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04/07/1999 - Packet FILE COPY INTERGOVERNMENTAL WATER BOARD MEETING Serving Tigard, King City, Durham and Unincorporated Area AGENDA Wednesday, April 7, 1999 5:30 p.m. 1. Call to Order 2. Roll Call and Introductions 3. Approval of Minutes February 24, 1999 4. Cell Tower Lease Agreement 5. Long Term Water Supply - Ed Wegner 6. Discussion/Recommendation on Long Term Water Supply 7. Non Agenda Items 8. Adjournment Executive Session: The Intergovernmental Water Board may go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations, real property transactions, and current and pending litigation issues. All discussions within this session are confidential; therefore nothing from this meeting may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. kathy\iwb\4-7.agn l Intergovernmental Water Board Meeting Minutes February 24, 1999 Board Members Present: Bill Scheiderich, Beverly Froude, Jan Drangsholt, Patrick Carroll, Paul Hunt Staff Present: Ed Wegner, Mike Miller, Kathy Kaatz Visitors: Henrietta Cochrun,Norman Penner, David Strauss, Gretchen Buehner 1. Call to Order The February 24, 1999 meeting was called to order at 5:35 p.m. 2. Roll Call and Introductions Roll call was taken with all Board Members present. 3. Approval of Minutes Motion was made by Paul Hunt to approve the minutes from the December 9 meeting which was seconded by Patrick Carroll. All members voted for approval with Bill Scheiderich abstaining. 4. Long Term Water Supply Update-Ed Wegner Mr. Wegner distributed a memo from Mike Rosenberger, Administrator of the Portland Water Bureau that was circulated at the Water Managers Meeting regarding the certainty and governance which comes from the Deputy City Attorney of Portland. After December 15 the City of Portland received numerous calls from Tigard residents regarding the issue of selling of surplus water and the current City of Portland Charter. In response to these questions a memo was given to Mike Rosenberger. Commissioner Scheiderich questioned whether Commissioner Sten has signed off on this memo? Mr. Wegner stated that Commissioner Sten has not signed off on this although Mr. Rosenberger stated that at the next Water Managers Meeting in March(3-10) he will present a Intergovernmental Water Board February 24, 1999 Page 1 timetable on contract renewal negotiations with a buy off clause from the Council demonstrating they are in favor of expanding the Bull Run. Gretchen Buehner raised two issues with this memo: 1) did not address the issue of limitation of the charter-portion of this that does need to go to Council and 2) if it is only addressed in an ordinance, what will the binding authority of future councils be? Commissioner Scheiderich stated that he felt comfortable that they would be able to bind themselves with a contract. Commissioner Froude questioned whether the thirteen members of the Water Managers group are all interested in the same issue of certainty and governance? Mr. Wegner continued by stating that Portland would like to have one contract with thirteen members. He stated that there needs to be some conclusion reached on the needs and wants of the groups. He stated that all members are interested in certainty and some kind of ownership clause. The certainty needs to something further than just owning the pipe and having capacity within the pipe. It has been stated that we will not be able to buy ownership in the existing Portland system which includes the headworks, two dams and 50 mg Powell Butte Reservoir. Mr. Wegner continued by stating what might come to the table will be those who go with the City of Portland instead of contract they could buy an ownership right into those facilities. If the filtration plant was put on the system, Tigard could own 5.9% of the plant. If dam three is built, Tigard could own 5% of that since that is the amount of water that we would contract for. Commissioner Drangsholt questioned whether Portland would ever assign water rights? Mr. Wegner stated that this would need to be addressed with Portland, although the indication in the past has been, no. Mr. Wegner stated that a lot of questions have been raised about the EPA's Safe Water Drinking Standards and the filtration process. In the Willamette River Report (full report) in Appendix F, Section 4 and 5 will outline. He continued by saying that most of the questions at the meetings attended to date have been related to water quality and costs. The Board discussed the preliminary draft cost estimates that are being used which were supplied in this months Cityscape and are based upon the following: • Assumptions for comparison • Construction costs • Repayment of borrowed funds • Operation and Maintenance costs • Consolidated net rate per ccf comparison Intergovernmental Water Board February 24, 1999 Page 2 Commissioner Hunt stated the benefit of providing costs estimates to the users in the form of what their monthly rates would reflect. It was decided that Mike Miller would discuss with Wayne about the possibility of providing these figures in that format. It was noted that on Wayne Lowry's handout, there are no units of measure shown on the final page. Mr. Wegner discussed the letter from Gretchen Buehner in the Southwest Metro section of the Oregonian published on February 18, 1999. A copy was distributed to the Board members. Mr. Wegner stated that currently there are eight municipalities that have unfiltered water. He continued by stating that filtered water is the wave of the future and will have chlorine, GAC and ozone. Commissioner Drangsholt questioned whether there have been comparisons between the drinkablity of Willamette and Clackamas River raw water? Mr. Wegner stated that no one has tested the raw water as much as Tigard has with the current raw water monitoring. Mr. Wegner stated since December that staff has attempted to present all the facts regarding both scenarios and by the end of April a decision is needed. Mr. Wegner stated that a recommendation has been requested from the Water Advisory Task Force at the City Council meeting on April 13 as outlined in their resolution. The IWB will also need to meet and make a recommendation prior to that date. On that date the Tigard City Council will conduct a public hearing and hear testimony from the citizens as to an ordinance or resolution to proceed with one water supply option or another. The staff recommendation will come the night of the reading of the ordinance. Commissioner Drangsholt questioned whether a recommendation would need to made from each individual entity (Durham, King City and the unincorporated area)? Commissioner Froude pointed out that as outlined in the IGA each entity individually is required to make a recommendation on long term capital improvements (page 12 of the IGA). Mr. Wegner stated that if each of the entities gave their representative the authority to vote on their behalf, it would be appropriate. Commissioner Carroll suggested that Mr. Wegner get in contact with Roel Lindquist to request being on the Durham City Council agenda for their March 23 meeting. The question was raised regarding or readiness for Y2K? Mr. Miller stated that since the City of Tigard purchases its water from Portland and they have indicated that they are Y2K compliant. If a major power grid goes down, Portland does have standby generators and they will continue to pump. From Portland's tanks to our system is all gravity and if Tigard experienced a failure, whether to Scada or power we can operate our system manually. Intergovernmental Water Board February 24, 1999 Page 3 5. 1999/00 Budget Summary-Mike Miller Mike Miller outlined the major highlights of the 1999/00 proposed budget which included the proposal for the addition of two full time employees, another Water Supervisor and a Water Resource Specialist who will work on long term supply and staff support. Mr. Miller continued by outlining some of the major program highlights such as: • Reservoir cleaning - third year • Meter replacement program continuation • Construction of anew 24 inch water main along Beef Bend Road - SW 131st to SW King Arthur Mr. Miller stated that the highest expense within the budget is the purchase of water and even though the peaking factor was not that high, costs are up to $1.226. Commissioner Hunt questioned why the additional costs of water is not being made available to the rate payers? Mr. Wegner stated that this information will be in the April Cityscape and there was a news release on this matter. There was discussion on the fact that rates will not be increased due to the additional costs but will be covered by reserve funds. Commissioner Scheiderich questioned whether the surplus property from the Menlor site will be sold this year and will these funds go into Water fund? Mr. Wegner stated that this surplus property will probably be sold this fiscal year. He continued by saying that the Menlor reservoir site is complete with the exception of some landscaping to be completed. This Board will need to decide what to do with the Klute property that was purchased at the bottom of the site. The original intent was to purchase this property which was needed to construct the reservoir and then sell the surplus property. Staff's recommendation will most likely be to sell the additional property including the house and utilize these funds to purchase the Cache property that is adjacent to this property at a higher level (550 zone). The Menlor project has been nominated for two national awards with the tank designer and concrete work. Next meeting was set for March 10. 6. Adjournment Motion was made by Patrick Carroll with a second by Beverly Froude and the meeting was adjourned at 7:00 p.m. Intergovernmental Water Board February 24, 1999 Page 4 MEMORANDUM TO: Ed Wegner, Public Works Director FROM: Wayne Lowry, Director of Finance RE: Cell Provider ground lease DATE: March 19, 1999 The Intergovernmental Water Board approved the lease of space on the ground in the water yard for a cell tower at their April 10, 1996 meeting. The minutes of that meeting reflect the intent to lease additional space in the future to another provider who would co-locate on the pole. We have been approached by AT&T about leasing space on the ground adjacent to the Sprint pole. The attached agreement includes a map showing the location of their proposed 760 sq ft fenced area. The attached agreement calls for the rental of this space on the ground for $600 per month. The lease revenue will be recorded in the water fund. In addition, the agreement calls for four, five year renewal periods with the rent increasing 20% for each renewal term. Please place this on the next Intergovenmental Water Board (IWB) agenda. We are seeking IWB approval of the lease of the ground space. Once approved by the IWB, we will place the lease on the Council agenda for approval. Please call if you have any questions about this matter. Market: Portland Cell Site Number: LEASE AGREEMENT THIS LEASE AGREEMENT ("Agreement"), dated as of the date below, is entered into by CITY of TIGARD, a Municipal corporation, having its principal office/residing at 13125 SW Hall Blvd., Tigard, Oregon, 97223, (hereinafter referred to as "Landlord") and AT&T WIRELESS SERVICES of OREGON, INC., a Nevada corporation, d/b/a AT&T WIRELESS SERVICES, having an office at 1440 SW 4th Avenue, Portland, Oregon 97201, (hereinafter referred to as "Tenant"). BACKGROUND Landlord owns that certain plot, parcel or tract of land, together with all rights and privileges arising in connection therewith, located at 8777 SW Burnham Street, in the City of Tigard, Washington County, State of Oregon (collectively"Property"). The property being further identified on the Legal Description of the Property attached hereto as Exhibit 1. Tenant desires to use a portion of the Property in connection with its federally licensed communications business. The parties agree as follows: 1. LEASE OF PREMISES. Landlord leases to Tenant a certain portion of the Property containing approximately 800 square feet as described on attached Exhibit 2 (collectively, "Premises"). 2. PERMITTED USE. Tenant may use the Premises for the following: (i) transmission and reception of communications signals; (ii) to construct, install, operate, maintain, repair, replace, protect and secure, its communication fixtures and related equipment, cables, accessories and improvements(collectively, the"Communication Facility'); along with any number of associated antennas, an equipment shelter, fencing and any other accessories necessary to the successful and secure operation of the Communication Facility; and (iii) any activities related to the forgoing. Landlord and Tenant agree that Exhibit 2 shows the initial installation of Tenant and that it does not limit Tenant's rights under this paragraph. Landlord's execution of this Agreement will signify Landlord's approval of Exhibit 2. Tenant has the right (i) to install and operate transmission cables from the equipment shelter to the antennas, electric lines from the main feed to the equipment shelter, and communication lines from the main entry point to the equipment shelter and (ii) to erect, construct or make Property improvements, alterations, or additions appropriate for Tenant's use ("Tenant Changes"). Tenant Changes include the right to 1 11/2/98 land.doc construct and maintain a fence around the Premises or undertake any other appropriate means to restrict and secure access to the Premises. 3. INSTALLATIONS. Tenant agrees to comply with all applicable governmental laws, rules, statutes and regulations, relating to its use of the Communication Facility on the Property. Tenant has the right to modify, supplement, replace, upgrade, expand the equipment, increase the number of antennas or relocate the Communication Facility within the Premises at any time during the term of this Agreement. Tenant will be allowed to make such alterations to the Property in order to accomplish Tenant's Changes or to insure that Tenant's Communication Facility complies with all applicable federal, state or local laws, rules or regulations. 4. TERM. (a) The initial lease term will be five (5) years ("Initial Term"), commencing upon the Commencement Date, as defined below. The Initial Term will terminate on the last day of the month in which the fifth annual anniversary of the Commencement Date occurred. (b) This Agreement will automatically renew for four (4) additional five (5) year Term(s) (the "Extension Term"), upon the same terms and conditions unless the Tenant notifies the Landlord in writing of Tenant's intention not to renew this Agreement at least ninety(90) days prior to the expiration of the existing Term. (c) If Tenant remains in possession of the Premises after the termination or expiration of this Agreement then Tenant will be deemed to be occupying the Premises on a month to month basis (the "Holdover Term"), subject to the terms and conditions of this Agreement. (d) The Initial Term, and the Extension Term and the Holdover Term are collectively referred to as the Term. ("Term"). 5. RENT. (a) Commencing on the date that Tenant commences construction (the "Commencement Date"), Tenant will pay the Landlord a monthly rental payment of Six Hundred Dollars ($600.00), to Landlord, at the address set forth above, on or before the 1011 day of each calendar month in advance or to such other person, firm, or place as Landlord may, from time to time, designate in writing at least thirty (30) days in advance of any due date. Rent will be prorated for any partial month. (b) Tenant shall have the right to use a direct deposit system with regard to Rent payments. Landlord agrees to cooperate with Tenant in providing requisite information to Tenant for such direct deposit. The implementation of the direct deposit system shall be at Tenant's expense. 2 11/2/98 land.doc (c) In the first year of each exercised Extension Term, the monthly rent shall be increased by Twenty percent(20%)over the previous year's rent. 6. APPROVALS. (a) Landlord agrees that Tenant's ability to use the Premises is contingent upon its suitability for Tenant's intended use from both an ,economic and technical engineering basis and Tenant's ability to obtain all governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by Tenant for its use of the Premises, including without limitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively referred to as "Governmental Approvals"). Landlord specifically authorizes Tenant to prepare, execute and file all necessary or appropriate applications to obtain Governmental Approvals for its use under this Agreement and to reasonably cooperate with the same. (b) Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by a surveyor of choice. (c) Tenant may also obtain, at Tenant's sole cost and expense, soil boring, percolation, engineering procedures, environmental investigation or other tests or reports("Tests") on, over, and under the Property, necessary to determine if the Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations or Governmental Approvals. 7. TERMINATION. This Agreement may be terminated, without penalty or further liability, as follows: (a) by either party on thirty (30) days prior written notice, if the other party remains in default under Paragraph 16 of this Agreement after the applicable cure periods; (b) by Tenant on sixty(60)days prior written notice, if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels any required approval(s) or the issuance of a license or permit by any agency, board, court.or other governmental authority necessary for the construction or operation of the Communication Facility as now and hereafter intended by Tenant; or if the Premises become unsuitable for Tenant's operation due to governmental regulations; or if Tenant determines in its sole discretion that the cost of obtaining or retaining the same is commercially unreasonable; (c) by Tenant on sixty (60) days prior written notice, if Tenant determines, in its sole discretion, that Tenant's use of the Premises (as the same may have been modified from time to time) is no longer consistent with the optimal operation of Tenant's communications network based upon either technical or economic considerations; (d) by Tenant on sixty (60) days prior written notice, if Tenant determines that interference by or to Tenant's use of the Premises cannot be resolved to Tenant's satisfaction; 3 11/2/98 land.doc (e) by Tenant immediately upon notice, if destruction or damage to the Premises or the taking thereof (by partial condemnation or otherwise) is sufficient, in Tenant's reasonable judgment, to adversely affect Tenant's use of the Premises; or (f) by Tenant immediately upon notice, if Tenant determines, in its sole discretion, due to the title results, survey results or Tests, that the condition of the Premises is unsatisfactory or Tenant believes that the leasing or continued leasing of the Premises would expose Tenant to undue risks of government action or intervention or third-party liability. If this Agreement is terminated for any reason outlined in this paragraph, any prepaid rent will be refunded on a prorata basis. 8. INSURANCE. (a)Tenant will carry during the Term, at its own cost and expense, the following insurance: (i) "All Risk" property insurance for its property's replacement cost; (ii) commercial general liability insurance with a minimum limit of liability of $2,000,000 combined single limit for bodily injury or death/property damage arising out of any one occurrence; and (iii)Workers'Compensation Insurance as required by law. (b) Tenant will name the Landlord as an additional insured under its commercial general liability policy. Tenant will require its insurance company to give at least thirty (30) days prior written notice of termination or cancellation of the policy to the additional insured, except for termination or cancellation for non-payment of premium, which notice will be ten (10) days. Tenant will provide proof of insurance to Landlord prior to the commencement of any construction activities. (c) Notwithstanding anything in this Agreement, with respect to all loss, damage, or destruction to the insured party's property (including rental value and business interruption) occurring during the term of this Agreement, Landlord and Tenant hereby releases and waives all claims (except for willful misconduct and negligence) against the other party, and each of the other party's, employees, agents, officers, and directors. Landlord and Tenant will make a reasonable effort to include in their property insurance policy or policies a waiver of subrogation provision whereby any such release does not adversely affect such policies or prejudice any right of the insured party to recover thereunder. 9. INTERFERENCE. (a) Where there are prior existing radio frequency users on the Landlord's property, the Landlord will provide Tenant with a list of all current radio frequency user(s)(and their frequencies) on the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the Premises will not interfere with existing third parties on the Premises as long as the current user(s)operate and continue to operate within their frequencies, and in accordance with all applicable laws and regulations. In addition, if at any time during this Agreement it is determined that there is identifiable interference between Tenant's 4 11/2/98 land.doc electronic equipment and any of the Landlord's electronic equipment, Tenant shall be solely responsible of the timely resolution of all interference concerns that are directly attributable to Tenant's use, at Tenant's sole expense. This requirement applies to Landlord's electronic equipment regardless of its location. In the event that Tenant is unable to satisfactorily resolve all interference concerns within a reasonable period of time, Tenant may be required to terminate all operations under this Agreement immediately. Failure to cure such interference within a reasonable period of time shall be deemed a material breach by the interfering party, who shall upon notice from the other, be responsible of terminating said interference. In the event any such interference does not cease promptly upon notice, the parties acknowledge that continuing interference may cause irreparable injury and therefore the injured party shall have the right, in addition to any other rights that it may have at law or in equity, to bring action to enjoin such interference or to terminate this Agreement immediately upon written notice. (b) Landlord will not grant, after the date of this Agreement, a lease, license or any other right to any third party for use of Landlord's Property, if such use may in any way adversely affect or interfere with Tenant's Communication Facility. Landlord will notify Tenant and receive Tenant's written approval prior to granting any third party the right to install and operate communications equipment on Landlord's Property. Nothing contained herein will restrict Tenant nor its successors and assigns from installing and modifying its/their communication equipment. (c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents to use, any portion of the Property or any of Landlord's other properties in any way which interferes with the operations of Tenant or the rights of Tenant under this Agreement. Landlord will cause such interference to cease upon not more than twenty-four (24) hour notice from Tenant. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the right, in addition to any other rights that it may have at law or in equity, for Landlord's breach of this Agreement, to elect to enjoin such interference or to terminate the Agreement upon notice to Landlord. (d) For the purposes of this provision, "interference" may include, but is not limited to, any other use on the Property or any other use on Landlord's other properties that causes electronic, physical or obstruction interference with, or degradation of the communications signals from Tenant's facility. In general, pre-existing facilities expressly excluded, the parties agree that the physical location of another 800 Mhz to 2500 Mhz communications facility within one hundred thirty feet (130') of Tenant's facility will most likely cause interference and, accordingly, Landlord will not allow such future uses within this distance from Tenant's location without the prior written consent of Tenant. If Tenant notifies Landlord that there is interference, and if such interference is not cured within ten (10) calendar days, Tenant will have the option to (i)terminate this Lease by giving Landlord ten (10) days' written notice of its election to terminate, or (ii) if Tenant elects not to terminate this Lease, Landlord agrees to allow Tenant, in place of 5 11/2/98 land.doc Landlord, and after Landlord has made a good faith effort to accomplish same, to take any action, in law or in equity, necessary to cause the interfering lessee or licensee to eliminate such interference. Tenant acknowledges that its grant does not exclude other communication facilities on the Property (other than the Premises and a one hundred thirty foot (130') radius from the Premises) and Tenant agrees to reasonably cooperate with Landlord and other potential communication facility operators as to their proposed operations not inconsistent with this Lease. 10. INDEMNIFICATION. (a) Tenant agrees to indemnify, defend and hold Landlord harmless from and against any direct injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) resulting from the installation, use, maintenance, repair or removal of the Communication Facility or the breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors. (b) Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all direct injury,,loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising from the actions or failure to act of Landlord or its employees or agents,-or the breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or independent contractors. 11. WARRANTIES.(a) Tenant and Landlord each acknowledge and represent that it is duly organized, validly existing and in good standing and has all rights, power and authority to enter into this Agreement and bind itself thereto through the party set forth as signatory for the party below. (b) Landlord represents and warrants that: Landlord (i) solely owns the Property as a legal lot in fee simple, or controls the Property by lease or license, unencumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, agreements of record or not of record, which would adversely affect Tenant's use and enjoyment of the Premises under this Agreement; (ii) as long as Tenant is not in default then Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the Premises; (iii) its execution and performance of this Agreement will not violate any Laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on the Landlord. 12. ENVIRONMENTAL. (a) Landlord represents, warrants and agrees that: (i) the Property and its uses and operations complies, and will comply, with all local, state and federal statutes or regulations, or ordinances pertaining to the environment or natural resources 6 11/2/98 land.doc ("Environmental Laws"); (ii)the Property has not been used or allowed to be used by Landlord or, to the best of Landlord's knowledge, by any previous owner, to emit through ground, water or air, refine, manufacture, generate, produce, store, contain, handle, transfer, process, treat, transport, or dispose of hazardous substances or hazardous wastes, products or pollutants, including without limitation asbestos, oil, petroleum products and their by-products, (collectively called "Hazardous Substance") as defined and regulated under any Environmental Laws; (iii) the Property has never been the subject of any federal or state Hazardous Substance related list; and (iv) the Property has never required closure or clean-up of Hazardous Substance. Landlord warrants and represents that it will be solely liable for the clean-up and removal of Hazardous Substance and any related activities, including but not limited to the restoration of the Property related to Hazardous Substances now and in the future existing on the Property except to the extent generated by Tenant. Landlord will defend, indemnify and hold Tenant harmless from and against any and all direct liabilities, damages, losses, costs, assessments, penalties, fines, expenses and fees, including reasonable legal fees, consultant fees and expert witness fees, related to Landlord's breach of any of the above representations and warranties. (b) Tenant represents, warrants and agrees to conduct its activities on the Premises in compliance with all applicable Environmental Laws. Tenant will not use, generate, release, manufacture, refine, produce, store, or dispose of any Hazardous Substance on, under, or about the Leased Premises, except for the use of sealed batteries for emergency back-up, any fire suppression system and small quantities of cleaning products ordinarily used by commercial businesses. Tenant agrees to defend, indemnify and hold harmless Landlord from and against any and all direct liabilities, damages, losses, costs, assessments, penalties, fines, expenses and fees, including reasonable legal fees, that Landlord may suffer due to the existence or discovery of Hazardous Substance on the Property, or released into the environment that are directly caused by Tenant's use of the Premises. (c) The indemnifications of this Paragraph specifically include reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean-up, remedial, removal or restoration work required by any governmental authority. The provisions of this Paragraph will survive the expiration or termination of this Agreement. 13. ACCESS. Landlord will be permitted access to the Premises: (i) for emergencies without prior notice to Tenant, so long as Tenant is notified as soon thereafter as reasonably practicable; and (ii)with reasonable prior notice to Tenant to make necessary repairs; in all cases provided that Tenant's equipment, technology and proprietary interests remain secure and the Communication Facility's operation is not adversely affected. At all times throughout the term of this Agreement, and at no additional charge to Tenant, Landlord will provide, as further set forth in Exhibit 1, Tenant and its employees, agents, and subcontractors, with twenty-four hour, seven day vehicular access to and over the Property, from 7 11/2/98 land.doc an open and improved public road to the Premises, for the installation, maintenance and operation of the Communication Facility and any utilities serving the Premises. Upon Tenant's request, Landlord will execute an easement evidencing this right. In the event any public utility is unable to use the access or easement provided to Tenant then the Landlord hereby agrees to grant an additional access or easement either to Tenant or to the public utility, for the benefit of Tenant, at no cost to Tenant. 14. REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the Property by Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at anytime during the Term. Landlord covenants and agrees that no part of the Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of, the Property, it being the specific intention of the Landlord that all improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term. Within one hundred twenty (120) days of the termination of this Agreement, Tenant will remove all such improvements. Footings, foundations, and concrete will be removed to a depth of one foot below grade. Tenant will, to the extent reasonable, restore the Premises to its condition at the commencement of the Agreement, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. Tenant will not be responsible for the replacement of any trees, shrubs, or other vegetation, nor will Tenant be required to remove from the Premises or the Property any underground utilities. 15. MAINTENANCE ; UTILITIES. (a) Tenant will, at Tenant's expense, keep and maintain the Premises in good condition, reasonable wear and tear and damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, in good and tenantable condition, subject to reasonable wear and tear and damage from the elements. (b) Tenant will be solely responsible for and promptly pay all utilities charges for electricity, telephone service or any other utility used or consumed by Tenant on the Premises. Landlord will fully cooperate with any utility company requesting an easement over, under and across the Property in order for the utility company to provide service to the Tenant. 16. DEFAULT AND RIGHT TO CURE. (a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-payment of Rent if such rent remains unpaid for more than thirty (30) days after receipt of written notice of such failure to pay from Landlord; or (ii) Tenant's failure to perform any other term or condition under this Agreement within forty-five (45) days after receipt of written notice from Landlord specifying the failure. No 8 11/2/98 land.doc such failure, however, will be deemed to exist if Tenant has commenced to cure such default within such period and provided that such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Tenant. (b) The following will be deemed a default by Landlord and a breach of this Agreement. Landlord's failure to perform any term or condition under this Agreement within forty- five (45) days after receipt of written notice from Tenant specifying the failure. No such failure, however,.will be deemed to exist if Landlord has commenced to cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Landlord. 17. ASSIGNMENT/SUBLEASE. (a) Landlord may assign this Agreement provided said assignee will assume, recognize and also become responsible to Tenant for, the performance of all of the terms and conditions to be performed by Landlord under this Agreement. (b)Tenant may assign or sublet all or any part of the Premises upon prior written approval by Landlord, said approval not to be unreasonably withheld, and all or any rights, benefits, liabilities and obligations of this Agreement provided that the assignee or subleasee assumes, recognizes and also agrees to become responsible to the Landlord for the performance of all terms and conditions of this Agreement. Upon notification to Landlord by Tenant of any such action, Tenant will be relieved of all future performance, liabilities and obligations under this Agreement to the extent of such assignment or sublease. 18. NOTICES. All notices, requests, demands and communications hereunder will be given by first class certified or registered mail, return receipt requested, or by a recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notice will be addressed to the parties at the addresses set forth above (as to Tenant, Attn.: System Development Manager; with a copy to AT&T Wireless Services, 10210 NE Points Drive, Suite 400, Kirkland, Washington, 98083-9742, Attn.: Legal Department). Either party hereto may change the place for the giving of notice to it by written notice to the other as provided herein. 19. SEVERABILITY. If any term or condition of this Agreement is found unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the Agreement may be terminated by either party on ten (10)days prior written notice to the other party hereto. 9 11/2/98 land.doc j z 20. TAXES. Tenant will pay all personal property taxes assessed on, or any portion of such taxes attributable to, the Communication Facility. Tenant, upon presentation of sufficient and proper documentation, will pay, within thirty (30) days, any increase in real property taxes levied against the Property (excluding any additional taxes that relate to the period prior to the Commencement Date, i.e., rollback taxes) which is directly attributable,to Tenant's-use of the Property, provided Tenant will be entitled to appeal any such increase payable by it. Landlord agrees that it will cooperate with an appeal of such taxes and will promptly pay when due all real estate taxes levied against the Property. 21. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings affecting the Property, Landlord will provide notice of the proceeding to Tenant within forty-eight (48) hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant's sole determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning authority. The parties will be entitled to share in the condemnation proceeds in proportion to the values of their respective interests in the Property, which for Tenant will include, where applicable, the value of its Communication Facility, moving expenses, prepaid rent, and business dislocation expenses. Tenant will be entitled to reimbursement for any prepaid Rent. 22. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the Property within forty-eight hours of the casualty. If any part of the Communication Facility or Property is damaged by fire or other casualty so as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate this Agreement by providing written notice to the Landlord, which termination will be effective as of the date of such damage or destruction. Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any prepaid Rent. 23. BROKER FEES. Tenant and Landlord each acknowledges and represents to the other that no broker or other person was used by it in connection with this transaction. If any claims, actions or proceedings are brought against either party("Indemnitee") by reason of any broker, finder or other person claiming to have dealt with the other party ("Indemnitor") in connection with this transaction and/or the Premises, then the Indemnitor hereby agrees to indemnify, hold harmless and defend the Indemnitee from and against all liabilities arising from such claims, and all reasonable costs and expenses incurred in connection therewith (including, without limitation, reasonable legal fees and disbursements). The provisions of this Article will survive the termination of this Agreement. 10 11/2/98 land.doc 24. MISCELLANEOUS. (a) Amendment; Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by an authorized agent of Landlord and Tenant. No provision may be waived except in writing signed by the party waiving said right. (b) Short Form Lease. Either party will, at any time upon fifteen (15) days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease. Either party may record this memorandum at any time, in its absolute discretion. (c) Bind And Benefit. The terms and conditions contained in this Agreement will run with the Property and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and assigns. (d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements. (e) Governing Law. This Agreement will be governed by the laws of the state in which the Premises are located, without regard to conflicts of law. (f) Interpretation. Unless otherwise specified, the following rules of construction and interpretation apply: (i)captions are for convenience and reference only and in no way define or limit the construction of the terms and conditions hereof; (ii) use of the term "including" will be interpreted to mean"including but not limited to"; (iii)whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of the Agreement and are incorporated by reference into this Agreement; (v) use of the terms"termination"or"expiration" are interchangeable, and (vi) reference to a default will take into consideration any applicable notice, grace and cure periods. (g) Estoppel. Either party will, at any time upon fifteen (15) days prior written notice from the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying this Agreement, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. Failure to deliver such a statement within such time will be conclusive upon the requesting party that (i) this Agreement is in full force and effect, without modification except as may be properly represented by the requesting party, (ii) there are no uncured defaults in either party's performance, and (iii) no more than one month's rent has been paid in advance. 11 11/2/98 land.doc (h) No Option. The submission of this Agreement for examination or consideration does not constitute a reservation of or option for the Premises. This Agreement will become effective as an Agreement only upon the legal execution, acknowledgment and delivery hereof by Landlord and Tenant. IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed this 18th day of March, 1999. LANDLORD: CITY of TIGARD, a municipal corporation By: William A. Monahan Title:Tigard City Manager TENANT: AT&T WIRELESS SERVICES of OREGON, INC., a Nevada corporation Dba AT&T Wireless Services By: Edwin E. Menteer Title: System Development Manager 12 11/2/98 land.doc ACKNOWLEDGEMENTS STATE of OREGON ) )ss: COUNTY of WASHINGTON ) On this day of 1999, before me, a Notary Public, personally appeared William A. Monahan, known to me to be the Tigard City Manager of the City of Tigard, a municipal corporation, the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned,and on oath stated that he was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of Oregon My Commission Expires: STATE of ) ss: COUNTY of ) On this day of 1999, before me, a Notary Public, personally appeared Edwin E. Menteer, known to me to be the System Development Manager of AT&T Wireless Services of Oregon, a Nevada corporation, the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of My Commission Expires: 13 11/2/98 land.doc EXHIBIT 1 to that certain Lease Agreement dated March 18, 1999, by and between the City of Tigard, a municipal corporation, Landlord, and AT&T Wireless Services of Oregon, a Nevada corporation, dba AT&T Wireless Services, Tenant Legal description of the Property: Beginning at the most Easterly corner of that property conveyed to Joseph W. Davis and described by Deed recorded August 23, 1966, in Book 612, Page 441, Washington County Records, said point being on the Southerly right of way line of the Oregon Electric Railway Co.; thence South 40 degrees 07'32" East following said Southerly right of way 115.82 feet to the most Easterly corner of that property conveyed to James R. McGee and described by deed recorded January 30, 1973, in Book 907, Page 324, Washington County records; thence South 44 degrees 50'11"West following the Southeasterly line of said McGee property 80.31 feet; thence North 40 degrees 07'32" West 115.84 feet to a point on the Southeasterly line of said Davis property; thence North 44 degrees 50'11" East following said Southeasterly line 80.31 feet to the point of beginning. 14 11/2/98 land.doc EXHIBIT 2 to that certain Lease Agreement dated March 18, 1999, by and between the City of Tigard, a municipal corporation, Landlord, and AT&T Wireless Services of Oregon, a Nevada corporation, dba AT&T Wireless Services, Tenant SITE PLAN (See next page attached hereto) 15 11/2/98 land.doc FEST P,eop6RTY L11jF i f��2 ITT SPR I LcASF_D G ARES "'' SP2�N i" foo , S �oA�SED FZEC,OCATEI� I GATE METFR v TA ExI�T/NG GAT'E�ToCit Rrrytov&D) i -� GATE W 0 38' NOT DRAWN , To SCAL.� i MEMORANDUM TO: Intergovernmental Water Board Members FROM: Ed Wegner 6�� RE: WRD - Strategic Plan DATE: April 2, 1999 Attached is the summary of the Strategic Plan for Managing Oregon's Water Resources for the 1999-2001 period. The Plan identifies five core strategies, their management plan as well as legislative and budget proposals. Although the report does not specifically speak to the Willamette River, it will be covered in the watershed management and general water supply area. You can see that efficiency and water conservation are another key strategy. If you have questions or comments, give me a call. Thanks! Kathy\iwb\wrd strategies STRATEGIC PLAN preparing for Oregon's future water needs IN THE 1999-20oi BIENNIUM, staff from the Water Resources .x Department will work on dozens of programs that serve Oregon's water supply and stewardship needs.Using existing authority and building on broad participation from interest groups and citizens, the programs address water issues ranging from simple to complex. The Department is also looking forward, toward the coming century,with new programs and new ideas.Some of these innova- tions will rely on legislation or funding to accomplish.They represent new approaches to meeting water supply needs and stewardship responsibilities by building on the partnerships that created many of the Department's current programs. A new program,the Stewardship and Supply Initiative will update water resource information throughout the state and create a system for sharing this new information to help make water supply deci- sions and enhance stewardship efforts. In separate efforts, Department staff will operate and maintain new gaging stations to understand streamflows in coastal basins. Staff across the state will advance the Department's commitments under the Oregon Plan for Strategic Planning Salmon and Watersheds. A new watermaster position in the northwest This 1999-2001 plan identifies five core region will tackle fish and water supply issues.And,in the Klamath strategies designed to fulfill the agency's mission:0 water resource Basin,a complex adjudication will sort through more than 700 claims stewardship,2)water supply solutions,3) of water use as citizens join in an alternative dispute resolution process. information management,4)citizen •• While reading through the Strategic Plan,you can services,and 5)funding for local and state water management. easily spot new ideas and planned activities identified by this logo. For each strategy,the plan outlines These,and other new proposals, are the result of interest group management priorities,and legislative discussions,task force reports, Commission discussions, and public and budget proposals.Management participation.These new strategies represent our hope for tomor- priorities guide the agency toward row's water management. By bringing together dedicated staff, setting specific tasks and timelines. broad interests,policy,law, and the necessary funding, Oregon's Legislative proposals consist of changes in law needed to better implement a water management will enter the new century with the promise of core strategy.Budget proposals are sustaining a healthy resource, a vibrant economy, and the quality of requests for additional funds necessary life cherished by all Oregonians. to carry out the strategy. For a complete copy of the STRATEGIC PLAN for Managing Oregon's Water Resources, 1999-2001, contact the Department at: 1(80o) 624-3199 or(503)3718-84ii Or visit us on the web: 2e�c.uarLsttte.ar.u� STRATEGIC PLAN 1999-2001 ataglance Management Strategies Legislative Proposals Budget Proposals Watershed Management •Fully implement the region liaison •Establish procedures for developing •Oregon Plan: Governor's Recom- program(pg. io-ii). new hydroelectric projects(pg. i2). mended Budget includes$109,527 to •Produce the Stewardship and Sup- •Remaining management strategies continue the Tillamook watermaster ply Initiative Basin assessments,if do not depend on any new or revised position permanently(pg.10,15-17). funded(pg. 13-14). legislation. •Stewardship and Supply Initiative: •Implement the measures commit- Governor's Recommended Budget ted under the Oregon Plan(pg.ro,i5-r7). provides$x,269,077 to fund one per- 9 Promote the measurement of di- manent and eight limited-duration verted water, streamflows, and positions to create basin assessments serious water management problem and inventory potential ground and areas(pg. 10,43-45)• surface water storage sites(Pg.13-14). •Coordinate with other agencies to • The Governor's Recommended identify streams or stream segments Budget proposes $1,840,000 to ac- to protect against over-appropriation quire, operate, and maintain new and unauthorized water use(Pg• 14, gaging stations(pg.43-45)• 21-z3). Instream Flow Restoration • Define priority flow restoration •These management strategies do •These management strategies do areas by water availability basins and not depend on any new or revised not depend on additional funding. develop workplans for each priority legislation. area(pg. 15-0. •Continue to refine and implement the tools for instream flow restora- tion(pg. 4-15). Efficiency/Conservation • Continue work on water use •These management strategies do •Oregon Plan: Governor's Recom- efficiency initiative to locally define not depend on any new or revised mended Budget includes$109,527 to efficient water use and waste legislation. continue the Tillamook watermaster (pg. 18-21). position permanently(pg.1o,15-17). • Provide education and training •Stewardship and Supply Initiative: opportunities to field staff for promo- Governor's Recommended Budget tion of water use efficiency(pg.r8-26). provides$1,269,077 to fund one per- -Enforce against unauthorized water manent and eight limited-duration use including waste(pg.21-23). positions to create basin assessments and inventory potential ground and surface water storage sites(pg.13-14). General Water Supply • Develop a strategy for meeting •These management strategies do •Stewardship and Supply Initiative: water demands for a broad spectrum not depend on any new or revised Governor's Recommended Budget of uses(pg. 27,31-37,41). legislation. provides$1,269,077 to fund one per- manent and eight limited-duration positions to create basin assessments and inventory potential ground and surface water storage sites(pg.13-14,27). Management Strategies Legislative Proposals Budget Proposals Water Rights • Continue Klamath adjudications •Authorize a court to consider cer- •Klamath Adjudication:Governor's process for surface and ground water, tain changes in claims while making Recommended Budget provides and tribal negotiations(pg.32-34)- a decision in an adjudication(pg.34). $1,070,000 to fund eight positions to •Host work group to resolve issues •Authorize the Commission to allow continue the Klamath Basin adjudi- important to community water sup- water right applications for uses not cation(pg.32-34)• pliers(pg.31). specifically allowed in basin programs (pg. 28). •Repeal one-year start of construc- tion requirement for new water use permits(pg.29). •Establish procedures for developing new hydroelectric projects(pg.12). Storage Projects/Transfers •Act on recommendations of storage •Expand eligibility and amend financ- •Stewardship and Supply Initiative: report(pg.35). ing and security requirements for Governor's Recommended Budget •Identify multi-purpose storage op- Water Development Loan Fund. provides three positions to develop tions and sites(pg.34-35,13-4). (Pg.55-56)- an inventory of potential surface and • Complete the Willamette Basin •Amend transfer statute to allow groundwater storage sites(pg.13-14,35). Reservoir Study(pg.36). changes from specific to general in- •Continue work related to peak flow dustrial uses without a formal water issues(Pg-36-37)- right transfer(pg.37-38) •Encourage transfers as a new supply option(pg.37-38). Information Management • Evaluate the creation of a water •These management strategies do •Governor's Recommended Budget right data base that includes images not depend on any new or revised proposes$1,840,000 to acquire,op- ofwater right certificates and permits legislation. erate, and maintain new gages and maps(pg.45-46). (Pg-43-45)- •Connect field offices throughout •Governor's Recommended Budget the statewide network(pg.46-47). provides$116,350 to fund one infor- •Redesign the water rights data base mation management position to to integrate with the digital water assist in data assimilation(pg.45). right maps and improve public access • The Governor's Recommended (Pg.46-47). Budget includes$71,657 for a limited- Develop a repository for ground and duration position and $25,000 to surface water data allowing a single update the GRID System(pg.47). point of access(pg.46-47). Public Information •Further develop a water rights data •These management strategies do •These management strategies do base that provides public access to not depend on any new or revised not depend on additional funding. data and maps(pg.45-47)- legislation. • Develop a"toolbox"of outreach materials for use by staff including an agency presentation(pg.51-52). • Refine website to ease access to popular features(pg. 53)• OUR MISSION 'To serve the public by practicing and promoting wise long-term water management." Why Were Here agency purpose and need • To restore and protect streamflows and watersheds in order to ensure the long-term sustainability of Oregon's ecosystems, economy, and quality of life. • To directly address Oregon's water supply needs. What Well Do implementingplans andprograms • Lead efforts to restore and safeguard the long-term sustainability of streamflows,watersheds,and ground water. • Actively enforce the state's water laws and uphold its policies. • Increase our understanding of the resource and the demands on it. • Equip citizens with information and technical assistance to make and carry out local,basin,and regional water plans. • Promote solutions to water supply problems stemming from current and future demands. How Wje'll Do It regulation,enforcement,and cooperation • Honor and protect existing rights to use water. • Be as simple and direct as possible in our regulations and writings—and in all other dealings with the public. • Enforce laws and apply policies fairly and consistently. • Forge partnerships with stakeholders to share responsibility for water management actions. • Rely on creative exercise of existing authorities before advocating new laws. • Recognize flexibility as a key tool for the protection and use of water resources. • Provide educational and training opportunities to improve staff excellence.