signing this Agreement has authority to do so,that the Parties had the opportunity to seek legal counsel regarding this Agreement, and that the Parties understand their responsibilities and obligations under the Agreement. 24. ENTIRE AGREEMENT. This Agreement incorporates by reference Exhibit A attached hereto as part of this Agreement and constitutes the entire agreement between the Parties. 25. SEVERABILITY. The Parties agree that, if any term of this Agreement is declared by a court to be illegal or in conflict with any law,the validity of the remaining terms will not be affected. 26. NOTICES. The Parties must send any notices, invoices,or other written communications required by this Agreement through the United States Mail,first-class postage paid,electronic mail ("e-mail"),or personally delivered to the addresses below. TLL is responsible for notifying the City of any changes to the addresses below within seven (7) calendar days of the change. The City is not responsible for any communications not received by TLL as a result of failure to maintain to current addresses. City of Tigard—Tigard Little League Cook Park Field Agreement--6 CITY TLL Mailing Address: City Manager 13125 SW Hall Boulevard Tigard,OR 97223 E-mail: APPROVED BY: CITY TLL Signature Signature Name Name Title Title Date Date City of Tigard—Tigard Little League Cook Park Field Agreement--7 Cooperative Agreement Regarding Cook Park Facility Use Between the City of Tigard and Southside Soccer Club This Agreement is made and entered into by and between the City of Tigard ("City"), an Oregon municipal corporation and Southside Soccer Club("SSC"),a non-profit corporation, all hereinafter collectively referred to as the "Parties." RECITALS The Parties agree upon the following recitals: A. WHEREAS, in 1998,the City entered into an agreement with Atfalati Recreation District, Inc. ("ARD"), an Oregon non-profit corporation, ("1998 Agreement")whereby ARD contributed $150,000 towards the purchase of the Gray/Lamb Cook Park Addition("Property")over a ten- year period and received priority scheduling at the Cook Park fields. B. WHEREAS,the 1998 Agreement was amended twice in April 2003 ("Second Amendment"). The Second Amendment extended the time period in which ARD had to repay the financial contribution to 2013, established credits against that amount for acquisition and development of the Property, allowed ARD to apply to the City for community event grants,and allowed ARD to operate a concession stand on the Property. C. WHEREAS,the 1998 Agreement was amended in May 2010("Third Amendment")to assign ARD's interest to SSC and Tigard Little League, modify the termination process, and add working together to develop operating parameters for the use of the Property facilities as a goal of the 1998 Agreement. D. WHEREAS, in 2013,SSC and Tigard Little League each fulfilled their obligation to repay the City their original$150,000 contribution,for a total of$310,045.86 collectively paid to the City. E. WHEREAS,the City terminated the 1998 Agreement, as amended,and in accordance with the process established in the Third Amendment, in March 2013 and effective in October 2013. F. WHEREAS,the City recognizes the historical partnership it has with SSC regarding the use and maintenance of the sport fields at Cook Park as well as SSC's overall contribution to youth sports in the community. The Parties,through this Agreement,wish to continue this relationship. G. WHEREAS,the Parties wish to jointly and finally resolve all issues between them regarding the ownership of the Property by acknowledging that the City has full ownership of the Property. H. WHEREAS, in recognition of SSC's contributions to the City,the Parties now wish to develop a new Agreement which reflects the relationships of the Parties, preserves SSC's priority scheduling, and establishes the Parties'obligations regarding use of the Cook Park Sports Fields. City of Tigard—Southside Soccer Club Cook Park Field Agreement--1 AGREEMENT NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, it is agreed by and between the Parties as follows: 1. COOK PARK SPORT FIELDS. This Agreement shall apply to the sport fields located at Cook Park ("Sport Fields"),as more particularly illustrated in the attached Exhibit A. 2. TERM. This Agreement shall be effective upon final execution of all Parties and shall remain in effect for a period of ten (10)years,ending September 1, 2025. This Agreement may be renewed for three(3)additional five-year periods if such an amendment is mutually agreed to, in writing, by the Parties. At the Annual Meeting prior to the expiration of this Agreement,SSC shall meet with the City Manager or the City Manager's designee and the Parties shall determine if they wish to renew the Agreement. 3. ANNUAL MEETING. The City will offer to SSC an optional annual meeting in November of each year for the Parties. The purpose of the annual meeting is to discuss: a. The dates which SSC wishes to reserve the Sport Fields("Playing Season"), as well as any proposed dates for tournaments. SSC may use the Sport Fields at no charge for practices and games during the Playing Season according to the schedule approved in advance by the City and for one tournament. Fees for additional tournaments shall be charged in accordance with Section 9 of this Agreement. b. Any issues or concerns related to this Agreement. c. Proposed improvements or operational capital projects, consistent with the City's Cook Park Master Plan. d. The dates which the Sport Fields are available for use by SSC. e. Other topics of mutual interest to the Parties. 4. CITY OBLIGATIONS. The City agrees to: a. Provide garbage collection, including refuse cans and dumpsters,and electrical,water, and sewer service to Cook Park. b. Maintain Cook Park, including the Sport Fields,facilities, and appurtenances located thereon at a base level. This includes, but is not limited to, mowing,watering, and fertilizing the fields and keeping structures in good repair. SSC acknowledges that the City's ability to provide base level maintenance is contingent upon sufficient funding, as determined in the City's annual budget process. The City will notify SSC if the budget process does not fund adequate maintenance for the upcoming year. c. Consider facility improvement requests from SSC pursuant to Section 11 of this Agreement. d. Provide two small equipment storage rooms to be shared by SSC and Tigard Little League. e. Provide SSC with access to the existing outdoor electrical outlets for use during its Playing Season. f. Maintain sports field irrigation systems. g. Maintain basic infrastructure (including bleachers, irrigation,dugouts,fences,etc.). h. Maintain soccer fields,including i. Mowing, watering/irrigating, weeding,fertilizing,applying herbicides/pesticides. City of Tigard—Southside Soccer Club Cook Park Field Agreement--2 ii. Annual field reconditioning including fertilizing,seeding, applying a top dressing, and aerating. iii. Repairing, maintaining, and replacing the metal structures for goals. 5. SSC OBLIGATIONS. SSC agrees to: a. Submit field reservation requests to the City prior to December 1 for Sport Field reservations for the upcoming year. b. Line the fields weekly during the Playing Season. c. Supply nets for goals during the Playing Season. d. Collect and dispose of litter in designated trash receptacles after SSC's use of fields, especially after games. e. Bring any requests, issues or feedback to the attention of the City Manager or the City Manager's designee so the items may be placed on the agenda for the Annual Meeting. f. Comply with all current Park Rental and Use Regulations and the City's annual Park Calendar in effect at the time the reservation was made. g. Maintain its account in good standing.SSC agrees that failure to keep its account with the City in good standing may result in cancellation of reservations and inability to make future reservations. h. Ensure that the Sport Fields are in substantially the same condition after SSC's use as it was before. SSC will be financially responsible to City for the costs of repairs necessitated by SSC's use of Cook Park, but not including normal maintenance resulting from everyday wear-and-tear. 6. SPORTS FIELD AND FACILITY CLOSURES. The City may, at its sole discretion, close Cook Park or any facilities therein, including Sport Fields, if the condition of the facilities is rendered unsuitable for its intended purpose,unsafe,or if the use of the facility will create conditions which will render the facility unsuitable for use in the future. SSC will not use the Sport Fields for practice or games before the City has opened the Sport Fields or after the City has closed the Sport Fields for the season or on dates the City has closed the Sport Fields due to field condition. Generally,the Sport Fields will not open prior to March 1 and will close October 31. 7. CONCESSION STAND.The City authorizes SSC to operate one concession stand during its Playing Season. The City shall approve the type and placement of any concession stand or temporary structure. The existing concession stand has been designated for use by SSC during its Playing Season. SSC agrees that it will adhere to all applicable state and local laws and codes and will obtain all necessary permits. The City Manager, or the City Manager's designee may, at his or her sole discretion, revoke the authority of SSC operate a concession stand at Cook Park. 8. PRIORITY USE OF SPORT FIELDS. a. SSC shall have priority in scheduling the Sport Fields for requests submitted prior to December 1 of the previous year. Scheduling requests must be made to the City on the City's Field Use Application form. b. SSC shall only submit a scheduling request to the City for SSC's actual, planned field use for practices,games, and rain delays. SSC shall not request additional use of the Sport Field above SSC's projected actual usage. c. SSC's priority scheduling is subject to compliance with all current Park Rental and Use Regulations in effect at the time the reservation was made or at the time the rental takes place.This includes having an account in good standing. City of Tigard—Southside Soccer Club Cook Park Field Agreement--3 d. Within the Park Rental Season, SSC acknowledges that the City is free to rent Cook Park sport fields and facilities to other park users when those fields and facilities have not been rented by SSC. e. SSC shall notify the City as soon as practicable of any days which SSC had reserved and which it will not need. Upon notice to the City,SSC releases its reservation for that scheduled time. f. At the Annual Meeting,SSC will provide the City with a schedule of preferred days and times for the City to conduct renovations of the Sport Fields.The City will make a good faith effort to accommodate the preferred dates, but has sole discretion over closures, including but not limited to Sport Field closures for renovations. In the event the City must close a field for emergency repairs on a day which has been reserved by SSC,the City shall provide notice to SSC as soon as practicable. The City is not liable for any damages as a result of the cancellation. g. Notwithstanding SSC's priority scheduling, City sponsored events shall have priority for the use of Cook Park, including all fields, parking lots,and covered structures. The City will attempt to avoid scheduling City events on the dates SSC has reserved the Sport Fields if doing so will exceed the capacity of Cook Park. 9. TOURNAMENTS. a. SSC may schedule one tournament each season at no cost. The date(s)for the tournament must be submitted with the reservation for the regular season. In the event the date of the tournament needs to change,SSC will notify the city as soon as practical and the city will accommodate the date change based on field and park availability. b. SSC will comply with the current Park Rental and Use Regulations for all tournaments, at the time the application is made c. Additional tournaments may be requested at any time during the season using the City's reservation forms. SSC will be charged a tournament fee and SSC's request will be approved based on field and park availability. d. All fees due, and other requirements such as insurance, must be paid 30 days in advance of the tournament or the tournament will be cancelled. 10. PROGRAM OPERATION. SSC is responsible for the cost and operation of its programs. SSC is not eligible for City grant funds or subsidies for program operating expenses or tournaments held as part of a regular season. Notwithstanding,SSC may request special event funds for regional, state,or national tournaments held outside of SSC's regular season. Requests for special event funding must follow the City's application process. 11. FACILITY IMPROVEMENTS. SSC may request facility improvements by the City at any time. The City will consider the requested improvements on a case-by-case basis and will consider such factors as whether the improvement is consistent with the Cook Park Master Plan,whether funds are available,and whether the improvement will be included in the Parks Division budget request for the upcoming year. 12. TIGARD MEMBERSHIP. SSC agrees that the majority of its participants are residents of the City of Tigard. Upon request by the City,SSC shall provide evidence of such to the City. Failure to provide such documentation to the City or failure to maintain a majority of Tigard residents as participants is a breach of this Agreement and grounds for termination pursuant to Section 17 of this Agreement. City of Tigard—Southside Soccer Club Cook Park Field Agreement--4 13. MUTUAL RELEASE OF CLAIMS. SSC acknowledges that the City is the sole owner of the Property. The Parties forever waive, release, and covenant not to sue another Party, heirs, executors, assigns,agents,and employees with regard to any and all claims, damages, and injuries of whatever nature,whether presently known or unknown, arising out of the subject matter of the ownership interest in the Property or Sport Fields, or which could have been filed in any action or suit arising from said subject matter. 14. INSURANCE. SSC agrees to comply with all City insurance requirements in effect at the time the reservation was made or at the time the rental takes place. SSC will maintain, in full force and effect during its Playing Season,insurance that meets the City's requirements for sport field rentals. Failure to maintain adequate insurance shall be grounds for the City to deny reservations to SSC,or cancel existing reservations, and may be grounds for termination of this Agreement. 15. INDEMNIFICATION. SSC agrees to indemnify, defend, and hold harmless the City and its officers, agents,employees,and volunteers against all liability, loss,and costs arising from actions,suits, claims or demands attributable in whole or in part to the acts or omissions of SSC and SSC's officers',agents', and employees' use of Cook Park. 16. DISPUTE RESOLUTION. a. If a dispute arises between the City and SSC regarding this Agreement,the Parties shall attempt to resolve the dispute first through an in-person meeting between the City Manager or the City Manager's designee and an official representative of SSC. The Parties may have legal assistance at any of the meetings in this process. b. The Parties may agree to mediate at any stage of the dispute resolution process. c. The informal dispute resolution steps in subsection a. above are required prior to either Party pursuing arbitration or a court action. 17. TERMINATION OF AGREEMENT. a. At any time,the Parties may mutually agree to terminate this Agreement. b. If SSC breaches this Agreement and fails to cure the breach within thirty(30) calendar days' notice from the City, the City may terminate the Agreement immediately following the time to cure. c. If at any time SSC ceases to be a Tigard-based non-profit, primarily benefiting Tigard youth,this Agreement shall immediately terminate. d. In the event the City's adopted budget does not allow the City to substantially meet its obligations pursuant to this Agreement,the City shall give thirty(30) calendar days' notice to SSC,at which time the Agreement shall terminate. e. Any reservations on the books after the date of termination of this Agreement shall be void. In the event TLL wish to use any Sport Field or facility following termination of this Agreement,they may do so pursuant to the City's Park Rental and Use Regulations. 18. AMENDMENTS. Amendments to this Agreement must be made in writing and approved by all Parties. 19. NO PARTNERSHIP. The City and SSC are not partners or joint venturers. None of the parties is responsible for the actions of the others in the use of City property or facilities. City of Tigard—Southside Soccer Club Cook Park Field Agreement--5 20. NON-ASSIGNMENT. This Agreement may not be assigned by any of the Parties without written consent of the other Parties. 21. NO SUBLETTING. SSC shall not sublet use of the Sport Fields without the prior written consent of the City. 22. NON-DISCRIMINATION. The Parties agree to comply with all applicable requirements of federal and state civil rights and rehabilitation statues, rules, and regulations. Parties also shall comply with the Americans with Disabilities Act of 1990, ORS 659A.142,and all regulations and administrative rules established pursuant to those laws. 23. AUTHORITY TO EXECUTE.The City and SSC respectively represent that the person signing this Agreement has authority to do so,that the Parties had the opportunity to seek legal counsel regarding this Agreement, and that the Parties understand their responsibilities and obligations under the Agreement. 24. ENTIRE AGREEMENT. This Agreement incorporates by reference Exhibit A attached hereto as part of this Agreement and constitutes the entire agreement between the Parties. 25. SEVERABILITY. The Parties agree that, if any term of this Agreement is declared by a court to be illegal or in conflict with any law,the validity of the remaining terms will not be affected. 26. NOTICES. The Parties must send any notices, invoices,or other written communications required by this Agreement through the United States Mail,first-class postage paid, electronic mail ("e-mail"),or personally delivered to the addresses below. SSC is responsible for notifying the City of any changes to the addresses below within seven (7) calendar days of the change. The City is not responsible for any communications not received by SSC as a result of failure to maintain to current addresses. CITY SSC Mailing Address: City Manager 13125 SW Hall Boulevard Tigard, OR 97223 E-mail: Signature page to follow. City of Tigard—Southside Soccer Club Cook Park Field Agreement--6 APPROVED BY: CITY SSC Signature Signature Name Name Title Title Date Date City of Tigard—Southside Soccer Club Cook Park Field Agreement--7 AIS-2333 D. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 15 Minutes Agenda Title: Tigard/Beaverton IGA for Joint Land Partition Prepared For: Gary Pagenstecher,Community Development Submitted By: Gary Pagenstecher,Community Development Item Type: Update,Discussion,Direct Staff Meeting Type: Council Business Mtg- Study Sess. Public Hearing: No Publication Date: Information ISSUE Shall Council approve an Intergovernmental Agreement (IGA) with the City of Beaverton to provide an efficient approach to partitioning a parcel that straddles SW Scholls Ferry Road and is located partially within each jurisdiction? STAFF RECOMMENDATION /ACTION REQUEST City staff recommends council approve the IGA. KEY FACTS AND INFORMATION SUMMARY West Hills Development Company ("West Hills") is the contract purchaser of a portion of a parcel of land (the "Property") described in Exhibit A presently owned by the Crescent Grove Cemetery Association. The Property straddles SW Scholls Ferry Road on both sides of SW 175th Avenue and SW Roy Rogers Road,as shown on Exhibit B. West Hills wishes to partition the Property into two parcels north of SW Scholls Ferry Road,located in the Beaverton city limits, and one parcel south of SW Scholls Ferry Road,located in Tigard city limits, to consummate its purchase of the portion of the Property north of SW Scholls Ferry Road. Beaverton and Tigard city limits are contiguous at and around the intersection of SW Scholls Ferry Road and SW 175 th Ave. Each has land use jurisdiction over the land inside its respective city limits,and authority to review and decide upon land use and land division applications therein. Beaverton and Tigard wish to provide an efficient approach to achieving the desired partition that respects the land use regulations of each jurisdiction. OTHER ALTERNATIVES The cities of Tigard and Beaverton could independently review the proposed minor land partition through parallel approval processes,which would add cost and time to the process. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS NA DATES OF PREVIOUS COUNCIL CONSIDERATION None Attachments Tigard/Beaverton IGA to Partition Exhibits , INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF BEAVERTON AND THE CITY OF TIGARD This intergovernmental agreement("Agreement") is entered into between the City of Beaverton, an Oregon municipal corporation ("Beaverton") and the City of Tigard, an Oregon municipal corporation ("Tigard"). RECITALS WHEREAS, ORS 190.010 authorizes the parties to enter into this Agreement for the perfor- mance of any or all functions and activities that a party to the Agreement has authority to per- form; and WHEREAS, Beaverton and Tigard each has land use jurisdiction over the land inside its respec- tive city limits, and Beaverton and Tigard each has authority to review and decide upon land use and land division applications within its respective city limits; and WHEREAS, the city limits of Beaverton and Tigard are contiguous at and around the intersec- tion of SW Scholls Ferry Road and SW 175th Ave (to the north of SW Scholls Ferry Road)/SW Roy Rogers Road(to the south of SW Scholls Ferry Road); and WHEREAS, West Hills Development Company("West Hills") is the contract purchaser of a portion of a parcel of land(the"Property"), described in Exhibit A, that is presently owned by the Crescent Grove Cemetery Association; and WHEREAS, the Property straddles SW Scholls Ferry Road on both sides of SW 175th Ave. and SW Roy Rogers Road, all as shown on Exhibit B; and WHEREAS West Hills wishes to partition the Property into two new parcels north of SW Scholls Ferry Road (located in the Beaverton city limits) and one new parcel south of SW Scholls Ferry Road (located in the Tigard city limits), in order to consummate its purchase of just the portion of the Property to the north of SW Scholls Ferry Road; and WHEREAS Beaverton and Tigard wish to provide an efficient approach to achieving the desired partition that respects the land use regulations of each jurisdiction. AGREEMENT NOW,THEREFORE,the parties agree as follows: 1. Processing of Preliminary Partition Application 1.1 Upon receipt of an application from West Hills, signed by the appropriate repre- sentative of the Crescent Grove Cemetery Association, for a preliminary partition of the Property into two parcels north of SW Scholls Ferry Road and a third par- cel south of SW Scholls Ferry Road, with the third parcel line along the interface between the Beaverton and Tigard city limits, the City of Beaverton shall follow its usual process for review of a preliminary partition. 1 1.2 Beaverton shall charge the scheduled fee appropriate to the partition application. 1.3 Tigard shall not charge a fee for the land partition-preliminary plat review. 1.4 Beaverton planning staff shall consult with Tigard planning staff as appropriate during completeness review to make certain that Tigard's concerns are addressed in a timely manner before the preliminary partition application is deemed com- plete under ORS 227.178(2). 2. Application of Criteria 2.1 Beaverton shall apply the relevant preliminary partition criteria of the City of Beaverton to that part of the Property within the Beaverton city limits. 2.2 Beaverton shall apply the relevant preliminary partition criteria of the City of Tigard to that part of the Property within the Tigard city limits. 2.3 In the event there is an actual conflict between any planning or processing criteria of Beaverton and Tigard,the planning criteria of Beaverton shall apply. 3. Final Decision 3.1 Tigard may participate in the proceedings before any Beaverton decision-maker and may appeal any final decision Beaverton makes for the preliminary partition application. 3.2 Beaverton's final decision for the preliminary partition application, after any ap- peals, shall bind and be final as to both Beaverton and Tigard. 4. Final Plat Application 4.1 Upon receipt of a final plat application from West Hills for the Property, Beaver- ton and Tigard shall have the same respective rights and responsibilities set forth in Sections 1-3 of this Agreement as apply upon receipt of a preliminary partition application, except that Beaverton shall not charge the scheduled fee appropriate to the final plat application, and Tigard shall charge the scheduled fee appropriate to the final plat application. 5. Subsequent Applications 5.1 This Agreement shall only concern the preliminary and final partition applications described herein. Subsequent land division or land use applications made for the Property shall be subject to the exclusive review and approval of the city with ju- risdiction over that portion of the Property. 2 6. General Provisions 6.1 Effective Date. The effective date of this Agreement is the date all parties have duly signed the agreement. 6.2 Modification. This Agreement may be modified or amended only if made in writing and signed by all parties. 6.3 Compliance with Law. Each party agrees to comply with all local, state and fed- eral ordinances, statutes, laws and regulations that are applicable to the services provided under this Agreement. 6.4 Choice of Law. This Agreement shall be governed by and construed in accord- ance with the laws of the State of Oregon, without regard to principles of con- flicts of law. Any claim, action, suit or proceeding that arises from or relates to this Agreement shall be brought and conducted exclusively within the Circuit Court of Washington County for the state of Oregon. In the event a claim must be brought in a federal forum,then it shall be brought and conducted solely and exclusively in the United States District Court for the District of Oregon. 6.5 Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original, all of which shall constitute one and the same instru- ment. 6.6 Merger. This agreement embodies the entire agreement and understanding be- tween the parties hereto and supersedes all previous agreements and understand- ings with respect to the matters described herein. WHEREAS, all the aforementioned is hereby agreed upon by the parties and executed by the du- ly authorized signatures below. City of Beaverton City of Tigard Denny Doyle, Mayor John L. Cook, Mayor: Date Date Approved as to form: Approved as to form: City Attorney City Attorney 3 EXHIBIT A DESCRIPTION OF PROPERTY 4 EXHIBIT B MAP OF PROPERTY LOCATION 5 SOUTH COOPER MOUNTAIN (TAX LOT 200,MAP 2S 16) DESCRIPTION August 20,2015 A tract of land in the northeast one-quarter of Section 6,Township 2 South,Range 1 West, Willamette Meridian,City of Beaverton,Washington County,Oregon,said tract being described as follows: Beginning at a 5/8-inch iron rod with a yellow,plastic cap inscribed"Hill LS2821"marking the northeast corner of the west one-half of the northeast one-quarter of Section 6, . Township 2 South,Range 1 West,Willamette Meridian; thence S.02°06'35"W. along the east line of the west one-half of the northeast one-quarter of said Section 6,a distance of 2,322.33 feet to the northerly right-of-way line of S.W.Scholls Ferry Road,being 49.00 feet from centerline,and a point of non-tangent curvature;thence southwesterly along said northerly right-of-way line on the arc of a 1,481.39 foot radius curve left(the radius point of which bears S.07°56'00"E.) through a central angle of 5°26'15",distance of 140.58 feet (chord bears S.79°20'52"W.,a distance of 140.53 feet);thence continuing along said northerly right-of-way line S.76°37'45"W.,a distance of 257.90 feet;thence leaving said northerly right-of-way line N.58°22'41"W.,a distance of 48.71 feet to the easterly right-of- way line of S.W. 175th Avenue(CR 3110),being 49.00 feet from centerline;thence tracing said easterly right-of-way along the following courses: N.13°22'15"W.,a distance of 274.56 feet to the point of curve left of a 1,174.00 foot radius curve;thence along the arc of said curve left through a central angle of 29°09'38",a distance of 597.50 feet(chord bears N.27°57'04"W., a distance of 591.08 feet);thence N.42°31'53"W.,a distance of 157.69 feet to the point of curve right of a 1,251.00 foot radius curve; thence along the arc of said curve right through a central angle of 44°40'09",a distance of 975.31 feet(chord bears N.20°11'48"W., a distance of 950.80 feet);thence N.02°08'16"E.,a distance of 619.97 feet to the north line of the northeast one-quarter of said Section 6; thence S.88°21'08"E. along said north line, 1,268.78 feet to the Point of Beginning; AND INCLUDING the following described tract of land: Commencing at the S.W. Scholls Ferry Road centerline Station 122+98.50,as centerline is shown on Survey No. 32411,Washington County Survey Records;thence N.76°37'45"E. along said centerline,a distance of 206.59 feet; thence leaving said centerline S.13°22'15"E., a distance of 80.00 feet to the southerly right-of-way line of S.W. Scholls Ferry Road and the TRUE POINT OF BEGINNING of the tract herein described;thence tracing said southerly right-of-way line along the following courses: N.76°37'45"E.,a distance of 31.93 feet;thence N.13°22'15"W.,a distance of 13.00;N.76°37'45"E.,a distance of 171.34 feet; L:\Project\16900\16985\Surrey\1.egals\So Cooper Mtn IGA 082015.doc EXHIBIT A • thence leaving said southerly right-of-way line S.46°08'38"E.,a distance of 64.43 feet to the • westerly right-of-way line of S.W. Roy Rogers Road (CR 3150),being 87.00 feet from centerline, and a point of non-tangent curvature;thence southeasterly along said westerly • right-of-way line on the arc of a 294.97 foot radius curve right(the radius point of which bears 5.85°35'57"W.) through a central angle of 4°34'23",a distance of 23.54 feet (chord bears S.02°06'51"E.,a distance of 23.54 feet) to the northerly right-of-way line S.W.Scholls Highway 210 (CR 348),being 30.00 feet from centerline;thence N.87°59'12"W. along said northerly right-of-way line,a distance of 242.23 feet to the True Point of Beginning. AND INCLUDING the following described tract of land: Commencing at the S.W. Scholls Ferry Road centerline Station 122+98.50,as centerline is shown on Survey No. 32411,Washington County Survey Records; thence N.76°37'45"E. along said centerline,a distance of 684.08 feet;thence leaving said centerline 5.13°22'15"E., a distance of 55.00 feet to the southerly right-of-way line of S.W. Scholls Ferry Road and the TRUE POINT OF BEGINNING of the tract herein described; thence N.76°37'45"E. along said southerly right-of-way line,a distance of 192.58 feet to the point of curve right of 1,377.39 foot radius curve; thence continuing along said southerly right-of-way line on the arc of said curve right through a central angle of 0°13'49",a distance of 5.54 feet(chord bears N.76°44'40"E.,a distance of 5.54 feet) to the northwesterly right-of-way line of S.W. Scholls Highway 210,being 25.00 feet from centerline; thence S.59°11'32"W. along said northwesterly right-of-way line,a distance of 309.20 feet;thence leaving said northwesterly right-of-way line N.02°40'02"E.,a distance of 38.58 feet;thence N.43°48'57"E.,a distance of 102.58 feet to the True Point of Beginning. AND INCLUDING the following described tract of land: Beginning at a point on the east line of the west one-half of the northeast one-quarter of Section 6,Township 2 South,Range 1 West,Willamette Meridian,which point bears S.02°06'35"W., a distance of 2,448.66 feet from the northeast corner of said west one-half of the northeast one-quarter and being on the southeasterly right-of-way lne of S.W. Scholls Highway 210,being 25.00 feet from centerline;thence S.02°06'35"W. along said east line of the west one-half of the northeast one-quarter,a distance of 91.40 feet to the northwesterly right-of-way line of Unnamed County Road 746,being 25.00 feet from centerline; thence S.59°00'00"W. along said northwesterly right of way line,a distance of 211.50 feet to the northerly right-of-way line of S.W. Friendly Lane(CR 348); thence N.87°59'12"W.along said northerly right-of-way line,a distance of 149.46 feet to said southeasterly right-of-way line of S.W. Scholls Highway 210,being 25.00 feet from centerline;thence N.59°11'32"E. along said southeasterly right-of-way line,a distance of 316.52 feet to the point of curve right of a 691.20 foot radius curve; thence continuing along said southeasterly right-of-way line on L:\Project\16900\16985\Survey\Legals\So Cooper Mtn IGr\082015.doc the arc of said curve right through a central angle of 5°49'57",a distance of 70.36 feet(chord bears N.62°06'30"E.,a distance of 70.33 feet) to the Point of Beginning. AND INCLUDING the following described tract of land: Beginning at a point on the east line of the west one-half of the northeast one-quarter of Section 6,Township 2 South,Range 1 West,Willamette Meridian,which point bears S.02°06'35"W.,a distance of 2,599.74 feet from the northeast corner of said west one-half of the northeast one-quarter and being on the southeasterly right-of-way line of Unnamed County Road 746,being 25.00 feet from centerline;thence S.02°06'35"W. along said east line of the west one-half of the northeast one-quarter,a distance of 55.54 feet to the northerly right-of-way line of S.W. Friendly Lane(CR 348), being 30.00 feet from centerline; thence N.87°59'12"W.along said northerly right of way line,a distance of 85.38 feet to the southeasterly right-of-way line of said Unnamed County Road 746;thence N.59°00'00"E. along said southeasterly right-of-way line,a distance of 101.94 feet to the Point of Beginning. Contains 54.69 acres,more or less. L:\Project\16900\16985\Survcy\Lcgals\So Cooper Mtn IGA 082015.doc i I R ....am-s.... ~a .V....v...V.W.V V g i lIllallial:allMKUCM'"------- • 1111M -1—, --_ , ! g 8§ i . niililie I, : :21i11::x1 I I , 14- rill A3i5.,5., 1 , 11----, g Vi 'III - v s I\ .e \ , ,),A I I \ I \- I \ , I 41: \ lel All;■ s\ LI 1' I , \ _____,,,--,;_: I \t/ \4, ..z., 115' 4 I.\ 0 z I to c' I- o o p%' • OD X r. 1 R \ l' a i s ‘ I I % di . ...., ,. .....___ „„,..... v. .. 0 . „.,,,,ge ..,. , § ii1 _ _- NITSr1711 NW I 14 ' ig la31 SW FRIENDLY WE -- 1 I li 4 I 11211=1=M■ PRELIMINARY EXHIBIT- 8 18 2015 ; SOUTH COOPER MOUNTAIN HEIGHTS i 1,i'l 1 i'l i:0 BEAVERTON, OREGON i'0 13 r II ; '1 li r\, 13 ill '' EXISTING CONDITIONS ; 7.0 /:1 0- ,,,,, ; IIIIII.!IMI;IIIIMEM,...IIMIEME=■IMIMIIIMIIIIMIMMMIMIIIIIIMM EXHIBIT ETiriorrg_. ...■ B AGENDA ITEM NO. 2.D- CITIZEN COMMUNICATION DATE: September 8, 2015 (Limited to 2 minutes or less,please) The Council wishes to hear from you on other issues not on the agenda and items 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: Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address City State Zip Phone No. Name: Also, please spell your name as it sounds,if it will help the presiding officer pronounce: Address City State Zip Phone No. 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 1:\ADM\CATHY\OW City Recorder-Records Resources and Policies\CCSignup\citizen communication 150825.doc AIS-2351 3.A. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): Consent Item Agenda Title: Receive and File: Council Calendar and Council Tentative Agenda Submitted By: Carol Krager, Central Services Item Type: Receive and File Meeting Type: Consent- Receive and File Public Hearing: No Publication Date: Information ISSUE Receive and file the Council Calendar and the Tentative Agenda for future council meetings. STAFF RECOMMENDATION / ACTION REQUEST No action is requested; these are for information purposes. KEY FACTS AND INFORMATION SUMMARY 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 Three-Month Council Calendar Tentative Agenda a MEMORANDUM TIGARD TO: Honorable Mayor& City Council/City Center Development Agency Board FROM: Carol A. Krager, City Recorder 6/14 RE: Three-Month Council/CCDA Meeting Calendar DATE: September 1, 2015 September 1 Tuesday City Center Development Agency—6:30 p.m.,Town Hall 8* Tuesday Council Business/CCDA Meeting—6:30 p.m.,Town Hall 15* Tuesday Council Workshop/Business Meeting—6:30 p.m.,Town Hall 22* Tuesday Council Business Meeting—6:30 p.m.,Town Hall October 6 Tuesday City Center Development Agency—6:30 p.m.,Town Hall 13* Tuesday Council Business/CCDA Meeting—6:30 p.m.,Town Hall 16 Friday Council Tailgate-Tigard High School 20* Tuesday Council Workshop Meeting—6:30 p.m.,Town Hall 27* Tuesday Council Business Meeting—6:30 p.m.,Town Hall November 3 Tuesday City Center Development Agency—6:30 p.m.,Town Hall (ELECTION DAY) 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—6:30 p.m.,Town Hall Regularly scheduled Council meetings are marked with an asterisk(*). t:\adm\city council\council calendar\3-month calendar word format.doc 1 Meeting Banner Business Meeting ❑ Study Session Special Meeting Consent Agenda Meeting is Full Workshop Meeting In CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM-Updated Form Meeting Submitted Meeting Inbox or Date By Type Title Department Finalized 2139 09/01/2015 Norma Alley AAA September 1, 2015 CCDA Meetirr 2348 09/01/2015 Norma Alley CCDA 0 Minutes - APPROVE CITY CENTER DEVELOPMENT AGENCY City Management 08/24/2015 MINUTES 2126 09/01/2015 Sean Farrelly CCDA 35 Minutes - Southwest Corridor/Downtown Zoom-In Community 08/25/2015 Development 2128 09/01/2015 Sean Farrelly CCDA 35 Minutes - Burnham and Ash Redevelopment Design & Community 08/25/2015 Permitting Update Development Total Time: 70 of 180 Minutes Scheduled 2033 09/08/2015 Norma Alley AAA September 8, 2015 Business Meeting _ 2071 09/08/2015 Norma Alley ACCSTUDY 10 Minutes - Council Liaison Reports City Management 12/22/2014 2290 09/08/2015 Norma Alley ACCSTUDY 15 Minutes - Update on Youth Sports League Agreement City Management Newton L, Assistant City Manager 2333 09/08/2015 Gary ACCSTUDY 10 Minutes - Tigard/Beaverton IGA for Joint Land Partition Community MartyW, City Pagenstecher Development Manager 09/08/2015 Carol ACCSTUDY 10 Minutes - Land Use Procedure Briefing City Management Krager Total Time 45 of 45 _ '-d '• -_ 2309 09/08/2015 Greer Gaston ACONSENT Consent Item - Authorize the City Manager to Sign an Public Works 08/24/2015 agreement with Clean Water Services and Beaverton Regarding Barrows Road Sanitary Sewer Phase 3 2351 09/08/2015 Carol Krager ACONSENT Consent Item - Receive and File: Council Calendar and Central Services 08/26/2015 Council Tentative Agenda 1 I Pa g c is\admn\carol\tentatv ag\2015\aug 31 2015.docx Meeting Banner D Business Meeting ❑ Study Session N Special Meeting Consent Agenda D Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM - Updated 2'52 09/08/2015 Carol Krager ACONSENT Consent Item - Approve City Council Meeting Minutes Central Services 08/26/2015 11 II 2295 09/08/2015 John Floyd CCBSNS 1 30 Minutes - Appeal of Heritage Crossing Zone Change Community MartyW, City and Subdivision (ZON2015-00002 et. al.) Development Manager 2288 09/08/2015 Louis Sears CCBSNS 2 15 Minutes - CenturyLink Franchise Agreement Finance and 08/26/2015 Information Services 2319 09/08/2015 Norma Alley CCBSNS 3 15 Minutes - Update from Greater Portland Inc. on Community 08/24/2015 Regional Economic Development Development Total Time: 60 of 100 Minutes Scheduled - ---�I 2034 09/15/2015 Norma Alley AAA September 15, 2015 Workshop and Business Meeting Councilor Woodard Absent 2345 09/15/2015 Joanne BUSINESS 5 Minutes - Proclaim Aug/Sept Play Ball Month & Recognize City Management 08/25/2015 Bengtson Tigard/Tualatin City Little League Majors All-Star Softball Team 2201 09/15/2015 Norma Alley CCWKSHOP 50 Minutes - Continued Discussion on Street Maintenance Finance and LaFrance T, Fee Information Fin/Info Svcs Services Director 2339 09/15/2015 Sean Farrelly BUSINESS 10 Minutes - Quasi-Judicial Public Hearing to Consider Community 08/26/2015 Vacation of Public Utility Easement Adjacent to Ash Avenue Development 2294 09/15/2015 Norma Alley CCWKSHOP 30 Minutes - Preview & Update on the Library's Automated Library MartyW, City Material Handling Manager Total Time: 95 of 180 Minutes Scheduled 2035 09/22/2015 Norma Alley AAA September 22, 2015 Business Meeting I �I 2 I P 1 is\adm\carol\tentatv ag\2015\aug 31 2015.docx Meeting Banner 0 Business Meeting ❑ Study Session 111 Special Meeting Consent Agenda '!! Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM- Updated 2072 09/22/2015 Norma Alley ACCSTUDY 10 Minutes - Council Liaison Reports City Management 12/22/2014 2292 09/22/2015 Norma Alley ACCSTUDY 30 Minutes - Executive Session per ORS 192.660(2)(i) City Management 06/22/2015 2322 09/22/2015 Judy Lawhead ACCSTUDY 5 Minutes - Briefing on an Agreement with the City of Public Works Rager B, PW Beaverton Related to Maintenance of Barrows Road Director 2355 09/22/2015 Norma Alley ACCSTUDY 10 Minutes - Executive Session per ORS 192.660(2)(h) City Management 06/22/2015 -4 I 2337 09/22/2015 Joanne ACONSENT Consent Item - Proclaim Community Action Week, October City Management 08/25/2015 Bengtson 11 - 17 — --- ►I 2332 09/22/2015 Norma Alley CCBSNS 30 Minutes - Marijuana Taxation City Management !Gonzalez R, City Mgt Intern 2334 09/22/2015 Gary CCBSNS 10 Minutes - Tigard/Beaverton IGA for Joint Land Partition Community Pagenstecher G, I Pagenstecher Development Assoc Planner 2343 09/22/2015 Carol Krager CCBSNS 5 Minutes - Authorize the City Manager to sign an 'Public Works Martin S, Division agreement with the Tigard-Tualatin School District Manager regarding joint use of property 2291 09/22/2015 Norma Alley CCBSNS '15 Minutes - Approve the Youth Sports League Agreement City Management Newton L, Assistant City Manager 2346 09/22/2015 Buff Brown CCBSNS 5 Minutes - Consider Authorization of a Community Community Brown, B., Assoc Development Block Grant Development Transp Planner 2296 09/22/2015 Loreen Mills CCBSNS 45 Minutes - Executive Session exempt public records ORS City Management 07/01/2015 192.660(2)(f) 3 I P g is\adm\carol\tentaty ag\2015\aug 31 2015.docx Meeting Banner Business Meeting 13 Study Session Special Meeting Consent Agenda Meeting is Full Workshop Meeting 1 CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM- Updated T 'Total Time: 105 of 100 Minutes Scheduled � I 2140 10/06/2015 Norma Alley AAA 'October 6, 2015 CCDA Meeting Councilor Henderson Absent I II 2129 10/06/2015 Sean Farrelly CCDA 30 Minutes - Six-Month report from the CCAC Community Farrelly 5, Redev Development Project Manager 2130 10/06/2015 Sean Farrelly CCDA 20 Minutes - Meet with TDA Board of Directors Community Farrelly S, Redev Development Project Manager 2131 10/06/2015 Sean Farrelly CCDA 20 Minutes - Report on Downtown Events Community Farrelly S, Redev Development Project Manager 2132 10/06/2015 Sean Farrelly CCDA 20 Minutes - Strolling Street Program Update Community Farrelly 5, Redev Development Project Manager 2124 10/06/2015 Sean Farrelly CCDA 20 Minutes - Fanno Creek Remeander Presentation Community Farrelly S, Redev I Development Project Manager Total Time: 110 of 180 Minutes Scheduled 2036 10/13/2015 Norma Alley AAA October 13, 2015 Business and CCDA Meeting I II 2073 10/13/2015 Norma Alley ACCSTUDY 15 Minutes - Council Liaison Reports City Management 12/22/2014 2347 10/13/2015 Lloyd Purdy ACCSTUDY 20 Minutes - Tigard Enterprise Zone Expansion with City of Community Purdy, L, Econ Lake Oswego Development Development Mgr 2350 10/13/2015 Steve Martin ACCSTUDY 10 Minutes - Briefing on two upcoming IGA's with Metro for Public Works Martin S, Division trail segments. Manager To 2192 10/13/2015 Lloyd Purdy CCBSNS 1 25 Minutes - QJ Public Hearing: Comprehensive Plan Community Pagenstecher G, Amendment and Zone Change for Fields Trust Development Assoc Planner 4IPage is\adm\carol\tentatv ag\2015\aug 31 2015.docx Meeting Banner Business Meeting ❑ Study Session Special Meeting Consent Agenda Q Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM - Updated 2286 10/13/2015 Carol Krager CCBSNS 2 20 Minutes - Legislative Session Wrap-up City Management Newton L, Assistant City Manager 2303 10/13/2015 Norma Alley CCBSNS 3 20 Minutes - Develop 2016 Legislative Agenda City Management Wyatt K, Management Analyst 2316 10/13/2015 Carissa Collins CCBSNS 4 10 Minutes - FY 2016 First Quarter Budget Supplemental Finance and Collins C, Sr Information Mgmt Analyst Services 2344 10/13/2015 Carissa Collins 'CCBSNS 5 5 Minutes - FY 2016 City Center Development Agency Finance and Collins C, Sr Budget Supplemental Information Mgmt Analyst Services 2329 10/13/2015 Lisa Shaw CCBSNS 6 10 Minutes - Consideration of Taser purchase contract Police Shaw L, Police Business Manager, 2323 10/13/2015 Sherri Russell 'CCBSNS 7 10 Minutes - Consider Authorizing the City Manager to Public Works Rager B, PW Sign an Agreement with Beaverton Related to Maintenance Director of Barrows Road otal Time: 100 of 100 Minutes Schedul E October 16, 2015 Tailgate with the Council Tigard High School Football Game 2037 10/20/2015 Norma Alley AAA October 20, 2015 Workshop Meeting 2330 09/15/2015 Buff Brown CCWKSHOP 50 Minutes - Tigard Transportation Advisory Committee Community Brown, B., Assoc (TTAC) / City Council Joint Meeting Development Transp Planner 2320 10/20/2015 Carissa Collins CCWKSHOP 30 Minutes - Discussion on Sidewalk Gap Program Finance and Collins C, Sr Information Mgmt Analyst Services 5IT' (' is\adm\carol\tentaty ag\2015\aug 31 2015.docx Meeting Banner ID Business Meeting ❑ Study Session Special Meeting Consent Agenda ® Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM- Updated 2326 10/20/2015 Norma Alley CCWKSHOP 75 Minutes - Discussion on Parks & Recreation Charge Finance and LaFrance T, Information Fin/Info Svcs Services Director Total Time: 155 of 180 Minutes Scheduled I II 2038 10/27/2015 Norma Alley AAA October 27, 2015 Business Meeting 2312 10/27/2015 Carol Krager ACCSTUDY 25 Minutes - Receive Update from Metro Councilor Dirksen Central Services Krager C, City Recorder 2074 10/27/2015 Norma Alley ACCSTUDY 15 Minutes - Council Liaison Reports City Management 12/22/2014 I Total Time: 40 of 45 Minutes Scheduled 2342 10/27/2015 Lloyd Purdy CCBSNS 10 Minutes - Enterprise Zone: Resolution Expanding Tigard Community Purdy, L, Econ Enterprise Zone ,Development Development Mgr_ 2349 10/27/2015 Sherri Russell CCBSNS 10 Minutes - Consider a Resolution Concurring with Public Works Barrie, L, Sr. Washington County Findings Regarding Right-of-Way Admin Spec. Vacation of an Unnamed Street Total Time: 20 of 100 Minutes Scheduled 2141 11/03/2015 Norma Alley AAA November 3, 2015 CCDA Meeting - ELECTIONS NIGHT II 2127 11/03/2015 Sean Farrelly CCDA 25 Minutes - Future of Saxony Site - Update Community Farrelly S, Redev Development Project Manager 2133 11/03/2015 Sean Farrelly CCDA 20 Minutes - Brownfield Initiative Update Community Farrelly S, Redev Development Project Manager 6 I P ; c is\adm\carol\tentatv ag\2015\aug 31 2015.docx Meeting Banner 0 Business Meeting ❑ Study Session Special Meeting Consent Agenda 0 Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM - Updated 2134 11/03/2015 Sean Farrelly CCDA 20 Minutes - Downtown Housing Inventory and Report Community Farrelly S, Redev Development Project Manager 2135 11/03/2015fSean Farrelly CCDA 20 Minutes - Downtown Jobs Inventory and Report Community Farrelly 5, Redev Development Project Manager Total Time: 85 of 180 Minutes Scheduled 2039 11/10/2015 Norma Alley AAA November 10, 2015 Business Meeting I II 2075 11/10/2015 Norma Alley ACCSTUDY 15 Minutes - Council Liaison Reports City Management 12/22/2014 2310 11/10/2015 Judy Lawhead ACCSTUDY 10 Minutes - Briefing on an Agreement with Metro Public Works 08/26/2015 Regarding a Grant to Develop Dirksen Nature Park Total Time: 25 of 45 Minutes Scheduled i _ I 2040 11/17/2015 Norma Alley AAA November 17, 2015 Workshop Meeting I II 2338 11/17/2015 Steve Martin CCWKSHOP50 Minutes - Joint Meeting with the Park and Recreation Public Works Martin S, Division Advisory Board Manager 2327 11/17/2015 Norma Alley CCWKSHOP 60 Minutes - Continued Discussion on Parks & Recreation Finance and LaFrance T, Charge Information Fin/Info Svcs Services Director • 2325 11/17/2015 Carissa Collins CCWKSHOP 20 Minutes - Continued Discussion on the Sidewalk Gap Finance and Collins C, Sr Program Information Mgmt Analyst Services 7I1' .1 is\adm\carol\tentaty ag\2015\aug 31 2015.docx Meeting Banner 0 Business Meeting ❑ Study Session I Special Meeting Consent Agenda 0 Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM - Updated 2167 11/17/2015 Lloyd Purdy CCWKSHOP 20 Minutes - Economic Development Update 'Community Purdy, L, Econ Development Development Mgr Total Time: 150 of 180 Minutes Scheduled 2041 11/24/2015 Norma Alley AAA November 24, 2015 Business Meeting • II 2076 11/24/2015 Norma Alley ACCSTUDY 15 Minutes - Council Liaison Reports City Management 12/22/2014 Total Time: 15 of 45 Minutes Scheduled 1758 11/24/2015 Carol Krager CCBSNS 15 Minutes - PLACEHOLDER - Google Franchise Agreement City Management Mills L, Asst to City Manager 2311 11/24/2015 Judy Lawhead CCBSNS 10 Minutes - Authorize the City Manager to Sign an Public Works Staedter C, Agreement with Metro Regarding a Grant to Develop Project Dirksen Nature Park 'Coordinator Total Time: 25 of 100 Minutes Scheduled I J II 2142 12/01/2015 Norma Alley AAA December 1, 2015 CCDA Meeting I ! I 2125 12/01/2015 Sean Farrelly CCDA 15 Minutes - Fanno Creek Overlook Update Community Farrelly 5, Redev Development Project Manager 2136 12/01/2015 Sean Farrelly CCDA 45 Minutes - Annual Report on the Urban Renewal District Community Farrelly S, Redev Development Project Manager Total Time: 60 of 180 Minutes Scheduled 2C42 12/08/2015 Norma Alley AAA December 8, 2015 Business Meeting 8IPagc is\adm\carol\tentatv ag\2015\aug 31 2015.docx ■ Meeting Banner 0 Business Meeting ❑ Study Session N Special Meeting Consent Agenda Q Meeting is Full Workshop Meeting ❑ CCDA Meeting City Council Tentative Agenda 8/31/2015 3:19 PM - Updated ID 2077 12/08/2015 Norma Alley ACCSTUDY 15 Minutes - Council Liaison Reports City Management 12/22/2014 Total Time: 15 of 45 Minutes Scheduled 2353 12/08/2015 Liz Lutz CCBSNS 5 Minutes - Appoint Audit Committee Members Finance and Lutz L, Conf Exec Information Asst Services 2354 12/08/2015 Liz Lutz CCBSNS 5 Minutes - Appoint Budget Committee Members Finance and 'Lutz L, Conf Exec Information Asst Services 2293 12/08/2015 Norma Alley CCBSNS 20 Minutes - Update on Homelessness City Management Newton L, Assistant City Manager 2324 12/08/2015 Carissa Collins CCBSNS 15 Minutes - Sidewalk Gap Program Finance and Collins C, Sr Information Mgmt Analyst Services _ Total Time: 45 of 100 Minutes Scheduled I — _ _ II 2043 12/15/2015 Norma Alley AAA December 15, 2015 Workshop Meeting f II 2044 12/22/2015 Norma Alley AAA December 22, 2015 Business Meeting 207F. 12/22/2015 Norma Alley ACCSTUDY 15 Minutes - Council Liaison Reports City Management 12/22/2014 Total Time: 15 of 45 Minutes Scheduled �-- -- HI 2328 12/22/2015 Norma Alley CCBSNS 45 Minutes - Public Hearing: Approving Parks & Recreation Finance and LaFrance T, Charge Information Fin/Info Svcs Services Director [Total Time: 45 of 100 Minutes Scheduled 9IP ;, g�. is\adm\carol\tentaty ag\2015\aug 31 2015.docx AIS-2352 3. B. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): Consent Item Agenda Title: Approve City Council Meeting Minutes Submitted By: Carol Krager, Central Services Item Type: Motion Requested Meeting Type: Consent Agenda Public Hearing: No 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: •July 14, 2015 OTHER ALTERNATIVES N/A COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS N/A DATES OF PREVIOUS COUNCIL CONSIDERATION N/A Attachments Draft July 14,2015 Minutes City of Tigard Tigard City Council Meeting Minutes TIGARD July 14, 2015 STUDY SESSION 6:30 p.m. Council Present: Mayor Cook, Councilor Henderson, Councilor Woodard,Council President Snider and Councilor Goodhouse. Staff present: City Manager Wine,Assistant City Manager Newton,City Attorney Rihala and City Recorder Krager A. COUNCIL LIAISON REPORTS. Councilor Woodard reported on the Relay for Life. He reported that the PRAB recommends that the community center should be called a community recreation center. Councilor Henderson said he was elected chair of the CDBG and commented that the program continues to shrink. He asked about the grant for the Hunziker property and City Manager Wine clarified the state would match the $1.5 million. Councilor Henderson handed out a copy of an engineer's report on the downtown art base work. City Manager Wine said she will forward it to City Engineer Faha and ask for a redesign if warranted. Council President Snider said the LO/COT Water Project is progressing well.An executive session will be scheduled in the near future. Councilor Goodhouse reported on the Westside Economic Alliance meeting. He noted that the TriMet payroll tax increase equals one-tenth of one cent for ten years. B. PROPOSED CHAR'I'ER AMENDMENTS Assistant City Manager Newton led a discussion of two proposed charter amendments and said she will prepare resolutions for council approval to place them on the ballot. 1. Allowing Council to Seek a City Office without Resigning—Council President Snider said this was something that Councilor Henderson requested because mid-term councilors are at a disadvantage. Councilor Henderson said it would create an issue if there are two councilors running and may lead to hard feelings. Councilors Henderson, Goodhouse and Snider were in favor of this and the Mayor agreed if it does not apply to sitting councilors. He said he does not want this to be for current council to avoid the appearance of being self-serving. Councilor Woodard said this could be a problem if all the council is running. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 1 of 28 Councilor Goodhouse said it will lead to a better pool and opens up the playing field so it is better for citizens. 2. Increasing Term Limits—Ms. Newton said council agreed to have a total cap of 16 years but the mayor is limited to two terms. The 16 can be in any combination. Council President Snider and Councilors Woodard, Henderson and Goodhouse agreed. Mayor Cook said he wanted just a 16 year term limit total. Councilor Woodard said he thought it good to have new blood after someone has been mayor for two terms,but agreed that experience is valuable. Mayor Cook said he wants to get public comment when this is discussed on the July 28 agenda. Administrative Items— City Manager Wine received council preferences for League of Oregon Cities conference. She asked if anyone was interested in participating in the elected official paddle on the Tualatin River. Councilors Woodard, Henderson and Goodhouse said they wanted to participate. There will be a council groundrules session on Monday,August 31 from 4-6 p.m. as a check in on leadership styles. Consultant Lenny Borer will contact each councilor prior to the meeting The council fifth Tuesday event might use a school as the venue. Assistant City Manager Newton will do some research. Councilor Goodhouse said that a banner would be helpful at offsite council events. Ms. Newton said Senior Management Analyst Wyatt posted some pictures from the July 7 Council Cookout on the Strategic Plan page on the website. CJ CJ 1. BUSINESS MEETING A. At 7:34 p.m. Mayor Cook called to order the Tigard City Council and Local Contract Review Board. B. City Recorder Krager called the roll. Present Absent Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ C. Mayor Cook asked everyone to join him in the Pledge of Allegiance. D. Call to Council and Staff for Non-Agenda Items—None TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 2 of 28 2. CITIZEN COMMUNICATION A. Follow-up to Previous Citizen Communication—None. B. Tigard Area Chamber of Commerce—Mayor Cook said there would be no report from the Tigard Chamber because they were having their 60th birthday party. He said the chamber, known then as the Tigard Businessmen's Association was the organization that incorporated the city in 1961. C. Citizen Communication— No one signed up to speak. 3. CONSENT AGENDA: (Tigard City Council and Local Contract Review Board) — A. APPROVE WORKERS'COMPENSATION INSURANCE FOR CITY VOLUNTEERS RESOLUTION NO. 15-34-A RESOLUTION EXTENDING THE CITY OF TIGARD'S WORKERS'COMPENSATION COVERAGE TO VOLUNTEERS OF THE CITY B. APPROVE THE PURCHASE OF FOUR 2016 FORD EXPLORERS AS POLICE FLEET REPLACEMENT VEHICLES C. RECEIVE AND FILE: 1. Council Calendar 2. Council Tentative Agenda for Future Meeting Topics Mayor Cook asked if anyone wanted to remove an item for separate consideration and there was no request. Councilor Woodard moved to approve the Consent Agenda. Council President Snider seconded the motion and all voted in favor. Yes No Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ 4. PUBLIC HEARING—CONSIDERATION OF COMCAST CABLE FRANCHISE AGREEMENT RENEWAL a. Open Public Hearing: Mayor Cook opened the public hearing. TIGARD CITY COUNCIL MEETING MINUTES—July 14, 2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 3 of 28 b. Staff Report: Network Administrator Sears gave the staff report. He noted that Fred Christ, Administrator of the Metropolitan Area Communications Commission (MACC) along with former MACC Administrator Bruce Crest were in attendance. Mr. Christ said the unanimous recommendation from MACC is to renew the Comcast franchise for another ten years. He noted that Councilor Woodard was the Vice Chair and Councilor Henderson also served as Tigard council liaison to the Commission in the past. He commented on the long process it took to reach an agreement but said all parties are pleased with it. c. Public Testimony: No one signed up to speak. d. Council Discussion and Questions: Councilor Woodard commented that it has been a long work in progress and all jurisdictions worked together. He said the agreement is a good deal and Tigard retains a five-percent franchise fee. He acknowledged the $1.00 per month fee for Public Access/Education and Government channels (PEG)was reduced to 80 cents but more subscribers were added. He thanked outgoing administrator Bruce Crest for his service. Council President Henderson asked about changes to the PEG channels. Mr. Christ said the PEGs are in a good position in this franchise and will all be upgraded to high-definition (HD) over time. He noted the long term stability of the 80 cent PEG fee which will continue to provide equipment and other resources cities have come to depend on. He said there are six channels and these are not jeopardized. In response to a question from Council President Snider,Mr. Christ said negotiations were at times cantankerous and combative but they arrived at a fair franchise for both parties. Mayor Cook thanked both MACC and Comcast for reaching an agreement and avoiding a lawsuit. Councilor Woodard said a franchise is a partnership and complimented the attorneys for Comcast,MACC and the cities. He also applauded the MACC staff. e. Close Public Hearing: Mayor Cook closed the public hearing. f. Council Discussion and Consideration: Councilor Woodard moved to approve Ordinance No. 15-11. Councilor Henderson seconded the motion. City Recorder Krager read the number and title of the ordinance. ORDINANCE NO. 15-11-AN ORDINANCE OF THE CITY OF TIGARD GRANTING A NON-EXCLUSIVE CABLE FRANCHISE TO COMCAST OF OREGON II, INC. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 4 of 28 A roll-call vote was taken and Mayor Cook announced that Ordinance No. 15-11 was adopted unanimously. Yes No Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ Mayor Cook announced that the order of Agenda Items No. 5 and 6 would be reversed Agenda Item No. 6 (RosackerAnnexation)will be heard prior to Agenda Item No. 5 (Appeal of Heritage Crossing Zone Change and Subdivision). 6. QUASI-JUDICIAL PUBLIC HEARING—CONSIDER APPROVAL OF ROSACKER ANNEXATION (ZCA2015-00001) a. Mayor Cook opened the public hearing. b. City Attorney Rihala announced the quasi-judicial hearing procedures, a copy of which was available at the front of the room. c. IR Declarations or Challenges: - Mayor Cook asked if any members of council wished to report any ex parte contact or information gained outside the hearing,including any site visits. There were none. - Mayor Cook asked if all members had familiarized themselves with the application. Council said they had done so. - Mayor Cook asked if there were any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or was there a challenge on the participation of any member of the Council? There were none. d. Staff Report: Associate Planner Gaines gave the staff report and showed a slide of an aerial photo of the area. She said the site is located within a 7.79-acre island of unincorporated Washington County on the north side of Fern Street. The site includes three parcels totaling 1.75 acres. The two northern parcels are vacant and the owners wish to annex to obtain city services for future development. The third parcel is developed with a single-family home currently on a septic system. The owners joined this application and will be provided with a sanitary sewer lateral during development so they can receive services. Remaining property owners in the island were invited to join the annexation but there was no interest at this time. Current Washington County zoning is R-6 so it will change to R-7 upon annexation which is the closest city zone. There is sufficient water and sewer availability and capacity to serve any future development.The proposed annexation meets the requirements of Tigard's Community Development Code, Comprehensive Plan,Metro and state statutes. TIGARD CITY COUNCIL MEETING MINUTES—July 14, 2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 5 of 28 e. Public Testimony: - Applicant: Ms. Gaines said the Rosackers agree with the staff report but would not be testifying. Mayor Cook said they signed up on the testimony sheet and asked if they wanted to speak. Mr. Rosacker indicated from the audience that they were in favor. - Proponents: None. - Opponents: None. f. Staff Recommendation: Associate Planner Caines said staff recommends the city council approve the proposed Rosacker annexation ZCA2015-00001 by adoption of the proposed ordinance. g. Close Public Hearing: Mayor Cook closed the public hearing. h. Council Discussion and Consideration: Councilor Henderson asked how this annexation would not create another island. Associate Planner Gaines clarified that the lines are hard to view on the slide or in Google maps,but the annexation actually reduces the size of an existing island. A discussion was held about which water district will serve the annexed area and Associate Planner Gaines said language should be added to the ordinance to include withdrawal from the Tigard Water District. Councilor Woodard asked about incentives for voluntary annexation and if the properties fall within the sewer reimbursement district program. Associate Planner Gaines said the properties are not within a sewer reimbursement district. She said the last discussion was that voluntary annexation was extended for those not coming in for development. City Manager Wine clarified that this is not technically a voluntary annexation because it was requested so the properties could be developed. Council President Snider moved to approve Ordinance No. 15-12 adding removal from the Tigard Water District. Councilor Goodhouse seconded the motion. City Recorder Krager read the number and title of the ordinance. ORDINANCE NO. 15-12 AN ORDINANCE ANNEXING THREE (3) PARCELS OF LAND TOTALLING APPROXIMATELY 1.54 ACRES, APPROVING THE ROSACKER ANNEXATION (ZCA2015-00001) AND WITHDRAWING PROPERTY FROM THE WASHINGTON COUNTY ENHANCED SHERIFF'S PATROL DISTRICT AND WASHINGTON COUNTY URBAN ROADS MAINTENANCE DISTRICT, and the Tigard Water District City Recorder Krager conducted a roll-call vote of council. TIGARD CITY COUNCIL MEETING MINUTES—July 14, 2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov 1 Page 6 of 28 Yes No Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ Mayor Cook announced that Ordinance No. 15-12 passed unanimously. 5. QUASI-JUDICIAL PUBLIC HEARING—APPEAL OF HERITAGE CROSSING ZONE CHANGE AND SUBDIVISION (ZON2015-00002/SUB2015-00001/VAR2015-00001) a. Mayor Cook opened the public hearing. b. City Attorney Rihala described the quasi-judicial public hearing procedures noting that council must declare any conflicts of interest and the audience must wait until they are called upon to speak. The order is staff report,hearing from the appellant and then public testimony. She said anyone must testify to protect their rights on appeal. c. Declarations or Challenges: Mayor Cook asked if any members of Council wished to report any ex parte contact or information gained outside the hearing,including any site visits. Council President Snider said he drives past the site daily and cannot reach city hall from his home without driving past it. Councilor Goodhouse said he runs,walks or drives past it frequently and Councilor Woodard said the same. Mayor Cook said he knew the owner and visited the house as a child and also had ex parte contact with the applicant and consultant over a year ago prior to this application being submitted to the city. He said they discussed issues that may come forward tonight but he did not feel biased in this case. el Mayor Cook asked if all members had familiarized themselves with the application. They indicated they had. Mayor Cook asked if there were any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or was there a challenge on the participation of any member of the Council. Hearing none,he asked for the staff report. d. E Staff Report-Associate Planner Floyd gave the staff report with a PowerPoint presentation. He acknowledged council's familiarity with the site but said of relevance was that it is a little over nine acres in size, flat,and unconstrained. He said it is an easy to develop site,well serviced by transportation and other infrastructure. The only constraints on the site are two low quality wetlands,not regulated by the city. The applicant has applied for permits from the state and federal government. He said it is a concurrent application for a subdivision and zone change and he focused his comments only on the zone change which is what the Planning Commission did. He said there are three issues which led to the application being denied by the Planning Commission. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 7 of 28 1. The proposed zoning map amendment changing it from R-12 to R-7 and lowering the density is inconsistent with 32 years of city policy. The R-12 zone was applied in 1983 as part of the city's first state-acknowledged Comprehensive Plan. The reasons for the R-12 zoning application are the same today with no change in conditions or reason to change the zone. 2. The proposed zone change reduces the variety of potential housing types and removes the multifamily option from the site. The application refers to numbers and proportional changes in numbers. The Staff and the Planning Commission's position,as detailed in two letters from Metro is concern about potential losses to Tigard's housing diversity. Specifically,the change in zoning removes multifamily from the site and makes it more difficult to develop attached housing. Tigard has a need for a wide variety of housing types and choices and this application does not serve this. Mr. Floyd said Associate Planner Grass will address housing policy and put this application into the context of the broader housing needs in Tigard. 3. The proposed zone change reduces opportunities because it does not leverage the amenities and location of the site. The site is adjacent to a bus line which TriMet has scheduled to be upgraded from regular to high-capacity service. Mr. Floyd showed a map of the area and said it is a highly walkable site. He summarized the walkability to various sites and schools and said he walked the site to familiarize himself. Walking to the corner store on Hall Boulevard and Durham Road took about two and one-half minutes. He reached the high school in five minutes and Durham Elementary in about eight minutes. Durham Elementary is the designated elementary school for this site and Twality is the designated middle school. There are continuous sidewalk paths to all of the schools. Cook Park is south of the neighborhood. Mr. Floyd said Hall Boulevard is not just a city arterial and state highway,it is also a regional corridor and is designated as such in the Metro 2040 map. He said he will discuss with council the kinds of things council can consider in terms of a map amendment. This site has been served by transit since at least 1983 and that is one reason why this area was zoned R-12. In 1983,the public and decision makers wanted to place transit near density and also near sites that would be easy to develop. This site meets both criteria. TriMet bus line 76 is a major connector taking riders to three transit centers, downtown Tigard and Beaverton,Washington Square,Bridgeport Village,Legacy Hospital and the Tigard Public Library. TriMet has expressed interest in more frequent service as part of the SW Enhancement Service, from 30-33-minute headways to 15-minute headways.Reducing ridership along an established transit corridor with significant connections and future service enhancements would be contrary to local and regional policies regarding transportation system development and desired urban forms. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 8 of 28 Mr. Floyd said the Planning Commission heard this application on May 18. They found insufficient evidence in the record to support the gravity of the change and the impact it would have. They felt the applicant could have made a better argument and encouraged the applicant to further refine the design and find something that better met the criteria. It was not an outright rejection but a request that they bolster their argument and return. There was a lot of neighborhood testimony. The Planning Commission acknowledged their concerns. R-12 zoning would result in something slightly different but there is difficulty in matching new development to that developed in the 1980s and 1990s.As time passes, needs change and the market changes and the Planning Commission recognized that you cannot always put next door what was there before. He noted that one planning commissioner talked about his personal experience living in an R-7 development with an R-12 subdivision built across the street. He said they both function well. His comments are detailed in the Planning Commission minutes. Mr. Floyd said the applicant disagrees with the Planning Commission and is here tonight to appeal. Council is being asked to reconsider the Planning Commission's decision on three approval criteria: 1. Compliance with the Tigard Comprehensive Plan—the application is inconsistent with ten polices in the plan ranging from land use to transportation and housing. If an application is inconsistent with even one criterion it must be denied. 2. Compliance with other applicable ordinances—In this case,Metro's Title 1. Letters from Metro were forwarded to council with their interpretation that this application is inconsistent with Title 1. 3. Change in the community or neighborhood or a mistake in the zoning map. There is no evidence of change in the neighborhood or a mistake or inconsistency in the zoning map. Associate Planner Floyd said the final order contains a lot of background research and zoning history. There is clear evidence of R-12 zoning being adopted for this area so there is not a mistake on the map. There is an ordinance and a reaffirming ordinance adopted in 1983. Regarding a change in the community or neighborhood there is more evidence of consistency than change. The reasons why R-12 was applied to the site have not changed in 32 years. R-12 zoning was applied due to the flat topography, road capacity, proximity to transit and an arterial, and distance to schools and neighborhood amenities. Mr. Floyd said Metro Title 1 is a section of the Urban Growth Management Functional Plan which applies to all cities in the region. Cities must maintain or increase housing capacity. There are four exceptions. Reducing capacity by transferring it to another site is one option but is prohibited in this case because Hall Boulevard is a regional corridor. There are three other options but two do not apply because it is not a rezone request for industrial or educational use and the applicant is not protecting natural resources on site. The option the applicant proposed is the exception for negligible effect on the city's overall housing TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 9 of 28 capacity. The applicant did not provide a comparable analysis of the impact on the city's overall housing type allocation in terms of single-family detached or multi-family attached. This was missing in the applicant materials. Associate Planner Floyd said the other main issue is compatibility and the applicant raises this as a major reason for the zone change. He spoke to the verbal and written testimony received on this issue. He said concerns about compatibility are not supported by evidence in the record. There is no change to height and massing requirements between R-7 and R- 12 zoning. This is more an issue of allowed housing types rather than changing height limits. Setbacks are similar;both zones have height limits of 35 feet. The Tigard Transportation System Plan anticipates site development to R-12 levels so the transportation system would not be unduly burdened by development consistent with the current zone. He said the Tigard Development Code acknowledges that there may be conflicts between different housing types such as single and multifamily. To counter that there are mandatory compatibility standards. There would be requirements if someone wanted to build multifamily housing there such as landscaping, setbacks, height limits and parking. There are also flexible design options available to the applicant. One concern expressed was that lots around the sides of the subdivision would be smaller than existing adjacent lots. Lot size averaging is acceptable. Larger lots could be placed around the periphery and smaller lots in the middle. This is a Type II decision and the Director could approve it. There is also the option of planned development. If exact matches are required between existing and new housing it precludes housing choices and housing diversity is needed in the city. Associate Planner Floyd compared homes in the surrounding area. He showed some images of Applewood neighborhood houses. The houses are all two-story, maximize their building envelopes,and are set about 15-20 feet from the property line. According to the assessor's office they average in the low 2,000 square-foot range with 500 square-foot garages. These are not one-story, small homes built on large lots. They are large homes built out to their building envelope and they all look down into each other's backyards. He said it is a great neighborhood that people seem to like and are invested in. He also looked at housing on the south side of the property and saw that the homes are very similar but built in an earlier decade. Mr. Floyd showed slides of the 15-foot setback required in both R-7 and R-12. Any house built on the periphery will have Applewood neighbors looking down on them. He said in both zones when different densities are alongside each other there is a required setback enhancement of 30 feet. He showed an aerial slide with the setbacks illustrated. Under R-7 there would be 15-foot setbacks but under R-12 there would be 30-foot setbacks. He clarified what R-12 means. He said it can include multifamily dwellings and showed slides of different styles of R-12 homes built in the last ten years. He said it is possible to build detached housing on the site. He said compatibility standards are listed throughout Tigard's Community Development Code. He called attention to a letter written by Metro Regional Planner Harper, four additional letters from neighboring property owners and one letter from the Applewood HOA. This information was distributed prior to the meeting. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov 1 Page 10 of 28 Associate Planner Floyd noted an oversight in the memo sent to council. On page 4 of the appeal letter it states that staff wrote on page 6 of the Final Order that policy 10.1.2 was not met. There were no findings on this. Staff erred in moving this into the Final Order because this policy does not apply to this project. Any decision made by council should mention this. Council President Snider asked if some of the letter writers were confused. Mr. Floyd agreed that some seemed confused because they assumed developers usually increase zoning to add more homes,rather than try to downzone. e. Public Testimony Michael Robinson,Attorney for the Applicant, 1120 NW Couch Street,Tenth Floor, Portland, OR 97209, distributed materials to council which have been added to the record for this item. He introduced Mimi Doukas of AKS Engineering and Kelly Ritz,president of Stonebridge Homes and Venture Properties,which is the applicant. He said they were present to request that council reverse the Planning Commission decisions and approve the three applications submitted to the city. He said they were principally talking about the zoning map amendment,not the subdivision or adjustment. He began with three main points. 1. Applicant met the burden of proof to show applicable approval criteria were met. Some Tigard Comprehensive Plan policies citied in the Planning Commission decision are not relevant, and are general policies directed towards actions, not towards quasi-judicial policies. He referred to letters dated May 6 and May 14, 2015, to the Planning Commission and also the June 15, 2015, appeal and each letter explained why the plan policies the staff report and Planning Commission rely on are not applicable. Where they are applicable they explained why the substantial evidence in the application meets the policies. 2. The application meets the relevant Tigard Community Development Code policies governing a zone change. The evidence shows that the applicant meets 18.380.C.3 which shows evidence of change in the neighborhood. What has changed is the neighborhood around the R-12 site. They have slides in a PowerPoint to demonstrate this. This represents the change in the neighborhood and that is the basis on which council can find that this is met. The R-12 zone is not compatible with the surrounding R-5 and R-7 developments. What they did not see from the Planning Commission and what they did not discuss and the staff did not tell council was that if one builds single family housing in the R-12 zone what would be butted up against each of the lots in the Applewood subdivision are two lots,not one. The R-12 zone allows about 3,000 square foot lots so the homes will be smaller. All of this does make a difference and staff can try and place design compatibility standards but this does not change the number of lots or the home sizes adjacent to those longstanding homes in Applewood. People that testified for this said the city wants development to occur in a zone that is not appropriate for its location. The R-12 has been there for a long time but the TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov 1 Page 11 of 28 surrounding area has changed and what has grown up around it is not at all what would have been envisioned 30 years ago. The staff report also noted that the applicant had not described the ways in which the R- 12 zone is physically not characteristic of the surrounding zone. He said they did talk about that in oral testimony at the Planning Commission and in one of their letters and in their appeal. What you end up with in the R-12 zone are one-car garages, two lots against each surrounding lot, dissimilar house types and sizes and no, little or on-street parking. All of these things impact surrounding properties. Smaller lots, smaller homes and more of them in the same area will result in incompatible situations. This is why people do not want the R-12 development. The two letters that came in that said they were opposed to the application indicate confusion about upzoning. We are trying to do what most developers do not do,which is take it down a notch. Mr. Robinson said Tigard Comprehensive Plan policy 2.1.15.f calls for land uses to be compatible.The Planning Commission said the applicant needed to show evidence of incompatibility. That is not what the policy calls for. Its plain language calls for compatibility and R-7 is compatible with the surrounding existing subdivisions. The neighborhood association supports this project. It is fair to say that the majority of speakers at the Planning Commission hearing supported this project. Mr. Robinson talked about the Metro letter. He said the first letter from Metro did not explain why Metro Functional Plan Section 3.07.120.e was not met. The section states that a county or city may reduce the minimum zoning capacity of a single lot or parcel as long as the reduction has a negligible effect on the city's overall minimum zoned residential capacity. The Metro Functional Plan defines this as the highest number of dwelling units or jobs that are allowed to be contained in an area by zoning. The applicant addressed this in letters and testimony and explained that if approved, this zone change has the effect of less than one-percent on zone capacity. Tigard's Comprehensive Plan document acknowledges this on page 10-2 where it says "The city is committed to providing the opportunity for an additional 6,308 dwelling units between 1998 and 2017." This number shows Tigard's zoned capacity for additional dwelling units. Assuming that this zone change removes capacity for about 60 dwelling units, it would be less than one percent of zoned capacity and is a negligible effect. He said the city,not Metro can decide this is a negligible effect. This was not addressed in any of Metro's letters; they addressed housing types but housing types are not what zoning capacity is about. Metro has not shown that they failed to meet that provision of Metro Title 1. Council can find that changing from R-12 to R-7 is a negligible impact on zoning capacity. Mr. Robinson showed a slide of the site and a summary of their arguments. He pointed out that staff believes that this application will reduce housing capacity and this is not the case. Tigard, like all other cities in the metropolitan area, must comply with the metropolitan housing rule requiring a certain division of single family and multifamily housing. There is no assertion by approving this application that the city will not be in compliance with this rule. That is the basic template for housing diversity in the city. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 12 of 28 There is nothing in the code that is relevant to reducing housing diversity and if there is, Council should think about whether the right place to encourage housing diversity is a vacant lot surrounded by dissimilar single family homes that has been that way for a long time. Mr. Robinson addressed the issue of transit and said nothing changes the walkability of this neighborhood. Walking to schools or to the small store on Durham by the high school in a few minutes is the same whether zoned R-12 or R-7. He pointed out there are no employment opportunities or commercial activity nearby. This was clearly not considered by this city council, previous city councils or Metro to be an area to be promoted for high density. Most people in this neighborhood would drive to downtown Tigard for shopping or restaurants. Some hearty souls might walk but he thought most would drive. He said the Tigard Community Plan Policy 10.1.5 calls for high-medium density in areas such as transit corridors (and the applicant acknowledges the site is in a corridor) where employment opportunities and commercial services are either present or planned. The fact that you can take TriMet bus line 76 to Meridian Park Hospital does not mean this policy is not met if the zone is changed to R-7. Mimi Doukas,AKS Engineering, 12965 SW Herman, #100,Tualatin, OR 97062,gave the zoning history of the property and characteristics of the neighborhood. She showed slides and said a lot of R-12 zoning was placed in this district in 1983,around the time the Albertsons store came in. There were no density requirements or a mandate in this time frame. In 1984,two subdivisions requested R-7 zoning,not to reduce density but to have better setbacks. They wanted to match what was in the neighborhood. In 1996 the Applewood subdivision was zoned R-12 and R-4.5 and blended it by placing R-7 on both properties in 1997. This was related to the Sattler Road improvements improving access. This meant that the Schmidt property was now surrounded by R-7 property on three sides. In 1998 minimum densities were placed over the entire Metro region. It is noteworthy how much of the R-12 zoned properties were built out before the minimum density was applied. In 2013,the entire district was built out and this property is the last remaining piece. She said these are substantial changes since 1983 when the R-12 zoning was applied. A rezone happened to the south to R-7;a rezone happened in the north to R-7 and a re-zone happened in the west from R-4.5 to R-7. Ms. Doukas discussed the Sattler Road decision. When that zone changed the blending of the densities happened for Applewood and that decision talks about how a mistake in the plan had occurred. This was part of the basis for that decision. There is a mistake in the history of the zoning but she felt it was more important to focus on the fact that the character of the neighborhood has progressed over time. Ms. Doiikas showed slides of additional site plans illustrating ways the applicant could develop this property to the minimum density of R-12 zoning with 30-foot wide lots and 20-foot wide homes. With the surrounding neighborhood's concern about design and compatibility, reductions to side-yard setbacks would not be appropriate. This is minimum density. They cannot go larger and still meet minimum density for single family homes. She showed a slide of an overlay of this design against the existing Applewood TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 13 of 28 neighborhood which indicated two homes for every one home in Applewood and commented that this is a lot of density and not a lot of on-street parking. The plan allows for 30-foot rear setbacks. Ms. Doukas discussed the variety of homes in R-12 minimum density design. The existing homes in Applewood are 52-feet wide on a 62-foot wide lot. She showed slides of homes that would fit the R-12 lots which were 20-22 feet wide. They are intense little homes. She said Venture Properties looked at how to make R-12 work and found it does not work financially so you would need to go to increased density, which means going to an attached product. She showed a slide of a 93-lot subdivision with attached townhomes which adds another type of intensity to the neighborhood. Another concept is garden style apartments with 108 units. But with the design compatibility standards in Tigard's code, the parking is placed in the back, putting the intense noise, trash compactors, playgrounds, lights and parking up against the neighbors which does not seem fair. EtMr. Robinson described a slide with a comparison of R-7 and R-12 capacity. He said using 2014 capacity numbers (with River Terrace),rezoning would mean 50 fewer units out of 7,421 which is less than one percent. This is council's decision to decide if this is a negligible effect. Ms. Doukas discussed the importance of R-12 in relation to supporting services. The neighborhood commercial is small and there is a lack of support services for this type of density. Mr. Robinson thanked council for their time. He said the evidence in the three letters from the applicant and their application is more than ample to find that relevant policies can be satisfied. Melissa Blue, 8743 SW Hamlet Street,Tigard, OR,lived south of the property for 10 years. She noted that many slides shown were from Applewood and the houses south of the property are larger. She said she is in favor of the zone change. She expressed concerns about walkability and believed having smaller homes would potentially create more cars and traffic. Hall Boulevard has not been improved significantly and has become less walkable as more traffic builds up on their streets. There are no sidewalks consistently throughout the property. She said the TriMet argument is interesting and whether there are 52 or 110 properties it would not change the need. She said her main concerns are walkability, traffic and compatibility. She does not want taller properties. Sharon Mead, 15320 SW Empire Terrace,Tigard, OR 97224, said her backyard is underneath the oak tree on the Schmidt property. She strongly supports the change to an R- 7 zone. She noted the discussion on compatibility and consistency and how the areas surrounding the property were changed to R-7. The homes built on R-7,even those to the south,have the same look and feel. It would be completely different going to R-12. There is already a traffic issue in the Applewood neighborhood as it is a cut through from Sattler to the high school. This property will open onto Ashford Street and Applewood Street and neighborhood traffic will increase substantially. Regarding the bus line, she has lived in her TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 14 of 28 home for 12 years and the most riders she has ever seen waiting for the bus during rush hour is four. She did not think TriMet would be increasing service anytime soon. Matt Hughart, 8817 SW Greening Lane,Tigard, OR 97224,is a resident of Applewood and President of the HOA Board. He said residents have carefully monitored interest in this development. Two of their local streets will be used. He said it is clear that more units are available from R-12,potentially double. Narrow homes mean increased trip generation. He said he is a transportation planner and knows that smaller single-family homes have very similar trip generation to larger homes. Trip generating capabilities of more units will have a negative impact not only regionally but on neighborhood intersections. This site needs to be compatible and this is good from a neighborhood standpoint. The applicant has worked well with neighbors to develop a project that is consistent and he appreciates the planning efforts. He discussed what has changed in the neighborhood. There has been a progression of single-family homes and the only parcel that has not changed is this parcel and it is R-12. He said he personally,and the HOA Board and members support a rezone. City of Tigard Associate Planner Grass said she is the planner who handles the city's housing issues. She said included in the record is a letter she wrote dated April 21,2015,that recommends denial.The first and foremost issue is the opportunity for housing choice. City adopted policies in the Comprehensive Plan center around opportunities to develop a variety of housing types that meet the needs,preferences and financial capabilities of Tigard's current and future residents. One size does not fit all. The R-12 zoning is an important part of the mix of housing in Tigard. She said Tigard's buildable lands inventory has twice the amount devoted to R-7 as R-12, and River Terrace has three times as much land for R-7 than R-12. She asked that council consider the city's future residents and the housing options they might be looking for. This neighborhood is located near services like the library and transit. She noted the community commercial area is the only one located in the city. Applicant Rebuttal: Attorney Robinson said the applicant wants to avail themselves of the right to submit final written argument per state law,with no new evidence after the record is closed to other parties and the period of time is seven days. He indicated that the applicant was fine with seven days. They wish to respond in writing rather than speak now and would like to extend the 120-day clock. Tigard's city attorney said council deliberation was scheduled to occur on July 28 so they will extend the clock another 14 days. Mr. Robinson said no one testified that they want this to be developed at R-12. The applicant wants to develop at R-7 because she believes it is the right thing to do. Neighbors are the ones most affected by this, not just the developer making money or the city's or Metro's desire for more density. They want it to be developed at R-7 because it would be compatible and comparable to what they have. The only entity supporting R-12 besides the Planning Commission and staff is Metro, and Metro is in the density business. But council has to look at the standards and make a legal decision. There is no evidence that the applicant has not met Metro Title 1 requirements, either by virtue of the numbers shown on the slide tonight or the number in the acknowledged plan. If the city changes this from R-12 to R-7 the reduction on housing capacity is less than one percent. Metro's letter of July TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 15 of 28 13 misses the mark because it doesn't talk about the right standards; it talks about housing type, it is housing numbers. We all understand how important it is that we have density in the right places. The right place is where you have done it well, such as in River Terrace, where the city was thoughtful about where it should go, how it relates to the roads and you do not have existing neighborhoods next to R-12 and R-25 districts. He said if R-12 remains here it will be an island in a sea of R-4.5 and R-7. The city will meet the Metro Functional Plan, the Metro housing rule for the area is still satisfied and houses and lots will not be comparable or compatible. Council is not legally required to deny this zone change. He suggested if on the fence about a decision, council could approve this in a tentative way when deliberating on July 28th and let the applicant develop findings. If the findings do not meet the legal mark then council can deny the application. He asked that council approve it by reversing the Planning Commission and close the record to all other parties, keep the written record open until July 21 at 5:00 p.m. for the applicant to submit written argument only, without new evidence, and then return for deliberation on July 28,2015. Mayor Cook asked if council had questions. Council President Snider asked a question about a map provided by the applicant. Ms. Doukas replied that from a design standard a 4,000 square foot lot looks similar to a 5,000 square foot lot. Once the garage door is reduced, it becomes the true dominant feature of the lot. Associate Planner Floyd said the neighborhood is a patchwork of both projects. There are a number of projects that were built in the past ten years that were built to R-12. Council President Snider said he lived in two different lots on the applicant's map and knows how they feel rather than how they were zoned. He asked about the economics of an R-7 compared to an R-12 zone and why they feel R-7 is more economically viable. In response, Ms. Ritz said they started by looking at compatibility with the neighbors which led to a zone change of R-7. When they looked at the numbers the R-12's smaller lots reduce the value of the individual units. Then she examined how to bridge the gap by doing the lowest density in an R-12 zone. She looks at what price she could sell the homes. Even at lowest density, houses are still skinny and not as compatible. The bigger problem is that if you go to R-12 it has to be maxed out. She considered half R-7 and half R-12 and the challenge is that the house prices for an R-7 home are at least one-third more than a smaller house, or a 3,000 square foot lot. If she goes to R-12 she would have to,"max it out." Councilor Woodard asked how much time was invested in considering R-12 compared to R- 7 zoning. Ms. Ritz said they were proposing a 53-lot subdivision and asked how many units would have to be added with R-12 zoning. City staff said with their street layout they would need to add 21 units but the neighborhood is not compatible and the price goes down. They considered apartments and townhomes. She said she has a philosophical feeling that R-7 is better and wants to go forward with the project. She said she is not against density but does TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov 1 Page 16 of 28 not like it in the wrong place. She mentioned another property she thought was owned by the Schmidts zoned at R-4.5 which ended up taking 125 units and asked how that was fair. Councilor Henderson asked if Ms.Ritz saw the zone change as a huge problem when first looking at the property or did her concerns rise after investigating the history. Ms. Ritz replied that she has not attempted a zoning change before and usually developers try to increase zoning. She saw that everything around it was zoned R-7 and it had been changed for this property. She did not anticipate that staff would want to stay with R-12 and expected more flexibility. She met with the neighbors and was straightforward with them saying that it was zoned R-12 but she would attempt to change that to R-7. She said Tigard is developing River Terrace so she thought they had a good legal argument to put in something similar. Councilor Henderson said he has been looking at the desirability of Tigard as a place to live and we are facing growth. He said as Mr. Floyd eloquently said earlier, things are changing and we need to understand where the growth will occur. He said he can also understand her point of view on the R-7 zoning. Associate Planner Floyd said two of the three site plans shown on the screen were new to staff and this is new evidence that they need a chance to review. He said he can understand some of the compatibility issues identified on the site plans but can also spot some easy changes that could be made under the current code. He referred to his pre-application notes and said staff was approached by Venture properties in August. The application came fully formed, the applicant had made up her mind and staff was not asked to help with modifying an R-12 site plan. The applicant has not made an effort with staff to develop a workable site plan in the R-12 zone. Mr. Floyd returned to the approval criteria discussion. He referred to Metro's letter and said Title 1 was either adopted or readopted within the last four years. This is their regulation and he would recommend that Tigard follow their interpretation of the code. He referred to Ms. Ritz' comment on the Bonaventure project on the other Schmidt property,which is a new assisted living facility. He said that speaks to diversity in housing but these are not the same kind of projects. It is a large facility that is not true household living. There are a number of Comprehensive Plan policies that speak to diversity in housing. Policy 1011 says the city shall adopt and maintain policies, codes and standards that provide opportunities to provide a variety of housing types that meet the needs,preferences and financial capabilities of Tigard's current and future residents. As Ms. Ritz said,her product is of much more value than a product under R-12. Policy 10.1.5 says the city shall provide for high and medium density housing in areas such as along transit corridors where employment opportunities, commercial services, transit,and other public services necessary to support higher population densities are either present or planned for in the future. Council President Snider asked if the Bonaventure property addresses the housing inventory. Mr. Floyd said it is outside the inventory requirements as he understood it but he could get back to council on that if they want. He said the policies speak to opportunities and not removing the number of households capable of getting on a transit line and going to a job or walking to school and making Tigard's Strategic Plan and Safe TIGARD CITY COUNCIL MEETING MINUTES--July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 17 of 28 Routes to Schools Plans work. Another policy is 2.1.15.d which says the applicant must demonstrate that there is an inadequate amount of developable, appropriately designated land available for the land uses allowed by the new designation. As Associate Planner Grass said, there is a lot of R-7 in the city. He said he understands the compatibility issues, but Tigard is really awash with R-7 and this site is flat, unconstrained and has a lot of services. This is really an opportunity that could be lost. The policies are better served by preserving R-12 than they are by converting to R-7. Council President Snider: asked what Metro's abilities are to appeal any decision a city council makes. He discussed the rules of quasi-judicial public hearings and said if someone wants to change the Oregon land use rules they should talk to their legislators. City Attorney Rihala said Metro has given written testimony and has standing in this case. It would go to the Land Use Board of Appeals (LUBA). In response to a question from Council President Snider about whether Metro would appeal, Associate Planner Floyd said he approached the question gently and they said it is not off the table. Council President Snider asked if the less than one-percent change in housing inventory argument was compelling at all from a staff perspective. Associate Planner Floyd said the significance is not defined and the issue comes back to, "one percent of what?" There is no analysis of how many attached units the city could lose. Council President Snider asked if staff could do that analysis. Mr. Floyd responded no, because the burden of proof is on the applicant. Mr. Robinson said the opportunity for Metro or any other party to testify has ended. Mayor Cook said he had not closed the public hearing. Mr. Robinson said no one asked prior to the rebuttal that the record remain open for evidentiary purposes. He said if council wants another party to testify that is not staff, then they need to discuss an open record period. Council President Snider said that was not his question. He was asking if staff could report back on his question. Mr. Floyd apologized if his answer was misconstrued but typically the applicant provides information and we have pointed this out in the past and it was not done. There is a clock running and the applicant would have to provide an extension. He said it still comes back to how council wants to interpret the Comprehensive Plan policies. Even a small change would be in conflict with the policies to promote and provide for a variety of housing types. Councilor Goodhouse asked if the Bonaventure memory care development counts as housing units and Associate Planner Floyd said it does not compare in terms of self- contained units and there are more common areas. Councilor Goodhouse asked if some of the units have their own kitchens and some use a common dining area.Associate Planner Floyd said it was his understanding that there is a blending of both types with options. Councilor Henderson asked about a proposition for denial and then finding conditions that may be found acceptable. He asked what conditions might change that. Mr. Robinson said he suggested council tentatively approve it,ask the applicant to come back with findings addressing each of the relevant approval criteria and then council would take a final vote on TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 18 of 28 it. He said he thought when the council sees the findings they will see evidence that the relative approval criteria can be met. He said council can meet their legal burden and the applicant can demonstrate that with findings. In response to a question from Councilor Henderson,Mr. Robinson said they are asking council to reverse the Planning Commission decision, approve it and ask the prevailing party to come back with findings. Council President Snider asked if all the evidence should not have already been in the record. Mr. Robinson said all the evidence that would allow the council to reverse the decision is in the record. He disagreed with Mr.Floyd's assertion that they did not put in an analysis of Title 1. He said they addressed it in at least the May 16 letter,if not the May 9 letter,and the appeals statement also addressed it. He said he read about zoned capacity tonight which addressed Title 1. He said if council would tentatively approve this the applicant could draft findings. Mayor Cook said he has lived here in those 32 years and knew the property owner well. He could have changed his property as did the properties around him but he did not want it developed while he was alive,or even some time after his death. Everything around it changed but in 1998 things changed and we had minimum density requirements.The Metro 2040 map amendment identified it as a transportation corridor and the city is not allowed to transfer density to the Tigard Triangle or some other location. He asked when that rule came in and asked if Metro decided that we cannot do trades along the corridor. He noted that Tualatin changed their Transportation System Plan and asked how Tigard should. Mr. Floyd said it is a state highway and arterial,long standing designations. He was unsure when the 2040 map was adopted. Title 1 was adopted or readopted in 2011 in concert with other cities. There was regional buy-in that certain things cannot happen along corridors in order to achieve regional goals. Density did change in 1998 and the zoning in the adjacent properties did change for good reasons at the time. One reason a neighboring subdivision could not be developed to R-12 had to do with problems in setback standards for single family homes in that zone. Applewood site design changed from R-12 and R-4.5 to R-7 and is an efficient,cohesive site design but the net effect was an increase in density in the site. Each decision is made in the context of the moment. Mayor Cook asked again if it is Metro that enforces these requirements and Mr. Floyd said it was. Mayor Cook asked if what Mr. Floyd was saying is if council denies this as the Planning Commission did, Council is following the rules that Metro is requiring. Mayor Cook reminded council of their quasi- judicial roles. Mr. Robinson said the applicant has asked for the final written record to remain open so council does not have all of the argument before them. City Attorney Rihala asked for clarification from the applicant about keeping the record open because there was a request from council for additional information about the housing needs. She asked if the applicant agrees to extend the record. Mr. Robinson said they have not asked for the written record to remain open;they are asking for final written argument. He noted that Ms. Ritz will not be available on July 28 and wished to be present for the vote. He asked to come back and deliberate on August 11. Mayor Cook said two councilors will be absent from that meeting. Mr. Robinson asked for the evidentiary record to close but TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 19 of 28 leave the written record open for final argument for the applicant only. He asked for 14 days to do final written argument,which would come in by the 28th rather than the 21st. Council President Snider found it objectionable that a decision like this would be made with almost half the council absent. The next available date is September 8 with a full council. Mr. Robinson said they are willing to extend the 120-day clock to whatever deliberation date will work for council. He requested that they have until July 28 at 5:00 p.m. to provide the final written argument. The record is closed to all other parties after tonight.The Applicant will deliberate on September 8,which extends the clock by 56 days. City Attorney Rihala and Associate Planner Floyd indicated their agreement. Council President Snider moved to accept the applicant's request. Councilor Woodard seconded the motion. Mayor Cook conducted a vote and the motion passed unanimously. Yes No Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ 7. AUTHORIZE THE CITY MANAGER TO SIGN A PROPERTY PURCHASE AGREEMENT IR Parks and Streets Manager Martin gave the staff report and said council is being asked to authorize the City Manager to sign a contract and a lease agreement. The city would lease the property back to the owner. He said the property is commonly called the Lasich property and the city is purchasing it for$1.4 million. It is outside of the city boundary currently. It is not within the Urban Growth Boundary or rural reserves and is a 28-acre, flat and beautiful property suitable for a future park. Councilor Henderson and Councilor Woodard agreed this is a great idea. Mayor Cook explained that property negotiations are done in executive sessions which are closed to the public but council can and wants to talk about this publically now. He said the city is looking for park land in this area and is planning ahead as property inside the Urban Growth Boundary costs about ten times as much as property outside of the UGB. It is advantageous to find a 28-acre property adjacent to Tigard with river access owned by a property owner willing to sell over time. He said the city cannot develop it right now but it can be a passive area. It will be usable but will not be a soccer field for example,right away. He noted that Cook Park was brought into the city before it was within the city limits because someone was thinking ahead. He thanked Mr. Martin for his time and effort putting this together. TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 20 of 28 Council President Snider moved for adoption of Resolution No. 15-35. Councilor Woodard seconded the motion. City Recorder Krager read the number and title of the resolution and Mayor Cook conducted a vote. RESOLUTION NO. 15-35-A RESOLUTION AUTHORIZING THE CITY MANAGER TO SIGN A PURCHASE AND SALE DOCUMENT FOR THE PURCHASE OF THE PROPERTY KNOWN AS THE LASICH PROPERTY Yes No Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ Mayor Cook announced that the motion passed unanimously. 8. CONTINUED DISCUSSION ON COMMUNITY CENTER BALLOT TITLE APPROVAL City Manager Wine introduced this item. She said the question before the city council is should the council refer a measure to the Tigard voters that would authorize the city to issue general obligation bonds for a community center. Prior debates focused on whether or not it might reference operation by the YMCA.The focus tonight once public comment has been received is to consider ballot title language and consider authorization of a measure on the November 3,2015 ballot. Mayor Cook announced that those signing up to speak will have two minutes. IR Gene McAdams, 13420 SW Brittany Drive,Tigard, OR,97223,observed that he does not have all the information he needs. I oppose the project in terms of putting it on the November ballot. He understands this meeting is to possibly develop a title and he believes it must be changed to include new parking for downtown businesses. He said the public is not aware of this. The recreational facilities and other things the city has identified are fine but there should also be emphasis on the performing arts theater. The title to this heavy expenditure needs to contain enough information to allow a prospective voter to readily identify the community center elements. He referred to the 500 parking spaces and compared that to the 110 parking spaces at the library. He said this means five new library parking lot sized parking spaces in the downtown. The alternative is a parking garage. That would be a four- to five-story parking structure right in the downtown. He expressed concern that the planning is not complete on this and the figures are not valid. Going to a November election on this is a mistake and if the city does proceed it will end up with something it does not want. Vince Arditi, 12820 SW Peachvale Street,Tigard, OR 97233,said he is the Director of Recreation At Your Service,a consulting firm for parks and recreation. He said he was employed as a building TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 21 of 28 manager for three recreation facilities for the City of Portland for 12 years. He was asked to do a study as a follow up to the 2009 parks master plan. He said he made the presentation in 2012 and was contracted by MIG to do the latest survey. He has been asked to comment on the latest ideas about this community center. He said he is a community center guy and knows how good they are for the community. He analyzed the partnerships that could be developed within the city. He said the city has a well-developed recreational services program already in place with private companies. He asked to sit down with council and discuss how this program can be implemented because even though the city is planning to build a new facility, this other program could be implemented in six months at very little cost. He reached out to 15 individuals that were represented from a recreational service guide developed after the first MIG 2009 program and found that they had no knowledge of this guide. They did not know where their advertising was coming from. He said he is in favor of the property but there is misinformation. He held up the YMCA advertisement and said some of the numbers are not correct in any way shape or form,based on his experience managing three buildings. He offered his help because if the voters and the people who are promoting this do not come together this is not going to happen. Reid Iford, 11575 SW Pacific Highway, Suite 151,Tigard, OR 97223, said there is a saying in the newspaper business, "Happy people don't write letters." He said it can be hard for elected leaders, very accessible to the public,to see people show up to speak at meetings when they are angry,most particularly a NIMBY. But there are far fewer people who show up to compliment or praise our city,elected leaders and fellow residents. So it is a mistake to believe that one or two vocal opponents represent the community as a whole. For every opponent who writes a letter to the editor or speaks at a council meeting, I promise there are thousands of happy people who do not share that point of view. He said Tigard is his hometown and we need to preserve our hometown and build on it. People in the city know what they want. The DAXKO study shows overwhelming support by voters for building our YMCA community center. Our government supports this;the PRAB voted unanimously to encourage council to submit this to the voters. He said at least three elected are supportive,based on past comments. Councilor Snider, Councilor Woodard and Councilor Henderson support giving this to the people for a vote. Nearly 50 downtown businesses are working aggressively to have this sent to the voters in November and have this built in downtown Tigard. Our citizens want a community center and they want it downtown. He asked that council honor the will of the people that put them in office and put this on the November ballot. Let us vote. He added that all of the numbers he has used were carefully vetted and established and he can provide this. Lea Williams, 12129 SW Anton Drive,Tigard, OR said she disagreed with the previous testimony. There are nine physical fitness centers in the Tigard area. We are not without facilities to exercise in. These businesses make Tigard the unique place that it is. She asked why the council needs to recover costs. You are talking about 88,000 square feet of taxable area being taken away to be a non-taxable sinkhole in the downtown area. Instead, the city could use those nine tax-paying businesses and do all of those things that you want a community center to do. Scholarships could be given to poor people. The brick and mortar businesses are already here. The cost of putting any of these nine tax-paying companies out of businesses is quite high. Support them instead of competing with them. Senior citizens just had a ten dollar increase on their water bills and now the city is going to add this to their tax bill. Most senior citizens are never going to use the facility. This puts a higher burden on people that we should be supporting in their golden years. She disagrees with the whole TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 22 of 28 concept and asked that council make the proponents go through the initiative petition process. She asked, "Why is the city bypassing this process." If they cannot collect signatures,you will see the voters are not behind this. She disagrees with the city council doing their job for them. She said if the majority of people knew what the city was doing they would say no. Let's support these businesses and if we need to develop a way to help people afford these activities. Then you will not need someone like the first person that spoke tonight about helping to recover costs. Robert Van Vlack, 15585 SW 109th Avenue,Tigard, OR 97224, said as much as he is in favor of the mission of the YMCA, or Young Men's Christian Association,he is not in favor of the city council putting a community center run by the YMCA on the November ballot. The petition group should be the ones to gather the signatures to go through the initiative process. His guess is that the support is not there unless the bond measure is put on by the city council. It is his sense that those who are circulating a petition for the YMCA are using intimidation and fear to make the city council feel they have no choice but to do what they are demanding,which is to burden the citizens of Tigard with another bond measure resulting in higher property taxes on people who are overtaxed already. This bond measure puts the tax burden on the 95-98 percent of Tigard residents who will most likely not use the YMCA. Tigard has a pool that can be accessed by all citizens.The library has a large meeting room that can be used for community events. The Tigard High School auditorium is already being used for theater events. It has been stated that a large parking structure in the downtown will give shoppers more parking spaces. If there is indeed a downtown parking problem perhaps those business owners should purchase land and build their own parking garage. It appears that the community center in the downtown would replace some businesses that are currently paying taxes.A new community center would not be paying those taxes. He urged the city council to seriously consider this and not put this on the ballot in November. He repeated that he is not opposed to the mission of the YMCA. He is opposed to using taxpayer dollars to build their facilities. Many residents of the Summerfield community and other Tigard residents he has spoken to are not in favor of this community center. He has a strong sense there will be an uprising of citizens that will defeat the bond measure if it is placed on the November ballot. Carine Arendes, Chair of the City Center Advisory Commission, 9524 SW North Dakota Street, Tigard, OR 97223, acknowledged Councilor Henderson for making sure the CCAC was aware the potential ballot language identified the downtown as the likely location. The CCAC is focused on the downtown issues and the urban renewal program. They focused on possible impacts on the downtown area if a recreational facility was located there and were not able to recommend that the ballot measure go forward. However,they are looking at a number of issues that would be raised for whatever kind of facility would be considered for the downtown area. They want council to be thinking about the impacts of siting such a building in the downtown. CCAC's three big issues are 1) Transportation implications 2) Effects on existing and new businesses. 3) Impacts on tax increment financing revenue that supports ongoing and planned projects. Ms.Arendes said the CCAC does not have those answers yet so they could not come forward with a recommendation. She said the project has been reverse engineered as Councilor Woodard commented at their meeting last week. Some information may not be available now. Some issues TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 23 of 28 could be handled through the land-use review process and some relate to site identification and design stages. She asked that council keep these issues in mind and hoped that this can be considered in a public process so they and other downtown stakeholders can remain involved. She said if these issues are considered it will be best for the community,best for recreation and best for the downtown area. Troy Mears, 11680 SW 113th Place,Tigard,OR 97223, and Tim Pepper, 14550 SW 120th Place, Tigard, OR, are members of Tigard's Park and Recreation Board (PRAB). At their meeting last night they voted to recommend the following: Place a measure on the November 2015 ballot in which Tigard voters consider the funding of a community recreation center operated by an experienced, qualified,non-profit operator such as the YMCA." He said they support it and support recreation and look forward to seeing this on the ballot. Linli Pao, CCAC Vice Chair, 7444 SW Ashford Street,Tigard, OR 97224, thanked council for spending their time here at this late hour and said it means a lot to those in the room and those watching at home. She said she spent most of her adult life in Tigard and echoed some things that Ms.Arendes mentioned. She referred to a copy of a memorandum to council from CCAC. She said speaking from CCAC perspective,in years past,where there was a ballot measures affecting or mentioning downtown Tigard,the CCDA and council requested the CCAC's opinion and advice. We were unable to come up with a recommendation because there are so many unanswered questions. She said it is hard to ignore the fact that the marketing has said the downtown area is implicated as the area where the community center run by the YMCA would be built. There are questions about effects on the tax increment financing and transportation implications. The CCAC would appreciate it if council and CCDA would ask the CCAC for a recommendation. She spoke from a personal view and said it would be great to take a little more time to get more opinions and flesh it out before rushing to the ballot. She remembered growing up in Tigard and being aware of attempts to put in a recreation district and there were also difficulties with the swim center. Things that were rushed did not turn out well. She said if the city takes a harder look, a longer time and does it right the first time,there is an opportunity to really add something to the community. If it is rushed she is not sure what the outcome will be. City Manager Wine said the question before council is whether they want to refer a general obligation bond to the tax payers for a community center. Prior discussions were about whether or not to name an operator. Staff has deliberately chosen not to put together an administrative recommendation in prior staff reports but some prior discussions focused on legal opinions received from the city's attorney and the bond counsel on how to comply with election law and how to credibly go to the bond market and issue bonds if voters approve. Ms.Wine said the written opinion from the city attorney says it is preferable not to name an operator in the ballot language. The bond counsel discussed ways to name an operator if that is what council prefers. She reiterated two things: One is that the city has not taken any of the steps needed to appropriately identify community needs, the size, the location,the program needs or the rough cost of the community center no matter who operates it. The second administrative recommendation is that we take the time to do that. She acknowledged that this is an unpopular statement given the community support and the work that has been behind the YMCA that the TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 24 of 28 council wants very much to respond to. But there are steps we would take as a city even if the measure is placed on the ballot and approved. It is very unlikely that we would issue bonds prior to doing some work to identify community needs,do a review of possible operators,conduct a site selection process and this would all be done through a public process because we are using public funds. She wanted to manage expectations because these are steps the city must take time to do in spite of the fact that a measure passes by voters. She said the discussion tonight is whether to place a measure on the ballot and what council wants the ballot language to say. Councilor Goodhouse commented that council has been talking about this for a while. In the beginning there was much discussion on timing the ballot measure. Many people in the audience, especially Neal Brown,have worked hard to bring people forward and it was agreed upon to put it on the ballot sooner than later. He has always preferred to wait until more research can be done but people want to move forward while the momentum is there. He recommended keeping a vague model if it is placed on the ballot now. If people want more details then we can take more time to do our research and put it on the ballot later. Council President Snider spoke to citizens who testified that they would rather not see this on the ballot and wanted those interested to gather signatures. He said he understood their sentiment but after having served on the council and seen the initiative petition process,what comes from that is not as good of a public policy as something more carefully crafted and worked on in partnership. He said it would likely be a facility that is a very short-distance from downtown, specifically sized,and would probably contain YMCA language that may pose more liability for the city. This has not happened because the public process at the council level has melded to write something that we do not love but is less risky and inflexible and with less rigidity. He said he does not like the timing but can live with it. He does not want location specifics. He said some people have made vague references tonight that the Tigard Downtown Alliance (1'llA) supports this and he had not heard that. He said he asked about buying an insurance policy that would protect the city from potential claims in the future. He said the response around bond insurance was not what he was asking. Councilor Woodard was curious about what the bond counsel said about not putting the name of the operator in the measure. He thought there were two ways to avoid litigation and the suggestion he liked said,"The city expects the initial operator of the community center to be a non-profit organization like the YMCA," so in the event the YMCA fell through another non-profit could come in. Proceeding forward,an operating agreement needs to be worked on immediately. Councilor Woodard said what people lose track of is that the city has a lot of kids out there that are forgotten. Things are not working for youth. Statistics show youth crime and drug use has increased. He said when he was a kid we built community because parents took care of their kids and other kids.They took care of other people's kids even if it did not benefit them and that is missing today. He said some councilors may not think so but there are a lot of people who want a chance to have a voice. Ms.Arendes mentioned reverse engineering and this may not be what we normally do. But we have positive survey results and an organization that gives 25 percent to an underserved population that cannot afford to pay. There are many good things the YMCA does as opposed to other non-profit organizations. The ballot title has to make a reference to YMCA because that is what the survey supported. Without putting the YMCA on the ballot it is not worth putting out there because it will be a failed measure. The number of downtown businesses that TIGARD CITY COUNCIL MEETING MINUTES—July 14, 2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov Page 25 of 28 support this is greater than the number who are members of the TDA. He asked council to put this all in perspective. He is thinking about youth and increased services for police. He would prefer to see proactive activities for children from low income families. The more affluent can help with this. We are talking about$10 a month which is the cost of a pizza. He noted that the supporters could have gathered signatures and have received some including those from kids. But kids do not get to vote so who is looking out for them? He said it was interesting to him that a majority over 50 years of age who took the DAXKO survey said yes,they will support this. He recommended using the YMCA wording in the measure the bond counsel recommended and immediately begin work on an operating agreement. He asked that council give the grass roots majority a voice. Councilor Henderson said he first heard about a community center in the parks and recreation master plan and it was identified as something the city wanted to do. It was going to be expensive. The City of Tualatin had in-house recreation. The City of Beaverton started the Tualatin Hills Parks and Recreation District (THPRD). He said the city asked if Tigard could join,but we cannot as it is too expensive. He noted that the THPRD is large and expensive for seniors. He said if there is an error made by Tigard it is that we should have started 20 years ago. Tigard needs to start their own recreation program with a partnership between the city,an operator and a foundation to raise support money. He recommended the city move forward to get a program started because this will only become more expensive in the future. Councilor Goodhouse said in January council was considering different ways to bring recreation into Tigard,whether through THPRD,a city recreation center or through an operator. He was in favor of not referencing the YMCA and keeping a vague model in the ballot measure. He said council decided to move forward now but agreed to keep it vague since there is no agreement with an operator. The operator can be selected later if voters approve the measure. He would like to move forward with the "skinny model"and then if people want it,we will work on those details. The only other way,if people want all the details now,is to move the vote further down the road. Council President Snider said he wanted to clarify what appear to be competing opinions of the city bond counsel and city attorney. He asked why the city's attorney is uncomfortable with YMCA in the tide. City Attorney Rihala replied that she looked at it from different perspectives. Bond counsel considered bond risk and she looked at it from the perspective of election law risk. The answer the city attorney's office gave is that there is the potential if YMCA is listed in the measure, that someone would vote for it based on that language. If later on, the YMCA is not the operator the voter could say they were misled. She said the other point raised is that it is really a matter of timing and the risk that the ballot tide will be challenged as misleading and that would likely throw off the November election schedule. Council President Snider said earlier discussion was about whether including the YMCA wording would threaten the ability to levy the bonds and that seems to have been dispelled. He asked if City Attorney Rihala agreed with that statement and she said she did. Councilor Woodard said he was reading the city's legal opinion as it relates to the title,not the explanatory statement.We can put that in the explanatory statement but it takes away the liability. City Attorney Rihala said it is all part of the ballot title. Councilor Woodard said Sherwood mentioned the YMCA but they had an operating agreement. He said the statement should include the words, "It is planned that the facility will have all the amenities typically associated with the TIGARD CITY COUNCIL MEETING MINUTES—July 14, 2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 26 of 28 YMCA including aerobic,exercise rooms,weight training,indoor swimming pool(s) and classrooms." He suggested adding that there will be no additional tax dollars for the day to day management operations and maintenance of the facility. City Manager Wine said the city does not have an agreement in place with the YMCA and placing language into the ballot title that would presume something about a future agreement would increase the risk. She deferred to City Attorney Rihala on this. Councilor Woodard requested to finish his comments. He said we can do the"skinny model"using bond counsel's recommendation of the one sentence item and these other things could be added. The City of Sherwood did that. There is a YMCA operating agreement that has been distributed and he would be willing to work with Council President Snider on the agreement. City Manager Wine said the point to make a motion is when staff presents a resolution approving placement of an item on the ballot. This could happen at the next business meeting if council can decide on language tonight. Council President Snider moved that council make two modifications to the draft document,and replace the words "community center"with"community and recreation center," and the second is that we use version two of the bond counsel's language, "The city expects the initial operator of the community center to be a non-profit organization like the YMCA." Councilor Woodard seconded the motion. City Attorney Rihala asked for clarification as the word limit has been reached on the question. She said words can be added to the caption and the summary but cannot be added to the question. Councilor Woodard suggested taking out the words "of Tigard"and just say"city." City Attorney Rihala will work out this language to remain within the word limit. Councilor Goodhouse asked the City Attorney if using the word YMCA would be misleading. City Attorney Rihala said that it could be misleading prior to the vote because there is not an operating agreement in place and this could cause a ballot title challenge. After the vote there could still be a challenge but it would turn more on council making a sole source agreement. It could also hurt negotiation options. Councilor Goodhouse asked if a few other things could be added after the words YMCA. Councilor Woodard said he thought it read fine the way it was moved. City Manager Wine asked Councilor Goodhouse what were the other things he wanted to add. Councilor Woodard suggested,"YMCA or other qualified non-profit operators."Councilor Goodhouse said he would rather have the names and could not vote for this without the additional names. He suggested Salvation Army and Boys and Girls Club. Councilor Woodard said the Boys and Girls Club is a church organization. Councilor Henderson said that would open up the city for a challenge. Mayor Cook stated the reason he is not going to vote against this is that he is in favor of recreation. He was part of a group that brought forward the Atfalati Recreation District for Tigard and Tualatin in 2000. The city council voted 3-2 to put the item on the ballot.The Atfalati Recreation District TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov I Page 27 of 28 got 46 percent of the vote but had the council unanimously supported it,he felt would have helped them overcome the deficit. He said the reason he is unable to vote for this tonight is the timing. As discussed with the CCAC and other groups, the city has a recreation plan and a recreation study but has not seen how those work yet. The city just sold its public works yard for a downtown apartment complex and housing project.The police station is undersized for the number of officers Tigard has. In November voters will be asked to support the county-wide public safety and library levies. If the library levy passes,it will enable the city to reopen the library on Thursdays. Mayor Cook proposes holding the recreation center measure vote over until at least May of 2016. He said he is going to abstain because according to Robert's Rules of Order, one of two reasons to abstain is insufficient information to make a decision. He said this is what the CCAC was saying; they did not have enough information to make a recommendation to council and therefore he does not have enough information to go forward on this vote. Mayor Cook called for the question and conducted a vote on the re-worded ballot measure language that will go to the attorney who will prepare it for a council decision. Yes No Abstain Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ Mayor Cook announced that the motion passed with 3 yes votes, 1 no vote and 1 abstention. 9. NON AGENDA ITEMS—None. 10. EXECUTIVE SESSION—None. 11. ADJOURNMENT—At 10:53 p.m. Councilor Woodard moved for adjournment. The motion was seconded by Councilor Henderson and it passed unanimously. Yes No Councilor Henderson ✓ Council President Snider ✓ Councilor Woodard ✓ Mayor Cook ✓ Councilor Goodhouse ✓ Carol A. Krager, City Recorder Attest: John L. Cook,Mayor Date TIGARD CITY COUNCIL MEETING MINUTES—July 14,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 www.tigard-or.gov 1 Page 28 of 28 AIS-2309 3. C. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): Consent Item Agenda Title: Authorize the City Manager to Sign an agreement with Clean Water Services and Beaverton Regarding Barrows Road Sanitary Sewer Phase 3 Prepared For: Lori Faha Submitted By: Greer Gaston, Public Works 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 Shall the council authorize the city manager to sign an intergovernmental agreement (IGA) with Clean Water Services (CWS) and the City of Beaverton regarding"Barrows Road Sanitary Sewer Phase 3" project? STAFF RECOMMENDATION / ACTION REQUEST Authorize the IGA. KEY FACTS AND INFORMATION SUMMARY The agreement provides for joint funding and implementation of sewer system improvements to accommodate anticipated future development at River Terrace and newly-annexed land to the City of Beaverton. The project consists of constructing approximately 1,650 linear feet of 24-inch diameter sanitary sewer line from roughly the intersection of Barrows Road/Merganser Lane to the intersection of Barrows Road/154th Avenue. The agreement allows the three parties to participate in a joint capital improvement project focused on future growth in both Tigard and Beaverton. The agreement provides an avenue for shared construction costs between parties,it encourages intergovernmental cooperation,and it authorizes local governments to delegate to each other authority to perform their respective functions as necessary. Tigard, CWS and Beaverton entered into a very similar agreement to complete the second phase of this sewer project. Agreement Responsibilities Clean Water Services (District): •Review plans and specifications provided by Beaverton •Prepare bid documents utilizing design drawings and specifications provided by Beaverton •Advertise for bids,respond to bidder questions,prepare addenda,and select a contractor to construct the project •Administer construction of the project and pay contractor all contract costs •Pay 84.4% of sewer costs City of Beaverton: •Provide all necessary planning,design, special inspections and permits for the project •Provide construction inspections of the project roadway,pathway,trench backfill, and street lighting •Pay District 7.8% of sewer construction costs •Pay District 100% of retaining wall, fence,and street lighting costs City of Tigard: •Review plans and specifications •Pay District 7.8% of sewer construction costs •Pay Beaverton 7.8% of sewer design costs The agreement has been reviewed by the city attorney. Their comments have been incorporated into the agreement. OTHER ALTERNATIVES The council could propose changes to the agreement or could decide not to approve the agreement. Should the council decide not to approve the agreement, the consequences would be a lack of capacity to serve certain portions of the River Terrace development. COUNCIL OR CCDA GOALS, POLICIES,MASTER PLANS This project provides needed sanitary sewer capacity to the recently annexed properties comprising the River Terrace master-planned community. DATES OF PREVIOUS CONSIDERATION The council was briefed on this agreement at its August 25,2015,meeting. Fiscal Impact Cost: $85,000 Budgeted (yes or no): Yes Where Budgeted (department/program): Sanitary Sewer Fund Additional Fiscal Notes: The Adopted FY 2016 Budget for this project is $89,000. The estimated components for the project at the time of budget adoption were: •External Construction: $77,300 •Internal Staff: $4,908 •Project Contingency: $6,792 The cost of the IGA to City of Tigard is 7.8% of the total project cost for sanitary sewer design and construction. Per the IGA,Tigard's costs for this portion of the project is not to exceed$85,000. If the project outlined in the IGA reaches the not to exceed amount,it will use all the budgeted construction and contingency and some of our estimated budget for internal staff as outlined above. Due to the tight constraints this puts Tigard in to manage the project budget internally,it is possible that this project will need a minor budget adjustment in a future supplemental. The Sewer Fund has sufficient budgeted contingency ($400,000) to cover this possibility. Attachments IGA-BARROWS SS3 INTERGOVERNMENTAL AGREEMENT BETWEEN CITY OF BEAVERTON,CITY OF TIGARD,AND CLEAN WATER SERVICES TO CONSTRUCT THE BARROWS ROAD SEWER UPSIZING PROJECT (PROJECT NO. 6791) This Agreement, dated ,2015, is between CLEAN WATER SERVICES(District), a county service district organized under ORS Chapter 451,the CITY OF BEAVERTON(Beaverton), an Oregon municipal corporation, and the CITY OF TIGARD (Tigard), an Oregon municipal corporation. A. RECITALS ORS 190.003 - 190.110 encourages intergovernmental cooperation and authorizes local governments to delegate to each other authority to perform their respective functions as necessary. District, Tigard,and Beaverton intend to undertake the Barrows Road Sewer Upsizing Project 6791 (Project)to replace the existing 8-inch gravity sewer with a new 24-inch gravity sewer and install street lighting. This Project has been endorsed by the Capital Improvement Program Prioritization Committee. NOW,THEREFORE,the parties agree as follows: B. PROJECT DESCRIPTION The sewer portion of the Project consists of constructing approximately 1,650 linear feet of 24-inch diameter sanitary sewer and manholes, as needed, from the eastern terminus of an existing 24-inch sewer pipe in SW Barrows Road at SW Merganser Lane to a manhole approximately 1,600 feet eastward on SW Barrows Road at SW 154th Ave,and connecting to the existing sewer line, believed to be 18 inches, near CWS Manhole No. 16660, all as shown on Exhibit A, attached hereto. The street lighting portion of the Project consists of installing two new street lights, including lights, poles and bases,junction boxes,conduit and wiring,near the intersection of SW Barrows Road and SW 154th Ave. Beaverton will design and permit the Project. District will select the construction contractor, inspect, and administer the construction contract for the Project. C. DEFINITIONS 1. Beaverton Planning and Design Cost—Beaverton labor and benefit costs and consultant costs paid by Beaverton associated with the services outlined in Section E, excluding street lighting design costs. Page 1 —Intergovernmental Agreement 2. Capital Improvement Program Prioritization Committee—The committee established by District and the member cities of Beaverton, Cornelius, Forest Grove, Hillsboro, Tigard, Tualatin, and Sherwood to identify and prioritize sanitary and storm system improvement projects throughout District's service area. 3. Retaining Wall and Fence Cost—Includes the cost of all design work, all line items, bid schedules, restoration work, change orders, any associated restoration work, design, overhead, bidding, inspection and project administration that can be accurately allocated to the chainlink fence and concrete segmental retaining wall, and the prorated share of all general construction line items(mobilization, work- zone traffic control,erosion control), as described in the Project Description for retaining wall and fence work, and any other costs associated with bidding and installing or modifying the retaining wall and fence. 4. Sewer Cost—Includes public bidding costs, cost of all line items, bid schedules, change orders, any associated restoration work, overhead, inspection, project administration, and any other costs associated with bidding and installing or modifying the new sanitary sewer line. 5. Street Lighting Cost—Includes the cost of all design work, all line items, bid schedules, restoration work, change orders, any associated restoration work, design, overhead, bidding, inspection and project administration that can be accurately allocated to the street lighting, and the prorated share of all general construction line items (mobilization, work-zone traffic control, erosion control), as described in the Project Description for street lighting work, and any other costs associated with bidding and installing or modifying the street lighting. D. DISTRICT OBLIGATIONS District shall: 1. Appoint Bradley Crement or another employee acceptable to Beaverton as District's project manager. 2. Provide direction to Beaverton on the anticipated capacity requirements of sewer lines larger than 12 inches in diameter. 3. Review plans and specifications provided by Beaverton and,within ten days of receipt, provide comments to Beaverton. 4. Provide written evidence to Beaverton and Tigard that funds for District's share are available prior to bidding for the fiscal year in which payment is due. 5. Prepare bid documents utilizing design drawings and specifications supplied by Beaverton, advertise for bids, respond to bidder questions, including issuance of necessary addenda, and select a contractor to construct the Project. 6. Provide timely response to contractor's Project information requests. Page 2—Intergovernmental Agreement 7. Require all contractors to include Beaverton and Tigard as additional insureds on insurance coverage required for construction work performed in completing the Project. 8. Administer construction of the Project and pay contractor all contract costs. 9. Construct the Project and provide construction, inspection,and management services for the Project. 10. Consult with and inform Beaverton and Tigard on proposed changes to the Project, such as design changes, field directives, change orders, or use of the contingency line items,as well as updates regarding the resolution of any disagreement, dispute, delay or claim. 11. Provide construction inspection of the Project bid items, including review and approval of shop drawings, submittals,and onsite inspection,to determine compliance with the contract documents. District's inspector shall be onsite as much as possible when the contractor is working on the Project. The inspector will be responsible for enforcing all applicable specifications during the Project work, including, but not limited to,night work and weekend work, and accommodations for public and work zone traffic. 12. Obtain Beaverton's approval for any proposed street lighting design or other changes to the street lighting work. Obtain Beaverton's consent before taking any of the following actions for the street lighting work: a)authorizing any design changes, b) approving any change orders, or c)authorizing use of contingency line items. 13. Obtain Beaverton's approval for any proposed retaining wall or fence design or other changes to the retaining wall and fence work. Obtain Beaverton's consent before taking any of the following actions for the retaining wall and fence work: a)authorizing any design changes, b)approving any change orders, or c)authorizing use of contingency line items. 14. Provide final acceptance of the Project, following Beaverton's inspection and approval of its portion of the work. 15. Provide Beaverton as-built mark-ups from contractor and inspector for all underground work within 10 days of final acceptance of the Project. 16. Assist Beaverton with any required notice,public involvement, or communication with the neighborhood and property owners within the Project limits. Respond to public calls arising from work being completed for the Project. 17. Track Sewer Cost, Retaining Wall and Fence Cost, and Street Lighting Cost separately. 18. Provide documentation of the Sewer Cost,Retaining Wall and Fence Cost, and Street Lighting Cost to Beaverton and Tigard prior to invoicing. 19. Upon final acceptance of the Project, invoice Beaverton 7.8%of the Sewer Cost, 100% of the Retaining Wall and Fence Cost, and 100%of the Street Lighting Cost, less 84.4% of the Beaverton Planning and Design Cost,upon final acceptance of the Project unless the result is negative. If the result is negative,pay Beaverton 84.4%of the Beaverton Planning and Design Cost less 7.8%of the Sewer Cost, 100%of the Retaining Wall and Fence Cost, and 100%of the Street Lighting Cost,not to exceed$40,000. 20. Invoice Tigard 7.8%of the Sewer Cost upon final acceptance of the Project. Page 3 — Intergovernmental Agreement 21. Require payment in full from Beaverton and Tigard prior to allowing Beaverton and Tigard to connect to the portion of the pipe from the manhole at SW 154th Ave west through SW Roy Rogers Road. E. BEAVERTON OBLIGATIONS Beaverton shall: 1. Appoint Andrew Barrett or another employee acceptable to District, as Beaverton's project manager. 2. Select, contract with, and pay consultants to perform surveying, civil investigations, utility locates, potholing, environmental consultation, and other work as necessary for use in designing and obtaining permits for the Project. 3. Provide all necessary planning,design, special specifications, and permits for the Project. 4. Provide Tigard and District at least ten business days to review plans and specifications for the Project at 50%, 90%, and 100%completion, and incorporate their review comments into the plans. 5. Prior to bidding,provide written evidence to District and Tigard that funds for Beaverton's share are available for the fiscal year in which payment is due. 6. Assist District with providing timely responses to bidders' questions about the Project. If necessary, provide District with revised design drawings or exhibits no later than five business days prior to the bid opening, for issuance of addenda. 7. Review traffic control plans provided by contractor within ten days of receiving them and and provide written comment. Provide written acceptance of traffic control plan. 8. Provide construction inspection of the Project roadway, pathway,trench backfill, and street lighting items (asphalt,base rock, retaining wall, chainlink fence, fill material above the pipe zone, and street light equipment), including review of and comment on shop drawings, submittals,and onsite inspection,to determine compliance with the contract documents. Beaverton's inspector shall be onsite as much as possible and responsible for enforcing all applicable specifications relating to roadway repairs, pathway construction, installation of retaining and fence, trench backfilling, and street lighting, including but not limited to night and weekend work. 9. Provide timely response to District for any proposed changes to the Project, such as design change, field directive, change order, or use of the contingency line item. 10. Provide District written notice accepting roadway repairs, pathway construction and street light installation within ten days of receiving notice from the District that Beaverton's portion of the Project work is complete. 11. Provide District as-built construction drawings for the Project within 60 days after Project acceptance. The as-built drawings shall be based upon contractor and inspector mark-ups and survey if needed. As-builts shall be provided in camera-ready hard copy, 11 x 17 inches,with a CD in both PDF and AutoCAD digital format. Page 4—Intergovernmental Agreement 12. Provide any required notice and communicate with the neighborhood and property owners within the Project limits. Take the lead in coordinating public involvement related to the Project. 13. Coordinate and participate with District to aid in resolving any disagreement, dispute, delay or claim related to, or as a result of,the Project. 14. Waive any land use or permit fees for work related to the Project. 15. Provide documentation of the Beaverton Planning and Design Cost to District and Tigard, prior to invoicing. 16. Upon being invoiced, pay District 7.8%of the Sewer Cost, not to exceed $73,000, less 84.4%of Beaverton's Planning and Design Cost, plus 100%of the Retaining Wall and Fence Cost and 100%of the Street Lighting Cost, unless the result is negative. Payment, if required, shall be made within 30 days of approving the invoice. 17. Upon completion of the Project, invoice Tigard for 7.8%of Beaverton's Planning and Design Cost. F. TIGARD OBLIGATIONS Tigard shall: 1. Appoint Jeff Peck or another employee acceptable to District and Beaverton as Tigard's project manager. 2. Review plans and specifications provided by Beaverton for the Project and provide comments to Beaverton within ten working days of receiving them. 3. Provide written evidence to District and Beaverton that funds for Tigard's share are available prior to bidding for the fiscal year in which payment is due. 4. Waive any land use or permit fees for work related to the Project. 5. Provide timely response to District on any proposed changes to the Project such as design change, field directives, change orders, or the use of the contingency line item; provide timely responses regarding the resolution of any disagreement, dispute, delay or claim related to, or as a result of the Project. 6. Pay District 7.8%of the Sewer Cost as bid and modified during construction, not to exceed$73,000, upon completion of the Project and within 30 days of approving the invoice. 7. Pay Beaverton 7.8%of Beaverton's Planning and Design Cost, not to exceed $12,000, upon completion of the Project and within 30 days of approving the invoice. 8. Prior to bidding,provide written evidence to District and Beaverton that funds for Tigard's share are available for the fiscal year in which payment is due. G. GENERAL TERMS 1. Laws and Regulations. Beaverton, Tigard, and District agree to abide by all applicable laws and regulations. Page 5 —Intergovernmental Agreement 2. Term of this Agreement. This Agreement is effective from the date the last party signs it and shall remain in effect until the Project is complete and the parties' obligations have been fully performed or this Agreement is terminated as provided herein. 3. Amendment of Agreement. Beaverton, Tigard, and District may amend this Agreement from time to time, by mutual written agreement. A. Proposed changes of scope during the Project implementation must be reviewed and endorsed by the Capital Improvement Program Prioritization Committee. Changes necessitated by conditions discovered during design or construction,but consistent with the original scope of the Project, may be approved by District and Beaverton for the Project without further approval from the Capital Improvement Program Prioritization Committee. B. The construction contract amount may be increased by up to 20%without amending this Agreement, provided the increase shall not exceed any not-to- exceed amount contained in this Agreement. 4. Termination. This Agreement may be terminated immediately by mutual written agreement of the parties,or by any of the parties notifying the others in writing prior to award of a construction contract, with the termination being effective in 30 days. 5. Integration. This document constitutes the entire agreement between the parties on the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings,representations or communications of every kind on the subject. No course of dealing between the parties and no usage of trade shall be relevant to supplement any term used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement, and no waiver by a party of any right under this Agreement shall prejudice the waiving party's exercise of the right in the future. 6. Indemnification. Within the limits of the Oregon Tort Claims Act, codified at ORS 30.260 through 30.300, each of the parties shall indemnify and defend the others and their officers, employees, agents, and representatives from and against all claims, demands,penalties, and causes of action of any kind or character relating to or arising from this Agreement(including the cost of defense thereof, including attorney fees) in favor of any person on account of personal injury, death, damage to property, or violation of law,which arises out of,or results from,the negligent or other legally culpable acts or omissions or errors of the indemnitor, its employees, agents, contractors or representatives. 7. Resolution of Disputes. If any dispute out of this Agreement cannot be resolved by the project managers from each party,the Beaverton Mayor,Tigard City Manager and District's General Manager will attempt to resolve the issue. If they are not able to resolve the dispute,the parties will submit the matter to mediation, each party paying its own costs and sharing equally in common costs. In the event the dispute is not resolved in mediation,the parties will submit the matter to arbitration. The decision of the Page 6—Intergovernmental Agreement arbitrator shall be final, binding and conclusive upon the parties and subject to appeal only as otherwise provided in Oregon law. 8. Interpretation of Agreement. A. This Agreement shall not be construed for or against any party by reason of the authorship or alleged authorship of any provision. B. The paragraph headings contained in this Agreement are for ease of reference only and shall not be used in construing or interpreting this Agreement. 9. Severability/Survival. If any of the provisions contained in this Agreement are held illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired. All provisions concerning the limitation of liability, indemnity and conflicts of interest shall survive the termination of this Agreement for any cause. 10. Approval Required. This Agreement and all amendments, modifications or waivers of any portion thereof shall not be effective until approved by 1) District's General Manager or the General Manager's designee and when required by applicable District rules, District's Board of Directors 2)Beaverton's Mayor, and 3)the Tigard City Manager or the City Manager's designee. Proposed changes of scope to the Project must also be approved by the Capital Improvement Program Prioritization Committee. 11. Choice of LawNenue. This Agreement and all rights, obligations and disputes arising out of the Agreement shall be governed by Oregon law. All disputes and litigation arising out of this Agreement shall be decided by the state courts in Oregon. Venue for all disputes and litigation shall be in Washington County, Oregon. CLEAN WATER SERVICES CITY OF BEAVERTON, OREGON By: By: General Manager or Designee Mayor or Designee Date: Date: APPROVED AS TO FORM APPROVED AS TO FORM District Counsel City Attorney Page 7— Intergovernmental Agreement CITY OF TIGARD By: City Manager or Designee APPROVED AS TO FORM City Attorney Page 8—Intergovernmental Agreement Exhibit A Project Location Map 1 H.in L MS °‘2 ill r h 2 V L �i, — HLLSL MS oN ir Q 0 I) c CL O owv 0 _ w _Y_ici ostI H109 L MS = Qw0 _..., � Cn ct >< c > a. Li_i Q � m 83SWVJ2�3W MS J Q I— I i i 0z I Q 0 Od' atd )V H SON MS ri is, q1/4.3s, �y W v Page 9— Exhibit A—Project Location Map Intergovernmental Agreement AIS-2295 4. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 30 Minutes Agenda Title: Appeal of Heritage Crossing Zone Change and Subdivision (ZON2015-00002 et. al.) Submitted By: John Floyd, Community Development Item Type: Public Hearing - Quasi Judicial Meeting Type: Council Business Meeting- Main Public Hearing: Yes Publication Date: Information ISSUE Shall Council overturn the Planning Commission's decision to deny the Heritage Crossing Zoning Map Amendment and Subdivision Application. STAFF RECOMMENDATION / ACTION REQUEST Staff recommends Council uphold the Planning Commission denial of the Heritage Crossing Zoning Map Amendment and Subdivision application (ZON2015-00002, SUB2015-00001, and VAR2015-00001). KEY FACTS AND INFORMATION SUMMARY July 14, 2015, the Council held a public hearing on the Heritage Crossing Zoning Map Amendment and Subdivision. The item is before Council on appeal. After receiving testimony, Council closed the record to all parties except the applicant, who requested the opportunity to provide a final written argument. The applicant provided their final argument on July 28, along with draft findings of approval for Council's consideration which are attached to this AIS. With the record now closed to all parties, Council must now deliberate on the evidentiary record and make a decision. In considering the appeal, the central issue for Council is whether the application meets local and regional approval criteria for a quasi-judicial zoning map amendment. In order to grant the appeal and approve the project, Council would have to determine that the application meets all three approval criteria for a quasi-judicial zone change (TDC18.380.030.B), not just one or two. To aid Council in its consideration of the appeal, staff has prepared the table below. The approval criteria are summarized in the left column. The right column summarizes the Planning Commissions findings for why the requested map amendment was denied by the Planning Commission, Approval Criteria for Map Amendment Planning Commission Findings (TDC 18.380.030.B) Compliance with Insufficient evidence that the application complies with Comprehensive Plan Comprehensive Plan policies pertaining to Land Use (Chapter 2), policies Environmental Quality (Chapter 6), Housing (Chapter 10), and Transportation (Chapter 12). Compliance with the Insufficient evidence that the application complies with Title 1 of Tigard Development the Urban Growth Management Functional Plan, which requires Code or other applicable cities to maintain or increase housing capacity, particularly along code or ordinance Metro Designated Corridors such as Hall Boulevard. Evidence of mistake or Insufficient evidence of substantial change in the neighborhood, inconsistency in the or a mistake or inconsistency in the zoning map. There is a clear zoning map, or evidence legislative record associated with the current zoning, which was of change in the applied in 1983 as part of the City's first State-acknowledged neighborhood or Comprehensive Plan, and the Planning Commission found no community evidence of a mistake. On balance, the Planning Commission found there is more evidence of constancy over time than there is of change. On July 14, staff recommended that Council deny the appeal, and uphold the Planning Commission's decision to deny the project. Like Council, the Planning Commission was asked to consider both written and oral testimony from neighbors, Metro, and other interested parties. Ultimately, the Planning Commission was not persuaded that the burden of proof had been met to support a zoning map amendment. As noted in the July 14 agenda item summary, Planning Commission Final Order, and other documents in the record, the Council can find that the project is inconsistent with local and regional policies for infill development. These reasons include, but are not limited to the following: •The map amendment would reduce the number of dwelling units on site from a maximum of 107 dwelling-units to a maximum of 56 dwelling-units. •The map amendment would significantly reduce the amount of land available for attached housing. The City's 2013 Housing Strategies report found in general there is a need for more affordable ownership and rental units, that single-family attached is expected to meet 20 percent of the City's future housing need, and that attached housing types will become a higher proportion of housing in coming decades. The applicant has not provided an analysis of the impact such a loss would have on the City's housing diversity. •The map amendment would be a less efficient use of land, as the site is one of the City's largest, least constrained, and best-served infill sites. •The map amendment would potentially halve the number of households within close proximity to three schools, reducing the number of children who could more easily walk to school rather than be driven. •The map amendment would potentially halve the number of households adjacent to an existing bus stop, served by a significant bus line that is soon to be upgraded from 30 minute to 15 minute headways. This would reduce housing opportunities for people wanting or needing to live near one of Tigard's few frequent service bus lines. •The site is flat and rectangular in shape with existing street frontages, allowing considerable flexibility in how the site could be designed to ensure compatibility with the neighbors. •The Tigard Development Code anticipates and addresses potential compatibility issues between the residential zones through site and building design treatments. For example, new housing within Heritage Crossing would be required to maintain a 30 foot setback from the periphery of the project site (twice the normal setback distance). •The applicant could address potential compatibility issues through flexible design strategies available to all residential development. These include lot size averaging, mixing the proposed housing types,and/or submitting a Planned Development application to ensure development at the edge of the project site is more similar to existing development. The final decision on the application, including any local appeals, must be made within 120 days of the application being deemed complete by the city, in accordance with Oregon Revised Statutes and the Tigard Community Development Code. The application was deemed complete on March 25 and one extension has been granted by the applicant, moving the expiration date from July 23 to September 8, 2015. A decision must therefore be made by September 8, unless the applicant grants another extension. OTHER ALTERNATIVES Council could re-open the record to request or receive additional testimony from staff, the applicant, or any other party. Council could approve the project by directing staff to prepare findings of approval and associated conditions of approval necessary to implement the project in compliance with local, regional, state, and federal requirements. COUNCIL GOALS, POLICIES, APPROVED MASTER PLANS Tigard Comprehensive Plan Chapter 1: Citizen Involvement - Policy 1.2 Chapter 2: Land Use Planning - Policies 2.1.2, 2.1.3, 2.1.5, 2.1.14, 2.1.15, 2.1.17, and 2.1.23 Chapter 6: Environmental Quality - Policy 6.1.13 Chapter 10: Housing - Policies 10.1.5, 10.2.5, 10.2.7, 10.2.8, and 10.2.9 Chapter 12: Transportation - Policies 12.1.1 and 12.3.1 Tigard Strategic Plan Goal 2: Ensure Development Advances the Vision DATES OF PREVIOUS COUNCIL CONSIDERATION July 14, 2015 Fiscal Impact Fiscal Information: N/A Attachments Applicants Final Written Argument Applicants Proposed Findings for Approval PeRKINSCOIe 11?uNw(much Strew 0 ilr) nor 17r Michael C.Robinson July 28, 2015 MRobinson @perkinscoie.com D +1.503.727.2264 F +1.503.346.2264 Mr. John Cook, Mayor City of Tigard Tigard City Hall 13125 SW Hall Boulevard Tigard, OR 97223 Re: Appeal of Tigard Planning Commission Final Order on ZON2015-0002, SUB2015-0001,and VAR2015-0001; Applicant's Final Written Argument Dear Mayor Cook and Members of the Tigard City Council: This office represents the applicant and appellant, Venture Properties, Inc. (hereinafter referred to as"Applicant"or"Appellant"). This letter constitutes the applicant's final written argument submitted pursuant to ORS 197.763(6)(e). This letter is timely submitted on July 28, 2015 prior to 5:00 p.m. I. Introduction. A. Status of Appeal. The City Council closed the public hearing and record to all other parties except the Applicant on July 14, 2015 after the conclusion of the City Council's public hearing on the appeal. The City Council allowed the applicant to submit final written argument without new evidence on July 28, 2015 by 5:00 p.m. The Appellant's May 6 and May 14, 2015, letters to the Planning Commission and its June 15, 2015 appeal letter to the City Council supplement the Appellant's final written argument. The City Council will deliberate to a tentative decision on the appeal on September 8, 2015. Because the record is closed to all other parties, no additional evidence from any party or staff may be submitted to the City Council. The applicant extended the 120-day clock by 56 days,the period of time between July 14, 2015 and September 8, 2015. To the extent a staff report is offered after the Appellant's final written argument is submitted, the Appellant requests the opportunity to rebut the staff report. While the Appellant recognizes that staff may speak to the City Council based on evidence in the record and that such discussions are not ex parte contacts,ORS 197.763(6)(e)provides that the Applicant has the right to submit final written argument after the record is closed to all other parties. ORS 197.763(6)(e) makes no exception for a staff report. ORS 197.763(3)(i) requires that a staff report be available for inspection at least seven days prior to the hearing. LEGAL 127010568.1 Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 2 B. Draft Findings for Approval. Accompanying the final written argument are draft findings demonstrating how the applicable approval criteria are satisfied. The draft findings are based solely on the evidence in the record as of July 14, 2015 and on the Appellant's argument, including final written argument. II. Summary of Arguments in Favor of Reversing the Planning Commission. a. The zoning map amendment from R-12 to R-7 will have only a negligible effect on the City's residential zoned capacity and Metro has submitted no substantial evidence to show otherwise. b. The R-7 zone is more compatible with the adjacent and surrounding single family development in the R 4.5 and R-7 zoning districts than is the R-12 and mitigation will not increase compatibility. This infill site is appropriate for R-7 development but not R-12 development c. Development of the site in the R-7 zone will have no adverse impact on the City's support of transit. d. The City is not required to force high density housing into an infill site along a Metro-designated Corridor because the Corridor policy is flexible enough to encourage high density development at other appropriate locations along the Metro-designated Corridor or on SW Hall Boulevard. Further,the TCP policy calling for development along transit corridors(not the same as the Metro-designated Corridor)calls for such development in areas with certain characteristics; this area has none of those characteristics. e. Virtually all of the testimony on this application supported the change from R-12 to R-7. f. The history of this area as shown by the Appellant's evidence is a change from more intense zoning to less intense zoning and development in those less intense zoning districts. Moreover, there is a proven community need for this type of housing in this particular location. Additionally,there is an inadequate amount of R-7 zoned land as shown in the Appellant's evidence. g. The City Council has the discretion to approve the zoning map amendment because it can fmd that all of the applicable approval criteria are satisfied by substantial evidence. Nothing in the TCP or the TCDC requires the City Council to force high density housing into an isolated infill site where it is surrounded by dissimilar housing and where the relevant TCP policies expressly call for compatible development. LEGAL127010568.1 Perkins Cote LLP Mr. John Cook,Mayor City of Tigard July 28, 2015 Page 3 III. Specific Reasons Why the Planning Commission Denial Should be Reversed. A. The Applicant Has Met Its Burden of Proof by Substantial Evidence to Show that Metro Urban Growth Management Functional Plan,Title I,"Housing Capacity",Section 3.07.120.E,is Satisfied. Metro Functional Plan Section 3.07.120.E provides: "A city or county may reduce the minimum zoned capacity of a single lot or parcel so long as the reduction has a negligible effect on the city's or county's overall minimum zoned residential capacity." The Planning Commission found: "The application proposes to meet this criterion through the use of Goal 10 methodology, citing excess capacity, but Title I creates separate requirements that provide that any reduction in capacity beyond a negligible effect. The proposed zone change will reduce the overall capacity of the city's housing capacity by 66 housing units when housing type is not taken into consideration. When accounting for the change that allowed housing types,the City could lose capacity for 66 attached units or 107 multi-family units, which is not a negligible effect on the City's overall zoned residential capacity." (Planning Commission Decision at page 31). The City Council can find that the Planning Commission erred in several respects on this finding and that the Appellant has met its burden of proof to allow the City Council to find that the change from R-12 to R-7 will have a"negligible effect"on the City's acknowledged overall minimum zoned residential capacity. a. The definition of"zoned capacity" does not consider types of dwelling units,only the number of dwelling units. The Metro Functional Plan defines"zoned capacity"as"the highest number of dwelling units or jobs that are allowed to be contained in an area by zoning and other City or County jurisdiction regulations." (Exhibit 1) LEGAL 127010568.1 Perkins Cae LLP Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 4 The City Council can find that the definition of"zoned capacity"considers only the number of dwelling units,not the types of dwelling units. To consider the types of dwelling units, as did the Planning Commission, inserts words into the definition of"zoned capacity"that the Metro Council did not chose to include. To do so is error. The City Council's task is to determine whether the change in zone from R-12 to R-7 results in a"negligible effect" on the City's overall minimum zoned residential capacity: the number of dwelling units. The Appellant defined "negligible" in its May 14,2015 letter. The City Council can find that neither type of dwelling unit nor acres of zoned land are relevant to satisfaction of the Metro Functional Plans zoned capacity requirement. Only the number of dwelling units is considered and, in this case,City Council can find that the zoning map amendment, if granted, would have a"negligible effect"based on the common understanding of the word"negligible"on the City's acknowledged zoned capacity. b. The City Council can find that the City's residential zoned capacity is in the acknowledged Tigard Comprehensive Plan ("TCP"). The Appellant's July 15, 2015 appeal statement addressed this provision. The appeal stated at pages 7 and 8 ". . .the zoning map amendment would have less than a one percent impact on the City's minimum zoned residential capacity." (Appeal at page 8). Additionally,at the City Council appeal hearing,the applicant distributed a page from the City's"Housing"Chapter entitled"Urban Growth Management Functional Plan". The page submitted to the City Council and described by the Appellant states in relevant part: "The City has committed to providing the development opportunity for an additional 6308 dwelling units between 1998- 2017. This number shows Tigard's zoned capacity for additional dwelling units". (TCP at page 10-2) (emphasis added) (Exhibit 2) The City is obligated to rely upon the analysis in its acknowledged comprehensive plan. D.S. Parklane, Inc. v. Metro, 165 Or App 1, 22, 994 P2d 1205 (2000). The Court of Appeals held in Parklane that a local government errs by making a decision relying primarily or conclusively on studies and information that has not been adopted as part of its acknowledged comprehensive plans, instead of relying on studies and projections that have been incorporated into the acknowledged comprehensive plans. In fact,Parklane remanded Metro's decision because it relied on a draft report rather than an adopted Metro 2040 document. The same situation applies here. The City's acknowledged TCP states that the City's zoned capacity is 6,308 dwelling units between 1998-2017. The Planning Commission not only erred by considering types of dwelling units when the definition of"zoned capacity"does not consider LEGAL 127010568.1 Rerdns Cote LLP Mr. John Cook,Mayor City of Tigard July 28, 2015 Page 5 types of dwelling units,but also erred by failing to consider the zoned capacity number in the acknowledged TCP. Additionally, the staff response to the appeal dated June 30, 2015 improperly considers zoned land rather than the number of dwelling units. The City Council must conclude that the Appellant is correct that based on the zoned capacity of 6,308 dwelling units,the change from R-12 to R-7 will result in the loss of about one percent of the City's residential zoned capacity. c. No legislative history supports a contrary conclusion to the Appellant's evidence and the City Council decides whether the Metro Functional Plan standard is satisfied. Staff urged the City Council to consider Metro's"legislative history". Metro submitted no legislative history into the record nor did Metro ever submit any numerical analysis of the "zoned capacity". While Metro adopted the Metro Functional Plan provision, the City Council is called upon to apply the standard based on substantial evidence in the whole record. The City Council's task is relatively straight forward: apply the unambiguous language in the Metro Functional Plan. In this case,the unambiguous language requires the City Council to determine the City's"zoned capacity"(which is contained in the City's acknowledged TCP)and then determine whether the zoning map amendment has a"negligible effect"of the zoned capacity. The City Council can so find based on the acknowledged TCP and that only about one percent of the zoned capacity will be reduced if the zoning map amendment from R-12 to R-7 is approved. d. Addition of the River Terrace land makes the change of zoning have more of a negligible effect on the City's minimum zoned capacity. The June 30, 2015 staff rebuttal to the Appeal included the River Terrace Zoning information. However, the information described the acreage of zoning districts,not the number of dwelling units and is irrelevant to the City's residential zoned capacity. Moreover,the City Council can find that the River Terrace area increased the residential zoned capacity, meaning this zoning map amendment has an even more negligible effect. e. Conclusion. The City Council can find that the Appellant has met its burden of proof to demonstrate that this Metro Functional Plan provision is satisfied. There is no competing substantial evidence to demonstrate otherwise and City Council must find that zoned capacity is concerned only with the LEGAL127010568.1 Perkins Cole LLP Mr. John Cook,Mayor City of Tigard July 28, 2015 Page 6 number of dwelling units,not dwelling unit type or type of zoning district. For these reasons,the City Council can reverse the Planning Commission on this issue. Councilor Snider asked staff on July 14 if they could communicate with Metro about the appeal. Staff answered Councilor Snider that"it's not off the table";presumably meaning an appeal is possible. While it is possible that Metro could appeal the City Council's decision, the City Council must be more concerned about a correct application of the law rather than an appeal. Because the Appellant has demonstrated by substantial evidence that the Metro Functional Plan is satisfied, even if Metro were to appeal, the City Council can conclude that the appeal would be unsuccessful on this issue. B. No Applicable TCP policy Requires the City Council to Consider Housing Diversity in a Quasi-Judicial Application. The Planning Commission found that the Appellant failed to satisfy TCP Policy 10.1.1,which provides as follows: "The City shall adopt and maintain land use policies, codes,and standards that provide opportunities to develop a variety of housing types that meet the needs, preferences, and financial capabilities of Tigard's present and future residents." The Planning Commission found that the proposed zone change would reduce the variety of housing types available to Tigard's residents. Further, the Planning Commission found that the Appellant failed to provide evidence that the larger lot sizes allowed in the R-7 zone and the reduction of the availability of attached or multi-family units would meet the needs,preferences, and financial capabilities of Tigard's present and future residents to a degree greater than that allowed in the R-12 zone. First, the City Council can find that TCP policy 10.1.1 is not applicable to this application. The TCP policy calls for the City to"adopt and maintain"land use policies, codes and standards, meaning that the policy instructs the City to implement the policies goals through the City's TCP and land use regulations. The TCP and the implementing land use regulations achieve the policies goals. The policy does not prohibit a zone change where applicable approval criteria are satisfied. Second, staff asserts in its June 30,2015 response to the appeal that the Applicant acknowledged the TCP policy 10.1.1 is applicable. The Applicant addressed the policy but did not take a position on its applicability until the appeal. The Appellant may challenge the applicability of LEGAL127010568.1 Perkins Cole LLP Mr. John Cook,Mayor City of Tigard July 28,2015 Page 7 the policy and the City Council should conclude that the policy is inapplicable to a quasi-judicial application because of its express language. Third,the City Council can find that the record demonstrates that this property has remained vacant despite development around it. The City Council can conclude that a likely reason for the non-development of the property is its R-12 zoning because the clear preference as indicated by evidence in the record for development is single family homes on larger lots. This indicates a need, preference, and financial capability of future residents for R-7 type lots. The City Council can find that beyond this policy,no TCP policy in either TCP Chapters 2 or 10 require"Housing Diversity". The City Council can reverse the Planning Commission finding on this policy. C. The R-12 Zoning District Is Incompatible with Surrounding R-4.5 and R-7 Zoning Districts and Cannot Be Made Compatible. Several TCP policies call for the City to consider or promote compatibility in its land use decisions. These policies include TCP policy 2.1.15.F("Land uses allowed in the proposed designation would be compatible, are capable of being made compatible, with environmental conditions and surrounding land uses");TCP policy 6.1.3 ("The City shall promote land use patterns which reduce dependency on the automobile, are compatible with existing neighborhoods,and increase opportunities for walking,biking, and/or public transit".); TCP policy 10.2.7 ("The City shall ensure that residential densities are appropriately related to location, characteristics, and site conditions such as the presence of natural hazards and natural resources, availability of public facilities and services,and existing land use patterns."); TCP policy 2.1.23 ("The City shall require new development, including public infrastructure,to minimize conflicts by addressing the need for compatibility between it and adjacent existing and future land uses."); and TCP policy 10.2.9("The City shall require infill development to be designed to address compatibility with existing neighborhoods.") The City Council can find that the R-12 zone is incompatible with the existing adjacent and surrounding R-4.5 and R-7 zoning districts for the following reasons. First,the uses allowed in the R-12 zone are inconsistent with those allowed in the other two zoning districts in which the adjacent and surrounding neighborhoods are developed. The R-12 zoning district allows multi-family and attached dwelling units,whereas the two adjacent and surrounding zoning districts do not. Second, the R-12 zone requires a much smaller single family lot size when compared to the adjacent and surrounding zoning districts. LEGAL1270I056S.I Perkins Cole LLP Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 8 Third,as the Appellant's exhibits demonstrated before both the Planning Commission and the City Council, in order to meet the minimum density requirement of the R-12 zoning district, a developer would be forced to build multi-family dwellings with parking around the perimeter of the site adjacent to the single-family homes, or small lot attached single-family development inconsistent with the adjacent single-family homes. (Exhibits 3-7) Fourth, the City Council can note that almost every person who testified orally or in writing concerning the zone change did so in support. The families who live around the site do not want the property developed in R-12 because it will be incompatible with their single-family homes. (Exhibit 8) Fifth, to the extent the City Council is called upon to define the term "compatibility", the TCP defines compatibility as follows: "Compatibility-the ability of adjacent and/or dissimilar land use to coexist without aesthetic, environmental, and/or operational conflicts that would present persons to enjoy, occupy, or use their properties without interference. A variety of remedies to compatibility conflicts are normally provided in a jurisdiction's land program; including limited land use designation,buffering, screening, site and building design standards,transportation facility design, etc." (Planning Commission decision at page 27). Sixth,the City Council can find that this site is not near shopping, other than a very small convenience store, and is not otherwise at a location intended to support high density development. The City Council can take official notice of its zoning map, showing that virtually all of the City's more intense zoning is located near shopping opportunities. It makes no sense to promote high density development in an isolated area not adjacent to the kinds of facilities and services appropriate for high density development. The Tigard zoning map is included as an exhibit to the Appellant's May 6,2016 letter to the Planning Commission. (Exhibit 9) Seventh, City Council can find that TCP policy 10.2.9 expressly requires the City to require infill development to be designed to address compatibility with existing neighborhoods. To the extent this TCP policy applies at all, the R-7 zone will be more compatible with the existing adjacent neighborhoods than the R-12 zone. For these reasons,the City Council can find that the relevant Policies applicable to a quasi- judicial application concerning compatibility require the R-7 zone at this location rather than development in the R-12 zone. LEGAL 127010568.1 Perkins Cote LLP Mr. John Cook,Mayor City of Tigard July 28,2015 Page 9 D. Changing the Zone From R-12 to R-7 Will Have No Impact on Transit or Support of Commuter Rail. As an initial matter,the Planning Commission erred in finding TCP policy 12.1.1:1-6 applicable to this quasi-judicial application. This policy calls for the City to plan for a transportation system that achieves certain goals. The application before the City Council has nothing to do with the transportation system. The City Council must find that TCP policy 12.1.1:1-6 is inapplicable to this application. The Planning Commission erred by finding that TCP Policy 10.2.5 ("The City shall encourage housing that supports sustainable development patterns by promoting efficient use of land, conservation management resources,easy access to public transit and other efficient modes of transportation, easy access to services and parks,resource sufficient design and construction, and the use of renewable energy resources."),TCP policy 10.2.7 ("The City shall ensure the residential densities are appropriately related to locational characteristics and site conditions such as the presence of natural ha7lyds and natural resources, availability and public facilities and services, and existing land use patterns.")and TCP policy 12.3.1 ("The City shall continue to support the existing commuter rail and bus service in Tigard and will support opportunities for increased service frequency and passenger convenience.") First, the City Council can find that TCP Policy 10.2.5 is met to the extent that it applies because the site has"easy access to public transit"regardless of whether it is zoned R-7 or R-12. Second,the City Council can find that TCP policy 10.2.7 is satisfied because the site is available to a Tri-Met bus line and is,therefore, available to that public service despite its lack of access to other public facilities and services. Finally, the City Council can find that the Planning Commission erred by finding that TCP policy 10.3.1 is both applicable and not satisfied. This TCP policy calls for the City to support existing commuter rail and bus service in Tigard. The TCP policy says nothing about zoning map amendments. To the extent this policy is even applicable,development of this property in the R-7 zone rather than leaving vacant in the R-12 zone supports bus service; regardless of which zone the property is developed, it has nothing to do with supporting existing commuter rail. The City Council can find that the only substantial evidence in the record of use of the Tri-Met line is that several witnesses said that they observed over the number of years they have resided in the area either no one or very few people using the bus in this location. Notwithstanding that Tri-Met might increase the frequency of bus service on this site, the frequency of bus service has nothing to do with the zoning map amendment. There is no evidence that more bus ridership LEGAL 127010568.1 Perkins Lae LLP Mr. John Cook,Mayor City of Tigard July 28, 2015 Page 10 will be encouraged with development in the R-12 zone as opposed to development in the R-7 zone. It would be inappropriate for the City Council to make a finding based on evidence not in the record. For these reasons,the City Council can reverse the Planning Commission findings on these three (3) TCP policies. E. The City Council Can Find that Planning Commission Erred by Concluding that TCP Policies 2.1.5, 10.1.5 and 10.2.8 Are Not Satisfied. TCP policy 2.1.5 provides: "The City shall promote intense urban level development and metro-designated Centers and Corridors,and employment in industrial areas." First,the City Council can find that TCP policy 2.1.5 is satisfied by the application. The Appellant agrees that Hall Boulevard is a"metro-designated corridor". However, as explained in the Appellant's May 6, 2015 letter,this TCP policy calls only for the City to promote intense urban-level development in designated corridors. TCP policy 2.1.5 says nothing about whether the City may change a zoning map designation in the case such as this, where the change makes the zoning map designation consistent with the development of surrounding property, and the change is supported by,and implements, other relevant TCP policies. The Appellant's May 6, 2015 letter to the Planning Commission stated with respect to Plan policy 2.1.5: "Plan policy 2.1.5 provides: "The City shall promote intense urban land development in Metro-designated Centers and Corridors,and employment and industrial areas." Metro's 2040 Regional Concept map designates SW Hall Boulevard as a "Corridor." Notwithstanding this designation,the City is not bound to deny the zoning map Application because of Plan policy 2.1.5. First,the Plan policy calls only for the city to promote intense urban-level development in designated corridors. Plan policy 2.1.5 says nothing about whether the City may change a zoning map amendment in a case such as this where the change makes the zoning map designation consistent with the development of surrounding property and the change is supported by other Plan Policies. LEGAL 127010568.1 Perkins Cote LLP Mr. John Cook,Mayor City of Tigard July 28, 2015 Page 11 Moreover,the Plan policy says nothing about how much intense urban-level development must be promoted by the City,or where it must be located along a Corridor. The City can certainly find that this Plan policy has been satisfied along SW Hall Boulevard without denying this Application. For example,there is intense urban-level development at the north end of SW Hall Boulevard adjacent to Highway 99 and intense urban-level development at the terminus of SW Hall Boulevard near Durham Road. Finally,this Plan policy does not prohibit the City from making a common sense decision where it is clear that the current zoning map designation is inconsistent with surrounding development. "Intense urban land development" in the middle of less-dense single-family development is inconsistent with the City's Land Use Planning Program. Plan Goal 2,"Land Use Planning",Section 1, "Legislative Finding" at pages 2-3 and 2-4 states: "Within residential areas, the City's land use program assures that infill occurs in a way that is sensitive and complimentary to existing residential neighborhoods". This vision is implemented by Plan policy 2.1.15.D which calls for zoning map amendments to be compatible with surrounding areas. This Application achieves the purpose of the City's land use program,whereas leaving the R-12 zoning district in place does not. The Planning Commission can either find that Plan policy 2.1.5 is satisfied by this Application,or does not apply to a quasi-judicial map amendment,or does not prohibit approval of this Application." The City Council can find that intense urban level development at this location is inappropriate and would be inconsistent with other applicable TCP policies, especially those calling for development compatible with adjacent and surrounding land uses. Moreover,the City Council can find that TCP policy 2.1.5 is satisfied by promoting in appropriate locations intense urban level development along the corridor,such as locations closer to Highway 99 West. The City Council enacted TCP policy 2.1.5. The City Council's interpretation and application of the policy is entitled to deference. The Appellant's argument is the better interpretation of the TCP policy than is the Planning Commission's decision." TCP policy 10.1.5 provides: LEGAL127010568.1 Perkins Cole LLP Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 12 "The City shall provide for high and medium density housing in the areas such as town centers(Downtown),regional centers (Washington Square),and along transit corridors where employment opportunities,commercial services,transit, and other public services necessary to support a higher population density are either present [sic] or plan for in the future." The City Council can find that TCP policy 10.1.5 is not applicable to this application because notwithstanding whether this site is located along a"transit corridor" (that term is undefined and neither the Planning Commission or staff define the term),this is not an"area"where "employment opportunities,commercial services,transit and other public services necessary to support high population densities are either present or planned for in the future." The Planning Commission erred by considering areas outside of the City of Tigard. The TCP policies require the City to focus on"the areas"near the site. In examining the area in which this site is location, none of the requisites for higher population densities are either present or planned for. This area is primarily a low density residential area. It is certainly not an area where the City is planning to support higher population densities. The City Council must reverse the Planning Commission on this policy. Additionally,the City Council can find that the Planning Commission erred by finding TCP policy 10.2.8 as applicable or, if applicable,as not satisfied by this application. This policy provides: "The city shall require measures to mitigate the adverse impacts from differing,or more intense, land uses on residential living environments, such as: A. orderly transitions from one residential density to another; B. protection of existing vegetation,natural resources and provision of open space areas; and C. installation of landscaping and effective buffering and screening." Given that this site is an infill site immediately adjacent to low density single family development,there is no possibility of"an orderly transition"from one residential density to another. Furthermore, notwithstanding the possible use of landscaping as a buffering or screening technique,the Appellant's evidence shows that parking areas,the noise from those parking areas, lighting from the parking areas and activity from parking for multi-family development would be immediately adjacent to the backyards of the single family homes surrounding the infill site. The City Council can find that the TCP calls for compatible land use designations in the first place rather than attempting to place a band aid on an incompatible land use designation. LEGAL 127010568.1 Perkins Cole LLP Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 13 F. The City Council Can Find that TCP Policy 2.1.2 Is Satisfied. TCP policy 2.1.2 requires the following: "The city's land use regulations, related plans, and implementing actions shall be consistent with and implement its Comprehensive Plan." For the reasons explained elsewhere in this final written argument and in the Appellant's other submittals,the City Council can find that the proposed zoning map amendment is consistent with the acknowledged Tigard Comprehensive Plan. G. The City Council Can Find that TCP policy 2.1.4 Is Satisfied. TCP policy 2.1.4 provides: "Applicants shall bear the burden of proof to demonstrate that land use applications are consistent with applicable criteria and requirements of the Development Code,the Comprehensive Plan and when necessary,those of the state and other agencies." As explained elsewhere in Appellant's final written argument and Appellant's other submittals, the City Council can find that the applicant has met its burden of proof to demonstrate that the zoning map amendment from R-12 to R-7 is consistent with applicable requirements of the Tigard Community Development Code("TCDC"),the TCP and the Metro Functional Plan. The City Council can find that the R-12 zone is incompatible with surrounding R-4.5 and R-7 zoning districts for several reasons. First, multi-family or attached housing will have an aesthetic environmental and operational conflict with the surrounding single family dwellings that have a practical impact on how those families enjoy, occupy and use their properties. For example,the Appellant's evidence demonstrates that a multi-family development requires a parking lot on the perimeter of the infill site. The parking lot would be adjacent to the backyards of the adjacent single family homes. The external impacts from off-street parking to serve dozens of apartments would interfere with families'ability to enjoy, occupy or use their properties without interference. The City Council can further find that it is unlikely that simple landscaping or fencing would mitigate this interference. The better result, and one dictated by the acknowledged TCP, is to place higher density development in an appropriate location. This infill site, which is surrounded by low density single family development, is not such a location. The Planning Commission relied on several other examples where detached single family homes were built on small lots as evidence of compatibility. Nevertheless, the City Council can reject LEGAL 127010568.1 P,1 ns Cote LLP Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 14 these examples for three reasons. First,there is no requirement that the Appellant use a planned unit development for this site. Second,the Planning Commission's examples provide no context of surrounding uses, or whether there are any single family homes adjacent to the more dense development cited in the Planning Commission's decision. Third, this infill site is appropriate for development matching its surrounding use. It is one thing to allow intense urban development in an isolated area where no low density single family development exists adjacent to the site but it is another to allow intense development in the middle of an existing and long established low density single family site such as this. H. TCDC 18.380.030.C.3 is met because there has been a change in the neighborhood. The evidence shows that the area around the site (Exhibit 10) has, over time, changed so that the site is the only remaining R-12 area that is undeveloped(Exhibit 11 and 12). Substantial changes since 1983 (Exhibit 13)show how the area has changed so that R-12 development is not desirable and a change in the zoning is warranted. (See also Applicant's narrative at pages 16- 19). I. TCP Policy 2.1.15.0 is satisfied because the Appellant's evidence shows a proven need for R-7 housing in this location. The Application narrative at page 71 explains that proven community need for R-7 development is based on the City-commissioned 2010 Goal 10 study by Johnson Reid. Further, it is clear that this site is vacant only because of its R-12 zoning given that it is the only remaining vacant site in the area. J. Possible condition of approval. While the Appellant believes it has satisfied all of the relevant approval criteria, it would consider a condition of approval whereby an R-12 strip would remain along SW Hall Boulevard, subject to discussion with the Appellant. IV. Conclusion For the reasons contained in this letter and other submittals by the Appellant, the City Council can reverse the Planning Commission and approve the Application. LEGAL 127010568.1 Perrin Coe_LP Mr. John Cook, Mayor City of Tigard July 28, 2015 Page 15 Very truly yours, t,44,(LV e CZPLA-- Michael C. Robinson MCR:rsp Enclosures cc: Ms. Kelly Ritz(via email) (w/encls.) Ms. Mimi Doukas (via email)(w/encls.) Mr. Tom McGuire(via email) (w/encls.) Mr. John Floyd(via email) (w/encls.) Ms. Shelby Rihala (via email) (w/encls.) LI:GAI.127010568 1 sufficient to support and under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands are those areas identified and delineated by a qualified wetland specialist as set forth in the 1987 Corps of Engineers Wetland Delineation Manual. (uuu) "Zoned capacity" means the highest number of dwelling units or jobs that are allowed to be contained in an area by zoning and other city or county jurisdiction regulations. (Ordinance No. 97-715B, Sec. 1 . Amended by Ordinance No. 98-721A, Sec. 1; Ordinance No. 98-730C, Sec. 10. Readopted by Ordinance No. 00-839, Sec. 1. Amended by Ordinance No. 00-869A, Sec. 2; Ordinance No. 02-972A, Sec. 1; Ordinance No. 05-1077C, Sec. 6; and Ordinance No. 10-12448, Sec. 9) . TITLE 11: PLANNING FOR NEW URBAN AREAS 3. 07 . 1105 Purpose and Intent The Regional Framework Plan calls for long-range planning to ensure that areas brought into the UGB are urbanized efficiently and become or contribute to mixed-use, walkable, transit- friendly communities. It is the purpose of Title 11 to guide such long-range planning for urban reserves and areas added to the UGB. It is also the purpose of Title 11 to provide interim protection for areas added to the UGB until city or county amendments to land use regulations to allow urbanization become applicable to the areas. (Ordinance No. 99-818A, Sec. 3. Amended by Ordinance No. 02-969B, Sec. 11; and Ordinance No. 10-1238A, Sec. 5; and Ordinance No. 11-1252A, Sec. 1) . 3. 07 . 1110 Planning for Areas Designated Urban Reserve A. The county responsible for land use planning for an urban reserve and any city likely to provide governance or an urban service for the area, shall, in conjunction with Metro and appropriate service districts, develop a concept plan for the urban reserve prior to its addition to the UGB pursuant to sections 3. 07 . 1420, 3. 07 . 1430 or 3. 07. 1435 of this chapter. The date for completion of a concept plan and the area of urban reserves to be planned will be jointly • determined by Metro and the county and city or cities. B. A local government, in creating a concept plan to comply with this section, shall consider actions necessary to achieve the following outcomes: Effective 09/10/14 3.07 - 58 of 129 EXHIBIT 1 1♦ • HOUSING Urban Growth Management Functional Plan Metro implements Goal 10 through Title 1.To meet Title 1,each jurisdiction was required to determine its housing capacity and adopt minimum density requirements.Tigard adopted an 80% of minimum density requirement for development in 1998,which means that a development must build 80%of the maximum units allowed by the zoning designation.The City has committed to providing the development opportunity for an additional 6,308 dwelling units between 1998—2017.This number shows Tigard's zoned capacity for addi- tional dwelling units. It is an estimate based on the minimum number of dwelling units allowed in each residential zoning district,assuming minimum density requirements. The City of Tigard maintains an up-to-date build- . able lands inventory,a permit tracking system for development,as well as complying with Metro's Functional Plan.The City is responsible for monitoring residential development.All of these tools aid the City in monitoring its progress toward the above goals,and determining if the opportunity remains for current and future resi- dents to have diverse housing choices. Tigard's Geographic Limits to Growth In the last several years,Washington County has urbanized significant areas of unincorporated land to the south and west of Tigard. It and service districts provide the minimum required facilities and services. The county's actions, combined with state annexation law, make it is improbable that most of these developed lands will annex to Tigard. Urbanized unincorporated land forms a barrier between Tigard and unincorporated urban growth areas designated by Metro. Thus,Tigard is unlikely to expand its City boundaries in the future. The lack of vacant residential land will require Tigard to meet its housing capacity commitment within its current,mostly built-out,City limits. This will require actions to increase residential density within the appropriate areas such as along major transportation corridors,and within designated Regional and Town Centers. Thus, much new residential development will occur through urban in fill and redevelopment. 10-2 City of"Tigard I Comprehensive Plan EXHIBIT 2 Alternate Site Plan — min R-12 Density .._.„.,.:,...: . .. .. . .BELLFLOWER 11711411 4 I ... 4 , .... •..- -•'. .., .:.. : 17.,.....-. ,„.. .7.... . 7 ....-. ..,.., ...... 30 11 .:7_1.7' II AN SCRIM,LOOP • 1 .- . ,n1r_r...7___ , —7—t TT---') I U a, I ( ..) 1 : . I i 34 i 57 \ I .-. i lig " 1 1 .:.... 1 I 11111 4044110111) LANE . 1 1- .-.. - ZS OW 11111001111 .4.: : EM 1 N I_ En 7 WANT Oil r DENSITY CALCUIATIONS . e I ! 1 Elll Mal 1 g • .._.____1 1 . E,- - i • R-12 ZONE It [I n 1 I 00 : 1 I II I 71 11 GROSS 91 WA 396.513 9■910 RC) 4SIBIC R OR PrVIGATOOR o07137 9'(374 At) ._. -I ( -- _____ , 117.9111'OP A 3 ANA 2E0704 9(174 AC) 411 1 40 Will . 1 L .---.-.) _ 1"...--.° 74. ...1 I. _ _ __. .7 AI I LA/mu. 1114117J11 Attna 101 NBA 1.000 9 4,•..., ,. ... ----- ..:... 1 40 , MUM.9714917 70117011•0101•00.017 ' OW ICW11071 LOOP ....": I WARM 0.9P: 93 1.0N009)•74.4•74 LOIS l'---MMI- - I I I - .A It r.7 0NROORPPCOIZOSEILD D WWC NW tO Oaf A 14 . NOD WA 101 WA t25 0LIW00I0S/ 71,011 1446 Y W - . _ _ _ j • 34300 V - ; .._ 1 I .' 1 41 40140 WISP 4/ ..:':,.. i A•..... I I I / I 1 1 L I I AM.nu/ 77 . ,r..7. . 7... .•77 - ...7 ..... 1 55._sin COURT SW HAMM STREET i EXHIBIT 3 I'II1IHX4 000Y A 9W -(4101 14/t40W) GiM 1/ 'Oft 101 MINIM 0153e04e YJYY l01 ThM'Y OJSOSM 111.1111 iM ata1.40lu 41a,.1• •Ii6`•O`( Ol l 4to1 is• c ncsz u6U0 NY�YII .uUJW• P1 $Oidt-V Y 101 MOM RrimeS (011 KG)E 104110 (3,KT)6 1(9U11 (]!al a)6 CLt% YJYE 7,1:011170 171 lotr 30 11011 11 3110d YDff L6$OM RITZ-FS SNOI1V1f131V0 ,111SN34 d H3MO1d1138 MS A4!suaa ZT - J u ! w ueid axis aleuaalld Alternate Site Plan — Min R-12 Density TAX L01 i i 14800 - TAX MAP X iit 2s 1 11 DA ^ L14,193 S NM !6,637 SF of 6't 102 16 cARacE r or ITYPIi R 6 iiiiiiiillb TAX LOT a M 14700 ±3,072 SF SW PIPPEN LANE n TAX MAP `' A 102.63 t 2S 1 11DA 14,134 SF I SIDE YAdD ci SETBACK SNk.r AkU SF I bA;;K(TIP) 1 �. �, 5 ITYPI kj ±3,086 SF --- } Mb 103 cgs Tr PUT � . TAX LOT 14600 ±3.088 SF �J TAX MAP v _ 2S 1 1104 101,61 , N 8 0 n II ±-4,075 SF PuE (TYP1 Q i .., W W o 2.Q. < I _ 30'REAR ±3.056 SF GARAGEM_ I 2 Mcc )ARDRETIEAU( SET©ACK 1-. S.. W ix 652 ,11YPa 10211 I POP 4 0 • W - 52'(TVP� - q Itairtlit I TAX LOT, N REAR 14500 ITYPI 13,070 SF 2 TAX MAP YARD SETBACK I I Iv 231 11DA 1 a ITOP I 102.60- EXHIBIT Alternate Site Plan — Max R-12 for sale Density OW OEll IlOWERRTREET I • 1 NT a • --.0—...— TT TIIACI D _ 30 11 1t ¶3 14 �!j 4 I? N 1. 30 Al a fl „ •. mAC[ g _ — _— • Y�_..� r->m-. ••••• -- 0 V �• SWSc4 0ILOOV �� f-27— 4 N a ) L : - • --I w l _ — ,W A04f0R0 r OF U LANE 1 N /3 10 N ` 5150 ASPEORD Si ' . 5150 11REET I -- 4 - � DENSITY CAI CUL ATIONS f1� w •t n o R 12 ZONE --- •♦ i „WAS 91 ARIA 396.5/19(9 IC AL) N I eT 74 A k 344 F.O.OWCADCA ',0.037 Si(054 AC: N .—,I L .!1 Y56,06 OF AMA 765.704 Sr(656 AC) - - N - I 4) i 11 16' _,...1„,„1.1 mO 510AN AItRAQ AO(MIA .1,000 Y 1 r ;n. I $7 •. . : Y■14YLY Rl33 (JM X111.95H.41 010 OW 0710001 loon r - -- 510/1.60 O(k91v 9',107%8'M)- /A A rl,0'S — —�•- - -T--- -�- -_ '9 0507 lNl IXN5!7 91 WAI0 3 r .. •__ - I I ? T �I -�E r. 4449ACS 101 ARFA (749,376/93 LOTS)-)610 4 I I AP)0sIC WOOS∎0'0946 7,441 S (0003 A • '�" "• - A� 42 E1 I N 1 4E tl 47 4E 46 44 4E 142( 41 40 N N I A I I 1 1 1 i 1 1 1 I1 I 11 I 651 RYIL01OpMT .••- .- 1 EXHIBIT 6 111.15.1111.11 STROE7 I Alternate Site Plan — Max R-12 for sale Density ..-4*--40--- ' ' a. 4 ,,,,,,,iitt,,, -4 ,-, , „EA ja...., _ I 41/4e2il . ( 1 hlfELLFLORER MEET yi ` _ , w 1 [ 1 I -1 ■ i,i. L• �i� iii ,1 „,, ;II E II II it ili� ..WHIM wan I i '-"'.‘I I'' r m , -• .4 vi. L111 e ...Ili r ., . �--. , )1 a gni a E„AAM. a v I �,A .1� DENSITY CALCULATIONS h1 ® b t •r � l/ � 11 � il)� 1,4� 7 '°1 CROSS 91f AKA .1%.SJ]9(E t0 A:) M Mkt ROW D;DGM,N 110637 4(J 51 IBC) 7 �—° 1 `: at (11131_ FL- ji1 , IET 0(1470,4617 AREA 769.]04 9(656 r) iii...i. � - --J � • MY11.Y A14RA07 101 YEA 7.090 9 1_ _ sw mow wov ■ } _ �. . YAONU aR91r. (l�,lDI 9351=93 l0rs I �► `F - Z- - -- 0 - --6=i- T--. al . � MAIM 01R91! 7I n6 741 Drs •i JJI t.. © El MI M _I >M 6E M ar. .n.Aan !WO JSfD AURA l01 YEA (2 9.376/9'.LOTS)-7.660 9 _ 7ROMSED WAVY LOT MLA 7.461 9 l .I I .) r f . ._;._je j-- .,,,., !1 !r .. -? `- ._, ,a, w HAMLET court ,9 aw HAMM STRUT a tLr .. .< , •.._ , 1 - ., I EXHIBIT 7 v ''h $$ 1 yi""��Y v„ iwr •4y 4.1,.„. , i 7 Z.{ f ,�i .., .*1-11.1r r ril...11111V-4 0 . , 1 : lir' .P. i ow44--- ,s. el! : ,:al.i ... .OM 1 ' � _ J Existing Applewood Homes / .' . r :. VII I, . . BE I. a . . + .; .h Minimum Density in R-12 ,awfork ■ J Zoning Map City of Tigarci,Orton &no*cabegiwros < as scamp alos saaa .45.1.1.1,141.1.n • ,Otte...r.s. El thi.t .......E..meenr■ 3.▪12 s4Ntaeri4..11. aa pas as." 1.111-.1.40 .• *awe lutArs • El WOO owes eneals ,f,C Ng sounst.ft*. l'Sz Ore e O.= ft72 Nolom..nra Oa,..en•asoftw, Wag Celiyall.as et 6.110.11kakame Cada 1,1% tasmadIrstlowymel Osko Osaasonasoavosa...e cis vas. we. aqrsomoomia Paoli.*mama ,aaarasoaaa•,...00sasiffiaa ..••■■■•■.700V.MININ•0014~0,1011•0 f-04 TO 7 L #40 1111181~MY Coot Pkn•I.DAN IMMO' —02;•-•— 151,251131■74= .1441 so+Slro Location . . . • . . •., ■ .- .-. . '' . •Y s e E - fd 'fir . , i�, f� i �. _■ Fk. Sattler Street r ' t _ . �#� ! . .�r _ , i d",._ E _4 .Fg1..:LdS:.. .ai. •::.tY «d.—d' • 'r_ i.T a,a ` y . 9w - k: a 1 � 0 , - an p '-• R #1 ? iF' - % +c' 2 �A t �e tit r b n h' b . .B6 iS—J a F i - �. y '..-, • "` 4 ' a re ° ee� -moo s f', ... r ./ 9 -0 ,,. *glp.4 • •vr C d • r--� b — a . >p At ��T j r°• , i ot.•. '4 . P-.E'r°' '+y • k� T c FiD ",�• a i^, 446 ' ice•;J. 1 r. .. �. .1 o . 1 ` . —' Durham Road (�OOklle Rif tf1 �' r7 _if c 2013 _ ..• ..-:._.-,:r., -.. . .,..k .., ,, ,,t,,, ..i =. -,;.., .,,,...,: ... ..,.... ,_ ;. . , , t f ;440 ir i. — -4, I.*..,•-• .,.: vi....b., . :1 ,t irl,,...46,,,,,.L.,....,. ! 0 ..i.tr:„. ,, .... A4 .., ot . 4110 110 ' ''-'' :-.-:' ' - - ' ' - . lq.' 4 '•''''''' ' . -It _ ,. t• 7. 1.:' .4,' . - -4.A/04--; -. . '- *. . t."-....-, 4_ '' -:•.----, - " . 1, '., v--i.- T . 1 4 :,,,:'- r idirliMMIFI-illibi' 1 ••■ . ,_. 411.11,40 4.• 411 ',,,* .7,,,,.. ,4 r 3 'C . • -44 1;24' . .' -. . . . 1 i-7 ( - -. s• ,--,. SON4 .. p • . , . . . - . 4 - ii-7 • .. . . • .1 A st R-7 ...., ,i- air 4' . .. . ',- • ,.. :. R-12 r., .4„ . . I -- :-''' ' - , .., ... J - , , L s., . . - . :- - ' • ! ti, • or., i t,,1/4...1114•■•64. ' . Site , ii: •• . --, 4;4.-• , R4.5 lk4..., '4NA, r - ----------- , - - -• 1 .1-1° . . .. ,. "'VI-kW $4,' A.4,/ .-,C4-1-'•0 dr 4,, . i • ...... , , ■ _ ,._,..i1;ei.47..le 4.- ..,e,.. ,-- . ,. I -7- • ;"31 . ( k. I.•--,...._ I 1■-1 '' 1, .. • 1 .. ; I - -• ,L,' •' ; ,,. ..ot -4,,, --..., ..,, f.,:•..- . . -. 1111A., , ".„--ii.,-5,, ,,..,,;.,,, ! . . .• '-' 1.11,- 4. • '..' f tr%, - ,-- • * , ..,, • t-, lirax filet *oh.. e-,ts-At J,---„_ -lc_ at . r — ----- ,, ,. !!.... #• -. j.,.....,.. .. .iti2„ 1... 0 300 MIN. :41..1'16:(.. 111:&-., .. . asamosi■mii---‘,.kb-T... .-."; . .d. . . . .. 141011111111111 • • • 1983 (photo from 1981) = WOW w l.- .1-: R-12 1: , k-7 , . R-12 • Site w + % .t R-12 t l'►-i.:.`' R-12 R-12 . arignimmilleili__ N , 0 Substantial Changes Since 1983 • Rezone of land to the south from R-12 to R-7 • Rezone of land to the north from R-12 to R-7 • Rezone of land to the west from R-4.5 to R-7 • Build-out of most of the corridor between 1983 and 1998 • Establishment of minimum density provisions did not occur until 1998 after most of the neighborhood was built out Evidence of a Mistake • Acknowledged in the Sattler Zone Change decision (Exhibit 0) BEFORE THE CITY COUNCIL FOR THE CITY OF TIGARD, OREGON In the Matter of an Application by Venture Properties, Inc. for a Zoning Map Amendment from R-12 to R-7, a DRAFT FINDINGS OF FACT AND 53-lot Subdivision and a Variance CONCLUSIONS OF LAW REVERSING Application, for Property Located THE PLANNING COMMISSION'S West of SW Hall Boulevard and South DENIAL OF THE APPLICATIONS AND of SW Bellflower Street and North of APPROVING THE APPLICATIONS. SW Hamlet Street in the R-12 Zoning District (the "Site") I. PROCEDURAL STATUS. This matter comes before the Tigard City Council (the"City Council")on an appeal of the Tigard Planning Commission's denial of the applications effective on June 1,2015. The City Council finds that the Applicant,who is also the Appellant, filed a timely appeal of the denial on June 15,2015. The City Council held a de novo hearing on the appeal on July 15, 2015. City Council closed the public hearing and the record to all other parties except the Appellant and allowed the Appellant to submit final written argument no later than July 28, 2015 at 5:00 p.m. The City Council set September 8, 2015 as the date for deliberation and a possible tentative decision on the Application. The City Council finds that no party challenged the City Council's jurisdiction to hear the appeal, raised and preserved a procedural error, or challenged any City Council member's right to participate in the decision. II. FINDINGS REJECTING THE PLANNING COMMISSION DENIAL AND SUPPORTING THE APPEAL. A. Incorporation of applicant's narrative. The City Council hereby adopts these findings as its own, rejecting the Planning Commission's denial of the applications and granting the appeal. The City Council hereby incorporates the conditions of approval recommended by the Planning Department staff,which would have been adopted by the Planning Commission had it approved the applications. The City Council also incorporates the Applicant's revised narrative dated March 24,2015 in its entirety consisting of pages 3-80 and submitted to the City on March 25,2015. To the extent there is a conflict between the incorporated Applicant's narrative and these findings,these findings shall control. B. Additional findings supporting the zoning map amendment. 1. Subdivision Application. 1 16543-0002/LEGAL 1 2 70 1 662 1.1 The City Council finds that the Planning Commission denied the subdivision application because the Planning Commission also denied the zoning map amendment,thus rendering the subdivision application inconsistent with the R-12 zoning district. Because the City Council approves the zoning map amendment, it also approves the subdivision application. a. TCDC 18.430.040.A.1. The City Council finds that this standard can be approved if the zoning map amendment is approved. b. TCDC 18.715.020.A-.C. The City Council finds that the density standards can be met if the zoning map amendment is approved. c. TCDC 18.810.030.A.3. The Planning Commission did not make a finding on whether the pavement section on SW Hall Boulevard meets Oregon Department of Transportation("ODOT") standards. The City Council finds that the Planning Commission did not conclude that this standard was not met. The City Council finds that this standard is met. d. TCDC 18.810.060.B. The City Council finds, as did the Planning Commission,that lots 4 and 30 can be conditioned to provide a minimum of 25'of frontage on SW Schmidt Loop, thus meeting this standard. e. TCDC 18.810.070.0. The City Council finds that the Plan can be conditioned to provide a 6'wide concrete sidewalk adjacent to the curb. 2. Variance Application (Special Adjustment to Street Standards). The Planning Commission Decision at page 5 explains that the Appellant requested a special adjustment to street standards to provide an alternate street section for the proposed local street extensions of SW Ashford Street and SW Applewood Avenue to match existing street sections to the north and west. The Planning Commission concluded that the variance and adjustment standards have been met. The City Council hereby makes the same findings. a. TCDC 18.810.030.E (page 17). The Planning Commission found that this adjustment should be allowed. For these reasons,because the City Council finds that the zoning map amendment can be approved, it also approves the variance application (special adjustment to street standards). 3. Zoning Map Amendment from R-12 to R-7. The City Council finds that all applicable TCDC requirements and Tigard Comprehensive Plan ("TCP")policies are satisfied. It is clear that the proposed R-7 zoning district is more compatible with the surrounding residential development than is the R-12 zoning district. The R-12 and R-7 zoning districts are consistent with the acknowledged Plan designation of "Medium-Density Residential" for the Site and, more importantly,the Site is surrounded on the west side of SW Hall Boulevard by other R-7 development and is adjacent to other R-7 development on the east side of SW Hall Boulevard. Only a small area of R-12 development is across SW Hall Boulevard from the southeast corner of the Site but it is developed to R-7 standards. -2- 1 16543-0002/LEGAL 1 2 70 1 662 1.1 Additionally, of eight(8)persons who testified at the May 18, 2015 Planning Commission hearing, none of them testified against the zoning map amendment. Two (2)persons testified solely based on the impacts of the development to wetlands. The Planning Commission concluded at page 33 of its decision that,because the wetlands are not listed as "significant" on the Tigard Local Wetlands Inventory("TLWI")map, the TCDC only requires the City to ensure that state and federal permits are obtained by the Applicant. Six (6)persons told the Planning Commission that they thought the proposed R-7 zoning district would be more compatible with their development than would be the R-12 zoning district. Three(3)persons testified in favor of the Application at the City Council hearing. Finally, some of the TCP policies found not to be satisfied by the application are not applicable to the Application. TCDC 18.380.030.C.1 requires that the Applicant demonstrate compliance only with applicable Plan policies and map designations. As explained below,because some of the Plan policies are not applicable,they are not a basis for a denial of this Application. a. TCDC 18.380.030.B.1. The City Council finds, for the reasons explained below, that all applicable Plan policies are met. b. TCDC 18.380.030.B.2. The City Council finds that the Metro Functional Plan is neither part of"this Code", nor is it an "applicable implementing ordinance". In the alternative, the City Council finds that the Metro Functional Plan is an "applicable implementing ordinance" and, for the reasons explained below,the City Council finds that the Applicant has met its burden of proof to demonstrate that this zoning map amendment will have only a "negligible effect" on the City's overall zoned residential capacity. c. TCDC 18.380.030.8.3. The City Council finds that TCDC 18.380.030.B.3 is satisfied. This criterion requires: "Evidence of change in the neighborhood or community or a mistake or inconsistency in the comprehensive plan or zoning map as it relates to the property which is the subject of the development application." The Application narrative explains at pages 16-19 how this area has substantially changed since the imposition of the R-12 zoning designation in 1983, more than 30 years ago. The area has become increasingly less dense since 1983. TCDC 18.380.030.B.3 allows the Planning Commission to approve a quasi-judicial map amendment with "evidence of change in the neighborhood . . ." The City Council need not find that all three(3)of the criteria in TCDC 18.380.030.B.3 are met because the criterion uses the word "or"between the three (3) factors. The Application narrative demonstrates that the neighborhood has changed. The City Council makes this determination by noting that the surrounding development pattern is consistently lower density single-family in this area. This Site is the only remaining vacant site in the area. The area that has developed around the Site has developed under low-density residential standards and development of the Site in the R-12 zoning map designation would be inconsistent with the surrounding development. -3- 1 16543-0002/LEGAL1 2 70 1 662 1.1 TCP Policy 2.1.15.F provides that"land uses permitted by the proposed designation would be compatible, or capable of being made compatible, with environment conditions and surrounding land uses." The Application narrative explains that development in the R-12 zoning district would be incompatible with surrounding land uses. The Applicant would be required to either develop small lot detached single-family housing(with a minimum lot size of 3050 square feet, compared to a minimum lot size of 5,000 square feet in the R-7 zoning district), or multiple- family housing with the parking areas on the perimeter of the site. Neither type of housing would be compatible with,nor welcomed by,the surrounding residents. d. The City Council finds,based on substantial evidence in the Application narrative,that there is evidence that there has been either a change in the neighborhood or that a mistake in the zoning has occurred. e. TCP Policy 2.1.2. The City Council finds, based on substantial evidence, that the zoning map amendment is consistent with and will implement the Plan. f. TCP Policy 2.1.5. TCP Policy 2.1.5 provides: "The City shall promote intense urban land development in Metro-designated Centers and Corridors, and employment and industrial areas." The Applicant acknowledges that SW Hall Boulevard is a Metro-designated "Corridor." However, the Planning Commission erred in finding that Plan Policy 2.1.5 is not met by the Application. As explained at pages 2 and 3 of the Applicant's May 6, 2015 letter, this TCP Policy calls only for the City to promote intense urban-level development in designated corridors. TCP Policy 2.1.5 says nothing about whether the City may change a zoning map designation in a case such as this,where the change makes the zoning map designation consistent with the development of surrounding property, and the change is supported by, and implements, other TCP Policies. The TCP Policy does not prohibit other than intense urban-level development along Corridors. The City Council can take official notice of the fact that much of SW Hall Boulevard consists of medium-density residential development, or lower-density residential development, similar to the requested R-7 zoning district for the Site. Finally, this zoning map amendment complies with, and implements other, applicable TCP policies which, when balanced against this TCP Policy, requires the City Council to approve this zoning map amendment. Moreover, this TCP Policy says nothing about how much intense urban-level development must be promoted by the City, or where it must be located along a Corridor. The City can certainly find that this TCP Policy has been satisfied along SW Hall Boulevard without denying this Application. For example, there is intense urban-level development at the north end of SW Hall Boulevard adjacent to Highway 99 and intense urban-level development at the terminus of SW Hall Boulevard near Durham Road. -4- 1 16543-0002/LEGAL 127016621.1 Finally, this TCP Policy does not prohibit the City from making a common sense decision where it is clear that the current zoning map designation is inconsistent with surrounding development. "Intense urban land development" in the middle of less-dense single-family development is inconsistent with the City's Land Use Planning Program. Plan Goal 2, "Land Use Planning", Section 1, "Legislative Finding"at pages 2-3 and 2-4 states: "Within residential areas,the City's land use program assures that infill occurs in a way that is sensitive and complimentary to existing residential neighborhoods". This vision is implemented by TCP Policy 2.1.15.D which calls for zoning map amendments to be compatible with surrounding areas. This Application achieves the purpose of the City's land use program, whereas leaving the R-12 zoning district in place does not. The Planning Commission can either find that Plan Policy 2.1.5 is satisfied by this Application, or does not apply to a quasi-judicial map amendment, or does not prohibit approval of this Application. g. TCP Policy 2.1.14. The City Council finds that the Applicant has met its burden of proof to demonstrate that the zoning map amendment is consistent with the applicable criteria of the TCDC, the Plan, and the Metro Functional Plan, for the reasons explained in this letter and other evidence submitted by the Applicant. h. TCP Policy 2.1.15.C. The City Council finds that the Application demonstrates that there is a "proven community need" for an R-7 zoning district in this particular location because, as explained in the Application, the R-7 zoning district is the most compatible zoning district with the surrounding development and substantial evidence demonstrates a need for additional R-7 housing at this location, in part, because of the requirement for compatibility. i. TCP Policy 2.1.15.D. The City Council finds that the Application demonstrates that there is an inadequate amount of developable, appropriately designated land for R-7 lots, whereas there is more than adequate available R-12 land, including the River Terrace area based on evidence in the Application. j. TCP Policy 2.1.15.F. The City Council finds that the Planning Commission misapplied this TCP Policy. This TCP Policy provides that "land uses allowed in the proposed designation would be compatible, or capable of being made compatible, with environmental conditions and surrounding land uses." The Planning Commission misapplied the policy because it does not require a demonstration of incompatibility; the Plan Policy simply requires a demonstration of compatibility. Substantial evidence in the record demonstrates that the R-7 zoning district is inherently more compatible with the adjacent R-7 zoning than is the R-12 zoning district. Moreover, the Planning Commission erred in another way because it adopted the word "significantly" when this word does not appear in Plan Policy 2.1.15.F. k. TCP Policy 6.1.3. The City Council first finds that this Plan Policy is inapplicable. This Plan Policy calls for the City to promote certain types of land use patterns, but does not require them. To the extent that the City Council finds that this Plan Policy is applicable, substantial evidence supports a finding that the R-7 zoning district, which -5- 1 16543-0002/LEGAL 127016621.1 matches the zoning district of the surrounding development, promotes compatibility with the existing neighborhoods, does not increase dependency on the automobile and does not decrease opportunities for walking,biking and/or public transit. No evidence in the record demonstrates that more people will drive from the R-7 zoning district, or that fewer people will walk, bike or use public transit from the R-7 zoning district. Regardless of how the Site is zoned, the City Council can conclude that transit remains available(through Tri-Met bus line 76)on SW Hall Boulevard, that sidewalks are located on the interior residential streets and along SW Hall Boulevard, and that most residents use their automobiles to shop and work. The zoning of the Site will not affect the use of automobiles,or biking,walking and transit use. 1. TCP Policy 10.1.1. The City Council finds that this Plan Policy is not applicable to the decision because a zoning map amendment is not a "land use policy, code and standard". m. TCP Policy 10.1.5. Plan Policy 10.1.5 provides: "The City shall provide for high and medium density housing in the area such as town centers (Downtown), regional centers (Washington Square), and along transit corridors where employment opportunities, commercial services,transit, and other public services necessary to support higher population densities are either present or planned for in the future." A comparison of an aerial photograph of the developed area and the City's zoning map designation for this site that this Plan Policy is not promoted by leaving this property in its current R-12 zone. First, as the Application narrative explains, notwithstanding that SW Hall Boulevard is served by Tri-Met Bus Line 76 does not operate at headways that support higher population densities nor is SW Hall Boulevard a"transit corridor". Bus Line 76 operates at only 30 minute headways throughout the day. Second, this TCP Policy calls for the City to direct high and medium density housing to areas, such as town centers and transit corridors, where employment opportunities and commercial services are either present or planned to support higher population densities. The surrounding area is not within downtown Tigard or Washington Square. Moreover, the surrounding area is a wholly residential area without any employment opportunities or commercial services that support or justify higher population densities. The City Council finds that this TCP Policy is not applicable because the Site is not along a "transit corridor" in an area where employment opportunities, commercial services,transit and other public services necessary to support higher population densities are either present or planned for in the future. There is no Tigard map designation of"Transit Corridor" on the Site, nor did the Planning Commission define the term. Substantial evidence demonstrates that the Site is located in an area of predominantly single-family homes with no significant retail or employment opportunities anywhere in the area. The fact that Tri-Met bus line 76 may connect to other very distant areas that constitute employment or commercial opportunities does not defeat the fact that this area is an area where these opportunities are not present. -6- 1 16543-0002/L[GA L 127016621.1 In the alternative, if this TCP Policy were applicable, the City Council finds that it is satisfied by the application because TCP Policy 10.1.5 calls for the City to provide for high and medium density housing in areas with certain characteristics not found in the area in which this site is located. n. TCP Policy 10.2.5. The City Council finds this Plan Policy is not applicable to a quasi-judicial application because it directs the City to implement certain types of housing by "encouraging" certain activities. o. TCP Policy 10.2.7. The City Council finds that this policy is satisfied because the R-7 residential density is "appropriately related" to the existing land use pattern of R-7 development and is supported by available public facilities and services. No natural hazards or natural resource areas identified and mapped by the City are located on the Site. p. TCP Policies 10.2.8 and 10.2.9. The City Council finds that the Planning Commission erred by failing to provide specific findings on TCP Policy 10.2.8. Further, the Planning Commission erred by finding that TCP Policy 10.2.9 is not met. Substantial evidence in the whole record demonstrates that the R-7 zoning district is compatible with existing neighborhoods. In fact,the Planning Commission found at page 28 that TCP Policy 2.1.23 was satisfied. The Planning Commission's finding states "The proposal is for a zone consistent with that applied to adjoining properties for development was constructed according to R-7 zoning. No compatibility issues are anticipated as a result of the zone change. This TCP Policy is satisfied." Having found TCP Policy 2.1.23 satisfied, it is inconsistent to find that TCP Policy 10.2.9 is not satisfied. q. TCP Policy 12.1.11-6 and TCP Policy 12.3.1. The City Council finds that the Planning Commission erred by failing to adopt specific findings related to the express language of the TCP Policies. Moreover,the City Council must find that TCP Policy 12.1.11-5 is inapplicable because the TCP Policy is a direction to the City to implement a particular type of transportation system. Additionally,the City Council must find that TCP Policy 12.3.1 is also inapplicable because it is a direction to the City to support existing commuter rail. No substantial evidence supports the Planning Commission's findings that the R- 7 zoning district will be less supportive of the City's transportation system and existing commuter rail than would be the R-12 zoning district because there is no evidence as to potential ridership of residents of either zone. r. Metro Functional Plan. Metro Code 3.07.120.E. provides as follows: "A city or county may reduce the minimum zoned capacity of a single lot or parcel so long as the reduction has a negligible effect on the city's or county's overall minimum zoned residential capacity." The Planning Commission found at page 31 of its decision that the Applicant had failed to meet its burden of proof to demonstrate that Metro Functional Plan 3.07.120.E is satisfied, which -7- 1 1 6543-0002/LEGAL 127016621.1 provides that the City may reduce the minimum zoned capacity of a single lot,provided the reduction has a "negligible effect" on the City's overall minimum zoned residential capacity. The evidence relied upon from Metro contains no comparative number which allowed the Planning Commission to conclude that the reduction of a certain number of dwelling units would be more than a negligible effect on the City's overall zoned residential capacity. However,the Applicant's May 14, 2015 letter at pages 3 and 4 explained that the zoning map amendment would have less than a one percent impact on the City's minimum zoned residential capacity. No substantial evidence rebuts the Applicant's evidence. The Tigard Comprehensive Plan contains the City's minimum zoned capacity pursuant to acknowledgment by Metro. Tigard Comprehensive Plan Goal 10, Page 10-2,provides that an additional 6038 dwelling units can be constructed in the city(the 1996 number). Substantial evidence in the whole record demonstrates that the difference between the R-12 development of 130 lots and the R-7 development of 79 lots for a net difference of 51 lots is "negligible"because it represents less than one percent of the City's minimum zoned capacity for additional dwelling units (and an even smaller percentage of the City's total zoned capacity). The word "negligible" is undefined in the TCDC. TCDC 18.120.010 directs that the commonly accepted, dictionary meaning be used where a word is undefined in the TCDC. "Negligible" is defined as"so small or unimportant or of so little consequence as to warrant little or no attention; trifling." Merriam-webster.com. The City Council finds that the reduction of units is a negligible reduction. Moreover, while the phrase "negligible effect" is found in the Metro Code adopted by the Metro Council, the City Council in this quasi-judicial proceeding may apply that term based on evidence before it. Metro's argument that the reduction units is not negligible is not supported by the evidence in the record. The City Council finds that the zoning map amendment will have only a negligible effect on the City's "zoned capacity",as this term is defined in Metro Code 3.07.1010. C. Response to additional issues. 1. Response to letter from Mr.Mitchell. Mr. Mitchell raises two(2) issues concerning the two(2) wetlands on the site. The first is his question about the delineation of the wetlands. Venture contracted with AKS Engineering to delineate the wetlands. AKS has delineated the wetlands and the Oregon Department of State Lands ("DSL") has accepted the delineations. Second, Mr. Mitchell raises the issues of whether the wetlands will be filled. The wetlands are not mapped on the Tigard Sensitive Lands map and are wetlands over which DSL and the United States Army Corps of Engineers ("COE")have jurisdiction. Venture has applied for a fill permit to fill both of the isolated wetlands. The City does not regulate the fill of wetlands not shown on the City's Sensitive Lands map. To the extent the Application is able to satisfy the applicable criteria for fill permits issued by DSL and COE, then the wetlands may be lawfully filled. -8- 1 16543-0002/LEGAL 127016621.1 Mr. Mitchell also raises two (2) issues unrelated to wetlands. His first issue concerns traffic increase in the neighborhood. The Application's evidence demonstrates that traffic generation from the subdivision proposed by Venture will be consistent with the types of streets serving the subdivision and that those streets have sufficient capacity to accommodate the expected vehicle trip generation from the site. As an aside to Mr. Mitchell's comments, Venture believes that the downzoning of this property from R-12 to R-7 is appropriate and development of the property in the R-7 zone will generate less vehicular traffic than development of the property in the current R-12 zone. The second issue unrelated to wetlands raised by Mr. Mitchell is the lack of a neighborhood park. No applicable approval criteria require a neighborhood park. The neighborhood in which Mr. Mitchell lives, and which surrounds the site, is a pleasant neighborhood with large single-family lots providing outdoor recreation space for families and children. Venture would like to develop the same type of single-family development on this site and will be able to do so in the R-7 zones but will only be able to provide smaller lots with less open space if the R-12 zone is retained. 2. Response to Email from Tualatin Riverkeepers. Tualatin Riverkeepers raises an issue regarding the wetlands. As noted above, the City does not regulate wetlands that are not located on the City's Sensitive Lands map. As long as Venture is able to demonstrate to the satisfaction of DSL and the COE that the isolated wetlands may be filled, then that is appropriate. Tualatin Riverkeepers also argues that the wetlands areas may not be included in density calculations. For the reasons explained below under the discussion of net development area, density calculations are controlled by the TCDC, not Metro. 3. Calculation of Net Development Area. The City Council finds that the definition of"net development area" in TCDC 18.715.020.A.1 excludes areas not mapped as Sensitive Lands. Wetlands outside of Sensitive Lands may be calculated as part of the net development area. Further, TCDC 18.775.010, part of the "Purpose" statement, does not control over the specific definition found in TCDC 18.715.020.A.1. Finally, TCDC 18.775.020.D, "Jurisdictional Wetlands," provides that wetlands, subject to other jurisdictional requirements and not mapped as sensitive wetlands on the City's map, are not subject to a Sensitive Lands permit. Because the two (2) isolated wetlands areas on the site are not located on the City's Sensitive Lands map, and because they are subject to the jurisdiction of DSL and the COE, they may be filled if the approval criteria for fill are satisfied. Ms. Doukas, representing Venture, submitted a separate letter requesting a condition of approval providing that to provide that in the event that Venture demonstrates that it is feasible to obtain the necessary fill permits,then it is appropriate to include the two (2) isolated wetlands areas in the net development area so that they may be calculated for density purposes. If fill permits are not obtained, then they must be excluded from the net development area. In any event, the City Council finds that it is feasible for Venture to obtain the necessary fill permits and,pursuant to -9- 1 16543-0002/LEGAL 127016621.1 the relevant TCDC provisions cited above, the two (2) isolated wetlands areas may be calculated as part of the net development area and included in the density of the site. -10- 1 1 6543-0002/LEGAL 127016621.1 AIS-2288 5, Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 15 Minutes Agenda Title: Century Link Franchise Agreement Submitted By: Louis Sears,Finance and Information Services Item Type: Ordinance Meeting Type: Council Public Hearing- Informational Business Meeting- Main Public Hearing No Newspaper Legal Ad Required?: Public Hearing Publication Date in Newspaper: Information ISSUE Should City Council approve a new Metro Area Communications Commission (MACC) franchise agreement for CenturyLink? STAFF RECOMMENDATION / ACTION REQUEST Staff recommends approving the new CenturyLink cable franchise agreement. KEY FACTS AND INFORMATION SUMMARY The City of Tigard is a member of MACC with other regional jurisdictions which includes Washington County,Banks, Beaverton, Cornelius,Durham,Forest Grove, Gaston, King City,Lake Oswego, North Plains, Rivergrove, Hillsboro,West Linn, and Tualatin. IVIACC administers the cable franchise agreements for Comcast and Frontier for the MACC member jurisdictions. MACC jurisdictions voted unanimously to recommend the CenturyLink franchise agreement. All 5 Affected MACC Jurisdictions must approve the Century Link Franchise Agreement for it to become effective,Tigard,Lake Oswego,North Plains,West Linn and unincorporated Washington County. Please see attached document"CTL-MACC side by side draft" for a comparison to other cable franchise agreements with MACC. OTHER ALTERNATIVES City Council could choose not to approve the CenturyLink cable franchise agreement. COUNCIL OR CCDA GOALS, POLICIES,MASTER PLANS Not applicable DATES OF PREVIOUS CONSIDERATION Not applicable Attachments Franchise Comparison CTL MACC Members Resolution Q&A CTL Cable Franchise Agreement Ordinance Staff Report MACC Area PROPOSED FRANCHISE COMPARISON Metropolitan Area Communications Commission July 8, 2015 FRANCHISE 2015 2007 2015 PROVISION COMCAST Frontier Century Link § Term 10 years (through mid 2025) 15 years (through mid 2022) 5 years (through mid 2020). 2.3 May be extended through 2023 -- if Century Link builds to twenty percent of the area by 2018, and Another extension through 2025 (total of 10 years) if fifty percent of the area is offered service by 2021. Incentives are built into the franchise to encourage service to more areas. PEG PROGRAMMING HD Channels 3 new HD channels No HD requirement All PEG channels will be in SD and HD. 9.4 implemented over 4 years. {00463592;I FRANCHISE 2015 2007 2015 PROVISION COMCAST Frontier Century Link § PEG/PCN Fee Although the per subscriber $1.00/subscriber/month $0.80/subscriber/month 13 fee, falls to $0.80 per month, there is no reduction on the Same as new Comcast franchise. PEG/PCN Fund: Combining the three franchises requires Comcast to provide funding based on an additional 25,000 subscribers. Commission will allocate funding following a review of current PEG/PCN Fund Policy early next Fiscal Year. PEG Origination Eighteen Origination Points— Five Origination Points Two Origination sites (in West Linn) 9.8 Points new sites for council meetings and other programming direct from jurisdiction sites. Includes new Cornelius & Tualatin City Hall locations. Video On Demand No Requirement No Requirement Up to 25 hours of HD VOD programming available to TVCTV. {00463592; 1 } side/side 7/22/15 3 FRANCHISE 2015 2007 2015 PROVISION COMCAST Frontier CenturyLink § ROW AUTHORITY Right of Way Use ROW requirements are ROW use is independently ROW use is independently regulated by 2.2 substantively unchanged from regulated by jurisdictions' codes. jurisdictions' codes. previous franchise. As with Frontier, Century Link uses its existing facilities, over which it will now provide a cable television service. The oversight of those facilities by the jurisdictions will not be changed by this cable franchise. Unlike Frontier, Century Link does not propose to provide universal fiber to the home, which would require extensive ROW work. Competition If competitor's franchise has Not addressed Not addressed. n/a terms that are perceived to be less demanding on these Competitor has matched the relevant points: terms of the incumbent • 5% franchise fee • PEG funding • PEG channels • Customer Service standards • Complimentary services Then, Comcast may initiate a process to mitigate perceived competitive inequity. {00463592; 1 } side/side 7/22/15 4 FRANCHISE 2015 2007 2015 PROVISION COMCAST Frontier Century Link § FINANCE Franchise fees Five Percent Franchise Fee Five Percent Franchise Fee Five Percent Franchise Fee 6 Gross Revenue MACC retained its broad Same basis as Comcast Identical to new Comcast definition. 1.22 Definition definition of Gross Revenue— the application of a 5% fee on All franchises have same basis for all revenue attributable to application of 5% franchise fee. Cable Services. Still better standard than most franchises and all area franchises. If the revenue base is the same, MACC collections in CY2015 would be: $6.5M, a 1.5% drop. (No longer includes PCN revenue due to changes in PCN management.) Insurance Limits General Liability: $3 million General Liability: $3 million General Liability: $3 million 5.1 Broadcasters Liab: $1 million Broadcasters Liab: $1 million Broadcasters Liab: $1 million Auto BI/PD: $2 million Auto BI/PD: $2 million Auto BI/PD: $2 million Employers Liab: $2 million Employers Liab: $2 million Employers Liab: $2 million (00463592; 1 } side/side 7/22/15 5 FRANCHISE 2015 2007 2015 PROVISION COMCAST Frontier Century Link § Audit authority Retained all data submission Same as Comcast Same as Comcast 3.6 requirements. No changes in the timing of, or the way MACC conducts audits. If underpaid 4% or more, company pays the total cost of the audit up to $15,000. Comparable to Frontier. Insurance Limits General Liability: $3 million General Liability: $3 million General Liability: $3 million 5.1 Broadcasters Liab: $1 million Broadcasters Liab: $1 million Broadcasters Liab: $1 million Auto BI/PD: $2 million Auto BI/PD: $2 million Auto BI/PD: $2 million Employers Liab: $2 million Employers Liab: $2 million Employers Liab: $2 million Comcast will abide by the Substantially same as Comcast Substantially same as Comcast Attc. CUSTOMER Frontier customer service A SERVICE model, unifying the standards that apply to all cable operators in the MACC area. {00463592; 1 } side/side 7/22/15 METROPOLITAN AREA COMMUNICATIONS COMMISSION RESOLUTION 2015-07 A RESOLUTION RECOMMENDING THAT THE AFFECTED MEMBER JURISDICTIONS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION GRANT QWEST BROADBAND SERVICES,INC. d/b/al CENTURYLINK,A CABLE SERVICES FRANCHISE WHEREAS, in 1980 the Metropolitan Area Communications Commission(hereinafter MACC)was formed by Intergovernmental Cooperation Agreement,amended in 2002 and now an Intergovernmental Agreement(hereinafter IGA)to work cooperatively and jointly on communications issues,in particular the franchising of cable services and the common administration and regulation of such franchises; WHEREAS,today the member jurisdictions of MACC consist of Washington County and the cities of Banks,Beaverton,Cornelius,Durham,Forest Grove,Gaston, Hillsboro,King City, Lake Oswego,North Plains,Rivergrove,Tigard,Tualatin, and West Linn; WHEREAS,the IGA authorizes MACC to grant one or more nonexclusive franchises to construct, operate, and maintain a cable system within the combined boundaries of the member jurisdictions; WHEREAS,the IGA requires that each member jurisdiction in which cable service will be provided under the franchise formally approve any joint cable services franchise agreements,or any amendment or renewal of such agreements; WHEREAS,Qwest Broadband Services,Inc. d/b/a CenturyLink(hereinafter"CenturyLink"), formally requested a franchise authorizing the provision of cable services to the following MACC member jurisdictions: Lake Oswego,Tigard,North Plains,West Linn and unincorporated Washington County("Affected Jurisdictions"); WHEREAS,MACC has provided adequate notice and opportunities for public comment on the proposed new cable services franchise including a public hearing held on July 8,2015; WHEREAS,the MACC Board of Commissioners finds the proposed new cable franchise reflects the cable-related community needs of the Affected Jurisdictions,and that CenturyLink has the legal,technical,and financial qualifications to own and operate the proposed cable services system,and therefore recommends to the Affected Jurisdictions that they grant the franchise to Qwest Broadband Services,Inc. d/b/a/CenturyLink; RESOLUTION NO. 2015-07 {00469679;1 }9 METROPOLITAN AREA COMMUNICATIONS COMMISSION RECOMMENDING GRANT OF FRANCHISE TO Qwest Broadband Services,Inc. dlb/a CenturyLink NOW,THEREFORE BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION THAT: 1. MACC recommends to the Affected Jurisdictions that they grant CenturyLink a cable services franchise substantially in the form attached hereto as Exhibit A("Franchise"). 2. In accordance with the requirements of the IGA,the member jurisdictions' grant of the Franchise shall be contingent on the affirmative vote of each Affected Jurisdiction's governing body. 3. The MACC Administrator is hereby authorized to execute the Franchise on behalf of the Affected Jurisdictions only after MACC staff's determination that CenturyLink has fulfilled the Franchise acceptance provisions contained in the Franchise and that each Affected Jurisdiction has approved the Franchise. 4. This resolution shall be effective from and after its adoption. ADOPTED BY THE BOARD OF COMMSSIONERS 0 - ' •POLITAN AREA COMMUNICATIONS COMMISSION I : H D . O 015. if Lir • ne Nyberg,Chair Attachment: Exhibit A- CenturyLink Cable Services Franchise RESOLUTION NO.2015-07 (00469679;1 )10 METROPOLITAN AREA COMMUNICATIONS COMMISSION RECOMMENDING GRANT OF FRANCHISE TO Qwest Broadband Services,Inc. d/b/a CenturyLink Cable Franchise Adoption Questions and Answers Prepared by MACC August 2015 Q1: What is MACC? A: Your jurisdiction is a member of the Metropolitan Area Communications Commission — a fifteen member joint powers organization. MACC was created in 1980 to provide a centralized agency to prepare for, negotiate and administer cable television franchises. On behalf of the member jurisdictions, in accordance with its Intergovernmental Agreement (IGA), MACC provides the daily management of the area's cable franchises(Comcast and Frontier), including: • Finance-Franchise fee collection, audits, insurance and bonds • Centralized Customer Service Regulation—all complaint calls should come to MACC • TVCTV's Public and Government Access programming services—a division of MACC • General administration and compliance with Federal cable television franchising rules • Coordination of the Public Communications Network(PCN) Q2: How does MACC operate? A: Each member jurisdiction is an equal partner in MACC. Jurisdictions appoint a MACC Commissioner who participates, reviews and recommends new and renewed cable television franchises along with other administrative chores. When MACC recommends a cable franchise, the MACC IGA requires that every affected member jurisdiction approve the franchise in order to make it effective. For the recommended Comcast franchise, that requires all 15 members. For the recommended CenturyLink franchise,the five affected members' governing boards must approve. Q3: How are cable television franchise negotiations different than other negotiations? A: Incumbent Cable Operators, such as Comcast, have the right to renew their franchise through negotiation. While there are certain limiting federal laws and requirements, a company already in the Right of Way has rights to continue service unless it has failed to perform, or it will not meet the demonstrated needs of the communities it serves. Competitive Cable Operators, such as CenturyLink, also have certain rights to provide cable television service over new or existing facilities. These competitive cable franchises cannot be unreasonably denied. Q4: What benefits does the Comcast franchise provide my jurisdiction? A: The primary benefits are financial,reduced-cost connectivity and customer service regulation: • The 5% franchise fee paid by Comcast provides about $6.5million to the member jurisdictions each year. The Franchise provides for continued fee review and audit functions by MACC. • PCN service costs are reduced. • Public Meeting coverage through TVCTV is secured, and upgraded to High Definition(HD). • The PEG/PCN Fee is set at 800/month, a lower cost than previously collected, but enough to fully support these programs. • Complementary TV service will continue to be provided to public buildings. Q5: What benefits does the CenturyLink franchise provide my jurisdiction? A: In addition to the benefits provided by the new Comcast franchise (which the Century Link franchise generally matches or exceeds), the Century Link franchise provides the opportunity for Century Link telephone customers in five member jurisdictions (Lake Oswego, North Plains, Tigard, West Linn and portions of Washington County, the "Affected Jurisdictions")to have a new choice in the video marketplace. In addition, a landline competitor provides funding to the Affected Jurisdictions through the franchise fee—satellite alternatives Dish and DirecTV do not. Q6: What is non-negotiable in a cable television franchise? A: Federal Law restricts local governments from negotiating: • Rates for service or equipment. • Programming—either including or excluding any particular channel. • The type of technology a cable operator uses to transmit its signals. • Internet regulation. • The amount of the franchise fee is capped under the Cable Act at 5%of Gross Revenue. Q7: How does this franchise address competition issues? A: In both franchises,MACC and the companies tried to ensure a level playing field. Cable television is an increasingly competitive environment, with new options and providers every day. In the Comcast franchise, certain provisions were inserted to ensure the viability of the franchise, regardless of new technology or regulation. The CenturyLink franchise mirrors many of the integral Comcast franchise requirements. Q8: When will these Franchises be effective? A: The Comcast franchise will be effective retroactively back to July 1, following the approval of all 15 MACC jurisdictions. This is expected by early October. CenturyLink's franchise is effective at the time when the five Affected Jurisdictions have approved the franchise — probably by mid October. For additional questions about the renewal process, contact Fred Christ, MACC Administrator,at 503-645-7365 x206 or at fchristmaccor.org. MACC's website is: www.maccor.org Exhibit A CABLE FRANCHISE AGREEMENT between the cities of LAKE OSWEGO, NORTH PLAINS, TIGARD, WEST LINN, and WASHINGTON COUNTY AS PARTICIPATING MEMBERS OF THE METROPOLITAN AREA COMMUNICATIONS COMMISSION AND QWEST BROADBAND SERVICES,INC.D/B/A CENTURYLINK 2015 {00454415;3) TABLE OF CONTENTS ARTICLE PAGE 1. DEFINITIONS 2 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS 8 3. SYSTEM FACILITIES 12 4. PEG SERVICES 13 5. PEG ACCESS AND PCN GRANT FUND 17 6. FRANCHISE FEES 18 7. CUSTOMER SERVICE 20 8. REPORTS AND RECORDS 21 9. INSURANCE AND INDEMNIFICATION 23 10. TRANSFER OF FRANCHISE 24 11. RENEWAL OF FRANCHISE 25 12. ENFORCEMENT AND TERMINATION OF FRANCHISE 25 13. MISCELLANEOUS PROVISIONS 28 EXHIBIT A--FRANCHISE AREA MAPS 32 EXHIBIT B-ORIGINATION POINTS 35 EXHIBIT C-QUARTERLY FRANCHISE FEE REMITTANCE FORM 36 EXHIBIT D-CUSTOMER SERVICE STANDARDS 37 EXHIBIT E-GRANTEE CORPORATE STRUCTURE 47 EXHIBIT F-QUARTERLY CUSTOMER SERVICE STANDARDS PERFORMANCE REPORT 48 MACC/CENTURYLINK JULY 8 2015 1. DEFINITIONS Except as otherwise provided herein the following definitions shall apply: 1.1. Access Channel: A video channel, which Franchisee shall make available to Grantor without charge for non-commercial public, educational, or governmental use for the transmission of video programming as directed by Grantor. 1.2. Affected Jurisdictions: Unincorporated Washington County and the cities Lake Oswego,North Plains, Tigard and West Linn 1.3. Affiliate: Any Person who, directly or indirectly, owns or controls, is owned or controlled by,or is under common ownership or control with,Franchisee. 1.4. Basic Service: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522, which currently states, "any service tier which includes the retransmission of local television broadcast signals." 1.5. C'able Operator: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(5), which currently states, "any person or group of persons (A)who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system." 1.6. Cable Service or Cable Services: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(6), which currently states, "the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any,which is required for the selection or use of such video programming or other programming service." 1.7. Cable System or System: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(7), which currently states, "a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Communications Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c))to the extent that such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for operating its electric utility systems." The Cable System shall be limited to the optical spectrum wavelength(s), bandwidth or future technological capacity that is used for the transmission of Cable Services directly to Subscribers within the Franchise Area and shall not include the tangible network facilities of a MACCICENTURYI.INK 2015(00454415;3} 2 JULY 8, 2 0 1 5 common carrier subject in whole or in part to Title II of the Communications Act or of an Information Services provider. 1.8. Channel: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(4), which currently states, "a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation)." 1.9. Commission: The Metropolitan Area Communications Commission, its officers, agents and employees, and, its member jurisdictions which are the Oregon cities of Banks, Beaverton, Cornelius, Durham, Forest Grove, Gaston, Hillsboro, King City, Lake Oswego, North Plains, Rivergrove, Tigard, Tualatin and West Linn together with Washington County or as that membership may change over time. The Commission was created and exercises its powers pursuant to an Intergovernmental Cooperation Agreement, as authorized by state law (particularly ORS Chapter 190) and the laws, charters, and other authority of the individual member units of local government who are members of the Commission. The powers of the Commission have been delegated to it by its members and although it may exercise those powers as an entity,it remains a composite of its members. 1.10. Communications Act: The Communications Act of 1934,as amended. 1.11. Control: The ability to exercise de facto or de jure control over day-to- day policies and operations or the management of corporate affairs. 1.12. Days: Calendar days unless otherwise noted. 1.13. Designated Access Provider or DAP: The entity or entities designated by the Grantor to manage or co-manage the Public, Education, and Government Access Channels and facilities. The Grantor may be a Designated Access Provider. 1.14. Educational Access Channel: An Access Channel available solely for the use of the local public schools in the Franchise Area and other higher level educational institutions in the Franchise Area. 1.15. Effective Date: The effective date of this Agreement shall be upon the Grantor's written certification of approval from all Affected Jurisdictions and Grantee's unconditional written acceptance of this Agreement. If either event fails to occur, this Agreement shall be null and void, and any and all rights of Grantee to own or operate a Cable System within the Franchise Area under this Agreement shall be of no force or effect. 1.16. FCC: The United States Federal Communications Commission, or successor governmental entity thereto. 1.17. Force Majeure: An event or events reasonably beyond the ability of Franchisee to anticipate and control. This includes, but is not limited to, severe or unusual weather conditions, strikes, labor disturbances, lockouts, war or act of war (whether an actual declaration of war is made or not), insurrection, riots, act of public enemy, actions or inactions of MACC/CENTURYLINK 2015(00454415;3) 3 JULY 8, 2 0 1 5 any government instrumentality or public utility including condemnation, accidents for which Franchisee is not primarily responsible, fire, flood, or other acts of God, or documented work delays caused by waiting for utility providers to service or monitor utility poles to which QC's Facilities are attached, and documented unavailability of materials and/or qualified labor to perform the work necessary to the extent that such unavailability of materials or labor was reasonably beyond the ability of Grantee to foresee or control. 1.18. Franchise Area: Those portions of the Affected Jurisdictions as shown in Exhibit A,and such additional areas as may be included in the corporate(territorial) limits of the Affected Jurisdictions during the term of this Agreement to the extent those areas are served by the Grantee or its Affiliates. 1.19. Grantee: Qwest Broadband Services, Inc. d/b/a CenturyLink and its lawful and permitted successors, assigns,and transferees. 1.20. Government Access Channel: An Access Channel available solely for the use of Grantor and other local governmental entities located in the Franchise Area. 1.21. Grantor: The Metropolitan Area Communications Commission (MACC) created in 1980 which is the local franchising authority for the Commission's member jurisdictions, and individually (and, where applicable, collectively) the Affected Jurisdictions, or the lawful successor,transferee, or assignee thereof. 1.22. Gross Revenue: Gross Revenue means, and shall be construed broadly to include, all amounts in whatever form and from all sources derived directly or indirectly by Grantee and/or an Affiliate from the operation of Grantee's Cable System to provide Cable Services within the Franchise Area. Gross revenues include, by way of illustration and not limitation: • Fees for Cable Services,regardless of whether such Cable Services are provided to residential or commercial Subscribers, including revenues derived from the provision of all Cable Services(including but not limited to pay or premium Cable Services, digital Cable Services,pay-per-view,pay-per-event, audio channels and video-on-demand Cable Services); • Installation, disconnection,reconnection, downgrade,upgrade,maintenance, repair, or similar charges associated with Subscriber Cable Service; • Fees paid to Grantee for Channels designated for commercial/leased access use; which shall be allocated on a pro rata basis using total Cable Service Subscribers within the Franchise Area; • Converter, remote control,and other Cable Service equipment rentals, leases,or sales; • Payments for pre-paid Cable Services and/or equipment; • Advertising Revenues as defined herein; • Fees including, but not limited to: (1) late fees, convenience fees and administrative fees which shall be allocated on a pro rata basis using Cable Services revenue as a percentage of total Grantee revenues within the Franchise MACC/CENTURYLINK 2015{00454415;3) 4 JULY 8, 2 0 1 5 Area; (2)Franchise fees; (3)the FCC user fee and (4)PEG fees if included on Subscriber billing statements; • Revenues from program guides; and • Commissions from home shopping channels and other Cable Service revenue sharing arrangements which shall be allocated on a pro rata basis using total Cable Service Subscribers within the Franchise Area. "Gross Revenues"shall not be net of: (1)any operating expense; (2) any accrual, including without limitation, any accrual for commissions to Affiliates; or(3) any other expenditure, regardless of whether such expense,accrual, or expenditure reflects a cash payment. "Gross Revenues",however, shall not be double counted. Revenues of both Grantee and an Affiliate that represent a transfer of funds between the Grantee and the Affiliate, and that would otherwise constitute Gross Revenues of both the Grantee and the Affiliate, shall be counted only once for purposes of determining Gross Revenues. Similarly, operating expenses of the Grantee which are payable from Grantee's revenue to an Affiliate and which may otherwise constitute revenue of the Affiliate,shall not constitute additional Gross Revenues for the purpose of this Franchise. "Gross Revenues"shall include amounts earned by Affiliates only to the extent that Grantee could,in concept,have earned such types of revenue in connection with the operation of Grantee's Cable System to provide Cable Services in the Franchise Area and recorded such types of revenue in its books and Records directly, but for the existence of Affiliates. "Gross Revenues"shall not include sales taxes imposed by law on Subscribers that the Grantee is obligated to collect. With the exception of recovered bad debt,"Gross Revenues"shall not include bad debt. "Advertising Revenues"shall mean amounts derived from sales of advertising that are made available to Grantee's Cable System Subscribers within the Franchise Area and shall be allocated on a pro rata basis using total Cable Service Subscribers reached by the advertising. Whenever Grantee acts as the principal in advertising arrangements involving representation firms and/or advertising Interconnects and/or other multichannel video providers, Advertising Revenues subject to Franchise fees shall include the total amount from advertising that is sold, and not be reduced by any operating expenses(e.g., "revenue offsets"and"contra expenses"and "administrative expenses"or similar expenses), or by fees, commissions,or other amounts paid to or retained by National Cable Communications or similarly affiliated advertising representation firms to Grantee or their successors involved with sales of advertising on the Cable System within the Franchise Area. "Gross Revenues"shall not include: • actual Cable Services bad debt write-offs, except any portion which is subsequently collected which shall be allocated on a pro rasa basis using Cable Services revenue as a percentage of total Grantee revenues within the Franchise Area; • any taxes and/or fees on services furnished by Grantee imposed on Subscribers by any municipality, state or other governmental unit, provided that the Franchise fee,the FCC user fee and PEG fee shall not be regarded as such a tax or fee; • launch fees and marketing co-op fees; and, MACC/CENTURYL1NK 2015(00454415;3) 5 JULY 8, 201 5 • revenues associated with the provision of managed network services provided under separate business contract. • Unaffiliated third party advertising sales agency fees or commissions which are reflected as a deduction from revenues,except when Grantee acts as a principal as specified in paragraph(A)immediately above. To the extent revenues are derived by Grantee for the provision of a discounted bundle of services which includes Cable Services and non-Cable Services, Grantee shall calculate revenues to be included in Gross Revenues using a methodology that allocates revenue on a pro rata basis when comparing the bundled service price and its components to the sum of the published rate card prices for such components. Except as required by specific federal, state or local law, it is expressly understood that equipment may be subject to inclusion in the bundled price at full rate card value. This calculation shall be applied to every bundled service package containing Cable Service from which Grantee derives revenues in the Franchise Area. The Grantor reserves its right to review and to challenge Grantee's calculations. Example: Prior to any bundle-related price reduction,if Cable Service is valued at 50%of the total of the services to be offered in a bundle,then Cable Service is to be valued and reported as being no less than fifty percent (50%)of the price of the bundled service total. Grantee reserves the right to change the allocation methodologies set forth in paragraph(C) above to meet standards mandated by the Financial Accounting Standards Board ("FASB"), Emerging Issues Task Force ("EITF") and/or the U.S. Securities and Exchange Commission("SEC"). Grantor acknowledges and agrees that Grantee shall calculate Gross Revenues in a manner consistent with GAAP where applicable; however, the Grantor reserves its right to challenge Grantee's calculation of Gross Revenues, including Grantee's interpretation of GAAP and Grantee's interpretation of FASB, EITF and SEC directives. Grantee agrees to explain and document the source of any change it deems required by FASB,EITF and SEC concurrently with any Franchise-required document at the time of submittal, identifying each revised Section or line item. Grantor agrees and acknowledges that Grantee shall maintain its books and Records in accordance with GAAP. 1.23. Information Services: Shall be defined herein as it is defined under Section 3 of the Communications Act,47 U.S.C. §153(20), which currently states, "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." MACC/CENTURYLINK 2015{00454415;3) 6 JULY 8, 2 0 1 5 1.24. Living Unit: A distinct address in QC's network inventory data base including but not limited to single family homes, multi-dwelling units (e.g., apartments and condominiums), government facilities and business locations. 1.25. Origination Points: Locations from which PEG programming is delivered to the PEG Access Headend for transmission as set forth in Exhibit B. 1.26. PEG: Public,Educational,and Governmental. 1.27. Person: An individual, partnership, association, joint stock company, trust, corporation, or governmental entity. 1.28. Public Access Channel: An Access Channel available solely for use by the residents and others in the Franchise Area, as authorized by Grantor. 1.29. Public Communications Network ("PCN") /Institutional Network: The separate communications network pursuant to a Grantor-issued cable franchise designed principally for the provision of non-entertainment, interactive services to schools, public agencies, or other non-profit agencies for use in connection with the ongoing operations of such institutions. Services provided may include video, audio, and data to PCN subscribers on an individual application, private channel basis. This may include, but is not limited to, two-way video, audio,or digital signals among institutions. 1.30. Public Rights-of-Way: The surface and the area across, in, over, along, upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways, alleys, and boulevards, including, public utility easements and public lands and waterways used as Public Rights-of-Way, as the same now or may thereafter exist, which are under the jurisdiction or control of the Affected Jurisdictions, to the full extent of the Affected Jurisdictions' right, title, interest, and/or authority to grant a franchise to occupy and use such streets and easements for Telecommunications Facilities and Cable Service. Public Rights-of- Way shall also include any easement granted or owned by the Grantor or Affected Jurisdictions and acquired, established, dedicated or devoted for public utility purposes. Public Rights-of- Way do not include the airwaves above a right-of-way with regard to cellular or other nonwire communications or broadcast services. 1.31. Qwest Corporation or QC: The Grantee's Affiliate and owner of the facilities within the Right of Way over which Grantor's Cable Service will be provided. 1.32. Qualified Living Unit: Any Living Unit designated as qualified for Cable Service in Grantor's loop qualification network inventory database. 1.33. School: Any educational institution, public or private, registered by the State of Oregon pursuant to ORS 345.505-525, (excluding home schools), including but not limited to primary and secondary schools, colleges and universities. 1.34. Subscriber: A Person who lawfully receives Cable Service over the Cable System with Grantee express permission. MACC/CENTURYLTNK 2015{00454415;3) 7 JULY 8, 2 0 1 5 1.35. Telecommunications Facilities or QC's Facilities: The facilities owned by QC over which Grantor's Cable Service will be provided. 1.36. Title II: Title II of the Communications Act. 1.37. Title VI: Title VI of the Communications Act. 1.38. Video Programming: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(20), which currently states, "programming provided by, or generally considered comparable to programming provided by, a television broadcast station." 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS 2.1. Grant of Authority: Subject to the terms and conditions of this Agreement, Grantor and Affected Jurisdictions hereby grant to Grantee the right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way within the Franchise Area in order to provide Cable Service. No privilege or power of eminent domain is bestowed by this grant;nor is such a privilege or power bestowed by this Agreement. 2.1.1. This Agreement is intended to convey limited rights and interests only as to those streets and Public Rights-of-Way in which the Affected Jurisdictions have an actual interest. It is not a warranty of title or interest in any Public Right-of-Way, it does not provide the Grantee any interest in any particular location within the Public Right-of-Way, and it does not confer rights other than as expressly provided in the grant hereof. Except as set forth in this Agreement, this Agreement does not deprive Grantor or Affected Jurisdictions of any powers, rights, or privileges they now have or may acquire in the future under applicable law, to use, perform work, or regulate the use and control of the Affected Jurisdictions' streets covered by this Agreement, including without limitation, the right to perform work on their roadways, Public Rights-of-Way,or appurtenant drainage facilities,including constructing,altering,paving, widening, grading or excavating thereof. 2.1.2. This Agreement authorizes Grantee to engage in providing Cable Service. Nothing herein shall be interpreted to prevent Grantor or Grantee from challenging the lawfulness or enforceability of any provisions of applicable law. 2.1.3. To the extent Grantee uses other parties (whether or not affiliated) to fulfill its obligations hereunder, Grantee will insure such parties comply with the terms and conditions of this Agreement. 2.2. Regulatory Authority Over QC's Facilities: Jurisdiction over QC's Facilities is governed by federal, state and local law. Grantor's regulatory authority under Title VI of the Communications Act is not applicable to the construction, installation, maintenance, or operation of QC's Facilities to the extent QC's Facilities are constructed, installed, maintained, or operated for the purpose of upgrading and/or extending existing QC's Facilities for the provision of non-Cable Services. Nothing in this Agreement shall affect the Grantor or Member Jurisdictions' authority to adopt and enforce lawful regulations with respect to the Public Rights- of-Way. MACGCENTURYLJNK 2015(00454415;3) 8 JULY 8, 2 0 1 5 QC will be primarily responsible for the construction and installation of QC's Facilities in the Public Rights of Way which will be utilized by Grantee to provide Cable Service. So long as QC does not provide Cable Services to Subscribers in the Affected Jurisdictions, QC will not be subject to the terms and conditions contained in this Franchise. QC's installation and maintenance of QC's Facilities in the Public Rights of Way shall otherwise be subject to applicable laws and permit requirements. To the extent Grantee uses any third- parties (whether or not affiliated with the Grantee) to fulfill its obligations under this Franchise, Grantee will insure such parties comply with the terms and conditions of this Franchise. To the extent Grantee constructs and installs facilities in the Public Rights of Way of the Affected Jurisdictions, such installations and facilities will be subject to the terms and conditions contained in this Franchise and all applicable Grantor laws, ordinances, resolutions, rules and regulations. 2.3. Term of Franchise. This Franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall expire on December 31, 2020 unless terminated sooner as provided in this Franchise or extended as provided in Section 2.4. 2.4. Franchise Term Extension. 2.4.1. The term of the Franchise under Section 2.3 hereof, and all rights, privileges,obligations and restrictions pertaining thereto,shall be extended: 2.4.2. An additional three (3) years to December 31, 2023 if, by December 31, 2018,Grantee offers Cable Services to percent(20%) or more of the Living Units in the Franchise Area and duly notifies Grantor with reasonable documentation; and 2.4.3. An additional two (2) years to December 31, 2025 if, by December 31, 2021, Grantee offers Cable Services to an additional thirty percent (30%) or more of the Living Units in the Franchise Area and duly notifies Grantor with reasonable documentation. 2.5. The extension of the term of this Franchise under Section 2.4.1. and 2.4.2. shall not become effective until after the Grantor has accepted Grantee's documents substantiating that Grantee has completed the requirements of Section 2.4.1. or Section 2.4.2, as applicable. Grantee shall submit reasonable documentation regarding achievement of the targets set forth in Section 2.4 hereof to the Grantor not less than 180 days prior to expiration of the initial or extended term of the Franchise as applicable. 2.6. Grant Not Exclusive: This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements,permits, easements or licenses granted by Grantor or Affected Jurisdictions to any Person to use any street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever, including the right of the Affected Jurisdictions to use same for any purpose they deem fit, including the same or similar purposes allowed Grantee hereunder. Affected Jurisdictions may, at any time, grant authorization to use the Public Rights-of-Way for any purpose not incompatible with Grantee's authority under this Agreement, and for such additional franchises for cable systems as the Grantor deems appropriate. Any such rights which are granted shall not adversely impact the authority as granted under this Agreement. MACC/CENTURYLINK 2015{00454415;3) 9 JULY 8, 2 0 1 5 2.7. Effect of Acceptance: By accepting the Agreement, the Grantee: (1) acknowledges and accepts the Grantor's and Affected Jurisdictions' legal right to issue the Agreement; (2) acknowledges and accepts the Grantor's legal right to enforce the Agreement on behalf of the Affected Jurisdictions; (3) agrees that it will not oppose the Grantor intervening or other participation in any proceeding affecting Cable Service over the Cable System in the Franchise Area; (4) accepts and agrees to comply with each and every provision of this Agreement; and (5) agrees that the Agreement was granted pursuant to processes and procedures consistent with applicable law,and that it will not raise any claim to the contrary. 2.8. Franchise Subject to Federal Law: Notwithstanding any provision to the contrary herein, this Franchise and its exhibits are subject to and shall be governed by all applicable provisions of federal law and regulation as they may be amended, including but not limited to the Communications Act. 2.9. No Waiver: 2.9.1. The failure of Grantor on one or more occasions to exercise a right or to require compliance or performance under this Franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by Grantor, nor to excuse Grantee from complying or performing, unless such right or such compliance or performance has been specifically waived in writing. 2.9.2. The failure of Grantee on one or more occasions to exercise a right under this Franchise or applicable law, or to require performance under this Franchise, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse Grantor from performance, unless such right or performance has been specifically waived in writing. 2.10. Construction of Agreement: 2.10.1.The provisions of this Franchise shall be liberally construed to effectuate their objectives. 2.10.2.Nothing herein shall be construed to limit the scope or applicability of Section 625 Communications Act,47 U.S.C. § 545. 2.11. To the extent permitted by law, if there is a change in federal law or state law that permits Grantee to opt out of or terminate this Agreement, then Grantee agrees not to exercise such option. 2.12. Police Powers: In executing this Franchise Agreement, the Grantee acknowledges that its rights hereunder are subject to the lawful police powers of Grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public and Grantee agrees to comply with all lawful and applicable general laws and ordinances enacted by Grantor pursuant to such power. Nothing in this Agreement shall be construed to prohibit the reasonable, necessary, and lawful exercise of Grantor's police powers. Recognizing the Grantee is subject to MACGCENTURYLINK 7015(00454415;3) 10 JULY 8, 2 0 1 5 Grantor's police powers, Grantor cannot unilaterally change the express provisions of this Agreement that relate to the provision of Cable Services. 2.13. Service Date. Grantee shall offer Cable Services on a commercial basis to one or more subscribers within the Franchise Area on a Service Date no later than_forty five days after the Franchise Agreement has been fully executed. Grantee shall meet with Grantor at least annually to demonstrate where its Cable Services are available together with its plans, if any, to increase its Cable Service footprint. 2.14. Non-Discrimination. 2.14.1. Grantee shall comply with applicable federal, state or local laws relating to non-discrimination. Grantee shall offer and provide Cable Services to all Persons within the Franchise Area under non-discriminatory terms and conditions. Grantee shall not deny Cable Service, or otherwise discriminate against Subscribers, Programmers or any Person, on the basis of race, religion, color, sex, marital status, familial status, national origin, age, disability, sexual orientation, income level or source of income. 2,14.2. Grantee shall not arbitrarily refuse to provide Cable Services to any Person within the Franchise Area. Grantee's designation of any Qualified Living Unit shall not be based upon race, religion, color, sex, marital status, familial status, national origin, age, disability, sexual orientation, income level or source of income. 2.14.3. Grantee's rates and charges shall be published, and shall be non- discriminatory as to all Persons of similar classes, under similar circumstances and conditions. 2.14.4. Grantee shall establish similar rates and charges for all Subscribers receiving similar services, regardless of Subscriber's race, color, religion, age, sex, marital or economic status, national origin, sexual orientation, disability, income source, or geographic location within the Franchise Area. Nothing in this Section shall be construed to prohibit: 2.14.4.1. The temporary reduction or waiving of rates and charges in conjunction with promotional campaigns; 2.14.4,2. Grantee from offering reasonable discounts to senior citizens or discounts to economically disadvantaged citizens; 2.14.4.3. Grantee establishing different and nondiscriminatory rates and charges and classes of services for commercial subscribers, as well as different, nondiscriminatory monthly rates for classes of commercial subscribers;or 2.14.4.4. Grantee from establishing reduced bulk rates for Subscribers. 2.15. Filing of Rates and Charges. Grantee shall maintain on file with the Grantor or provide via a working Internet link with contemporaneous notice to Grantor upon change, a complete and current schedule of applicable Subscriber rates and charges for Cable MACC/CENTURYLINK 2015(00454415;3} 1 1 JULY 8, 2 0 1 5 Services provided under this Franchise, in a form satisfactory to the Grantor. Nothing in this Section shall be construed to require the Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. As used solely in this Section, no rate or charge shall be considered temporary if Subscribers have the ability over a period greater than six (6) consecutive months to purchase Cable Services at such rate or charge. 2.16. Changes in Rates and Charges. 2.16.1. Grantee shall provide written notice to the Grantor and Subscribers at least 30 days in advance of any increase in rates and charges. Notice to the Grantor of proposed increases in rates and charges shall be filed in a form satisfactory to the Grantor, which may include notice by means of a working Internet link with contemporaneous notice to Grantor upon change. 2.16.2. Unless the Grantor has lawfully required prior review of Grantee's rate increase in accordance with the requirements and conditions of applicable law, Grantee's rate increase shall become effective on the date identified in the form filed by the Grantee, provided that the effective date shall not be earlier than the 31st day after such filing, 2.17. Provision of Equipment and Services to Individuals with Disabilities. Grantee shall provide Cable Services and equipment to Subscribers with disabilities in accordance with federal and state laws. 2.18. Connection of Public Facilities. Grantee shall, at no cost to Grantor, provide one (1) outlet of basic and digital economy tier (or its functional equivalent) Programming to public use buildings, as designated by the Grantor, and all libraries and Schools. Those portions of buildings housing prison/jail populations shall be excluded from this requirement. In addition, Grantee agrees to provide, at no cost, one(1) outlet of basic and digital economy tier (or its functional equivalent) Programming to all such future public buildings. Requirement is waived if such building is (a) currently served by any other franchised Cable Operator or(b) not a Qualified Living Unit. 2.19. Service Extension. Following the Service Date, Grantee shall provide Cable Services upon request from any Person in the Franchise Area who resides in a Qualified Living Unit. 3. SYSTEM FACILITIES 3.1. System Characteristics: The Cable System must conform to or exceed all applicable FCC technical perfonnance standards, as amended from time to time. Grantee's Cable System shall substantially conform in all material respects to applicable sections of the following standards and regulations to the extent such standards and regulations remain in effect and are consistent with accepted industry standards. 3.1.1. The System shall be capable of standard digital, HDTV,VOD, as well as other future services. MACC/CENTURYL[NK 2015(00454415;3) 12 JULY 8, 2 0 1 5 3.1.2. The System shall have a modern design, when built, utilizing an architecture that will permit additional improvements necessary for high quality and reliable service throughout the Franchise Tenn. 3.1.3. The System shall have protection against outages due to power failures, so that back-up power is available at a minimum for at least twenty-four (24) hours at each headend, and conforming to industry standards, but in no event rated for less than four (4) hours, at each power supply site. 3.1.4. All work authorized and required hereunder shall be done in a safe, thorough and workman-like manner. The Grantee must comply with all safety requirements, rules, and practices and employ all necessary devices as required by applicable law during construction, operation and repair of its Cable System. By way of illustration and not limitation, the Grantee must comply with the National Electrical Code, National Electric Safety Code, and Occupational Safety and Health Administration(OSHA) Standards. 3.2. Inspection of Facilities: The Grantor may inspect upon request any of Grantee's facilities and equipment to confirm performance under this Agreement upon at least twenty-four (24) hours notice. In all instances, a qualified representative of Grantee must be available to accompany the tour to insure that no privacy requirements are violated. 3.3. Emergency Alert System. Grantee shall comply with the Emergency Alert System ("EAS") requirements of the FCC in order that emergency messages may be distributed over the System. 3.3.1. In the event of a state or local civil emergency, the EAS shall be activated by equipment or other acceptable means as set forth in the State and Local EAS Plans. Affected Jurisdictions shall permit only appropriately trained and authorized Persons to activate the EAS equipment through the EAS Local Primary Stations (LP1 or LP2) and remotely override the audio and video on all channels on the Cable System. Each Affected Jurisdiction shall take reasonable precautions to prevent any inappropriate use of the EAS or Cable System, or any loss or damage to the Cable System, and, except to the extent prohibited by law, shall hold harmless and defend Grantee, its employees, officers and assigns from and against any claims arising out of use of the EAS by that Affected Jurisdiction, including but not limited. to, reasonable attorneys' fees and costs. 4. PEG SERVICES 4.1. PEG Access Channels: 4.1.1. All PEG Access Channels provided for herein shall be administered by the Grantor or its designee. Grantor or its designee shall establish rules and regulations for use of PEG facilities consistent with, and as required by, 47 U.S.C. §531. Grantee shall cooperate with Grantor or its designee in the use of the Cable System for the provision of PEG Access Channels. MACC/CENTURYLINK 2015 100454415;3} 13 JULY 8, 2 0 1 5 4.1.2. In order to ensure universal availability of Public, Educational and Government programming,Grantee shall provide Grantor,within one hundred twenty(120)days of the Effective Date of this Agreement, six (6) dedicated Public, Educational, and Government Access Channels ("PEG Access Channels"). Grantee shall not be required to distribute to its Subscribers a greater number of PEG Access Channels than those distributed by other franchised Cable Operators providing Cable Service within the Franchise Area. All PEG Access Channels will be on the Basic Service Tier and will be fully accessible to Subscribers, consistent with FCC regulations. Grantee shall ensure that the signal quality for all PEG Access Channels is in compliance with all applicable FCC technical standards. Grantee will use equipment and procedures that will minimize the degradation of signals that do not originate with the Grantee. Grantee shall provide regular and routine maintenance and repair/replacement of transmission equipment it supplies necessary to carry a quality signal on the PEG Access Channels and from any Origination Points provided for herein. 4.1.3. Within ten (10) days after the Effective Date of this Agreement, Grantor shall inform Grantee of the general nature of the programming to be carried on the initial PEG Access Channels set aside by Grantee. Grantor and Affected Jurisdictions authorize Grantee to transmit such programming within and outside the Franchise Area. Grantee shall assign the PEG Access Channels on its channel line-up as set forth in the notice from Grantor to the extent such channel assignments do not interfere with Grantee's existing or planned channel line-up. If Grantor later changes the programming carried on a PEG Access Channel(s), Grantor shall provide Grantee with at least ninety (90)days notice of the change(s). 4.1.4. If a PEG Access Channel provided under this Article is not being utilized by Grantor, Grantee may utilize such PEG Channel, in its sole discretion, until such time as Grantor elects to utilize the PEG Access Channel for its intended purpose. 4.1.5. Grantor shall require all local producers and users of any of the PEG facilities or Channels to agree to authorize Grantee to transmit programming consistent with this agreement in writing and to defend and hold harmless Grantee and Grantor from and against any and all liability or other injury, including the reasonable cost of defending claims or litigation, arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity,which result from the use of a PEG facility or PEG Access Channel. 4.1.6. Existing Access Channels: Grantee shall provide up to six(6)high definition("I-ID")Downstream Channels for distribution on Grantee's Basic Service level of Public, Educational,and Governmental Access Programming. Grantee does not relinquish its ownership of or ultimate right of control over Cable System capacity or a Channel position by initially designating it for PEG Access use. 4.1.6.1. Grantee shall place one Access Channel under this Franchise on channel 11 in Grantee's channel lineup. MACC/CENTURYLTNK 2015(00454415:3) 14 JULY 8, 2 0 1 5 4.1.6.2. Grantee shall place the remaining Access Channels under this Franchise on consecutive channel numbers in Grantee's channel lineup where other commercial standard definition(SD)format channels are carried or, for the high definition(HD) format Access Channels, where other commercial HD format channels are carried. 4.1.63. Grantee shall notify the City and the Designated Access Providers of the Access Channel assignments at least 60 days prior to Grantee making the Access Channels available to Subscribers. 4.1.6.4. If Grantee reassigns Access Channel numbers, Grantee shall provide at least 60 days advance notice to the City and the Designated Access Providers. Grantee shall ensure that Subscribers are notified of such reassignment consistent with notice requirements under the City's Cable Television Consumer Protection Policy set forth in Portland City Code Chapter 3.115. Grantee shall also use the customer messaging function of its set-top unit to provide Subscribers the new channel assignments at least 30 days prior to the change and for at least 30 days after the change. In conjunction with any reassignment of any Access Channel, Grantee shall provide a minimum of$5,000 compensation to a Designated Access Provider for costs associated with the change. Compensation shall be paid on a per-event basis, regardless of the number of channels affected by the change. 4.1.7. Grantee's Use of Mosaic Channel. 4.1.7.1. Grantee may make PEG channels available via a multi view or mosaic display. If so, Grantee shall use Channel 31 in its channel lineup as a means to provide ease of access by Subscribers to the Access Channels placed on channel numbers significantly higher than the access channels have historically been placed under other cable services franchises in the City. Grantee refers to this type of channel as a"Mosaic Channel."As used in this Section 5.3(B),"Mosaic Channel"means a channel which displays miniaturized media screens and related information for a particular cluster of channels with common themes. The Mosaic Channel serves as a navigation tool for subscribers, which displays the cluster of Access Channels on a single channel screen and also provides for easy navigation to a chosen Access Channel in the cluster. 4.1.7.2. Grantee shall use its Channel 31 Mosaic Channel to display all Access Channels required under this Franchise, except the Access Channel carried on Channel 11.Grantee shall not include any other channel on the Channel 31 Mosaic Channel unless the City provides advance written consent. 4.1.7.3. The Mosaic Channel mechanism shall allow subscribers to navigate directly from Channel 31 to the requested Access Channel in a single operation without any intermediate steps. When using the Channel 31 Mosaic Channel, Subscribers shall be directed to the requested Access Channel in a high definition (HD)format if appropriate to the Subscriber's level of service; otherwise, the Subscriber shall be directed to the standard definition(SD)Access Channel. MACC/CF.NTURYLINK 2015(004541415;3} 15 JULY 8, 2 0 1 5 4.2 Grantee shall consult with the Designated Access Providers to determine the Access Channels information displayed on the Channel 31 Mosaic Channel. However,the information shall be, at a minimum, reasonably commensurate with Grantee's display of commercial channels on Mosaic Channels. 4.3 PEG Access Program Listings On Cable System's Digital Channel Guide. 4.3.1 To the extent the configuration of the Cable System allows for detailed program listings to be included on the digital Channel guide, Grantee will allow Grantor or the DAP to make arrangements with the Channel guide vendor to make detailed Programming listings available on the guide. The Grantor or DAP will be solely responsible for providing the program information to the vendor in the format and timing required by the vendor and shall bear all costs of this guide service. The cost for this service may be funded by the PEG/PCN fee as set forth below. 4.3.2. PEG Access Interface with Grantee Video-On-Demand Capabilities. No later than twelve(12)months after the Effective Date, Grantee shall include up to 25 hours, at any given time,of high definition(HD)format Access programming on its video- on-demand("VOD")platform to be accessible free of charge to Cable Services Subscribers on the same basis as commercially offered VOD content. Grantee shall downconvert HD format Access programming to a standard definition format when necessary to provide VOD Access programming to Subscribers without access to I-ID format VOD programming. Grantee agrees to work in good faith with the Designated Access Providers to establish a mutually agreeable process for placing Access programming on the VOD platform, including but not limited to, an efficient online,electronic method for provision of HD format programming to Grantee including encoding specifications for programming format. Grantee shall include Access VOD program information in its VOD program guides.Designated Access Providers are responsible for selecting the Access programming and providing it to Grantee in a high definition(HD) format. Grantee and the City recognize that future development of VOD technology may allow for the Designated Access Providers and Grantee to agree on a mutually acceptable alternative to including Access programming on Grantee's VOD platform and increasing the amount of Access programming available to Subscribers. 4.4. Connection of PEG Access Headend: 4.4.1. Grantor shall provide suitable video signals for the PEG Access Channels to Grantee at Grantor's PEG Access Headend located at 15201 NW Greenbrier Parkway, Building C-1, Beaverton, Oregon 97006. Upon receipt of a suitable video signal, Grantee shall provide, install, and maintain in good working order the equipment necessary for transmitting the PEG signal to the channel aggregation site for further processing for distribution to Subscribers. Grantee's obligation with respect to such upstream transmission equipment and facilities shall be subject to the availability, without charge to Grantee, of suitable required space, environmental conditions,electrical power supply, access,pathway within the facility, and other facilities and such cooperation of Grantor as is reasonably necessary for Grantee to fulfill such obligations. The Grantee shall, at Grantee's expense, provide connection, including all necessary terminal equipment for the transmission, of all PEG Access Channels required in this Agreement to and from the PEG Access Headend as of the Effective Date of this Agreement. If MACC/CENTURYLINK 2015{00454415;3} 16 JULY 8, 2 0 1 5 the Grantor designates new Access providers, or if a current DAP moves its site or location at its own instigation after the Effective Date of this Agreement,the direct costs to construct the Cable System from the new site or location to the nearest distribution point of the Cable System shall not be the responsibility of Grantee and may be funded from the PEG/PCN fee set forth below. 4.4.2. Changes in Technology. In the event Grantee makes any change in the Cable System and related equipment and facilities or in Grantee's Signal delivery technology, which directly or indirectly affects the Signal quality or transmission of Access services or Programming or requires Grantor to obtain new equipment in order to be compatible with such change for purposes of transport of and delivery of any Access Channels Grantee shall, at its own expense and free of charge to Grantor and DAP, take necessary technical steps or provide necessary technical assistance, including the purchase or acquisition and maintenance of all necessary equipment, and training of Grantor's Access personnel to ensure that the capabilities of Access services are not diminished or adversely affected by such change 4.4.3. Technical Quality. The Grantee shall maintain all Upstream and Downstream Access services, Programming and Interconnections at the same level of technical quality and reliability required by this Agreement and all other applicable laws, rules and regulations. Grantee shall provide routine maintenance and shall repair and replace all transmission equipment, including transmitters/receivers, associated cable and equipment, necessary to carry a quality Signal to and from demarcation at Grantor's facilities. 4.4.4. Live Origination Points. Two new, permanent Origination Points required by the Grantor as listed in Exhibit B shall be provided by Grantee within 180 days from the Franchise Effective Date, at the expense of Grantee. 4.4.5. Additional Permanent Live Origination Points requested by the Grantor in writing shall be provided by Grantee as soon as reasonably possible at the expense of Grantor. Such costs may be paid for from the PEG/PCN fee set forth below. There shall be no charge to the Grantor, to the Commission, to any other Access program, or to any other Person for the use of the Upstream Capacity from the program origination locations described in this Section, so long as the transmissions are designed for re-routing and distribution on any PEG Channel(s). 5. PEG ACCESS AND PCN GRANT FUND 5.1. Grantee shall support the continued Public, Educational and Government (PEG)Programming,through the following funding: 5.2. Fund Payments. 5.2.1. During the term of this Agreement, Grantee agrees to collect and pay Grantor eighty cents ($0.80) per Subscriber, per month to support the capital costs for PEG Access facilities, including,but not limited to, studio and portable production equipment, editing equipment and program playback equipment, or for renovation or construction of PEG Access facilities, and to support the capital and operating needs of PCN users. Nothing in this Section shall be viewed as a waiver of Grantor's rights to use the funds provided to Grantor in this Section for any lawful purpose permitted under applicable federal law. To the extent the MACCJCENTURYLINK 2015(00454415;3 1 17 JULY 8, 2 0 1 5 incumbent Cable Operator's fee for this Fund changes to an amount that is different than the fee in this section, upon sixty days written notice from the Grantor, Grantee shall automatically adjust this amount to maintain parity with the incumbent. 5.2.2. Grantee shall make such payments quarterly, following the Effective Date of this Agreement, for the preceding quarter ending March 31, June 30, September 30, and December 31. Each payment shall be due and payable no later than forty-five (45) days after the end of each quarter. 5.3. Annual Grant Award Report. Grantor shall provide a report annually to the Grantee on the use of the funds provided by to the Grantor under this Section. Reports shall be submitted to the Grantee within one hundred twenty (120)days of the close of Grantor's fiscal year. 5.4. Grantee may reasonably review Records of the Grantor related to the use of funds in such reports to confirm that funds are used in accordance with federal law and this Agreement. Grantee will notify the Grantor in writing at least thirty(30) days prior to the date of such a review and identify the relevant financial Records of Grantor that Grantee wants to review. The time period of the review shall be for the fund payments received no more than thirty-six (36) months prior to the date the Grantee notifies Grantor of its intent to perform a review. The Grantor shall make such Records available for inspection and copying during normal business hours at the office of the Grantor. 5.5. PEG Access Not Franchise Fees. Grantee agrees that financial support for the PEG Access and PCN Grant Fund, and all other Grantee PEG and PCN obligations set forth in this Agreement shall in no way modify or otherwise affect Grantee's obligations to pay Franchise fees to Grantor. Grantee agrees that although the sum of Franchise fee and the payments set forth in this Section may total more than five percent (5%) of Grantee's Gross Revenues in any twelve (12) month period, the additional commitments shall not be offset or otherwise credited in any way against any past, present or future Franchise fee payments under this Agreement so long as such fees are used in a manner consistent with this Agreement and federal law. 5.5.1. Grantor recognizes Franchise fees and certain additional commitments are external costs as defined under the FCC rate regulations in force at the time of adoption of this Agreement and Grantee has the right and ability to include Franchise fees and certain other commitments on the bills of cable Subscribers (47 C.F.R. Section 76.922). 6. FRANCHISE FEES 6.1. Payment to the Grantor: Grantee shall pay to the Grantor a Franchise fee of five percent (5%) of annual Gross Revenue. In accordance with Title VI of the Communications Act, the twelve (12) month period applicable under the Franchise for the computation of the Franchise fee shall be a calendar year. Such payments shall be made no later than forty-five (45) days following the end of each calendar quarter. Grantee shall be allowed to submit or correct any payments that were incorrectly omitted, and shall be refunded any payments that were incorrectly submitted, in connection with the quarterly Franchise fee MACC/CENrURYLINK 2015(00454415,3) 18 JULY 8, 2 01 5 remittances within ninety (90) days following the close of the calendar year for which such payments were applicable. In the event any law or valid rule or regulation applicable to this Franchise limits Franchise fees below the five percent (5%) of annual Gross Revenues required herein, Grantee agrees to and shall pay the maximum permissible amount and, if such law or valid rule or regulation is later repealed or amended to allow a higher permissible amount,then the Grantee shall pay the higher amount up to the maximum allowable by law, not to exceed five percent(5%)during all affected time periods. 6.2. Supporting Information: Each Franchise fee payment shall be accompanied by a written report prepared by a representative of Grantee showing the basis for the computation in the form attached hereto as Exhibit C. Grantor shall have the right to reasonably request further supporting documentation and information for each Franchise fee payment, subject to the confidentiality provisions in this Agreement; provided that Grantee shall not be required to develop or create reports that are not a part of its normal business procedures and reporting or that have been defined specifically within this Agreement. 6.3. Acceptance of Payments: Subject to Section 7.4 below, no acceptance of any payment shall be construed as an accord by Grantor that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim Grantor may have for further or additional sums payable or for the performance of any other obligation of Grantee. 6.4. Audit of Franchise Fee Payments: 6.4.1. Grantor, or its designee, may conduct an audit or other inquiry in relation to payments made by Grantee no more than once every two (2) years during the Term. As a part of the audit process, Grantor or Grantor's designee may inspect Grantee's books of accounts relative to Grantor at any time during regular business hours and after thirty (30) calendar days prior written notice. 6.4.2. All records deemed by Grantor or Grantor's designee to be reasonably necessary for such audit, which shall include, but not be limited to, all records subject to inspection by Grantor pursuant to Section 9.2 herein, shall be made available by Grantee in a mutually agreeable format and location. Grantee agrees to give its full cooperation in any audit and shall provide responses to inquiries within thirty (30) calendar days of a written request. Grantee may provide such responses within a reasonable time after the expiration of the response period above so long as Grantee makes a good faith effort to procure any such tardy response. 6.4.2.1. During any audit period when Grantee has less than 5000 Subscribers, if the results of any audit indicate that Grantee(i)paid the correct Franchise fee, (ii) overpaid the Franchise fee and is entitled to a refund or credit, or (iii) underpaid the Franchise fee by five percent (5%) or less,then Grantor shall pay the costs of the audit. If the results of the audit indicate Grantee underpaid the Franchise fee by more than five percent (5%) during the audit period,then Grantee shall pay the reasonable, documented, third-party costs of the audit up to Ten Thousand Dollars ($10,000)per audit. MACC/CENTURYLINK 2015(00454415;3) 19 JULY 8, 2 0 1 5 6.4.2.2. During any period when Grantee has 5,000 or more Subscribers, if the results of any audit indicate that Grantee (i)paid the correct Franchise fee, (ii) overpaid the Franchise fee and is entitled to a refund or credit, or (iii) underpaid the Franchise fee by three percent (3%) or less, then Grantor shall pay the costs of the audit. If the results of the audit indicate Grantee underpaid the Franchise fee by more than three percent (3%) during the audit period,then Grantee shall pay the reasonable, documented, third-party costs of the audit up to Fifteen Thousand Dollars ($15,000)per audit. 6.4.2.3. Grantor agrees that any audit shall be performed in good faith. If any audit discloses an underpayment of the Franchise fee of any amount, Grantee shall pay Grantor the amount of the underpayment, together with interest as provided in Section 7.7 below. Any auditor employed by Grantor shall not be compensated on a success based formula, e.g.,payment based on a percentage on underpayment, if any. 6.5. Limitation on Franchise Fee Actions: The period of limitation for recovery of any Franchise fee payable hereunder shall be three (3) years from the date on which payment by Grantee is due. 6.6. Annual Franchise Fee Report: Grantee shall, no later than one hundred twenty (120) days after the end of each calendar year, furnish to Grantor an annual summary of Franchise fee calculations, substantially in the form attached hereto as Exhibit C but showing annual rather than quarterly amounts. 6.7. Interest on Late Payments: In the event that a Franchise fee payment or other sum is not received by Grantor on or before the due date, or is underpaid, Grantee shall pay in addition to the payment, or sum due, interest from the due date at a rate equal to the statutory interest rate on judgments in the State of Oregon. 6.8 Payment on Termination: If this Agreement terminates for any reason, Grantee shall file with Grantor within ninety (90) calendar days of the date of the termination, a financial statement showing the Gross Revenues received by the Grantee since the end of the previous calendar quarter for which Franchise fees were paid. If, within sixty (60) days of providing such financial statement, Grantee has not satisfied all remaining financial obligations to Grantor, Grantor reserves the right to satisfy any remaining financial obligations of the Grantee to Grantor by utilizing the funds available in the Letter of Credit provided by the Grantee under Section 13.6 of this Agreement. 6.9. Costs of Publication: Grantee shall pay the reasonable cost of newspaper notices and publication pertaining to this Agreement, and any amendments thereto, including changes in control or transfers of ownership, as such notice or publication is reasonably required by Grantor under applicable law. 7. CUSTOMER SERVICE 7.1. Customer Service Requirements are set forth in Exhibit D,which shall be binding unless amended by written consent of the parties. MACC/CENTURYLINK 2015100454415;3) 20 JULY 8, 2 01 5 7.2. If, at any time during the term of this Franchise, "Effective Competition," as defined by the Communications Act, as the term may be reasonably applied to Grantee, ceases to exist in the Franchise Area, Grantor and Grantee agree to enter into good faith negotiations to determine if there is a need for additional customer service requirements. Grantor and Grantee shall enter into such negotiations within forty-five (45) days following a request for negotiations by Grantee after the cessation of"Effective Competition"as described above. 8. REPORTS AND RECORDS 8.1. Open Books and Records: Upon reasonable written notice to Grantee and with no less than thirty(30) days written notice to Grantee, Grantor shall have the right to inspect Grantee's books and records pertaining to Grantee's provision of Cable Service in the Franchise Area at any time during weekday business hours and on a nondisruptive basis at a mutually agreed location, as are reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the section or subsection of the Franchise which is under review, so that Grantee may organize the necessary books and records for appropriate access by Grantor. Grantee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years. Grantee shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act, 47 U.S.C. §551. If any books, records, maps, plans or other requested documents are too voluminous, not available locally, or for security reasons cannot be copied and moved, then the Grantee may request that the inspection take place at a location mutually agreed to by Grantor and the Grantee, provided that the Grantee must pay all reasonable travel expenses incurred by Grantor in inspecting those documents or having the documents inspected by its designee, above those that would have been incurred had the documents been produced in Grantee's Title II service territory in the Portland metropolitan area. 8.2. Proprietary Books and Records: If the Grantee believes that the requested information is confidential and proprietary, the Grantee must provide the following documentation to Grantor: (i) specific identification of the information; and (ii) statement attesting to the reason(s) Grantee believes the information is confidential. The Grantor shall take reasonable steps to protect the proprietary and confidential nature of any books, records, Franchise Area maps, plans, or other documents requested by Grantor that are provided pursuant to this Agreement to the extent they are designated as such by the Grantee, consistent with the Oregon Public Records Law. Should Grantor be required under state law to disclose information derived from Grantee's books and records, Grantor agrees that it shall provide Grantee with reasonable notice and an opportunity to seek appropriate protective orders prior to disclosing such information. Notwithstanding anything to the contrary set forth herein, Grantee shall not be required to disclose any of its or an Affiliate's books and records not relating to the provision of Cable Service in the Franchise Area, or any confidential information relating to such Cable Service where the Grantor and/or Affected Jurisdictions cannot lawfully protect the confidentiality of the information. 8.3. Records Required: Grantee shall maintain: 8.3.1. Records of all written complaints for a period of three (3) years after receipt by Grantee. The term "complaint" as used herein refers to complaints about any MACC/CENTURYI,rNK 2015{00454415;3} 21 JULY 8, 2 01 5 aspect of the Cable System or Grantee's cable operations, including, without limitation, complaints about employee courtesy. Complaints recorded will not be limited to complaints requiring an employee service call; 8.3.2. Records of outages for a period of three (3) years after occurrence, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause; 8.3.3. Records of service calls for repair and maintenance for a period of three (3) years after resolution by Grantee, indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was resolved; 8.3.4. Records of installation/reconnection and requests for service extension for a period of three (3) years after the request was fulfilled by Grantee, indicating the date of request, date of acknowledgment, and the date and time service was extended;and 8.3.5. A public file showing the area of coverage for the provisioning of Cable Services and estimated timetable to commence providing Cable Service. 8.4. Additional Requests: The Grantor shall have the right to request in writing such information as is appropriate and reasonable to determine whether Grantee is in compliance with applicable Customer Service Standards, as referenced in Exhibit D. Grantee shall provide Grantor with such information in such format as Grantee customarily prepares reports. Grantee shall fully cooperate with Grantor and shall provide such information and documents as necessary and reasonable for the Grantor to evaluate compliance, subject to Section 9.6. 8.5. Copies of Federal and State Documents: Upon request, Grantee shall submit to the Grantor a list, or copies of actual documents, of all pleadings, applications, notifications, communications and documents of any kind, submitted by Grantee or its parent corporations or Affiliates to any federal, state or local courts, regulatory agencies or other government bodies if such documents specifically relate to the Grantee's provision of Cable Services within the Franchise Area. Grantee shall submit such list or documents to the Grantor no later than thirty (30) days after receiving the request for such documents. Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, state, or local law such documents have been determined to be confidential by a court of competent jurisdiction,or a federal or state agency or a request for confidential treatment is pending. To the extent allowed by law, any such confidential material determined to be exempt from public disclosure shall be retained in confidence by the Grantor and its duly authorized agents and shall not be made available for public inspection. 8.6. Report Expense: All reports and records required under this or any other Section shall be furnished, without cost, to Grantor. Grantee shall not be required to develop or create reports that are not a part of its normal business procedures and reporting or that have not been defined specifically within this Section 8 in order to meet the requirements of this Section 8. MACC/CENTURYLINK 2015{00434415;3) 22 JULY 8, 2 0 1 5 9. INSURANCE AND INDEMNIFICATION 9.1. Insurance: 9.1.1. Grantee shall maintain in full force and effect, at its own cost and expense, during the Franchise Tenn,the following insurance coverage: 9.1.1.1. Commercial General Liability Insurance in the amount of Three Million Dollars ($3,000,000) combined single limit for property damage and bodily injury; one million dollar ($1,000,000) limit for broadcaster's Iiability. Such insurance shall cover the construction, operation and maintenance of the Cable System, and the conduct of Grantee's Cable Service business in the Franchise Area. 9.1.1.2. Automobile Liability Insurance in the amount of Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage coverage. 9.1.1.3. Workers' Compensation Insurance meeting all legal requirements of the State of Oregon. 9.1.1.4. Employers' Liability Insurance in the following amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by Disease: $100,000 employee limit; $2,000,000 policy limit. 9.1.2. Grantor and Affected Jurisdictions shall be designated as additional insureds under each of the insurance policies required in this Section 10 except Worker's Compensation and Employer's Liability Insurance. 9.1.3. Grantee shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Agreement. 9.1.4. Each of the required insurance policies shall be with sureties qualified to do business in the State of Oregon, with an A- or better rating for financial condition and financial performance by Best's Key Rating Guide,Property/Casualty Edition. 9.1.5. Upon written request, Grantee shall deliver to Grantor Certificates of Insurance showing evidence of the required coverage. 9.2. Indemnification: General Indemnification. Grantee shall indemnify, defend and hold harmless the Grantor, its officers, agents, boards and employees, from any liability for claims, damages, costs or expenses, including court and appeal costs and reasonable attorney fees or expenses, arising from any casualty or accident to person or property, including, without limitation: copyright infringement; defamation; damages arising out of or by reason of any construction, excavation, operation, maintenance, reconstruction or any other act done under this Franchise, by or for Grantee, its agents, or its employees; or by reason of any neglect or omission of Grantee to keep its system in a safe condition. Grantee's indemnification obligation shall not extend to liability directly arising out of any negligence or willful misconduct by the Grantor or its officers, agents, boards or employees. The Grantor shall provide Grantee prompt MACC/CENTURYIINK 2015(00454415;3) 23 JULY 8, 2 0 1 5 notice of any such claim which Grantee shall defend with counsel of its own choosing and no settlement or compromise of any such claim will be done without the prior written approval of the Grantor which approval shall not be unreasonably withheld. Grantee shall consult and cooperate with the Grantor while conducting its defense of the Grantor and the Grantor shall fully cooperate with the Grantee. 9.3 Defense of the Franchise. Grantee agrees and covenants to indemnify, defend and hold the Grantor, its officers, agents and employees, harmless from injury, damage, loss, liability, reasonable cost or expense, including expert witnesses and other consultants, court and appeal costs and reasonable attorney fees or expenses, arising from or in any way related to the grant of, or terms of, this Franchise. This agreement to indemnify,defend and hold harmless encompasses, but is not limited to, injury, damages, losses, liabilities, costs or expenses, including expert witnesses and other consultants, court and appeals costs and reasonable attorney fees and expenses that in any way arise in connection with a claim or defense that the Grantor: (1) lacked authority under federal or state law, its charters, city codes or ordinances in granting this Franchise; (2) acted in any disparate or discriminatory manner against any incumbent franchisee or permittee in granting this Franchise; (3) granted this Franchise in violation of any contractual rights belonging to any incumbent franchisee or permittee. 10. TRANSFER OF FRANCHISE 10.1. Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, no "Transfer of the Franchise" shall occur without the prior consent of Affected Jurisdictions, provided that such consent shall not be unreasonably withheld, delayed or conditioned. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of Grantee in the Franchise or Cable System in order to secure indebtedness, or otherwise excluded under this Section 11. 10.2. A"Transfer of the Franchise"shall mean any transaction in which: 10.2.1. an ownership or other interest in Grantee is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, so that control of Grantee is transferred;or 10.2.2. The rights held by Grantee under the Franchise are transferred or assigned to another Person or group of Persons. However, notwithstanding Subsections 10.2.1 and 10.2.2, a Transfer of the Franchise shall not include transfer of an ownership or other interest in Grantee to the parent of Grantee or to another Affiliate of Grantee; transfer of an interest in the Franchise or the rights held by Grantee under the Franchise to the parent of Grantee or to another Affiliate of Grantee; any action which is the result of a merger of the parent of Grantee; or any action which is the result of a merger of another Affiliate of Grantee. The parent of Grantee is shown in Exhibit E. 10.3. Grantee shall make a written request ("Request") to Grantor and Affected Jurisdictions for approval of any Transfer of the Franchise and furnish all information required by law and/or reasonably requested by Grantor and Affected Jurisdictions in respect to its MACC/CENTURYLENK 2015(00454415;3) 24 JULY 8, 2 0 1 5 consideration of a proposed Transfer of the Franchise. Affected Jurisdictions shall render a final written decision on the Request within one hundred twenty(120)days of the Request,provided it has received all requested information. Subject to the foregoing, if the Member Jurisdictions fail to render a written decision on the Request within one hundred twenty (120) days, the Request shall be deemed granted unless Grantee and Affected Jurisdictions agree to an extension of time. 10.4. In reviewing a Request related to a Transfer of the Franchise, Grantor and Affected Jurisdictions may inquire into the legal, technical and financial qualifications of the prospective transferee, and Grantee shall assist Grantor and Affected Jurisdictions in so inquiring. Affected Jurisdictions may condition said Transfer of the Franchise upon such terms and conditions as they deem reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective or transferee and to the resolution of outstanding and unresolved issues of Grantee's noncompliance with the terms and conditions of this Agreement. 10.5. The consent or approval of Affected Jurisdictions to any Request by the Grantee shall not constitute a waiver or release of any rights of Affected Jurisdictions, and any transferee shall be expressly subordinate to the terms and conditions of this Agreement. 10.6. Notwithstanding the foregoing, the parties agree that the Affected Jurisdictions' consent and/or approval to any transfer or assignment of any rights, title, or interest of Grantee to any Person shall not be required where Qwest Broadband Services, Inc. or its lawful successor which is not a third party transferee remains the Grantee following any such transfer or assignment. 11. RENEWAL OF FRANCHISE 11.1. The parties agree that any proceedings undertaken by Grantor and Affected Jurisdictions that relate to the renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act,47 U.S.C. § 546. 11.2 In addition to the procedures set forth in said Section 626 of the Communications Act, Grantor agrees to notify Grantee of all of its assessments regarding the identity of future cable-related community needs and interests,as well as the past performance of Grantee under the then current Franchise term. Grantor further agrees that such assessments shall be provided to Grantee promptly so that Grantee has adequate time to submit a proposal under Section 626 and complete renewal of the Franchise prior to expiration of its term. 12. ENFORCEMENT AND TERMINATION OF FRANCHISE 12.1. Notice of Violation: In the event Grantor believes that Grantee has failed to perform any obligation under this Agreement or has failed to perform in a timely manner, Grantor shall informally discuss the matter with Grantee. If these discussions do not lead to resolution of the problem, Grantor shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged violation. MACC/CENTURYLTNK 2015(00454415;3) 25 JULY 8, 2 0 1 5 12.2. Grantee's Right to Cure or Respond: Grantee shall have thirty (30) days from receipt of the written notice described in Section 13.1 to: (i) respond to Grantor, contesting (in whole or in part) Grantor's assertion that a violation has occurred, and requesting a hearing in accordance with subsection 13.3 below; (ii) cure the violation;or(iii)notify Grantor that Grantee cannot cure the violation within the thirty (30) days, and notify the Grantor in writing of what steps Grantee shall take to cure the violation including Grantee's projected completion date for such cure. The procedures provided in Section 13.4 shall be utilized to impose any fines. The date of violation will be the date of the event and not the date Grantee receives notice of the violation provided, however, that if Grantor has actual knowledge of the violation and fails to give the Grantee the notice called for herein,then the date of the violation shall be no earlier than ten (10)business days before the Grantor gives Grantee the notice of the violation. 12.2.1. In the event that the Grantee notifies the Grantor that it cannot cure the violation within the thirty (30) day cure period, Grantor shall, within thirty (30) days of Grantor's receipt of such notice,set a hearing. 12.2.2. In the event that the Grantee fails to cure the violation within the thirty (30) day basic cure period, or within an extended cure period approved by the Grantor pursuant to subsection 13.2(iii), the Grantor shall set a hearing to determine what fines, if any, shall be applied. 12.2.3. In the event that the Grantee contests the Grantor's assertion that a violation has occurred, and requests a hearing in accordance with subsection 13.2(i) above, the Grantor shall set a hearing within sixty(60)days of the Grantor's receipt of the hearing request to determine whether the violation has occurred, and if a violation is found, what fines shall be applied. 12.3. Public Hearing: In the case of any hearing pursuant to section 13.2 above, Grantor shall provide reasonable notice to Grantee of the hearing in writing. At the hearing Grantee shall be provided an opportunity to be heard, to examine Grantor's witnesses, and to present evidence in its defense. The Grantor may also hear any other person interested in the subject, and may provide additional hearing procedures as Grantor deems appropriate. 12.3.1. If, after the hearing, Grantor determines that a violation exists, Grantor may use one of the following remedies: 12.3.1.1. Order Grantee to correct or remedy the violation within a reasonable time frame as Grantor shall determine; 12.3.1.2. Establish the amount of fine set forth in Section 13.5, taking into consideration the criteria provided for in subsection 13.4 of this Agreement as appropriate in Grantor's discretion;or 12.3.1.3. Pursue any other legal or equitable remedy available under this Agreement or any applicable law; or MACC/CENTURYLINK 2015{00454415;3} 26 .1 U I.Y 8, 2 0 1 5 12.3.1,4. In the case of a substantial material default of a material provision of the Franchise, seek to revoke the Franchise in accordance with Section 12.7. 12.4. Reduction of Fines: The fines set forth in Section 12.5 of this Agreement may be reduced at the discretion of the Grantor, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: 12.4.1. Whether the violation was unintentional; 12.4.2.The nature of the harm which resulted; 12.4.3. Whether there is a history of prior violations of the same or other requirements; 12.4.4. Whether there is a history of overall compliance, and/or; 12.4.5. Whether the violation was voluntarily disclosed,admitted or cured. 12.5. Fine Schedule: 12.5.1.For violating telephone answering standards set forth in Exhibit D, Section 2.D for a quarterly measurement period, unless the violation has been cured, fines shall be as set forth below. A cure is defined as meeting the telephone answering standards for two consecutive quarterly measurement periods. Quarterly Telephone Answer Time Fines 1M Violation 2"d Violation 3rd Violation Quarterly Fine $ 2,000* $ 4,000* $ 6,000* If after forty-two (42) months, no fines have been assessed for violations of call answer time standards, these fines shall be reduced by fifty percent(50%). 12.5.2. For all other violations of this Agreement, the fine shall be $250 per day. 12.5.3.Total fines shall not exceed Twenty-Five Thousand Dollars ($25,000) in any twelve-month period. 12.5.4. If Grantor elects to assess a fine pursuant to this Section, such election shall constitute Grantor's exclusive remedy for the violation for which the fine was assessed for a period of sixty(60)days. Thereafter,the remedies provided for in this Agreement are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of MACC/CENTURYLINK 2015{00454415;3) 27 JULY 8, 2 0 1 5 another remedy, or the exercise of any rights of the Grantor at law or equity, provided that the cumulative remedies may not be disproportionate to the magnitude and severity of the breach for which they are imposed. 12.6. Letter of Credit: Grantee shall provide a letter of credit in the amount of Twenty Thousand Dollars ($20,000) as security for the faithful performance by Grantee of all material provisions of this Agreement. 12.7. Revocation: Should Grantor seek to revoke the Franchise after following the procedures set forth in Sections 13.1 through 13.5 above, Grantor shall give written notice to Grantee of its intent. The notice shall set forth the exact nature of the noncompliance. Grantee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event Grantor has not received a satisfactory response from Grantee, it may then seek termination of the Franchise at a public hearing. Grantor shall cause to be served upon Grantee, at least thirty(30)days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise. 12.7.1. At the designated hearing, Grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of Grantor, to compel the testimony of other persons as permitted by law, and to question and/or cross examine witnesses. A complete verbatim record and transcript shall be made of such hearing. 12.7.2. Following the public hearing, Grantee shall be provided up to thirty (30) days to submit its proposed findings and conclusions in writing and thereafter Grantor shall determine (i) whether an event of default has occurred; (ii)whether such event of default is excusable; and (iii) whether such event of default has been cured or will be cured by Grantee. Grantor shall also determine whether to revoke the Franchise based on the information presented, or, where applicable, grant additional time to Grantee to effect any cure. If Grantor determines that the Franchise shall be revoked, Grantor shall promptly provide Grantee with a written decision setting forth its reasoning. Grantee may appeal such determination of Grantor to an appropriate court, which shall have the power to review the decision of Grantor de novo. Grantee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within sixty (60) days of Grantee's receipt of the determination of the Grantor. 12.7.3. Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce Grantor's rights under the Franchise in lieu of revocation of the Franchise. 12.8. Limitation on Grantor Liability: The parties agree that the limitation of Grantor liability set forth in 47 U.S.C. §555a is applicable to this Agreement. 13. MISCELLANEOUS PROVISIONS 13.1. Actions of Parties: In any action by Grantor or Grantee that is mandated or permitted under the terms hereof,such party shall act in a reasonable, expeditious, and timely MACC/CENTURYLINK 2015(00454415;3) 28 JULY 8, 2 0 1 5 manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld,delayed or conditioned. 13.2. Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns, and the promises and obligations herein shall survive the expiration date hereof. 13.3. Preemption: In the event that federal or state law, rules, or regulations preempt a provision or limit the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent, and for the time, but only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of Grantor. 13.4. Force Majeure: Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by a Force Majeure. 13.4.1. Furthermore, the parties hereby agree that it is not the Grantor's intention to subject Grantee to penalties, fines, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on Subscribers, or where strict performance would result in practical difficulties and hardship being placed upon Grantee which outweigh the benefit to be derived by Grantor and/or Subscribers. 13.5. Notices: Unless otherwise expressly stated herein, notices required under the Franchise shall be mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party. 13.5.1.Notices to Grantee shall be mailed to: Qwest Broadband Services,Inc., d/b/a CenturyLink 1801 California Street, 10th Floor Denver, CO 80202 ATTN: Public Policy with a copy to: Qwest Broadband Services,Inc. d/b/a CenturyLink 310 SW Park, 1111'floor Portland,OR ATTN: Public Policy 13.5.2.Notices to the Grantor shall be mailed to: MACC/CENTURYLJNK 2015{00454415;3) 29 JULY 8, 2 0 15 MACC Administrator Metropolitan Area Communications Commission 15201 NW Greenbrier Parkway, Suite C-1 Beaverton, OR 97006 13.6. Entire Agreement: This Franchise and the Exhibits hereto constitute the entire agreement between Grantee and Grantor, and it supersedes all prior or contemporaneous agreements, representations or understanding of the parties regarding the subject matter hereof. Any ordinances or parts of ordinances that conflict with the provisions of this Agreement are superseded by this Agreement. 13.7. Amendments: Amendments to this Franchise shall be mutually agreed to in writing by the parties. 13.8. Captions: The captions and headings of articles and sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. 13.9. Severability: If any section, subsection, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, subsection, sentence, paragraph,term or provision hereof, all of which will remain in full force and effect for the term of the Franchise. 13.10. Recitals: The recitals set forth in this Agreement are incorporated into the body of this Agreement as if they had been originally set forth herein. 13.11. Modification: This Franchise shall not be modified except by written instrument executed by both parties. 13.12. Independent Legal Advice: Grantor and Grantee each acknowledge that they have received independent legal advice in entering into this Agreement. In the event that a dispute arises over the meaning or application of any terrn(s) of this Agreement, such term(s) shall not be construed by the reference to any doctrine calling for ambiguities to be construed against the drafter of the Agreement. 13.13. Grantor Authority: Grantor represents and warrants that it is authorized to enter into this Agreement on behalf of its Affected Jurisdictions pursuant an Intergovernmental Cooperation Agreement originating in 1980 and in effect in its current form since February 13, 2003, and that the party signing below is authorized to execute this Agreement on behalf of the Affected Jurisdictions following certification that the governing bodies of each of the Affected Jurisdictions have approved this Agreement as required by Section 4.E of the Intergovernmental Cooperation Agreement. MACC/CENTURYLINK 2015(00454415;3} 30 JULY 8, 2 0 1 5 13.14. Grantee Authority: Grantee represents and warrants that it is authorized to enter into this Agreement and that the party signing below is authorized to execute this Agreement. AGREED TO THIS DAY OF ,2015. METROPOLITAN AREA COMMUNICATIONS COMMISSION By Administrator By: [Title] EXHIBITS Exhibit A: Franchise Area Exhibit B: Live Origination Points Exhibit C: Quarterly Franchise Fee Remittance Form Exhibit D: Customer Service Standards Exhibit E: Franchise Parent Structure as of May 1, 2015 Exhibit F: Quarterly Customer Service Standards Performance Report MACC/CENTURYLINK 2015{00454415;3) 31 JULY 8, 2 01 5 EXHIBIT A FRANCHISE AREA MAPS MACGCENJ URYLINK 2015(00454415;3) 32 JULY 8, 2015 Lake Oswego , Oregon %) CenturyLink QCity County Century Link Wirecenter Imzzi . . — :- . i PORTLAND swb w T�Yo�+Crerk ` CHERRY s; S hu8l 3 y� VG� z Engleirrood m Are • [� DuMhorpe +,� 'ackamas / = s , ? .MANn•a., / Bnerw... • Mihvaukie Heigh '/ . N 1 lr.:.,,111.0V111WEI 4-4' r itillt, '''' . �' c--, 1 if Fair Oaks Ouleda.bRood : A i r,4 Mpn taktlGn .,'"' +�"° r,..* . — Oak Ore ilk ' { _ �+ OS EGO 140 MILWAUKIE 416, i I i, w psis �� 0 ; ANS 1. fir " 1� i er OCilum 3 a oeelu"'roe9 I ere' ?' 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Prepared by Jacob Barlow EXHIBIT B ORIGINATION POINTS West Linn Wilsonville School District 3JT Office 22210 SW Stafford Road Tualatin, OR 97062 Clackamas Community College 19600 Molalla Ave Oregon City, OR 97045 MACC/CENTURYLINK 2015(00454415;3) 33 JULY 8, 2015 EXHIBIT C QUARTERLY FRANCHISE FEE REMITTANCE FORM MACC FRANCHISE FEE SCHEDULE/REPORT For the Quarter Ending Month I Month 2 Month 3 1 Monthly Recurring Cable Service Charges (e.g.,Basic,Enhanced Basic, Premium and Equipment Rental) 2 Usage Based Charges (e.g.,Pay Per View, Installation) 3 Other Misc. (e.g.,Late Charges,Advertising,Leased Access) 4 Franchise Fees Collected Less: 1 Sales Tax Collected $ $ $ 2 Uncollectibles Total Receipts Subject to Franchise Fee Calculation Franchise Fee Rate 5% Franchise Fee Due Quarter Franchise Fee Monthly PEG Grant Collection Quarterly PEG Grant Remission $ MACC/CENTURYLINK 2015{00454415;3) 34 JULY 8, 2 0 15 EXHIBIT D CUSTOMER SERVICE STANDARDS These standards shall apply to Grantee to the extent it is providing Cable Services over the Cable System in the Franchise area. However, for the first three (3) months after the Effective Date, Grantee shall not be required to provide reports under this Agreement and, for the first six (6) months after the Effective Date, Grantor will not impose fines if Grantee fails to meet the customer service standards set forth in this Agreement. This Section sets forth the minimum customer service standards that the Grantee must satisfy. SECTION 1: DEFINITIONS A. Normal Operating Conditions: Those service conditions which are within the control of Grantee, as defined under 47 C.F.R. § 76.309(c)(4)(ii). Those conditions which are not within the control of Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods,and maintenance or rebuild of the Cable System. B. Respond: The start of Grantee's investigation of a Service Interruption by receiving a Subscriber call,and opening a trouble ticket,and begin working,if required. C. Service Call: The action taken by Grantee to correct a Service Interruption the effect of which is limited to an individual Subscriber. D. Service Interruption: The loss of picture or sound on one or more cable channels. E. Significant Outage: A significant outage of the Cable Service shall mean any Service Interruption lasting at least four (4) continuous hours that affects at least ten percent (10%)of the Subscribers in the Franchise Area. SECTION 2: TELEPHONE AVAILABILITY A. Grantee shall maintain a toll-free number to receive all calls and inquiries from Subscribers in the Franchise Area and/or residents regarding Cable Service. Grantee representatives trained and qualified to answer questions related to Cable Service in the Franchise Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day, seven (7) days a week, and such representatives shall be available to receive all other inquiries at least forty-five(45) hours per week including at least one night per week and/or some weekend hours. Grantee representatives shall identify themselves by name when answering this number. MACC/CENTURYLTNK 2015(00454415;3) 35 JULY 8, 2 0 1 5 B. Century Link's telephone numbers shall be listed, with appropriate description (e.g. administration,customer service, billing,repair, etc.), in the directory published by the local telephone company or companies serving the Franchise Area, beginning with the next publication cycle after acceptance of this Franchise by Franchisee. C. Grantee may use an Automated Response Unit ("ARU") or a Voice Response Unit ("VRU") to distribute calls. If a foreign language routing option is provided, and the Subscriber does not enter an option, the menu will default to the first tier menu of English options. After the first tier menu (not including a foreign language rollout) has run through three times, if customers do not select any option, the ARU or VRU will forward the call to a queue for a live representative. Grantee may reasonably substitute this requirement with another method of handling calls from customers who do not have touch-tone telephones. D. Under Normal Operating Conditions, calls received by the Grantee shall be answered within thirty (30) seconds. The Grantee shall meet this standard for ninety percent (90%) of the calls it receives at call centers receiving calls from Subscribers, as measured on a cumulative quarterly calendar basis. Measurement of this standard shall include all calls received by the Grantee at all call centers receiving calls from Subscribers, whether they are answered by a live representative, by an automated attendant, or abandoned after 30 seconds of call waiting. If the call needs to be transferred, transfer time shall not exceed thirty(30) seconds. E. Under Normal Operating Conditions, callers to the Grantee shall receive a busy signal no more than three(3%)percent of the time during any calendar quarter. F. Forty-five (45) days following the end of each quarter, the Grantee shall report to Grantor, using the form shown in Exhibit F,the following for all call centers receiving calls from Subscribers except for temporary telephone numbers set up for national promotions: (1) Percentage of calls answered within thirty (30) seconds as set forth in Subsection 2.D; and (2) Percentage of time customers received a busy signal when calling the Grantee's service center as set forth in Subsection 2.E. G. At the Grantee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Grantee shall notify Grantor of such a change not less than thirty (30) days in advance. SECTION 3: INSTALLATIONS AND SERVICE APPOINTMENTS A. All installations will be in accordance with FCC rules, including but not limited to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the provision of required consumer information and literature to adequately inform the Subscriber in the utilization of Grantee-supplied equipment and Cable Service. MACC/CENTURYL1NK 2015(00454415,3) 36 JULY 8, 2 0 1 5 B. Installations to Qualified Living Units shall be performed within seven (7) business days after an order is placed Grantee shall meet this standard for ninety-five percent (95%) of the installations it performs, as measured on a calendar quarter basis, excluding those requested by the customer outside of the seven (7)day period, C. Grantee shall provide Grantor with a report forty-five (45) days following the end of the quarter, noting the percentage of installations completed within the seven (7) day period, excluding those requested outside of the seven (7) day period by the Subscriber. Subject to consumer privacy requirements,underlying activity will be made available to Grantor for review upon reasonable request. D. At Grantee's option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Grantee shall notify Grantor of such a change not less than thirty(30) days in advance. E. Grantee will offer Subscribers "appointment window" alternatives for arrival to perform installations, Service Calls and other activities of a maximum four (4) hours scheduled time block during appropriate daylight available hours,usually beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location exception. At Grantee's discretion, Grantee may offer Subscribers appointment arrival times other than these four (4) hour time blocks, if agreeable to the Subscriber. (1) Grantee may not cancel an appointment window with a customer after the close of business on the business day prior to the scheduled appointment. (2) If Grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled,the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. F. Grantee must provide for the pick up or drop off of equipment free of charge in one of the following manners: (i) by having a Grantee representative going to the Subscriber's residence, (ii) by using a mailer, or (iii) by establishing a conveniently located local business office . If requested by a mobility-limited customer,the Grantee shall arrange for pickup and/or replacement of converters or other Grantee equipment at Subscriber's address or by a satisfactory equivalent. SECTION 4: SERVICE INTERRUPTIONS AND OUTAGES A. Grantee shall promptly notify Grantor of any Significant Outage of the Cable Service. B. Grantee shall exercise commercially reasonable efforts to limit any Significant Outage for the purpose of maintaining,repairing, or constructing the Cable System. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, MACGCENTURYLINK 2015(00454415;3) 37 JULY 8, 2 0 1 5 Grantee may schedule a Significant Outage for a period of more than four (4) hours during any twenty-four (24) hour period only after Grantor and each affected Subscriber in the Franchise Area have been given fifteen (15) days prior notice of the proposed Significant Outage. Notwithstanding the foregoing, Grantee may perform modifications, repairs and upgrades to the System between 12:01 a.m. and 6 a.m. which may interrupt service, and this Section's notice obligations respecting such possible interruptions will be satisfied by notice provided to Subscribers upon installation and in the annual Subscriber notice. C. Grantee representatives who are capable of responding to Service Interruptions must be available to Respond twenty-four(24)hours a day, seven(7)days a week. D. Under Normal Operating Conditions, Grantee must Respond to a call from a Subscriber regarding a Service Interruption or other service problems within the following time frames: (1) Within twenty-four (24) hours, including weekends, of receiving Subscriber calls about Service Interruptions in the Franchise Area. (2) Grantee must begin actions to correct all other Cable Service problems the next business day after notification by the Subscriber or Grantor of a Cable Service problem. E. Under Normal Operating Conditions, Grantee shall complete Service Calls within seventy-two (72) hours of the time Grantee commences to Respond to the Service Interruption, not including weekends and situations where the Subscriber is not reasonably available for a Service Call to correct the Service Interruption within the seventy-two (72) hour period. F. Grantee shall meet the standard in Subsection E. of this Section for ninety percent (90%) of the Service Calls it completes, as measured on a quarterly basis. G. Grantee shall provide Grantor with a report within forty-five (45) days following the end of each calendar quarter, noting the percentage of Service Calls completed within the seventy-two (72) hour period not including Service Calls where the Subscriber was reasonably unavailable for a Service Call within the seventy-two(72)hour period as set forth in this Section. Subject to consumer privacy requirements, underlying activity will be made available to Grantor for review upon reasonable request. At the Grantee's option, the above measurements and reporting may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. The Grantee shall notify the Grantor of such a change at least thirty(30)days in advance. H. At Grantee's option, the above measurements may be changed for calendar quarters to billing or accounting quarters one time during the term of this Agreement. Grantee shall notify Grantor of such a change at least thirty(30) day in advance. I. Under Normal Operating Conditions, Grantee shall provide a credit upon Subscriber request when all Channels received by that Subscriber experience the loss of picture MACC/CENTURYLINK 2015(00454415;3) 38 JULY 8, 2 0 1 5 1 or sound for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber must promptly report the problem and allow Grantee to verify the problem if requested by Grantee. If Subscriber availability is required for repair, a credit will not be provided for such time, if any,that the Subscriber is not reasonably available. J. Under Normal Operating Conditions, if a Significant Outage affects all Video Programming Cable Services for more than twenty-four (24) consecutive hours, Grantee shall issue a credit upon request to the affected Subscribers in the amount equal to one-thirtieth(1/30) of the monthly recurring charges for each consecutive twenty-four (24) hour period the Cable Service was out. Such credit shall be reflected on Subscriber billing statements within the next available billing cycle following the outage. SECTION 5: CUSTOMER COMPLAINTS REFERRED BY GRANTOR Under Normal Operating Conditions, Grantee shall begin investigating Subscriber complaints referred by Grantor within twenty-four (24) hours. Grantee shall notify Grantor of those matters that require more than seventy-two (72) hours to resolve, but Grantee must make all necessary efforts to resolve those complaints within ten (10) business days of the initial complaint. Grantor may require Grantee to provide reasonable documentation to substantiate the request for additional time to resolve the problem. Grantee shall inform Grantor in writing, which may be by an electronic mail message, of how and when referred complaints have been resolved within a reasonable time after resolution. For purposes of this Section, "resolve"means that Grantee shall perform those actions, which, in the normal course of business, are necessary to investigate the Customer's complaint and advise the Customer of the results of that investigation. SECTION 6: BILLING A. Subscriber bills must be itemized to describe Cable Services purchased by Subscribers and related equipment charges. Bills shall clearly delineate activity during the billing period, including optional charges, rebates, credits, and aggregate late charges. Grantee shall, without limitation as to additional line items, be allowed to itemize as separate line items, Franchise fees, taxes and/or other governmental-imposed fees. Grantee shall maintain records of the date and place of mailing of bills. B. Every Subscriber with a current account balance sending payment directly to Grantee shall be given at least twenty (20) days from the date statements are mailed to the Subscriber until the payment due date. C. A specific due date shall be listed on the bill of every Subscriber whose account is current. Delinquent accounts may receive a bill which lists the due date as upon receipt; however, the current portion of that bill shall not be considered past due except in accordance with Subsection 6.B. above. MACGCENTURYL1NK 2015(00454415;3} 39 JULY 8, 2 0 1 5 D. Any Subscriber who, in good faith, disputes all or part of any bill shall have the option of withholding the disputed amount without disconnect or late fee being assessed until the dispute is resolved,provided that: (1) The Subscriber pays all undisputed charges; (2) The Subscriber provides notification of the dispute to Grantee within five (5)days prior to the due date; and (3) The Subscriber cooperates in determining the accuracy and/or appropriateness of the charges in dispute. (4) It shall be within Grantee's sole discretion to determine when the dispute has been resolved. E. Under Normal Operating Conditions, Grantee shall initiate investigation and resolution of all billing complaints received from Subscribers within five (5) business days of receipt of the complaint. Final resolution shall not be unreasonably delayed. F. Grantee shall provide a telephone number and address clearly and prominently on the bill for Subscribers to contact Grantee. G. Grantee shall forward a copy of any rate-related or customer service-related billing inserts or other mailings related to Cable Service, but not promotional materials, sent to Subscribers,to Grantor. H. Grantee shall provide all Subscribers with the option of paying for Cable Service by check or an automatic payment option where the amount of the bill is automatically deducted from a checking account designated by the Subscriber. Grantee may in the future, at its discretion, permit payment by using a major credit card on a preauthorized basis. Based on credit history, at the option of Grantee,the payment alternative may be limited. I. Grantee shall provide Grantor with a sample Cable Services bill, on a monthly basis. SECTION 7: DEPOSITS,REFUNDS AND CREDITS A. Grantee may require refundable deposits from Subscribers 1)with a poor credit or poor payment history, 2) who refuse to provide credit history information to Grantee, or 3) who rent Subscriber equipment from Grantee, so long as such deposits are applied on a non- discriminatory basis. The deposit Grantee may charge Subscribers with poor credit or poor payment history or who refuse to provide credit information may not exceed an amount equal to an average Subscriber's monthly charge multiplied by six (6). The maximum deposit Grantee may charge for Subscriber equipment is the cost of the equipment which Grantee would need to purchase to replace the equipment rented to the Subscriber. MACC/CENTURYLINK 2015{00454415;3} 40 JULY 8, 2 0 15 B. Grantee shall refund or credit the Subscriber for the amount of the deposit collected for equipment, which is unrelated to poor credit or poor payment history, after one year and provided the Subscriber has demonstrated good payment history during this period. Grantee shall pay interest on other deposits if required by law. C. Under Normal Operating Conditions,refund checks will be issued within the next available billing cycle following the resolution of the event giving rise to the refund, (e.g. equipment return and final bill payment). D. Credits for Cable Service will be issued no later than the Subscriber's next available billing cycle, following the determination that a credit is warranted, and the credit is approved and processed. Such approval and processing shall not be unreasonably delayed. E. Bills shall be considered paid when appropriate payment is received by Grantee or its authorized agent. Appropriate time considerations shall be included in Grantee's collection procedures to assure that payments due have been received before late notices or termination notices are sent. SECTION 8: RATES,FEES AND CHARGES A. Grantee shall not, except to the extent expressly permitted by law, impose any fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work related to Grantee equipment necessary to receive Cable Service, except where such problem is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a situation in which the Subscriber reconnects Grantee equipment incorrectly) or by the failure of the Subscriber to take reasonable precautions to protect Grantee's equipment (for example, a dog chew). B. Grantee shall provide reasonable notice to Subscribers of the possible assessment of a late fee on bills or by separate notice. Such late fees are subject to ORS 646.649. C. All of Grantee's rates and charges shall comply with applicable law. Grantee shall maintain a complete current schedule of rates and charges for Cable Services on file with the Grantor throughout the term of this Franchise. SECTION 9: DISCONNECTION/DENIAL OF SERVICE A. Grantee shall not terminate Cable Service for nonpayment of a delinquent account unless Grantee mails a notice of the delinquency and impending termination prior to the proposed final termination. The notice shall be mailed to the Subscriber to whom the Cable Service is billed. The notice of delinquency and impending termination may be part of a billing statement. B. Cable Service terminated in error must be restored without charge within twenty- four (24) hours of notice. If a Subscriber was billed for the period during which Cable Service MACC/CENfURYL1NK 2015(00454415;3} 41 JULY 8, 2 0 15 was terminated in error, a credit shall be issued to the Subscriber if the Service Interruption was reported by the Subscriber. C. Nothing in these standards shall limit the right of Grantee to deny Cable Service for non-payment of previously provided Cable Services,refusal to pay any required deposit,theft of Cable Service, damage to Grantee's equipment, abusive and/or threatening behavior toward Grantee's employees or representatives, or refusal to provide credit history information or refusal to allow Grantee to validate the identity, credit history and credit worthiness via an external credit agency. D. Charges for cable service will be discontinued at the time of the requested termination of service by the Subscriber, except equipment charges may by applied until equipment has been returned. No period of notice prior to requested termination of service can be required of Subscribers by Grantee. No charge shall be imposed upon the Subscriber for or related to total disconnection of Cable Service or for any Cable Service delivered after the effective date of the disconnect request, unless there is a delay in returning Grantee equipment or early termination charges apply pursuant to the Subscriber's service contract. If the Subscriber fails to specify an effective date for disconnection, the Subscriber shall not be responsible for Cable Services received after the day following the date the disconnect request is received by Grantee. For purposes of this subsection, the term "disconnect" shall include Subscribers who elect to cease receiving Cable Service from Grantee and to receive Cable Service or other multi- channel video service from another Person or entity. SECTION 10: COMMUNICATIONS WITH SUBSCRIBERS A. All Grantee personnel, contractors and subcontractors contacting Subscribers or potential Subscribers outside the office of Grantee shall wear a clearly visible identification card bearing their name and photograph. Grantee shall make reasonable effort to account for all identification cards at all times. In addition, all Grantee representatives shall wear appropriate clothing while working at a Subscriber's premises. Every service vehicle of Grantee shall be clearly identified as such to the public. Specifically, Grantee vehicles shall have CenturyLink's logo plainly visible. The vehicles of those contractors and subcontractors working for Grantee shall have sufficient visible identification to allow for determination that a contractor is working on behalf of CenturyLink. B. All contact with a Subscriber or potential Subscriber by a Person representing Grantee shall be conducted in a courteous manner. C. Grantee shall send annual notices to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by Grantee may be referred to Grantor. A copy of the annual notice required under this Subsection 10.0 will be given to Grantor at least fifteen (15) days prior to distribution to Subscribers. D. Grantee shall provide the name,mailing address, and phone number of Grantor on all Cable Service bills in accordance with 47 C.F.R. §76.952(a). MACC/CENTURYLINK 2015(00454415;3) 42 JULY 8, 20 1 5 E. All notices identified in this Section shall be by either: (1) A separate document included with a billing statement or included on the portion of the monthly bill that is to be retained by the Subscriber;or (2) A separate electronic notification. F. Grantee shall provide reasonable notice to Subscribers and Grantor of any pricing changes or additional changes (excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in Cable Services, including channel line-ups. Such notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if within the control of Grantee. If the change is not within Grantee's control, Grantee shall provide an explanation to Grantor of the reason and expected length of delay. Grantee shall provide a copy of the notice to Grantor including how and where the notice was given to Subscribers. G. Grantee shall provide information to all Subscribers about each of the following items at the time of installation of Cable Services, annually to all Subscribers, at any time upon request, and, subject to Subsection I0.E., at least thirty (30) days prior to making significant changes in the information required by this Section if within the control of Grantee: (1) Products and Cable Service offered; (2) Prices and options for Cable Services and condition of subscription to Cable Services. Prices shall include those for Cable Service options, equipment rentals, program guides, installation, downgrades, late fees and other fees charged by Grantee related to Cable Service; (3) Installation and maintenance policies including, when applicable, information regarding the Subscriber's in-home wiring rights during the period Cable Service is being provided; (4) Channel positions of Cable Services offered on the Cable System; (5) Complaint procedures, including the name, address, and telephone number of Grantor, but with a notice advising the Subscriber to initially contact Grantee about all complaints and questions; (6) Procedures for requesting Cable Service credit; (7) The availability of a parental control device; (8) Grantee practices and procedures for protecting against invasion of privacy; and (9) The address and telephone number of Grantee's office to which complaints may be reported. MACC/CENTURYLINK 2015{00454415;3) 43 JULY 8, 2 0 15 A copy of notices required in this Subsection 10.F. will be given to Grantor at least fifteen (15) days prior to distribution to Subscribers if the reason for notice is due to a change that is within the control of Grantee and as soon as possible if not with the control of Grantee. H. Notices of changes in rates shall indicate the Cable Service new rates and old rates, if applicable. T. Notices of changes of Cable Services and/or Channel locations shall include a description of the new Cable Service, the specific channel location,and the hours of operation of the Cable Service if the Cable Service is only offered on a part-time basis. In addition, should the Channel location, hours of operation, or existence of other Cable Services be affected by the introduction of a new Cable Service,such information must be included in the notice. J. Every notice of termination of Cable Service shall include the following information: (I) The name and address of the Subscriber whose account is delinquent; (2) The amount of the delinquency for all services billed; (3) The date by which payment is required in order to avoid termination of Cable Service; and (4) The telephone number for Grantee where the Subscriber can receive additional information about their account and discuss the pending termination. K. Grantee will comply with privacy rights of Subscribers in accordance with federal, state,and local law, including 47 U.S.C. §551. MACCJCENTURYLINK 2015(00454415;3) 44 JULY 8, 2 0 1 5 EXHIBIT E GRANTEE PARENT STRUCTURE AS OF May 1,2015 MACC/CENTURYLTNK 2015(00454415;3) 45 JULY 8, 2 0 1 5 Company Structure / 111!MliN Exhibit E .�•. w CenturyLink EXHIBIT F CUSTOMER SERVICE STANDARD REPORT METRICS THE FOLLOWING INFORMATION IS PROPRIETARY AND CONFIDENTIAL AND IS CONDITIONALLY EXEMPT FROM THE OREGON PUBLIC RECORDS LAW. THE FOLLOWING INFORMATION QUALIFIES AS PROPRIETARY AND CONFIDENTIAL BUSINESS INFORMATION PURSUANT TO, WITHOUT LIMITATION, OREGON REVISED STATUTE § 192.501(2) AND ANY OTHER APPLICABLE LAW AND SHOULD NOT BE DISCLOSED. Ver zon Video Franchise Report: 1 ! I i ,i i I Ii j j Contract Requirements I V a s A r Jan Feb Mar 1st Qtr 1 April June 2nd Qtr a Sept 3rd Qtr Oct ec 4th Qtr i t Nov :.%l C-,. -.�1...( x ti ,....... .a.., _:;..:�_.,.11,L iii. h',, iini.._3..,.,e:..LJ 1 -� 1 U� ,, ` ,` S. . ... -2.' t A;.4 . t?,11- R �..,Q . 1 ij 1 '�'_'...: y �} t." 9 .�„•.,t.�J..y�,_.�..WI>;�ta.,..f._ " ,.. I_:.�,t_w......_,. vw..aw,.., . ::��„ ..x.. ,�a... N�.. _..::d.,.,..e,,...,,.�,.`.�.r�. �.s�Ls ? ..,.'1"�w 1�t ' ++q�$ 1�° 1 nth S .-,.------. •.1�tni:�X���•iti�3�.'W+�tr rh 4416W� �" �y .•i.--- --ti h �_� c .... . _:� a., - �vei v_.I �`.w �. r�z . . ��Y" t i . k 4n e 'i.sue � "�.�-t 'U' V e k ■■■■■■■ ry FlY^'- ��_ c,.r '� ....d:','rj'.,�.. _ _ . ��_...r..::cyrs..i.,... ,-^r--"' �i. :i �' 'rc ,o.w_S 'a.:.; 14 4� .a 't-°' hrr--'o -rr..,�, _ _ �........,W I..,.i::=.__,. '•v�.�.,a�.....�,:_.7.- -.`,:x.:w..a @._.,._�:7(p @['!icil ya�...,x .77,.u.,,.�a..l 5:,..If- ti x .,77: .irr^�'�.72 E ' �8°j'S�l���f fY�C3���fi1 ���.�°}k I n 6- .a >, 4024-411't ' ---GrtVlakVf,"-kl.A.-4,2..;',--iA,:-',1 i i 1 MACC/CENTURYLINK 2015{00454415;3} 46 JULY 8, 2 0 1 5 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 15- AN ORDINANCE OF THE CITY OF TIGARD GRANTING A NON-EXCLUSIVE CABLE FRANCHISE TO QWEST BROADBAND SERVICES, INC. D/B/A CENTURYLINK WHEREAS,in 1980 the Metropolitan Area Communications Commission (hereinafter"MACC") was formed by Intergovernmental Cooperation Agreement,amended in 2002 and now an Intergovernmental Agreement (hereinafter"IGA") to enable its member jurisdictions to work cooperatively and jointly on communications issues,in particular the joint franchising of cable services and the common administration and regulation of such franchises, and the City of Tigard (hereinafter"City") is a member of MACC; WHEREAS, the IGA authorizes MACC and its member jurisdictions to grant one or more nonexclusive franchises for the construction, operation and maintenance of a cable service system within the combined boundaries of the member jurisdictions; WHEREAS, the IGA requires that each member jurisdiction to be served by the proposed franchisee must approve any cable service franchise; WHEREAS, Qwest Broadband Services,Inc. d/b/a CenturyLink ("CenturyLink") has formally requested a franchise with MACC and five of its member jurisdictions,including the City, and MACC has reviewed the franchisee's qualifications in accordance with federal law; WHEREAS, the Board of Commissioners of MACC, by Resolution 2015-07 adopted on the July 8, 2015,recommended that the five affected member jurisdictions grant a franchise to CenturyLink in the form attached hereto as Exhibit "A"; WHEREAS, MACC and the City have provided adequate notice and opportunities for public comment on the proposed cable services franchise including a public hearing on July 8,2015;and WHEREAS, the Council finds that approval of the recommended franchise is in the best interest of the City and its citizens, consistent with applicable federal law; NOW THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: There is hereby granted to Qwest Broadband Services, Inc. d/b/a CenturyLink a non-exclusive cable services franchise on the terms and conditions contained in Exhibit"A". SECTION 2: The grant of franchise at Section 1 is conditioned upon each of the following events: (a) The affirmative vote of the governing body of each of the five affected MACC member jurisdictions: the Cities of Lake Oswego,North Plains, Tigard and West Linn,and Washington County;and ORDINANCE No. 15- Page 2 (b) Qwest Broadband Services,Inc.'s fulfillment of the franchise acceptance provisions contained in the Franchise;and (c) Formal written determination by the MACC Administrator that,in accordance with the requirements of the IGA, each of the above two events has occurred. PASSED: By vote of all council members present after being read by number and title only, this day of ,2015. Carol A. Krager,City Recorder APPROVED: By Tigard City Council this day of ,2015. John L. Cook,Mayor Approved as to form: City Attorney Date ORDINANCE No. 15- Page 2 CENTURYLINK CABLE TV FRANCHISE RECOMMENDATION TO THE CITY OF TIGARD Prepared by the Metropolitan Area Communications Commission August 2015 On July 8, 2015, the Board of Commissioners of the Metropolitan Area Communications Commission(MACC) recommended,by a unanimous vote,that your City and four other affected MACC member jurisdictions grant Qwest Broadband Services, Inc. d/b/a CenturyLink (CenturyLink) a new, competitive franchise agreement (Exhibit A)to provide cable television services within the City. A copy of the Commission's Recommending Resolution and a Comparison of that agreement to the recommended Comcast franchise(Exhibits B and C) are enclosed with this report. By the terms of the MACC Intergovernmental Agreement,to which your jurisdiction is a party, every affected MACC jurisdiction must adopt the franchise, as recommended,to renew the Comcast franchise— if one of the five jurisdictions votes no, it vetoes the franchise for the others. The Recommended Agreement—The recommended franchise agreement includes all of the important financial, service and regulatory benefits of the new Comcast franchise, but is structured to provide a series of incentives to expand CenturyLink service throughout the area. BACKGROUND In February 2015, MACC received a completed cable services application from CenturyLink and began negotiations for a franchise to serve the MACC member jurisdictions of Lake Oswego, North Plains, Tigard,West Linn and unincorporated Washington County(the Affected Jurisdictions). These areas overlay the telecommunications footprint of CenturyLink—those areas where the state PUC has granted CenturyLink the ability to provide telephone service. CenturyLink's fiber and copper technology is being upgraded to carry video programming. The MACC Intergovernmental Agreement provides for a franchise for a limited-area cable franchise (in this case, five of the fifteen MACC member jurisdictions), and MACC previously granted such a cable franchise to Frontier Communications (originally Verizon), in 2007 for eleven member jurisdictions(including Lake Oswego, Tigard and Washington County). Throughout March,April and May, CenturyLink met with MACC staff to negotiate a franchise. Those discussions proceeded relatively quickly and negotiations were generally concluded by late May. A proposed franchise agreement was finalized on June 22, 2015. The proposed franchise is based on the Affected Jurisdictions' needs and interests as well as the similarly- situated Frontier cable television franchise as well as a recent CenturyLink franchise granted to the company by the City of Portland. (CenturyLink began providing cable service in portions of Portland in May, 2015.) Significant sections of the proposed CenturyLink agreement mirror the obligations in the Comcast franchise, including the definition of Gross Revenue, the Customer Service Standards, {00472083;1 } Public, Education and Government(PEG)Access requirements and complementary cable services to public buildings. Other requirements, specifically those tied to the technology and design of the system, as well as the regulation of the public Right of Way(ROW) are the same as those set out in the Frontier franchise. The proposed CenturyLink franchise is granted to CenturyLink's corporate relative,Qwest Broadband Services, Inc. (QBSI). Qwest Corporation owns the facilities in the Affected Jurisdictions' ROW, and QBSI d/b/a CenturyLink will provide cable services over those facilities. The enforceability of the franchise is not negatively affected by this corporate structure. If adopted,CenturyLink indicates that it will begin service later this year in some small portions of the five franchised jurisdictions, and has plans to add to those areas in the near future. Staff Analysis and Discussion of Key Elements of the CenturyLink Franchise Agreement Term. The term of the proposed franchise is similar to the Portland CenturyLink agreement and structured to incentivize the company to build out its network as it gains confidence that this competitive service is viable. The franchise will expire in just over five years,on December 31, 2020, if the company cannot or will not expand its network beyond that initial service area. If CenturyLink does expand its network to 20%of the service area by 2018, the franchise provides for an additional three years (expiring in 2023). If CenturyLink can expand to 50%of the service area by 2021,the franchise will expire on December 31, 2025—slightly more than a full ten year franchise. At the same time,there are significant provisions in the franchise assuring that the company cannot discriminate in any way. The company must offer service to any customer,residential or business in the franchise area where it is technically feasible. Gross Revenue Definition_. The Gross Revenue definition is identical to the new Comcast franchise. CenturyLink will pay five percent on the same basis as Comcast and Frontier. Right of Way Regulation. CenturyLink will use the facilities of its corporate relative,Qwest Corporation. Qwest Corp. owns the telecommunications facilities in the Affected Jurisdictions' Rights of Way(ROW) and has a license or franchise if appropriate with the affected jurisdictions. All ROW codes and requirements of those jurisdictions will continue to apply to the Qwest/QBSI/CenturyLink facilities. This is the same regulatory structure that the Frontier cable franchise has with MACC and the member jurisdictions served by that company. PEG Access. All key Public, Education and Government(PEG)Access commitments in the Comcast franchises are contained in the CenturyLink franchise—and improves upon them. There are no HD requirements in the Frontier franchise, and Comcast has a phased-in PEG HD programming commitment. By contrast, CenturyLink will provide all HD-provided PEG programming to its customers in HD. CenturyLink has also agreed to provide its customers with PEG Video on Demand programming. Neither Comcast nor Frontier has that requirement. {00472083;1 } PEG/PCN Fund. CenturyLink will match the new Comcast franchise PEG Fund commitment of $0.80 per month per subscriber. Customer Service. CenturyLink will match Comcast's (and Frontier's) Customer Service requirements. All three MACC-franchised cable operators will provide service under this same set of standards. Franchise Violations and Remedies. The Commission's ability to levy fines against CenturyLink is capped in this Franchise Agreement at$25,000 per year, commensurate with the level in the Comcast and Frontier franchises. PUBLIC COMMENT MACC solicited public comments in local area newspapers, as well as on the maccor.org website. CONCLUSION Your MACC representative, along with the other MACC Commissioners, has recommended granting the CenturyLink Franchise Agreement. If granted, area residences and businesses will be able to choose from an additional cable television service provider. Like the recommended Comcast franchise,the CenturyLink Franchise Agreement retains the basic elements and long- term benefits of the cable television franchises on which the Member Jurisdictions have come to rely— financial stability,the ability to meaningfully respond to customer service deficiencies, and superior PEG Access programming and support. MACC and CenturyLink staff will be available at your meeting for any questions. A reminder: All 5 Affected MACC Jurisdictions must approve the Franchise Agreement for it to become effective. Attachment: Exhibit A–Recommended CenturyLink Franchise Agreement Exhibit B–MACC Recommending Resolution 2015-07 Exhibit C–Comparison of the recommended franchises Exhibit D–MACC Questions& Answers about the Recommended Franchises (00472083;I } AGENDA ITEM No. 5 Date: September 8, 2015 TESTIMONY SIGN-UP SHEETS Please sign on the following page(s) if you wish to testify before City Council on: Informational Public Hearing — CONSIDERATION OF ORDINANCE APPROVING CENTURYLINK FRANCHISE AGREEMENT 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 become part of the public record and is openly available to all members of the public. 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. Due to Time Constraints City Council May Impose A Time Limit on Testimony AGENDA Tl'EM No. 5 Date: September 8, 2015 PLEASE PRINT 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 become part of the public record and is openly available to all members of the public. 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. Pro?onent—(Speaking In Favor) Ouonent— S( ieakin§A sins) 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. AIS-2319 6. Business Meeting Meeting Date: 09/08/2015 Length (in minutes): 15 Minutes Agenda Title: Update from Greater Portland Inc. on Regional Economic Development Prepared For: Lloyd Purdy,Community Development Submitted By: Norma Alley,Central Services Item Type: Update,Discussion,Direct Staff Meeting Type: Council Business Meeting -Main Public Hearing: No Publication Date: Information ISSUE Greater Portland Inc. is Tigard's partner in regional economic development. The City of Tigard supports GPI with a $5,000 annual contribution. This year, Greater Portland Inc. updated its work plan,long-term strategy for regional economic development,and expanded their programs. GPI Vice President Derrick Olsen will share details with council. STAFF RECOMMENDATION / ACTION REQUEST Discuss regional vision,plans and actions with Greater Portland Inc. Vice President Derrick Olsen. KEY FACTS AND INFORMATION SUMMARY The City of Tigard is part of the regional economy. Every workday more than 85 percent of Tigard's working age residents commute to a job outside the city but somewhere within the Portland metropolitan region. Conversely, every workday 90 percent of the jobs in Tigard are filled by a resident commuting into Tigard from somewhere else in the region. Tigard's firms are part of the regional supply chain.A sizable portion of Tigard's manufacturing and professional service firms produce a good or service used by other companies in the region. As a coordinating entity, GPI brings government and business leaders together to shape the economic future of this region.GPI was established in 2011 to coordinate public and private sector efforts to grow the regional economy. Historically, the organization did this through marketing and business recruitment in targeted sectors. In a typical year,GPI is responsible for 1/3 of the out-of-state lead responses that we respond to as part of our business recruitment efforts. Greater Portland Inc. is Tigard's primary regional partner working to create a healthier economy. Greater Portland Inc. is a regional partnership focused on helping companies expand and locate in the Portland-Vancouver area. This region includes seven counties and covers two states. Leveraging the region's assets, GPI and partners recruit businesses that improve the economy and promote long-term job growth. Our region is the 20th largest metropolitan economy in the country and includes: •More than 2.3 million people •2 states and 7 counties •A population that is expected to grow by 400,000 in the next 20 years GPI's 2015 Work Plan includes three overall themes. The first is "Uniting Regionally to Compete Globally'which requires building collaborations between public and private partners. The second theme is "Stay and Grow in Greater Portland'which requires supporting local business retention efforts of partners like the City of Tigard. The final over-arching theme is "Choose Greater Portland'which requires targeted business recruitment in selected industries. GPI's work builds upon the region's assets like existing business clusters in Metal& Machinery,Clean Technology,Athletic& Outdoor Gear,Computer&Electronics,Software/Media and Health Science &Technology. These business clusters vary slightly from state-wide priorities because they are unique to the Portland region. OTHER ALTERNATIVES Redirect future economic development funding to local programs. COUNCIL GOALS, POLICIES,APPROVED MASTER PLANS Working with Greater Portland Inc. is one part of Tigard's economic development program. Investment in regional economic development is supported by the City's Comprehensive Plan Goal 9 and Tigard's 2011 Economic Opportunity Analysis. DATES OF PREVIOUS COUNCIL CONSIDERATION December 2012 Attachments GPI Presentation AgendaQuick©2005-2015 Destiny Software Inc.,All Rights Reserved ■III►. GREATER 711 PORTLAND Greater Portland Inc Regional Economic Development City of Tigard September 8, 2015 Copyright 2015 Greater Portland Inc The information contained herein is subject to change without notice. WHAT TO EXPECT 1,602..., GREATER ,., PORTLAND • Overview of GPI • 2015 Work Plan • GPI Services 11, c • f � ` ' j • ` assw.nxr-tee -- _ 4-5 Aix a �...�- er, \. �"' mow � �1��.-e a G aa� Gig 3 OVERVIEW ■%rao. GREATER ,l, PORTLAND Greenlight Greater Portland now Regional Greater Portland Inc. Public- Private Jun 29. 2011. 1-31pm PDT Partnership Merger between publicly funded Established in 2011 Regional Partners and privately driven to coordinate a Greenlight Greater Portland transparent approach to economic development Marketing Recruitment Retention and Expansion Copyright 2015 Greater Portland Inc 3 The information contained herein is subject to change without notice. J OVERVIEW \%IA. GREATER 7., PORTLAND Dynamic Metro: WASHINGTON One Region • 2.3+ million people S KAMAN IA • 2 states COLUMBIA CiARK • • 7 counties WYA SHIN GTON MULTNOMAH • Population expected to grow by YAMHILL CLACKAMAS 400,000+ in next 20 years OREGON ?>Copyright 2015 Greater Portland Inc The information contained herein is subject to change without notice. `� OVERVIEW iY VA GREATER 7.1 PORTLAND • Site selectors look at regions when Why a regional considering a new location for approach? g pp their clients • Companies and talent do not pay Portland: attention to regional boundaries 20th • Marketing the assets of the entire largest metropolitan economy region is a far more compelling in the United States story • Regional boundaries align with the regional workshed ?i Copyright 2015 Greater Portland Inc 5 The information contained herein is subject to change without notice. J 2015 Work Plan ►i�•, GREATER 0 5 O PORTLAND r UNITING REGIONALLY TO IIFOMPETE GLOBALLY . =y Build cross-border and cross-sector . _" - _ _ :f- collaboration that leverages the region's assets, , -_-"'_ ' 3 _-- engages leadership and aligns efforts to -'`:I �" _' - - 1 I compete in the global market. ,.,. l .- • .. -._ ,. i _ STAY AND GROW IN I- - GREATER PORTLAND • E . R . . Develop tools and services that support local P 0 R.-T_L--A-N D community partners in their ongoing efforts GLOBAL . to retain and grow existing traded-sector :. .. o e'o rannc . in:tsr,wE r'_>w• ...._. companies in the region CHOOSE GREATER -: ' PPPORTLAND Create targeted awareness of the regional 4 • ' -1 value proposition as a place for business; grow ' the recruitment funnel to bring traded-sector °- L 6 expansion and relocation projects to the region. , ~ ii. liklINI,..:'..."ft"4"illkina.... 2015 Work Plan \, ,%Io. GREATER . PORTLAND UN ! ING REGIONALLY TO „ COMPETE GLOBALLY .- =a - i . . Build cross-border and cross-sector : -_„1,°'Ii'.. "` ' '{ collaboration that leverages the region's assets, = T • engages leadership and aligns efforts to - - T compete in the global market. T~` ` ""' TACTICS : • Greater Portland 2020 Plan • Convene Region's Civic & Business Leaders • Regional Communications , ,Copyright 2015 Greater Portland Inc 7 The information contained herein is subject to change without notice. 2015 Work Plan k►I►• GREATER ,,, PORTLAND TAY AND GROW IN j REATER PORTLAND , . . EA s Develop tools and services that support local P0 R T L AND—__-____. ommunity partners in their ongoing efforts GLOBAL to retain and grow existing traded-sector TRADE •Nq iN4't STLENT I'__ , companies in the region . , . TACTICS : • Greater Portland Global • Business Retention & Expansion • Economic & Fiscal Analysis !?,Copyright 2015 Greater Portland Inc 8 The information contained herein is subject to change without notice. 2015 Work Plan \%�o. GREATER PORTLAND CHOOSE GREATER 0= ' PORTLAND Create targeted awareness of the regional i value proposition as a place for business; grow ' - the recruitment funnel to bring traded-sector a t expansion and relocation projects to the region. :,v., TACTICS : • Large Site Strategy • Industry Reports & Market Analysis • Regional Marketing • Lead Generation !c>Copyright 2015 Greater Portland Inc 9 The information contained herein is subject to change without notice. ►��►• GREATER G PI SERVICES PORTLAND Providing expertise IIII Business Development and resources to local partners within the region . 1 Marketing Research + Analysis 0 Connectivity bpi Regional Competitiveness 10 ►I//%., GREATER GPI SERVICES PORTLAND TOTAL PROJECTS gel 47 Business Contacted us but has not viewed specific sites 31 1 Development PROS' - E Looking at options and has likely been on a site visit 15 •Professional Services 1. Metal & Machinery -1% ■Software 8IT 2. Clean Tech l 'Clean Tech •Acv.Mfg. 3. Athletic & Outdoor 2014 GPI WINS = 4 4a •Athletic&outdoor 2014 REGIONAL WINS=7 4. Computer & 2�° ■DgitalMedla& n, .High Technology 28% Electronics •Other/unknown Protects by Industry ■Food Processeg 5. Software/Media Professional Services 8 6. Health Science & Sofhvare&IT 13 Technology Clean Teeth 8 Adv.Mfg. 5 Athletic&outdoor 3 Digital Media&Filn 1 High Technology a Ot er/urdcn n 2 Food Processing 1 11 Total 47 GPI SERVICES LOP2o, GREATER , PORTLAND -mu the Greater Portland Marketing region is the perfect balance eLL-. of 1.%020. . GREATER talent & value 711 PORTLAND 111144 GREATER PORTLAND City o,CanbY GREATER PORTLAND's EMERGING 1.0,CA71C.f BIOSCIENCE HUB _= = — 00•17.011.•••••111..”.11.*P•VoIM eftl<Marelmelerse Ss v....■■•••••••■••••■■•••■••■■•••e.Tow ,Att.1,ta OMI•01.1■010■11,11.111/10.3.10*0101.•••••■••••■•■••■•••• 4.1.40.......11*•■•ow anow•••■•••■■■ ".■ .7.•■••••••■•vg tetel..1.16.....artioilan temmel. O K11001.0,140.1.•••••••••01.111.1.41■100 V.. •••■••••rweuenywie1441ue •<•■••••■•■•■•■•tRolt•O 111..1111=11.1111. . Pr'• Mr*armor MY. . . 12 GPI SERVICES \Ael►• GREATER ',111 PORTLAND ,., Research & Analysis SAMPLE ANNUAL BUSINESS OPERATING COSTS Employee Fringe and Building 1 Lease PropertY Total Operating Metro Area Payroll Mandated Benefits Utilities Payments Tax Cost Portland $36.236.800 $10.296.539 $245328 $375.969 $170,011 $47,324,647 Denver $36.842,650 $9,951,295 5219.967 3342.805 $335,923 $47,692,640 Riverside-San Bern. $37.587,100 $10,700,837 $326.530 $399,822 $152,379 $49.166,668 San Diego $37.959.450 310,807.498 $397,673 $428,478 $154,772 $49147,872 Seattle $38,605,650 $12,001.622 $255,159 $413,241 $159,852 151;435,525 San Jose $43,481,700 $12,361,185 $401,016 $542,023 $180,694 $56,966,618 See detailed tables for sources The annual estimated business operating costs table summarizes the annual cost of labor,utilities and facilities for selected metropolitan areas. Detailed calculations and source of costs of doing business for labor, utilities and facilities are provided in the following tables; which include costs such as worker's comp,unemployment insurance,health insurance,gas and electricity,annual real estate (lease or purchase)and taxes. Copynnht 2015 Grenter i?o,''Innd In,- ] 13 � ,o,- r n nad rem, is _ _ct-o c'senye vdil hout tice- 1 0 4 4/1 tr:. `1 9 i; ,.. in < ,/ * 4\ i ..,j ',. W CY . . 0 a pis 121 r 34 EV g ..-; : 0 OIL . ..7' Iry ,, ‘, ,,,:k., . ', AI, ,4, ,. ; y t. 1 I e t .4 4 ..;11 4, vicis■ C tf 4 ,Y , w U U a) > c ce o w U a U /I GREATER �o, GPI SERVICES PORTLAND - Regional totioCompetitiveness PORTLAND - GLOBAL ,GREATE• I A if ...o f Copyright 2015 Greater Portland Inc 1 c The information contained herein is subject to change without notice. J ∎0 0.4 GREATER 711 PORTLAND Thank You ! Copyright 2015 Greater Portland Inc 16 The information contained herein is subject to change without notice. I City of Tigard, Oregon Affidavit of Posting11li In the Matter of the Proposed Ordinance(s) T I GARD STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, "fd rv,z,t.. i/(, l ,being first duly sworn,by oath, depose and say: I posted in the following public and conspicuous places, a copy of Ordinance Number/ /O /—7 , which were adopted at the City Council meeting of 7/6/2.D//S5 ,with a copy(s) of said Ordinance(s) being hereto attached and by reference made a part hereof, on the %`yday of C _I"6/YZ. u20 (6'. 1. Tigard City Hall, 13125 SW Hall Blvd.,Tigard, Oregon 2. Tigard Public Library, 13500 SW Hall Blvd.,Tigard, Oregon 3. Tigard Permit Center, 13125 SW Hall Blvd.,Tigard, Oregon -�2 / /// Signature of Person who Perfo •d Posting di Subscribed and sworn before me this V th day of i3eioiem t, 2O!3rby 4/2,v r'm 4-- T4//613 .. 'x OFFICIALSTAMP L-ea�(J" �"�-V' / C: a� ., CAROL ANN KRAGER ."' :°y NOTARY PUBLIC - OREGON Notary Public—State of Or in `Iiiiii.i: COMMISSION NO.924954 MY COMMISSION EXPIRES FEBRUARY 10,2018 I:\ADM\NORMA\FORMS\AFFIDAVIT OF POSTING-ORDINANCE.DOC