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