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City Council Packet - 12/19/2000 Dr/ rcL CITY OF TI D OREGON TIGARD CITY COUNCIL MEETING DEdEMEER 19, 2000 COUNCIL MEETING WILL BE TELEVISED RUEANNIEU30MCCPKT1 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 4 Revised 12/14/00 ~4~ x,~ ~F rA 7 _ . '~~r 3 a 1 Sr oa , llro-siip Yr A a, 1 L f l Y rw : } 'rDECEI~9BER 1 Q, 2 ,00 b 3~O PN[ CITY OF TIGARD :T,IC►A[ta CITY~~HALL r H 'TrfrItD, 00 EG_i1I'97223 PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. 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 Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 639-4171, Ext. 309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: Qualified sign language interpreters for persons with speech or hearing impairments; and Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone numbers as listed above: 639- 4171, x309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - DECEMBER 19, 2000. PAGE 1 I= M 01 i AGENDA TIGARD CITY COUNCIL BUSINESS MEETING nEr EA.MRCD 10 ? {/rr~.Vl' 1nnn L.., . "F ® STUDY SESSION 6:30 PM ➢ Discussion with State Senator Ryan Deckert and State Representative Max Williams 7:00 PM ➢ EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), (f) 8t (h) to discuss labor relations, real property transactions, exempt public records, and current and pending litigation issues. As you are aware, all discussions within this session are confidential; therefore those present may disclose nothing from this meeting. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. 7:15 PM ➢ Long-tern Water Supply Update 7:45 PM ➢ Update Paperless Council Agenda Meeting Packets 8:05 PM 1. BUSINESS MEETING 1.1 Call to Order - City Council et Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications 1.5 Call to Council and Staff for Non-Agenda Items 8:10 PM 2. VISITOR'S AGENDA (Two Minutes or Less, Please) COUNCIL AGENDA DECEMBER 19, 2000 - PAGE 2 8:15 PM 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 Revisions to the Management, Supervisory, Confidential Employee Group Personnel Policies - Resolution No. 00 - ~0 1Z 3.2 Approve Contract for City Attorney Services with Firm of Ramis, Crew Corrigan 8T Bachrach 3.3 Reappoint Glenn Mores and Appoint Judy Munro and Scot Sutton to the Planning Commission - Resolution No. 00 - 3.4 Local Contract Review Board a. Award Contract for Aquifer Storage and Recovery Feasibility Study to Montgomery Watson and Golder Associates • Consent Agenda - Items Removed for Separate Discussion: Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council has voted on those items which do not need discussion. 8:20 PM 4. INTRODUCTIONS - APPOINTMENT OF PLANNING COMMISSION MEMBERS - GLENN MORES (REAPPOINTMENT) AND JUDY MUNRO AND SCOT SUTTON S. RECEIVE GOVERNMENT FINANCERS' ASSOCIATION OF THE UNITED STATES AND CANADA (GFOA)* a. Staff Report: Finance Staff * ?his item has been postponed to January 23, 2001 8:25 PM b. PUBLIC HEARING - 1999 LOCAL LAW ENFORCEMENT BLOCK GRANT a. Open Public Hearing b. Staff Report: Police Staff C. Public Testimony: Proponents, Opponents d. Staff Recommendation e. Council Discussion, Questions, Comments f. Close Public Hearing g. Council Motion: Should the City accept the grant and authorize spending the funds? COUNCIL AGENDA - DECEMBER 19, 2000 - PAGE 3 MW 11MI 11011 ME e 8:35 PM 7. PUBLIC HEARING - 2000 LOCAL LAW ENFORCEMENT BLOCK GRANT a. Open Public Hearing b. Staff Report: Police Staff C. Public Testimony: Proponents, Opponents d. Staff Recommendation e. Council Discussion, Questions, Comments f. Close Public Hearing g. Council Motion: Should the City accept the grant and authorize spending the funds? 8:40 PM 8. REVIEW OF UNIFIED SEWERAGE AGENCY'S (USA) PROPOSED MODEL CONTRACT a. Staff Report: Public Works Staff b. Council Discussion, Questions, Comments C. Council Motion: Should the City adopt USA's proposed model contract? 9:00 PM 9. CONSIDER AN ORDINANCE AMENDING THE TIGARD MUNICIPAL CODE BY ADOPTING A NEW CHAPTER S. 14, TELECOMMUNICATIONS FRANCHISES a. Staff Report: Finance Staff b. Council biscussion, Questions, Comments C. Council Consideration: Ordinance No. 00 - Z 9:10 PM 10. CONSIDER AN ORDINANCE AMENDING ORDINANCE 96-09 EXHIBIT "A" SECTION 60.005, SURPLUS PERSONAL PROPERTY, ALSO AMENDS WORD CHANGE FROM "CI T Y ADMINISTRATOR" TO "CITY MANAGER" a. Staff Report: Finance Staff b. Council Discussion, Questions, Comments C. Council Consideration: Ordinance No. 00 - 3C0 9:30 PM 11. UPDATE - GAARDE STREET IMPROVEMENTS - PHASE I CONSTRUCTION a. Staff Report: Engineering Staff b. Council Discussion C001UHCIL AGENDA - DECEMBER 19, 2000 - PAGE 4 9:30 PM 12. DISCUSS OPTIONS - CITYWIDE SEWER a. Staff Report: Engineering Staff b. Council Direction to Staff 9:45 PM 13. COUNCIL LIAISON REPORTS 9:50 PM 14. NON AGENDA ITEMS 9:55 PM IS. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), (f) 8z (h) to discuss labor relations, real property transactions, exempt public records, and current and pending litigation issues. As you are aware, all discussions within this session are confidential; therefore those present may disclose nothing from this meeting. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. 10:00 PM 16. ADJOURNMENT I:\AD M\CATHY\C C A\001219. D O C COUNCIL AGENDA - DECEMBER 19, 2000 - PAGE 5 11M M1111131 ,n . Agenda hem No.~a,,... Meeting of TIGARD ~1TY COUNCIL MEETING MINUTES - DECEMBER 19, 2000 STUDY SESSION Mayor Griffith called the Study Session to order at 6:30 p.m. 9 Administrative Items City Manager Monahan advised Council that if Council members are to be eligible for health benefits that the Tigard insurance provider requires 75% of the Council members participate. The Mayor becomes eligible for insurance two months after the election and Councilor Dirksen will become eligible. Both the Mayor and Councilor Dirksen must sign up for insurance if health benefits are to be made available to Council members. City Manager noted some revised staff reports were distributed to the Council for the City Attorney contract (Item 3.2) and the Unified Sewerage Agency Contract (Item 8). ➢ Discussion with State Senator Ryan Deckert d State Representative Max Williams Senator Deckert commented on items slated for the upcoming Legislative agenda. He acknowledged the impact of State issues on cities and noted the importance of keeping in close contact. He said the Legislature would be reviewing Ballot Measure 7. He noted the importance of education, pointing out the Oregon economy is increasingly becoming information and knowledge based - Oregon needs to provide "world class education." Councilor Patton noted she was concerned about education and how adequate funding can be developed. The City of Tigard tries to assist young people through programs such as DARE and providing School Resource Officers. The City also works closely with the Tigard-Tualatin School District. She said she would not want to lose focus of the needs of higher education and urged a holistic look at the education system. COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PACE 1 Councilor Patton also advised that interpretation on the implementation of Measure 7 is of vital interest to the City Council if it is found to be Constitutional. There is a possibility that this measure could place government at odds with natural resources and agricultural interests, and she said she was hopeful that the measure does not become as divisive as it could potentially be. Councilor Scheckla referred to the Washington Square Regional Center noting concerns of what Metro may identify for the area and how would this be implemented and financed. Transportation issues include not only 99W (Pacific Highway) but also the need for better service from Tri Met. Senator-elect Deckert said that transportation is similar to an "elephant in the living room." He agreed that the State needs to play a role. He said he thought a 2-cent gas tax would be "back on the table" and that he would support it at this time. Mayor Griffith suggested that Senator-elect Deckert review the Transportation System Plan noting that it was comprehensive. Councilor Hunt encouraged Senator-elect Deckert to maintain close contact with the City of Tigard, recalling the benefits of a good relationship with former Representative Tom Brian. Councilor Moore referred to transportation issues, including 99W and Hall Boulevard. He said if either Representative Williams or Senator-elect Deckert need support on the transportation issues, to call City of Tigard officials. Representative Williams reviewed his committee appointments during the upcoming Legislative Session, including chairing the House Judiciary Committee, which will decide how the House will handle Measure 7. He agreed that school funding would be a big issue. An item Representative Williams said he will support is designating an over-night camping State Park in Washington County. i Councilor Scheckla distributed a page containing questions on telecommunication issues and franchise fees/management for local government. Representative Williams acknowledged that this is an enormous a issue and said there is no question that franchise fees represent a substantial a amount of revenue for cities. He referred to legal challenges in other states by franchisers that say they are being taxed unfairly. Finance Director Prosser COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 2 11111 M Elm= noted that 14% of the general fund is derived from franchise fees (electric, gas, solid waste and telecommunications). In addition Finance Director Prosser said the City is also concerned about management of rights of way. Representative Williams advised that with the explosion of the use of the Internet and e-commerce, Oregon now has the opportunity to make some key decisions. If the wrong decisions are made, the State will be left behind. Representative Williams advised that he would be putting together educational sessions designed to inform everyone of the issues. Councilor-elect Dirksen commented that he was pleased to hear the dialogue among the elected officials and he is looking forward to a good working relationship. Mayor Griffith reiterated that Representative Williams and Senator-elect Deckert contact the City of Tigard if City officials could be of assistance. ➢ EXECUTIVE SESSION: The Tigard City Council went into Executive Session at 7:16 p.m. under the provisions of ORS 192.660 (1) (d) to discuss labor relations. Executive Session adjourned at 7:30 p.m.; Council took a short break. Study Session reconvened at 7:43 p.m. ➢ long-term Water Supply Update Public Works Director Wegner updated the City Council on a meeting he attended about a month ago at the South Fork Water District. He also advised that staff will be meeting with the joint Water Commission (JWC) to develop a memorandum of understanding; which will be conditioned on whether a new source of water can be tapped. Both the JWC and Unified Sewerage Agency are interested in finding a new source of water for industrial use and stream flow. It is anticipated that a Request for Proposal will be ready in 4 - 5 months for a feasibility study for a new water source or raising the water level of the existing dam. City officials have continued to meet -1th City of Portland officials about the wholesale contracts. Public Works Director Wegner said he thought they would have been farther along than they are with the negotiations. Another meeting is anticipated in the next 30-45 days before the Portland City Council discusses the contract. COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 3 The South Fork (Clackamas River) option requires more time for review because there has been a complete turnover on the West Linn City Council. It is not known if this new Council will want to partner with the City of Tigard. In addition, some Oregon City Councilors do not want to give up any water rights. An elected officials meeting will be held in February. In response to a question from Councilor Patton, Public Works Director Wegner noted that it had seemed that only one person was reluctant to proceed with Tigard participating with the group now drawing from the Clackamas River. It now appears that this reluctance may be gaining momentum with concerns being expressed about working with the City of Tigard as a potential partner. ➢ Update - Paperless Council Agenda Meeting Packets City Recorder Wheatley introduced this agenda item. Network Manager Paul deBruyn and Consultant Rick Gates reviewed a demonstration of a sample "paperless" Council packet. Brief Council discussion followed with the majority of Council indicating support for staff to proceed with the implementation of a paperless Council agenda meeting packet. i . BUSINESS MEETING 1.1 Call to Order - Mayor Griffith called City Council 8T Local Contract Review Board to order at 8:11 p.m. 1.2 Roll Call: Mayor Griffith; Councilors Hunt, Moore, Patton and Scheckla 1.3 Pledge of Allegiance 1.4 Council Communications - None. 1.5 Call to Council and Staff for Non-Agenda Items This Council meeting was the last official Council meeting for Councilor Hunt who took the opportunity at this time to extend thanks to citizens and staff members who supported him during his eight-year tenure in office as a Tigard City Councilor. 2. VISITOR'S AGENDA: No visitors were present. 3. CONSENT AGENDA: Motion by Councilor Hunt, seconded by Councilor Scheckla to approve the Consent Agenda as follows: 3.1 Approve Revisions to the Management, Supervisory, Confidential Employee Group Personnel Policies - Resolution No. 00 -68 3.2 Approve Contract for City Attorney Services with Firm of Ramis, Crew Corrigan a Bachrach COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 4 3.3 Reappoint Glenn Mores and Appoint Judy Munro and Scot Sutton to the Planning Commission - Resolution No. 00 - 69 3.4 Local Contract Review Board a. Award Contract for Aquifer Storage and Recovery Feasibility Study to Montgomery Watson and Golder Associates The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 4. INTRODUCTIONS - APPOINTMENT OF PLANNING COMMISSION MEMBERS Mayor Griffith introduced and welcomed new Planning Commissioners Judy Munro and Scot Sutton. 5. RECEIVE GOVERNMENT FINANCERS' ASSOCIATION OF THE UNITED STATES AND CANADA (GFOA) * * This item was postponed to January 23, 2001 6. PUBLIC HEARING - 1999 LOCAL LAW ENFORCEMENT BLOCK GRANT a. Mayor Griffith opened the public hearing. b. Police Chief Ron Goodpaster reviewed the proposal as presented in the Staff Report, which is on file in the office of the City Recorder. Chief Goodpaster outlined the requirements and restrictions of the grant and also described how the funds would be used. The grant is in the amount of $22,821 and requires the City to add a 10 percent match ($2,536) to bring the total value of the grant to $25,357. The funds will be spent on a new radar gun, a summer camp program for children being assisted by the Community Partners for Affordable Housing, the DARE summer camp, and a roof-mounted infrared night sight that will allow officers to see in the dark when responding to calls during the night. In response to questions from Councilor Scheckla, Chief Goodpaster reviewed how the citizen advisory committee decided to recommend how the funds should be expended by identifying areas of need. COUNCIL MEETING MINUTES - DECEMBER 19, 2000. PAGE 5 - 11 el ~ I - i mum 7i C. There was no public testimony. d. Staff recommended that the Council accept the grant and authorize the spending of the funds. e. Mayor Griffith closed the public hearing. f. Motion by Councilor Moore, seconded by Councilor Patton, to accept the grant and authorize spending the funds. The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 7. PUBLIC HEARING - 2000 LOCAL LAW ENFORCEMENT BLOCK GRANT a. Mayor Griffith opened the public hearing. b. Chief of Police Ron Goodpaster reviewed the staff report (on file with the City Recorder) and the proposed expenditures of funds. C. There was no public testimony. d. Staff recommended that the Council accept the grant and authorize the spending of the funds. e. Mayor Griffith closed the public hearing. Motion by Councilor Scheckla, seconded by Councilor Patton, to accept the grant and authorize spending the funds. a The motion was approved by a unanimous vote of Council present: i Mayor Griffith Yes 3 Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 6 REPORT ON BONiTA VILLAGE APARTMENTS (NON AGENDA) City Manager Monahan updated the Council on the status of the aftermath of the recent fire at the Bonita Village Apartments. Washington County officials have stepped in to assist displaced residents. In addition, the American Red Cross and United Methodist Church in Tigard have coordinated monetary and other donations to help the apartment residents. The building will be closed until structural integrity has been restored (which may be a long period of time). Police Chief Goodpaster noted the excellent response by the Tualatin Valley Fire and Rescue. In addition, the Tigard Police and Public Works Departments responded effectively and efficiently, which is a tribute to the year-round training exercises when staff members participate in the Emergency Operation Center. 8. REVIEW OF UNIFIED SEWERAGE AGENCY'S (USA) PROPOSED MODEL CONTRACT a. Public Works Director Wegner reviewed the staff report (this report is on file with the City Recorder). The existing USA contract has been in use for 20 years. He noted where changes were being proposed (see packet materials on file with the City Recorder). Public Works Director Wegner referred to a mat; (see packet materials on file with the City Recorder) that outlined the service area. If the proposed model contract is approved, the wastewater and stormwater operations offered by the City of Tigard will double in size. Additional equipment (fleet size will double) will also be needed. Funding issues need to be resolved. Therefore, staff recommends that Council authorize the Mayor to sign a letter of intent, approving the new contract as to form. The contract will not be signed until funding decisions have been made. b. Motion by Councilor Patton, seconded by Councilor Hunt, to authorize the Mayor to sign a letter of intent that the City will approve the proposed Intergovernmental Agreement with USA when financing is agreed upon. (Note: A copy of the letter of intent is on file with the City Recorder.) 9. CONSIDER AN ORDINANCE AMENDING THE TIGARD MUNICIPAL CODE BY ADOPTING A NEW CHAPTER 5.14, TELECOMMUNICATIONS FRANCHISES a. Finance Director Craig Prosser presented the staff report and a PowerPoint slide presentation. (Both the staff report and copies of the PowerPoint slides are on file with the City Recorder.) COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 7 &KIM The proposed ordinance would add a new section to the Tigard City Code setting forth standards and policies governing the granting and administration of City of Tigard telecommunication franchises. b. Council Discussion, Questions, Comments In response to questions from Councilor Scheckla, City Engineer Duenas reviewed the procedures when contractors for franchises (or other utility work) do work in the rights of way. Contractors must file a plan and give 48-hour notice to adjacent residents and business owners. Ross Baker of Metro Com, Inc., addressed the Council. He outlined his company's plans to offer wireless data service. He noted the equipment used to provide this service would not require digging up of streets because it was mounted on existing utility poles. (A photo of the equipment mounted on a light pole was submitted and is in the Council meeting packet on file with the City Recorder.) Mr. Baker said, because of the slight impact to the rights of way, he did not think his company should have to pay the same fee as those who dug up the streets to install lines. Discussion followed. Finance Director Prosser confirmed that if Mr. Baker's company was to be treated differently, an additional ordinance would be presented to the City Council. In response to concerns noted by Mr. Baker, Finance Director Prosser and Legal Counsel Crew noted the intent of Section 5. 14.050 (a) would be that the City Council would grant by resolution a telecommunications franchise to any person providing competitive telecommunications services who has submitted an application, meets requirements of this Chapter and agrees to sign the City's standard franchise agreement by modification. However, Section S. 14.050 (b) was intended to provide an option whereby the City Council could grant a telecommunications franchise by ordinance, which would supersede the requirements of the telecommunications code requirements. Finance Director Prosser noted that he has proposed some amendments to the ordinance before the City council. These amendments are listed his December 15, 2000, memorandum that had been distributed to the City Council. COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 8 L C. Council Consideration: Motion by Councilor Moore, seconded by Councilor Scheckla, to adopt Ordinance No. 00-35, with the amendments as noted In Finance Director Prosser's memorandum of December 15, 2000. City Recorder read the following: ORDINANCE NO. 00-35 - AN ORDINANCE AMENDING THE TIGARD MUNICIPAL CODE BY ADOPTING A NEW CHAPTER S. 14, TELECOMMUNICATIONS FRANCHISES. The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 10. CONSIDER AN ORDINANCE AMENDING ORDINANCE 96-09 EXHIBIT "A" SECTION 60.005, SURPLUS PERSONAL PROPERTY, ALSO AMENDS WORD CHANGE FROM "CITY ADMINISTRATOR" TO "CITY MANAGER" a. Finance Director Prosser presented the staff report. (Staff report is on file with the City Recorder.) b. Council Consideration: Motion by Councilor Moore, seconded by Councilor Patton to adopt Ordinance No. 00-36. The City Recorder read the following: ORDINANCE NO. 00-36 - AN ORDINANCE AMENDING ORDINANCE NO. 96-09 EXHIBIT "A" SECTION 60.005, SURPLUS PERSONAL PROPERTY, ALSO AMENDS WORD CHANGE FROM "CITY ADMINISTRATOR" TO "CITY MANAGER." COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 9 The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 11. UPDATE - GAARDE STREET IMPROVEMENTS - PHASE I CONSTRUCTION a. City Engineer Duenas presented the staff report and a PowerPoint slide presentation. (Staff report and PowerPoint slides are on file with the City Recorder.) The project, which began in August 2000, extends Gaarde Street from Quail Hollow-West to Walnut. Funding for the project comes from traffic impact fee funds with partial reimbursement from the County MSTIP 3. When completed, the project will provide an east-west connector from Highway 99W to Barrows and Scholls Ferry Roads. 12. DISCUSS OPTIONS - CITYWIDE SEWER a. City Engineer Duenas presented the staff report and a PowerPoint slide presentation. (Staff report and PowerPoint slides are on file with the City Recorder.) Options were prepared by for Council review subsequent to Council direction at the November 14, 2000, City Council meeting. City Engineer Duenas outlined potential options available to construct sewers in unserved areas. These options are listed in detail in the staff report and PowerPoint slides. b. Discussion followed. Council members noted a preference of Option 2; however, there was some support of Option 1. In addition, discussions should be held with Washington County and Unified Sewerage Agency to determine if assistance could also come from these sources. Council will discuss this issue { again during its goal-setting meeting in January. Consensus was that Option 3 would no longer be considered. During discussion, Council members agreed that new program benefits should be reviewed to determine it they could be offered to residents who have already participated in a sewer reimbursement j program. 13. COUNCIL LIAISON REPORTS - None. COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 10 14. NON AGENDA ITEMS ➢ City Manager Monahan noted the next Council meeting Is scheduled for January 9, 2001, 6:30 p.m. The Council President election will be on the January 9 agenda. ➢ Steve Braun, resident of the City of Tigard, filed for the March Mayoral election but did not obtain enough valid signatures to qualify for placement on the ballot. Members of the press have called and articles have appeared on this matter. Mayor Griffith asked Mrs. Esther Hunt to come forward; he presented her with a City of Tigard pin and expressed appreciation for her support of Councilor Hunt during his tenure on the City Council. ➢ Councilor Scheckla expressed his appreciation to Councilor Hunt for his years of service to the City of Tigard. 14. EXECUTIVE SESSION: Cancelled. 15. ADJOURNMENT: 10:35 p.m. Catherine Wheatley, r ecor er .14A0 'J&Z~ ayor, City o Date: I:\ADM\CATHY\CCM\001219.D0C i i 3 a a COUNCIL MEETING MINUTES - DECEMBER 19, 2000 - PAGE 11 CITY OF TIGARD, OREGON AFFIDAVIT OF POSTING In the Matter of the Proposed STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, begin first duly sworn, on oath, depose and s That I posted in the following public and conspicuous places, a copy of Ordinance Number (s) _ - which were adopted at the Council Meeting dated copy(s) of said ordinance(s) being hereto attached and by reference made a part hereof, on the _ Q-Ap day of . lg , 20 ©0 1. Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon 2. Tigard Library, 13125 SW Hall Blvd., Tigard, Oregon 3. Tigard Water Department, 8777 SW Burnham, Tigard, Oregon Subscribed and sworn to before me this day of 20 c OFFKX4L SEAL Notary Public for Oregon o t WISE '1 L. - iuoraaYPUMJCoaFC3 N My Commis.q'~~r Fxgires: ~.a , --200~ COMMISeKA NO, 320M MYCOMMON EX%lr-S FEB. I9, 2= CITY OF TIGARD, OREGON ORDINANCE NO. 00- 3 AN ORDINANCE AMENDING THE TIGARD MUNICIPAL CODE BY ADOPTING A NEW CHAPTER 5.14, TELECOMMUNICATIONS FRANCHISES. WHEREAS, the Telecommunications Act of 1996 deregulated the telecommunications industry and created new standards for the granting of telecommunications franchises; and WHEREAS, since the passage of the Telecommunications Act, the City of Tigard has seen an increase in the number of companies seeking to use the public rights of way for telecommunications fiber, cable, and conduit and the number of franchises granted within the last year has increased dramatically; and WHEREAS, the City has the authority to provide fair and equitable access to rights of way while preserving the rights of way for safe and reliable transportation and to implement rules and regulations to accomplish these purposes; WHEREAS, the City has an obligation to avoid erecting barriers to entry to the Tigard market and to remain comepetively neutral in the granting of franchises WHEREAS, the City wishes to establish uniform standards for the granting and management of its telecommunications franchises and to clearly state its requirements for the use of its public rights of way by telecorrumunications companies; NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: A new Chapter 5.14, Telecommunications Franchises, is added to the Tigard Municipal Code in the form of Exhibit A attached hereto and incorporated by this reference. SECTION 2: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By UIlOAWRoUs vote of air Council members present after being read by number and title only, this 1414i day of D('C,69 M L2I , 2000. Catherine Wheatley, City Rec der ORDINANCE No. Oo-3 5 Page 1 APPROVED: By Tigard City Council this day of a"U n-) b_f 1- , 2000. es Griffi , Ma VV Appro as to form: ity tto ey t Date ORDINANCE No. 00- 3 5 Page 2 Exhibit A TELECOMMUNICATIONS FRANCHISE ORDINANCE GENERAL TERMS & CONDITIONS 5.14.010 Short Title This Chapter shall be known and referred to as the Tigard Telecommunication Ordinance. 5.14.020 Definitions (a) Telecommunications system. As used in this chapter, "telecommunications system" means a system of fibers, lines, cables, antennas, microwave links, or other conduit and supporting structures and equipment constructed or used for the purpose of transmitting audio, video, digital or other forms of electric or electronic signals or information. -Telecommunications system" does not include a cable communications system. However, if a portion of a cable communications systems is also used for telecommunications other than cable „ummunications, the system is both a cable communications system and a telecommunications system. Telecommunications system does not include a system used for the transmission of electric power solely for power purposes, even if a portion of the system is used to communicate information about the power system for use by the system operator. Telecommunications system does not include mobile telecommunications equipment (e.g. cellular phones, hand- held or vehicle-mounted radios) but does include fixed antennas and other fixed equipment used to convey signals to or from mobile telecommunications equipment. (b) Franchise. As used in this chapter, "franchise" means the privilege conferred on a person or entity by the City to place and operate portions of a telecommunications system in, over or under rights of way. Franchises shall be conferred by ordinance and confirmed by a franchise agreement. (c) Right of way. As used in this chapter, "right of way" includes City streets, roads, bridges, alleys, sidewalks, trails, paths, and all other public ways and areas managed by the City. "Right of way" also includes public utility easements to the extent that the easement allows use by the franchisee planning to use or using the public utility easement. "Flight of way" includes the subsurface under and airspace over these areas. (d) Competitive telecommunications service provider. As used in this chapter, "competitive telecommunications service provider" means an operator of a telecommunications system that does not have exclusive rights to provide service to a geographic area under state or federal law. ORDINANCE No. 003: I Page I 5.14.030 Purpose The purpose and intent of this ordinance is to: (a) Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, telecommunications carriers and the service those carriers offer; (b) Promote competition on a competitively neutral basis in the provision of telecommunications services; (c) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses institutions and residents of the City; (d) Pen-nit and manage reasonable access to the public rights of way of the City for telecommunications purposes on a competitively neutral basis and conserve the limited physical capacity of those public rights of way held in trust by the City; (e) Assure that the City's current and ongoing costs of granting and regulating private access tc> 'uu the use of the public rights of way are fully compensated by the persons seeking such access and causing such costs; (f) Secure fair and reasonable compensation to the City and its residents for permitting private use of the public rights of way. 5.14.040 Franchise Required No person shall place or maintain any portion of a telecommunications system within a right of way without a franchise. The City may grant a franchise allowing use of any right of way for any portion of a telecommunications system, consistent with the regulations established in or under the authority of this chapter. 5.14.050 Grant of Franchise (a) To competitive telecommunications service providers. The City Council may grant by resolution a telecommunications franchise to any person providing competitive telecommunications services who has submitted an application, meets the requirements of this Chapter, and agrees to sign the City's standard franchise agreement without modification. The franchise shall not be effective until the applicant signs the City's standard Telecommunications Franchise Agreemer.. The City Council shall approve the form of the standard Telecommunications Franchise Agreement by resolution. ORDINANCE No. 00-3 S 2 Page 2 ~Mllllll (b) To others. The City Council may grant telecommunications franchises in any other circumstance by ordinance. Any franchise ordinance shall not be effective until a franchise agreement is entered into by the City and the franchisee. (c) Nonexclusivity. All telecommunications franchises granted to competitive telecommunications service providers shall be nonexclusive. 5.14.060 Privilege Granted The franchise shall grant a privilege to use rights of way consistent with the requirements of this chapter. The franchise does not convey any right, title or interest in the right of way. 5.14.070 Term Unless otherwise specified in the franchise agreement and resolution or ordinance, franchises shall be in effect for ten years but in no case shall exceed 15 years. 5.14.080 Franchise Fee (a) Any person applying for a franchise (including an application for renewal) shall pay an application fee to cover the cost of processing the application. The City Council shall establish the fee by resolution. (b) A person granted a franchise shall pay an annual franchise fee in the amount of $7,500 or the amount established under the following subsections, whichever is greater: (1) For telecommunications utilities (as defined in ORS 759.005), five percent of gross revenues received from exchange access services (as defined in ORS 401.710) from customers within the City, less net uncollectibles from such revenues. (2) For long distance providers and private networks, $2.90 per linear foot of installations in the right of way, to be adjusted annually by the change in the Portland area CPI. (3) For competitive access providers and all other franchisees who are not subject to subsections (1) and (2), five percent of gross revenues generated within the City. Gross revenue generated within the City includes monthly service charges paid by customers within the City, the full amount of charges for separately charged transmissions originating and received within the City, half the amount of separately charged transmissions that either originate or are received within the City but are received or originate outside the City, any amounts received for rental of facilities within the right-of-way, and any other amounts received by the ORDINANCE No. 00-35 3 Page 3 franchisee for services (including resale services) provided by the franchisee that use facilities within the right of way. In the event that a transmission is sent or received by a mobile device (e.g. cellular phone), the mobile device shall be deemed to be in the jurisdiction where the bills for use of the device are sent, regardless of actual location at the time of the transmission. (c) The franchise fee is compensation for use of rights of way and reimbursement of the City's cost of administering the program created in this chapter. The franchise fee is separate and distinct from any other legally authorized federal, state or local taxes or fees. (d) The fees imposed by this chapter are not subject to the property tax limitations of Article XI, sections I1(b) and 11(19) of the Oregon Constitution and are not fees imposed on property or property owners by fact of ownership and are not new or increased fees for purposes of those subsections. (e) The franchise fee shall be payable semi-annually on or before March 15, for the six month period ended December 31, and September 15 for the six month period end-,d June 30, unless otherwise stated in the resolution authorizing the franchise.. The franchisee shall pay interest at the rate of one percent per month for any payment trade after the due date. APPLICATION RENEWAL PROCESS 5.14.100 Application An application for a franchise shall include: (a) A completed City application form. The City Manager shall prescribe the form to be used. (b) Information identifying the applicant and describing the telecommunications system the applicant proposes to operate in rights of way. The initial application shall include engineering plans, specifications and a network map showing the anticipated location and route of proposed telecommunications facilities in the right of way, including both existing and proposed facilities. If any of the facilities are owned by others, that information should be provided. (c) Information establishing that the applicant has obtained all other required governmental approvals to construct and operate the system and to offer or provide the telecommunications services proposed, including, if applicable, any PUC filings or approvals. (d) The application fee. ORDINANCE No. 00_35 4 Page 4 (e) Information showing that applicant has the financial, technical and legal capacity to provide the services and comply with the requirements of this chapter. That information shall include a summary of the franchisee's business history. (f) A business plan showing the intention and ability to provide services for which the franchise is required. 5.14.110 Denials Any denial of a franchise application shall be in writing and state the reasons for the denial. The City may deny an application for a franchise: (1) If the franchisee has not complied with all application requirements and standards; (2) If the franchisee lacks sufficient financial, technical or legal capacity to provide services and assure compliance with applicable standards; (3) If the franchisee has a record of non-compliance; (4) If other factors demonstrate that the grant of a privilege to use rights of way is not in the public interest of the City and its citizens. 5.14.120 Renewal A franchisee that desires to renew a franchise shall submit an application for renewal on a form prescribed by the City Manager no less than 180 days before expiration of the franchise. OBLIGATIONS OF FRANCHISEE 5.14.200 Assignment or Transfer of Franchise A franchise may not be transferred or assigned without the express written consent of the City. A transfer of ownership or control of a majority interest in the franchisee shall constitute transfer of the franchise. If a franchise is assigned or transferred, the assignee or transferee shall become responsible for all facilities of the existing transferee at the time of transfer. The City shall allow the transfer or assignment if a transfer fee in an amount determined by resolution has been paid, the transferee or assignee meets all requirements imposed on franchisees, and the transferee or assignee agrees in writing to be bound by the franchise agreement and all applicable regulations. A transfer or assignment ofa franchise does not ext=-id the term of the franchise. ORDINANCE No. 003 s 5 Page 5 5.14.210 Leased Capacity A franchisee may lease capacity or bandwidth on its systems to others, provided that the franchisee provides the City with the name and business address of any lessee. All persons leasing capacity or bandwidth on a telecommunication system and providing telecommunications services to others using that capacity or bandwidth are required to obtain a telecommunications franchise. 5.14.220 Duty to Provide Information, Audit Responsibility Within 10 business days of a written request from the City, franchisee shall furnish the City: (a) Information sufficient to demonstrate that franchisee is in compliance with this ordinance and its franchise agreement; (b) Access to all books, records, maps, and other documents, maintained by the franchisee with respect to its facilities in rights of way so that the City may perform an audit. Access shall be provided within the Portland Oregon metropolitan area. (c) If the City's audit of the books, records and other documents maintained by franchisee demonstrate that the franchisee has underpaid the franchise fee by five percent or more in any one year, franchisee shall reimburse the City for the cost of the audit and shall pay interest as specified in Section 5.14.080 from the original due date. 5.14.230 Service to the City If the City contracts for use of telecommunications facilities, services, installation or maintenance from the franchisee, the franchisee shall charge the City franchisee's most favorable rate offered at the time of the request to similar users within Oregon for a similar volume of service, subject to state law. With the City's permission, the franchisee may deduct any applicable charges from franchise fee payments. Other terns and conditions of services provided by franchisee to the City may be specified in a separate agreement. 5.14.240 Insurance All franchisees shall secure and maintain public liability insurance, with a 30 day cancellation clause, with a combined single limit of $3 million, insuring the franchisee and the City. The franchisee shall cause a certificate of insurance to be provided to the City Recorder. The insurance shall indemnify and hold the City harmless against liability or damage which may arise or occur from any claim resulting from franchisee's operations under this agreement and shall provide for a defense of the City against such claims. ORDINANCE No. 00135 6 Page 6 As an alternative, a franchisee may provide and keep in force self-insurance in an equal amount to the insurance required to be obtained from a third-party insurer. The franchisee shall indemnify, defend and hold harmless the City through its self-insurance program against any and all claims, actions, demands and suits (including attorney fees and costs) arising our of or resulting from the franchisee's activities. The franchisee shall provide proof of self-insurance acceptable to the City if it chooses to self-insure. 5.14.250 Indemnification Each franchisee shall defend, indemnify and hold the City and its officers, employees, agents and representatives harmless from and against any and all damages, losses, and expenses, including reasonable attorney fees and costs of suit or defense, arising out of, resulting from, or alleged to arise out of or result from the negligent, careless, or wrongful acts, omissions, failure to act, or other misconduct of the grantee or its affiliates, officers, employees, agents, contractors, subcontractors, or lessees in the construction, operation, maintenance, repair, or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed, or prohibited by this Ordinance or by a franchise agreement. 5.14.260 Damage to Grantee's Facilities The City shall not be liable for any damage to or loss of any telecommunications facility as a result or in connection with any work by or for the City or for any consequential damages or losses resulting from such work unless the damage or loss is the direct and proximate result of willful, intentionally tortious, or malicious acts by the City. 5.14.270 Performance Surety Each franchisee must provide a performance bond acceptable to the City as security for the full and complete performance of any franchise granted under this Ordinance, to cover any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the franchisee to comply with the codes, ordinances, rules, regulations or permits of the City. The bond shall be in amount sufficient to pay for the removal of all of franchisee's facilities within the right of way. 5.14.280 Location of Facilities All facilities located within the public right of way shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise agreement. (a) Whenever all existing electric utilities, cable facilities or telecommunications facilities are located underground within a public right of way of the City, the ORDINANCE No. 00-3`5 7 Page 7 City may require a franchisee with permission to occupy the same public right of way to locate its telecommunications facilities underground. (b) Whenever all new or existing eiectric utilities, cable facilities and telecommunications facilities are located or relocated underground within a public right of way of the City, the City may require a franchisee that currently occupies the same public right of way to relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right of way. 5.14.290 Interference with Rights of Way No franchisee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public rights of way by the City, by the general public or by other persons authorized to use or be present in or upon the public rights of way. All use of public, rights of way shall be consistent with City codes, ordinances and regulations. No franchisee shall engage in work in a right of way during any moratorium on right of way work, except as permitted by the City in case of an emergency. CONSTR UCTION ISSUES 5.14.300 Construction Permits No person shall construct or install any telecommunications facilities within a public right of way without first obtaining a construction permit, and paying the construction/street opening fee established pursuant to Section 5.14.320. No permit shall be issued for the construction or installation of telecommunications facilities within a right of way unless the telecommunications carrier has obtained a franchise. Construction permits may be applied for at the same time a franchise is applied for. 5.14.310 Facilities All telecommunications facilities in the right of way shall be constructed, installed, operated and maintained in accordance with all applicable federal, state, and local statutes, codes, ordinances, rules and regulations. All facilities shall comply with applicable design standards imposed by regulation or construction permit. No facility may be placed on any City facility without the express written consent of the City. The City may require separate payment for rental of space on City facilities. For purpose of this section, a right of way, street or sidewalk is not a facility, but structures, including poles, conduit, boxes, and equipment, are facilities. I ORDINANCE No. 00-3:F 8 Page 8 5.14.320 Permit Applications A. Applications for construction permits shall be submitted on forms provided by the City and shall be accompanied by drawings, plans, and specifications in sufficient detail to demonstrate: 1. That the facilities will be constructed in accordance with ali applicable codes, rules and regulations; 2. That the facilities will be constructed in accordance with the franchise agreement; 3. The location and route of all new facilities to be installed as well as all of applicant's existing facilities in the construction area, including a cross-section to show the facilities in relation to the street, curb, sidewalk and right of way. 4. The construction methods to be employed for protection of existing structures, fixtures and facilities and a description of any improvements that the applicant proposes to temporarily or permanently remove or locate. B. Applications for construction permits shall be accompanied by the following: 1. A verification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with all applicable technical codes, rules and regulations. 2. A written construction schedule, which shall include a deadline for completion cfconstruction. The construction schedule is subject to approval by the City Engineer. 3. The construction/street opening fee in an amount to be determined by resolution of the City Council. The fee shall be designed to defray the costs of city administration of the construction permit program. 5.14.330 Review by City Engineer The City Engineer, after reviewing the materials submitted with the application, shall notify the franchisee if changes in the construction plans are needed and what City requirements must be met. If any work otherwise normally requiring a construction permit is conducted in response to an emergency, the franchisee shall furnish the required maps and materials within 30 days of commencing work. ORDINANCE No. 00- 35 9 Page 9 tea= 5.14.340 Permit Issuance Upon a determination that the application and supporting information complies with the requirements of this chapter, the City Engineer shall issue a permit authorizing construction of the facilities, subject to conditions that the City Engineer deems appropriate to ensure compliance with this chapter and to protect the public health, safety, welfare and interest. In order to minimize disruption to transportation and to coordinate work to be performed in the right of way, the permit may specify a time period within which all work must be performed and require coordination of construction activities. The City Engineer may impose conditions regulating the location and appearance of facilities. 5.14.350 Compliance with Permit All construction shall be in accordance with the permit and approved plans and specifications. The City Engineer or designee shall be provided access to the work site and the opportunity to inspect any work in the right of way. The permittee shall provide, upon request, any information needed by the City Engineer or designee to determine compliance with applicable requirements. All work that does not comply with all requirement shall either be corrected or removed at the sole expense of the permittee. The City is authorized to issue stop work orders to assure compliance with this Chapter. 5.14.360 Notice of Construction Except in an emergency, the permittee shall notify the City Engineer not less than two working days prior to any excavation or construction in the right of way. 5.14.370 Construction in Right of Way The franchisee shall complete all construction within the right of way so as to minimize disruption of the right of way and utility service and without interfering with other public and private property. All construction work within rights of way, including restoration, must be completed within 120 days of issuance of the construction permit unless an extension or alternate schedule has been approved by the City Engineer. The franchisee shall comply with City traffic control procedures and standards. .5.14.380 As Built Drawings Franchisee shall provide City with two complete sets of engineered plans in a form acceptable to the City drawn to scale showing the location of all its telecommunications facilities within rights of way after initial construction of its system and shall provide the City two updated complete sets of as-built plans annually. ORDINANCE No. 00-35 10 Page 10 5.14.390 Restoration of Public Rights of Way and City Property (a) When a franchisee, or any person acting on its behalf, does any work in or affecting any public rights of way or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to good order and condition unless otherwise directed by the City and as determined by the City Engineer or designee. (b) If weather or other conditions do not permit the complete restoration required by this section, the franchisee shall temporarily restore the affected rights of way or property. Such temporary restoration shall be at the franchisee's sole expense and the pennittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. Any corresponding modification to the construction schedule may be subject to approval by the City. (c) If the franchisee fails to restore rights of way or property to good order and condition, the City shall give the franchisee written notice and provide the franchisee a reasonable period of time not exceeding thirty (30) days to restore the rights of way or property. If, after said notice, the franchisee fails to restore the rights of way or property to as good a condition as existed before the work was undertaken, the City shall cause such restoration to be made at the expense of the permittee. (d) A franchisee or other person acting in its behalf shall use suitable barricades, flags, flagging attendants, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights of way or property. (e) Franchisee shall restore all streets, alleys, roads and other public ways or places that it disturbs to the same condition the area was in prior to franchisee's work. Franchisee shall perform all work in compliance with applicable rules, regulations, ordinance or orders. The City Engineer may issue orders to ensure compliance with this Ordinance and proper protection of public and private property. If the franchisee fails to make repairs or provide restoration in response to any order within the time allowed under the order, City may make those repairs at the expense of the franchisee. ORDINANCE No. 00- 3 11 Page 11 5.14.400 Performance and Completion Bond Prior to installing new telecommunications facilities in any right of way, the franchisee shall provide a performance bond or other surety acceptable to the City in an amount equal to at least 110% of the estimated costs of constructions of the new facilities within the rights of way. The surety shall remain in force until 60 days after substantial completion, including restoration of public rights of way and other property, as detennined by the City. The surety shall guaranty timely completion, construction in compliance with applicable plans, permits, codes and standards, proper location, restoration of public rights of way and other property, and timely payment and satisfaction of all claims, demands or liens for labor, material or services. 5.14.410 Coordination of Construction Facilities All franchisees shall make a good faith effort to coordinate their construction schedules with those of the City and other users of the rights of way. (a) Prior to January 1 of each year, the franchisee will provide the City with a schedule of planned construction work for that year in or that may affect the right of way. (b) Franchisee agrees to meet with the City at least once each calendar year, at the request of the City, to schedule and coordinate work in rights of way. City shall share information on plans for other construction projects within rights of way. (c) All construction projects within rights of way shall be coordinated as ordered by the City Engineer or designee, to minimize public inconvenience, disruption, or damages. 5.14.420 Relocation or Removal of Facilities The franchisee shall temporarily or permanently remove, relocate, change or alter the position of any telecommunications facility within a public right of way when requested to do so in writing by the City. The removal, relocation, change or alteration shall be at franchisee's expense when the removal, relocation, change or alteration is needed because of construction, repair, maintenance, or installation of public improvements or other operations of the City within the right of way or is otherwise in the public interest. In the event that the removal, relocation, change or alteration is needed to accommodate private development or other private use of the right of way, the developer or other private party requiring the action shall be responsible for the cost of removal, relocation, change or alteration. The franchisee shall be under no obligation to remove, relocate, change or alter its facilities to benefit a private party unless and until the private party pays a deposit for costs to the franchisee. The City shall specify in the written notice the amount of time for removal, relocation, change or alteration. In the event of emergency, the franchisee shall take action as needed to resolve the emergency, and the City may use ORDINANCE No. 00-35 12 Page 12 any form of communication to direct the franchisee to take actions in an emergency to protect the public safety, health and welfare. 5.14.430 Plan for Discontinuance or Removal Whenever a franchisee plans to discontinue any telecommunications facility, the franchisee shall submit a plan for discontinuance to the City. The plan may provide for removal of discontinued facilities or for abandonment in place. The City Engineer shall review the plan and issue an order to the franchisee specifying which facilities are to be removed and which may be abandoned in place The order shall establish a schedule for removal. The franchisee shall remain responsible for all facilities until they are removed. 5.14.440 Removal of Abandoned Facilities Within 30 days following written notice from the City, a franchisee and any other person that owns, controls, or maintains any unauthorized telecommunications system or facility within a right of way shall, at its own expense, remove the facilities and restore the right of way. A telecommunications facility that the City Engineer has approved to be abandoned in place is not an unauthorized telecommunications facility. A telecommunications system or facility is unauthorized under the following circumstances: (a) The telecommunications system or facility is outside the scope of authority granted by an existing franchise. This includes systems or facilities that were never franchised and systems or facilities that were once franchised but for which the franchise has expired or been terminated. This does not include any facility for which the City Engineer has authorized abandonment in place; (b) The system or facility has been abandoned and the City Engineer has not authorized abandonment in place. A system or facility is abandoned if it is not in use and not. planned for further use. A system or facility will be presumed abandoned if it is not use for a period of 90 days. A franchisee may overcome this presumption by presenting plans for future use of the facility that demonstrate planned use within a reasonable period. (c) The facility is improperly constructed or installed or is in a location not permitted by the franchise or this Ordinance. 5.14.450 Removal by City If the franchisee or former franchisee fails to remove any facility when required to do so under this Ordinance, the City may remove the facility and the franchisee or former shall be responsible for paying the full cost of the removal and any administrative costs incurred by the City in removing the facility and obtaining reimbursement. ORDINANCE No. 00-25 13 Page 13 TERMINATION/CURES 5.14.500 Revocation or Termination of a Franchise The City Council may terminate a franchise for any of the following reasons: (a) Violation of this telecommunications ordinance. (b) Violation of a franchise agreement. (c) Misrepresentation in a franchise application, including a renewal application. (d) Abandonment of facilities. (e) Failure to pay taxes, compensation, fees or costs due the City. (f) Failure to restore rights of way after construction. (g) Failure to comply with technical, safety and engineering standards. 5.14.510 Standards for Termination In determining whether termination or some other sanction is appropriate, the following factors shall be considered: (a) The egregiousness of the misconduct; (b) The harm that resulted; (c) Whether the violation was intentional; (d) The franchisee's history of compliance; (e) The franchisee's cooperation in discovering, admitting and/or curing the violation. 5.14.520 Notice and Cure The City shall give franchisee written notice of any apparent violations before Elm terminating a franchise. The notice shall include a short and concise statement of the nature and general facts of the violation or noncompliance and provide a reasonable time (no less than 20 and no more than 40 days) for the franchisee to demonstrate that the franchisee has remained in compliance, that the franchisee has cured or is in the process of curing any violation or noncompliance, or that it would be in the public interest to impose a penalty or sanction less than termination. If the franchisee is in the process of ORDINANCE No. 0014 Page 14 curing a violation or noncompliance, the franchisee must demonstrate that it acted promptly and continues to actively work on compliance. If the franchisee does not respond or if the City Manager determines that the franchisee's response is inadequate, the City Manager shall refer the matter to the City Council, which shall provide a duly noticed public hearing and determine whether the franchise shall be terminated. 5.14.530 Penalties Failure to comply with a provision of this Ordinance shall be a Class 1 civil infraction. 5.14.540 Other Remedies Nothing in this Chapter shall be construed as limiting any judicial or other remedies the City may have for enforcement of this Ordinance. SEVERABILITY & APPLICATION TO EXISTING AGREEMENTS 5.14.600 Severability and Preemption If any provision of this Ordinance is for any reason declared or held to be invalid or unenforceable by any court of competent jurisdiction or superseded by state or federal legislation, rules, regulations or decision, the remainder of this Ordinance shall not be affected and all remaining portions shall be valid and enforceable to the fullest extent permitted by law. In the event any provision is preempted by federal or state law, the provision shall be preempted only to the extent required by law and any portion not preempted shall survive. If any federal or state law resulting in preemption is later repealed, rescinded or amended to end the preemption, the preempted provision shall return to full force and effect without further action by the City. 5.14.610 Application to Existing Agreements This Chapter shall be applied to all persons and activities, including existing franchisees, except that it shall not affect contract rights of existing franchisees. This Chapter shall fully apply to existing franchisees on termination of existing franchises. U:h:Docs/Craig's World/Franchises/Master Docs/telecommunications.or5.doc ORDINANCE No. 0035 15 Page 15 COMMUNITY NEWSPAPERS, INC' Legal P.O. BOX 370 PHONE (503) 684-0360 Notice TT 9 7 9 0 BEAVERTON. OREGON 97075 Legal Notice Advertising *City of Tigard e ❑ Tearsheet Notice 13125 S11 Hall Blvd. eTigard,Oregon 97223 ° 0 Duplicate Affidavit Accounts Payable e AFFIDAVIT OF PUBLICATION STATE OF OREGON, ) COUNTY OF WASHINGTON, )ss' 1, Kathy. Sn)der being first duly sworn, depose and say that I am the Advertising Director, or his principal clerk, of them, Bard-Tualatin Tj mes a newspaper of general circulation as defined in ORS 15:3.010 and 193.020; published at Ti caa rd in the aforesaid county and state; that the n hl Tlt-ari ng/Prapaspa TI-e- of _Minrig 1 i a printed copy of which is hereto annexed, was published in the entire issue of said newspaper for OTTE successive and consecutive in the following issues: ; SEAL December 14, 2000 .j' sL. is i. CURRAN NO' y0.329400 Mo:- NOV. 28, 2003 C ~ EMS= Subscribed and sworn to befut'e me thial At-h day of Der- mhe r , 2 0 0 0 Notary Public for Oregon V O3 My Commission Expires: g~ AFFIDAVIT Cff Y OF TIGARD ORMN A4 S + TIGARD CITY COUNCIL AND LOCAL CONTRACT REVIEW BOARD MEETING December 19, 2000 - 7:30 P.M. TIGARD CITY HALL = TOWN HALL 13125 SW HALL BOULEVARD, TIGARD, OREGON , s Notice is hereby given that a public hearing will be held on December 19, 2000, at 7:30 p.m. Tigard City Hall, 13125 SW Hail Boulevard, Tigard, Oregon, on the proposed use of funds for two grants received from the Department of Justice. At this hearing, the public will be given an oppor- tunity to comment on the use of funds for two youth-oriented programs and police law enforcement equipment. For further information, please contact the City of Tigard Recorder at 503-639-4171, Ext. 309. TT9790 - Publish December K 2000. CITY OF TIGARD, OREGON AFF11DAVIT OF POSTING In the Matter of the Proposed STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, begin first duly sworn, on oath, depose and y: That I posted in the following public and conspicuous places, a copy of Ordinance 'n 4 Number (s) which were adopted at the Council Meeting dated copy(s) of said ordinance(s) being h to attached and by reference made a part hereof, on the _ day of , 208 1 1. Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon 2. Tigard Library, 13125 SW Hall Blvd., Tigard, Oregon 3. Tigard Water Department, 8777 SW Burnham, Tigard, Oregon c ' ~aj\f\JV\ Subscribed and sworn to before me this day o -,2001 z O M `ice Notary Public for Oregon NOTARY PUBLIC-OREGON J'~' COMMISSION NO. ~z08e2 My Commission Expires: MY COMMISSION EXPIRES FEB.11, 2M I i i ' CITY OF TIGARD, OREGON -PU r Chas; n ~?,U,es ORDINANCE NO. 00- 3 (P AN ORDINANCE AMENDING ORDINANCE 96-09 EXHIBIT "A" SECTION 60.005, SURPLUS PERSONAL PROPERTY, ALSO AMENDS WORD CHANGE FROM "CITY ADMINISTRATOR" TO "CITY MANAGER" WHEREAS, The City Council approved Ordinance 96-09 on February 27, 1996, which established purchasing rules of the Local Contract Review Board, and, WHEREAS, Section 60.005 of such rules sets forth policy of Surplus of Personal Property, and WHEREAS, The City Council finds it desirable to add additional language for disposal of broken and non- usable surplus items under a dollar value of $250 without prior approval of City Manager. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The Tigard City Council, acting as the Local Contract Review Board, does hereby amend Ordinance 96-09 as shown in the attached Exhibit "A". SECTION 2: Accepts revision of word change to "City Manager". PASSED: By L. d 11(.mI f110115vote of all Council members present after being read by number and title only, this 'day of DP C F rn bP--,. .2000. q Unp-,tt- 0i Lk)h-Qct-t Lt Catherine Wheatley, City Recorde APPROVED: By Tigard City Council this 1,qt- dayof DP , a~mWLI 2000. i Gri ith, y Appr e as to orm ity Atto/mcy ID-I~~I o Date i Acitywid0ordinanc.dof c, ORDINANCE No. 00 -.3 Page I EXHIBIT "A" AR 60.000 PROPERTY DISPOSITION 60.005 Surplus Personal Property i . Personal property owned by the City may be disposed of only after being declared surplus by the City ate or designee. The method of disposal will be detennined based on condition, value, and/or use. 2. Personal property may be declared surplus by the bit} AdM. 44 6 t r- ate or designee if it is scheduled for replacement in an adopted budget or it is no longer necessary to provide City services. NOTE: The word change from "City Administrator" to "City Manager" would be changed throughout the Purchasing Rules document. EXHIBIT A ORDINANCE NO. 00-36? Page 1 of 1 AGENDA ITEM NO.2 - VISITOR'S AGENDA DATE : December 19, 2000 (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 Manager prior to the start of the meeting. Thank you. NAME, ADDRESS & PHONE TOPIC STAFF CONTACTED 3 VISITOR'S AGENDA Page 1 Agenda Item No. 4 December 19, 2000 Board, Committee, & Task Force Member Sign-in Name Board/Committee/Task (Force ? ADM\GREERICCSIGNUPVBRD & COMM SIGN IN.DOC ti AGENDA ITEM No. 6 Date: December 19, 2000 TESTIM10 Please sign on the following page(s) if you wish to testify before City Council on: PUBLIC I 9 &4w%k JV% 11L A L I L W-ftw rc rcl Due to Time Constraints City Council May Impose A Time Limit on Testimony II:%DWGREERICCSIGNUPXPH TESTIMONY NON LAND USE.DOC AGENDA ITEM No. 6 PLEASE PRINT 'Proponent - S eakin In Favor Opponent - S eakin A ainst Neutral Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. !3 L I i Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. J \a AGENDA ITEM No. 7 Date: December 19, 2000 T 1I 'lease sign on the following page(s) if you wish to testify before City Council on: PUBLIC HEARING 2000`0 LUU01 Law El I f o r nnife-& r%i, t 'L's I UA0*h, k urai Due to Time Constraints City Council May Impose A Time Limit on Testimony II:WDM\GREER\CCSIGNUP\PH TESTIMONY NON LAND USE.DOC AGENDA ITEM No. 7 PLEASE PRINT Pro onent - S eakin In Favor O onent - S eakir. A ainst Neutral Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. AGENDA ITEM # FOR AGENDA OF 12-19- CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Discussion with State Senator Ryan Deckert and State Representative Max Williams PREPARED BY:_ Cathy Wheatley DEPT HEAD OK _44~ CITY MGR OK kA4T~ ISSUE BEFORE THE COUNCIL On December 19, 2000, the City Council will have an opportunity to discuss issues of interest to the City of Tigard with State Senator Ryan Deckert and State Representative Max Williams. STAFF RECOMMENDATION Identify issues of interest or concern to Senator Deckert and State Representative Williams INFORMATION SUMMARY Senator Deckert and Representative Williams were contacted and agreed to meet with the City Council prior to the 2001 Legislative Session. OTHER ALTERNATIVES CONSIDERED None VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Community Character and Quality of Life - Communication Goal - Citizen involvement opportunities will be maximized by providing educational programs on process, assuring accessibility to information in a variety of formats, providing opportunities for input on community issues and establishing and maintaining two-way communication. ATTACHMENT LIST No attachments. FISCAL NOTES None I:WDM\CITY COUNCIL\COUNCIL AGENDA ITEM SUMMARIES\DECKERT- WILLIAMS.DOC s m 00! ®p. Moms has been appointed Chair of the Meuse Judiciary Committee. In addWon, he is showing a great deal of interest in resolving Wasure 7 issues w~ For the past several months, however. he has been worivng with some city reps and a ~~tG lot of teiecommunwations industry representatives to put together some sort of senes of hadiP-day sessions to help @ducata tho House Revenue Committee (we think he'll continue to be a membo about telecommunications issuos. City folk have been trying to ensura that More is a good opportunity for cries to explain the history of ftnchise fps, the increased number of telecommunications providers using the right of way, and.the need for local management and compensation (e g. franchise fees) of the dght of way to continue. Quadion: We understand that you have been looking at putting together an intensive ed tional session on telecommunications issues for the House Revenue Committee - ane you Still plenrdng to do-that? If so, What do you hope to learn from it? WW role do you sN for ddot In these sessions? OLIGNOW Since you are going to serve es Judiciary Chair, do you expect to be IrtvoW d In iskmommunlomdons issues this esseion? Ill~sther or not he plans to be involved in telecommunications, as your legislator, you need him to understand how important ftnchiso Allies and management of the right of way are to Tigard. nt., Cities In Oregon have invwW a large amount of public funds to create and maintain public rights orway so that water and ►er can be provided to our . T inkmMons, cable, nattxai gas, and electricity companies also use this space to provide :services to our residents. We need to continue to be able to manage the use Of these rights of way and require these companies to compensate cities for this Use. Tigard removes over 14% of our General Fund from 'all of these franchises. We depend on Mom rw.'*nues and believe that the citizens of Tigard deserve this ce n. Do you know of any leglsl proposals that could affect or limit this franchising suatortty? We have heard tot some telecommunications providers will propose to eliminate this local authority and replacae it with a customer tax? TOM- a, 02 AGENDA ITEM # S fuck -,)eS5 0rU FOR AGENDA OF Decem er 19.2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Long Term Water Supply Update PREPARED BY: Ed Wegner `1 z DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL The City Council will hear an update and discussion on our three options for long term water supply. STAFF RECOMMENDATION Staff recommends that we continue investigating the Clackamas, the Joint Water Commission and the Portland Wholesale Contract as potential long-term water supply options INFORMATION SUMMARY Council will be briefed on the interim sales and long-term partnership opportunities with the Joint Water Commission. We will also review with Council any progress on the Portland Wholesale Contract, as well as discussing a recent meeting of the South Fork Water Board in which Councilor Hunt attended and had questions about various aspects of the proposed IGA. The technical committee (staff members) are meeting on December 12, 2000 at which time they will address and begin to answer these and other questions. OTHER ALTERNATIVES CONSIDERED The City should continue working with all three options until such time that decisions on a recommended source can be made. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Securing a long term water supply source is a goal of both the Council and the Vision Task Force i ATTACHMENT LIST i None i FISCAL NOTES 3 A financial package on these options cannot be accomplished until many questions are answered. INTERGOVERNMENTAL AGREEMENT FOR THE FORMATION OF THE SOUTH FORK WATER COMMISSION SUMMARY OF I1-13-00 DRAFT ❑ Participants: 0 Tigard 0 Lake Oswego 0 North Clackamas Co. Water Commission (Oak Lodge, Damascus and Mt. Scott) 0 West Linn 0 Oregon City ❑ Representation: 0 11-member Board: 2 from Tigard 2 from Lake Oswego 2 from NCCWC 2 from West Linn 2 from Oregon City 1 representative which alternates between West Linn and Oregon City each year ❑ Quorum: 0 7 Board members required for a quorum. 0 Ensures at least 3 entities represented, or 4 entities if 3rd representative from Oregon City or West Linn not present. ❑ Voting: i i a 0 Majority of quorum can decide any issue; but 0 Any party can request "supermajority" vote for any issue; supermajority vote requires at least one affirmative vote from each entity. i ❑ Capital Contributions from the members: a 0 Cash contributions o Contribution of facilities; value based on depreciated replacement cost 0 Each party determines their level of contribution and participation in the Commission 0 Each party will keep certain facilities: distribution lines, facilities not needed by the Commission, any other facility they want to keep os their own. ❑ Capital Accounts: o Each party's level of contribution determines that party's ownership interest o Entitled to amount of water equal to ownership interest o Adjustment of capital accounts if any party, or less than all parties, pay more than their proportionate share of cost of new facilities o Proposed new facilities: -Notice to other parties -Opportunity to participate or not participate -Adjustment of capital accounts -10-year window to buy in to new facility ❑ Water Rights: o Dept in each party's name o Allow Commission to use those rights o Consider allowing any entity to retain certain rights for their sole use ❑ Rates: Based upon cost of service analysis for each party ❑ New members: o Requires unanimous vote of each member o No assignment without unanimous consent ❑ Termination: O At any time, upon I year's notice. n Holder of water right can keep water rights; but if any portion of right is being used by the Commission, must allow Commission use of that portion of right for 20 years. 0 Take other contributed facilities, or leave them if others want to buy AGENDA ITEM # t5hd L4C5P ,\Z;,6 k ) FOR AGENDA OF Decem r 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Update - Paperless Council Agenda Meeting Packets PREPARED BY: Cathy Wheatley DEPT HEAD OK CITY MGR OK (.ybA-_~ ISSUE BEFORE THE COUNCIL Review the staff proposal for implementation of "paperless" Council packets. STAFF RECOMMENDATION After staff demonstration of the packets that will be made available to the Council and public, advise staff of any concerns or additions. INFORMATION SUMMARY Staff will present a demonstration of a sample "paperless" Council packet. A few other cities have begun offering "paperless" Council packets whereby Council members, staff, and the public can have access to the full Council packet through the City's website. Staff will demonstrate a trial product to the Council on December 19, 2000. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Community Character & Quality of Life: Communication Goal - Citizen involvement opportunities will be maximized by providing education programs on process, assuring accessibility to information in a variety of formats, providing input on community issues and establishing and maintaining two-way communication. Strategy No. 3: Encourage public participation through accessibility and education. ATTACHMENT LIST The last update to Council on this task is attached. FISCAL NOTES Consultant costs: $ 2,500 (estimated and included in Network Services Budget) Equipment costs: 13.000 (five laptop computers and a scanner; funds are budgeted in the Total $ 15,500 Network Services Budget). 1:\ADM\CITY COUNCIL\COUNCIL AGENDA ITEM SUMMARIES\PAPERLESS COUNCIL.DOC IIIIWIIIIII 3. (New) Strive for implementing a paperless Council meeting in 2000. Staff will investigate the steps involved to convert to Council use of notebook computers, receiving Council packet information via the internet, rather than the present Council packet materials. Staff Responsible: Network Services Director Paul deBruyn and Cathy Wheatley April 2000: Paul deBruyn and Cathy Wheatley met to review ideas for transitioning to a "paperless City Council meeting packet." Paul is in the process of identifying equipment needed (for example, should we purchase laptops for each City Council member) and the best way to transmit the City Council packet to the City Council members. Paul and Cathy are also reviewing what other cities are doing in this area. June 2000: At the May 15, 2000, Council meeting, it was decided that the first step towards automating the routing of information to the Council be the addition of e-mail links on the City web site. As a result of that meeting, we have added an e-mail link for each Council member. Mail from citizens to Council members via these links are routed to Cathy Wheatley with the individual Council members name specified. Cathy Wheatley receives the mail and reroutes or takes action as needed. Goals Update Page 24 September 2000 September 2000 Paul deBruyn has installed a document scanner for primary use by the Finance department, but with an automatic document feeder attached. This will enable the operator to insert up to fifty sheets of documents to be scanned and the feeder will scan each sheet automatically. This will vastly decrease the labor and time required to scan in the various documents that are included in the Council packet. The City's Computer Services staff has prepared a laptop for use by a Council member who will participate in our trial period. We are working with a web vendor for assistance in the modifications to the web page to execute a download procedure. Cathy Wheatley attended the Oregon Association of Municipal Recorders Conference in September 2000. One of the sessions was devoted to "Technology in the Recorder's Office" and a portion of this session dealt with the "paperless Council packet." The City Recorders from Bend and Redmond shared their experiences. Both of these cities publish packets electronically, which are available on the Internet. Here are some highlights of that presentation: e It appears that it is best if the packet can be published in a "text based" format. The City of Redmond uses Adobe Acrobat for the download reader. m During a "transition period" a hard copy of the Council packet is still needed for some users. s Because the packet material is available on the Internet, other interested parties (including citizens, attorneys, City staff) can download those portions of the packet that are of interest to them. A hard copy sJll serves as the "record copy." Goals Update Page 25 September 2000 1 _ No cost savings are realized. Once the system is online, staff time and costs for packet preparation are about the same because of initial input of data (i.e., scanning and formatting), support, and maintenance needs. However, the advantage is that the information would be available to anyone with computer access. m Laptops will need to be purchased for each of the Councilors along with two power adapters; one for home use and one available at City Hall. e Councilors can have the ability to write notes for agenda items and then "bookmark" them for quick accessibility. a Open meeting law requirements and public record requirements must be followed. For that reason, Redmond did not install e-mail access for their Councilors. Also, there are a number of other questions and issues that can and will be resolved. For example, how would staff members access Council packet information? Would it be necessary to have a number of laptops at the Council meeting for staff members as well, or will hard copies of the packet still be necessary? The City Recorder will continue to work on this goal during the last quarter of 2000 with City staff and seek assistance from the experience of other cities that use a paperless council system. The target for implementation is during the second quarter of 2001. \\TIG333\USR\DEPTS\ADM\CATHY\COUNCIL\GOAL UPDATE - 2000.DOC Goals Update Page 26 September 2000 4 AGENDA ITEM FOR AGENDA OF Dec. 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Revisions to Management, Supervisory Confidential Employee (Troup Personnel Policies 1 n PREPARED BY: Sandy Zodrow DEPT HEAD OK WAV~_ CITY MGR OK ~ ISSUE BEFORE THE COUNCIL It was recently determined by the department directors that there is a need to further clarify the language and conditions in Policy No. 8.0, Overtime, relative to employees in the Management, Supervisory & Confidential Employee Group. Also, the Police Department has requested that additional language be added to Policy No. 9.0, Holidays, for this same employee group, specifying a maximum limit on the amount of holiday time a Sergeant can accumulate. Council is respectfully asked to approve revisions to Policy No. 8.0 and No. 9.0 of the Personnel Policies for the Management, Supervisory & Confidential Employee Group to be effective January 1, 2001. STAFF RECOMMENDATION Council approve the revisions as recommended to Policy No. 8.0 and Policy No. 9.0 of the Management, Supervisory & Confidential Employee Group Personnel Policies effective January 1, 2001. INFORMATION SUMMARY The Management, Supervisory & Confidential Employee Group includes approximately 75 department directors, division managers, supervisors and various professional positions in the City. The Personnel Policies for this group were last updated and adopted by the City Council in November of 1998. Recently the department directors and City Manager discussed Policy No. 8.0, Overtime, and determined that there was a need to further clarify the language and conditions of this article. Your Council will find the proposed revisions attached as Exhibit A. These revisions will help address questions that the departments had regarding the administration of this policy, such as how M-2 time should be tracked, if M-2 time could be cashed out, and so forth. It will also assist them in applying this language consistently throughout the organization. The proposed revision to Policy No. 9.0, Holidays, is being proposed by the Police Department. Currently the Management, Supervisory & Confidential Employee Group rules allow Sergeants in the Police Department to be credited with eight (8) hours of holiday compensatory time or cash for each month worked. However, there is no limit on the amount of this time that can be accumulated. This proposed revision will specify that Sergeants can accumulate a maximum of 280 hours of combined holiday and vacation time, or double their vacation time (including holiday time) whichever is greater. This is also consistent with the existing language under the TPOA (Tigard Police Officer's Association) contract. OTHER ALTERNATIVES CONSIDERED These revisions were discussed at length by the department directors and City Manager. It was determined that they represented language needed to properly administer these provisions VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Not Applicable ATTACI4MENT LIST Exhibit A represents the proposed revisions to Policy 8.0 and Policy 9.0 FISCAL NOTES No additional costs are anticipated due to these revisions. If any should occur, they will be absorbed within existing department budgets. A ' y . rev SSE t_+ AGENDA ITEM # 3.2 FOR AGENDA OF 12-19-00 a~ CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Approve contract for City Attorney services with Ramis firm and authorize Mayor and City Manager to sign. PREPARED BY: Loreen Mills DEPT DEAD OK Wt4y--CITY MGR OK ISSUE BEFORE THE COUNCIL Should Council approve a contract with the Ramis firm for Legal Services to be provided for the next 5 years? STAFF RECOI\nMMATION Approve the contract and authorize Mayor and City Manager to sign. INFORMATION SUMMARY The City has provided for Legal Counsel services out-of-house since it was incorporated in the early 1960's. The firm of Ramis, Crew, Corrigan and Bachrach, LLP, currently holds the contract for these services. On 10/24/00, the City Council met with Tim Ramis to discuss a proposal for continuation of the contractual arrangement with the firm. At that meeting, City Council consensus was to authorize renewal of the contract with the Ramis film for a period of five years. Key points of the discussion included in the contract are: > No rate increase will be granted with the signing of the contract, however, rates will be reviewed during the City's budget review in 2001; > Tim Ramis will take the lead in providing services to Tigard, including attendance at Council meetings. If Mr. Ramis is not available for a meeting, Mr. Steve Crew would attend; and > Potential conflict-of-interest situations'will be brought to the attention of the appropriate City representative and the conflict will be eliminated or resolved to the satisfaction of the City. The Council has authority under the City's Local Contract Review Board (LCRB) Rules to enter into a personal services contract for Legal Counsel services. While the City's practice has been to limit the term of a contract to three years, there is nothing in the City's rules (AR 70.000) that would preclude the Council from authorizing renewal for a five year period as requested by Mr. Ramis. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Not addressed in the Vision Plan. ATTACHMENT LIST Personal Services Contract between City of Tigard & Ramis, Crew, Corrigan & Bachrach, LLP. FISCAL NOTES $50,000 is budgeted in General Government for non-specific service needs. Specific projects and needs for legal services are identified throughout the budget in specific department areas. The budget amounts are based on the hourly rates identified in the contract, past expenditure needs, and known upcoming projects. CITY OF TIGARD, OREGON PERSONAL SERVICES CONTRACT THIS AGREEMENT made and entered into this day of , 2000 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and Ramis Crew Corrigan and Bachrach, LLP hereinafter called LEGAL COUNSEL. W71TNESSETH WHEREAS, CITY has need for the services of a law firm with the particular training, ability, knowledge, and experience possessed by LEGAL COUNSEL; and WHEREAS, CITY has determined that Ramis Crew Corrigan and Bachrach, LLP is qualified and capable of performing the professional services as CITY does hereinafter require under those terms and conditions set forth; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. LEGAL SERVICES TO BE PROVIDED: LEGAL COUNSEL agrees to complete work, which is detailed in Exhibit "A" and by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION: This Agreement shall become effective beginning January 1, 2001, and shall expire, unless otherwise terminated or extended, on December 31, 2005. 3. COMPENSATION: a. CITY agrees to pay LEGAL COUNSEL in accordance with this section for performance of services described herein. Payment shall be based upon a detailed monthly billing showing work performed and identifying specific legal matters worked on. b. Hourly Rates: Effective January 1, 2001 forward the hourly rates shall be as follows: Partners & Of Counsel $135.00 Sr. Associates $125.00 Associates $115.00 Law Clerks/Legal Assistants $ 70.00 Secretarial $ 45.00 As of the effective date of this agreement, no rate increase has been implemented. The rates will be reviewed during the City's next budget cycle. The CITY shall provide LEGAL COUNSEL notice of the budget cycle. The CITY and LEGAL COUNSEL shall consider adjustment of the rates at that time. Legal Services Contract - Rarnis, Crew, Corrigan and Bachrach, LLP Page ] The parties may by mutual agreement adjust these rates. C. The direct cost for such items as long distance charges, messenger services, printing, mileage, copy charges (25 cents per page) and the like will be billed to CITY, with no markup or overhead charge added, except that mileage charges for trips between LEGAL COUNSEL's office and CITY offices shall not be charged to the CITY. d. Payment by CITY shall release CITY from any further obligation for payment to LEGAL COUNSEL, for services performed or expenses incurred as of the date of the statement of services. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. e. Payment will be made in installments based on LEGAL COUNSEL's invoice, subject to the approval of the City Manager. Payment shall be made only for work actually completed as of the date of the invoice. f. The CITY certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract. 4. OWNERSHIP OF WORK PRODUCT: CITY shall be the owner of and shall be entitled to possession of any and all work products of LEGAL COUNSEL which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered by or computed by LEGAL COUNSEL prior to termination of this Agreement by LEGAL COUNSEL or upon completion of the work pursuant to this Agreement. 5. ASSIGNMENT/DELEGATION: Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and not assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If CITY agrees to assignment of tasks to a subcontractor, LEGAL COUNSEL shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by CITY of any subcontractor nor anything contained herein shall be deemed to create any contractual relation between the subcontractor and CITY. 6. STATUS OF LEGAL COUNSEL AS INDEPENDENT CONTRACTOR: LEGAL COUNSEL certifies that: a. LEGAL COUNSEL acknowledges that for all purposes related to this Agreement, LEGAL COUNSEL is and shall be deemed to be an independent contractor as defined by ORS 670.700 and not an employee of CITY, shall not be entitled to benefits of any kind to which an employee of CITY is entitled and shall be solely responsible for all payments and taxes required by law. Furthermore, in the event Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 2 that LEGAL COUNSEL is found by a court of law or any administrative agency to be an employee of CITY for any purpose, CITY shall be entitled to offset compensation due, or to demand repayment of any amounts paid to LEGAL COUNSEL under the terms of this Agreement, to the full extent of any benefits or other remuneration LEGAL COUNSEL receives (from CITY or third party) as a result of said finding and to the full extent of any payments that CITY is required or make (to LEGAL COUNSEL or to a third party) as a result of said finding. b. The undersigned LEGAL COUNSEL hereby represents that no employee of the CITY, or any partnership or corporation in which a CITY employee has an interest, has or will receive any remuneration of any description from LEGAL COUNSEL, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing. C. LEGAL COUNSEL certifies that it currently has a CITY business license or will obtain one prior to delivering services under this Agreement. d. LEGAL COUNSEL is not an officer, employee, or agent of the CITY as those terms are used in ORS 30.265. 7. INDEMNIFICATION: CITY has relied upon the professional ability and training of LEGAL COUNSEL as a material inducement to enter into this Agreement. LEGAL COUNSEL warrants that all its work will be performed in accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state and local laws, it boing understood that acceptance of LEGAL COUNSEL's work by CITY shall not operate as a waiver or release. LEGAL COUNSEL agrees to indemnify and defend the CITY, its officers, agents and employees and hold them harmless from any and all liability, causes of action, claims, losses, damages, judgments or other costs or expenses including attorney's fees and witness costs and (at both trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity which in any way arise from, during or in connection with the performance of the work described in this contract, except liability arising out of the sole negligence of the CITY and its employees. Such indemnification shall also cover claims brought against the CITY under state or federal worker's compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. j ' 8. INSURANCE: a. LEGAL COUNSEL, and its subcontractors, shall maintain insurance acceptable to CITY in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directiy or indirectly out of LEGAL COUNSEL's activities or work hereunder, including the operations of its subcontractors of any tier. Legal Services Contract - Ramis. Crew, Corrigan and Bachrach, LLP Page 3 b. The policy or policies of insurance maintained by LEGAL COUNSEL and its subcontractors shall provide at least the following limits and coverages: i. Commercial General Liability Insurance LEGAL COUNSEL shall obtain, at LEGAL COUNSEL's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (1986 ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carried: Coverage Limit General Aggregate $2,000,000 Products-Completed Operations Aggregate 1,000,000 Each Occurrence 1,000,000 Personal & Advertising Injury 1,000,000 Fire Damage (Any one fire) 50,000 Medical Expense (Any one person) 5,000 ii. Professional Liability Insurance LEGAL COUNSEL shall obtain, at LEGAL COUNSEL's expense, and keep in effect during the term of this contract, Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts. This coverage shall include Annual Aggregate & Per Occurrence limits of $2,000,000 per attorney. iii. Commercial Automobile Insurance LEGAL COUNSEL shall obtain, at LEGAL COUNSEL's expense, and keep in effect during the term of this contract, Commercial Automobile j Liability coverage including coverage for all owned, hired, and non-owned vehicles. The Combined Single Limit per occurrence shall not be less than ' $1,000,000. iv. Workers' Compensation Insurance The LEGAL COUNSEL its subcontractors, if any, and all employers j providing work, labor or materials under this contract are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers. LEGAL COUNSEL or subcontractors who perform work Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 4 without the assistance or labor of any employee need not obtain such coverage. This shall include Employer's Liability Insurance with coverage limits of not less than $100,000 each accident. V. Additional Insured Provision The Commercial General Liability Insurance and Commercial Automobile Insurance policies and other policies the CITY deems necessary shall include the CITY, its officers, directors, and employees as additional insureds with respect to this contract. vi. Extended Reporting Coverage If any liability insurance required by this contract is arranged on a "claims made" basis, Extended Reporting coverage will be required at the completion of this contract to a duration of 24 months or the maximum time period the LEGAL COUNSEL's insurer will provide if less than 24 months. LEGAL COUNSEL will be responsible for furnishing certification of Extended Reporting coverage for 24 months following contract completion. Continuous "claims made" coverage will be acceptable in lieu of Extended Reporting coverage, provided its retroactive date is on or before the effective date of this contract. vii. Notice of Cancellation There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to renew insurance coverage without 30 days' written notice to the CITY. Any failure to comply with this provision Nvill not affect the insurance coverage provided to the CITY. A 30 days' notice of cancellation provision shall be physically endorsed on the policy. viii. Insurance Carrier Rating Coverages provided by the LEGAL COUNSEL must be underwritten by an insurance company deemed acceptable by the CITY. The CITY reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 5 xix. Certificates of Insurance As evidence of the insurance coverage required by this contract, the LEGAL COUNSEL shall furnish Certificates of Insurance to the CITY. No contract shall be effected until the required certificates have been received and approved by the CITY. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the address listed in this section 10 days prior to coverage expiration. X. Primary Coverage Clarification The parties agree that LEGAL COTJNSEL's coverage shall be primary to the extent permitted by law. The parties further agree that they consider insurance maintained by the CITY as excess and not contributory insurance as to the insurance required in this section. xi. Cross Liability Clause A cross-liability clause or separation of insureds clause will be included in all general liability and professional liability policies required by this contract. LEGAL COUNSEL's insurance policy shall contain provision that such policies shall not be canceled or their limits of liability reduced without 30 days prior notice to CITY. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company, or at the discretion of CITY, in lieu thereof, a certificate in form satisfactory to CITY certifying to the issuance of such insurance shall be forwarded to: Loreen R. Mills Risk Manager 13125 SW Hall Blvd. Tigard, OR. 97223 Such policies or certificates must be delivered prior to commencement of the work. The procuring of such required insurance shall not be construed to limit LEGAL COUNSEL's liability hereunder. Notwithstanding said insurance, LEGAL COUNSEL shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this contract. Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 6 9. PROFESSIONAL SERVICES: The CITY requires that services provided pursuant to this Agreement shall be provided to the CITY by a LEGAL COUNSEL which does not represent clients on matters contrary to CITY interests. Further, LEGAL COUNSEL shall not engage services of an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to CITY interests. Should the LEGAL COUNSEL represent clients on matters contrary to CITY interests or engage the services of an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to CITY interests, LEGAL COUNSEL shall consult with the appropriate CITY representative regarding the conflict. After such consultation, the LEGAL COUNSEL shall have 30 days to eliminate the conflict to the satisfaction of the CITY. If such conflict is not eliminated within the specified time period, the Agreement may be terminated pursuant to Section 13(b)(iii) of this agreement. 10 METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING PAYMENTS. All notices shall be made in writing and may be given by personal delivery or by mail. Notices sent by mail should be addressed as follows: CITY: City Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR. 97223 LEGAL COUNSEL: Timothy V. Ramis Ramis Crew Corrigan & Bachrach, LLP 1727 NW Hoyt Street Portland, OR 97209 and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices, bills and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills and payments are to be given by giving written notice pursuant to this paragraph. All bills and payments shall be sent to the CITY's Finance Director. 11. MERGER: This writing is intended both as a final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 7 12. TERMINATION WITHOUT CAUSE: At any time and without cause, CITY shall have the right in its sole discretion, to terminate this Agreement by giving notice to LEGAL COUNSEL. If CITY terminates the contract pursuant to this paragraph, it shall pay LEGAL COUNSEL for services rendered to the date of termination. Termination by CITY must be done by motion of the City Council. 13. TERMINATION WITH CAUSE: a. CITY may terminate this Agreement effective upon delivery of written notice to LEGAL COUNSEL, or at such later date as may be established by CITY, under any of the following conditions: i. If CITY funding from federal, state, local, or other sources is not obtained and continued at levels -sufficient to allow for the purchase of the indicated quantity of services. This Agreement may be modified to accommodate a reduction in funds. ii. If federal or state regulations or guidelines are modified, changes, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement. iii. If any license or certificate required by law or regulation to be held by LEGAL COUNSEL, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked or not renewed. iv. If LEGAL COUNSEL becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against LEGAL COUNSEL, if a receiver or trustee is appointed for LEGAL COUNSEL, or if there is -an assignment for the benefit of creditors of LEGAL COUNSEL. Any such termination of this Agreement under paragraph (a) shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. b. CITY, by written notice of default (including breach of contract) to LEGAL COUNSEL, may terminate the whole or any part of this Agreement: i. If LEGAL COUNSEL fails to provide services called for by this Agreement within the time specified herein or any extension thereof, or ii. If LEGAL COUNSEL fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from CITY, fails to correct such failures within ten (10) days or such other period as CITY may authorize. Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 8 iii. If LEGAL COUNSEL fails to eliminate a conflict as described in Section I I of this Agreement. The rights and remedies of CITY provided in the above clause related to defaults (including breach of contract) by LEGAL COUNSEL shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. If CITY terminates this Agreement under paragraph (b), LEGAL COUNSEL shall be entitled to receive as full payment for all services satisfactorily rendered and expenses incurred, an amount which bears the same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by LEGAL COUNSEL bear to the total services otherwise required or be performed for such total fee; provided, that there shall be deducted from such amount the amount of damages, if any, sustained by CITY due to breach of contract by LEGAL COUNSEL. Damages for breach of contract shall be those allowed by Oregon law, reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal. 14. ACCESS TO RECORDS: CITY shall have access to books, documents, papers and records of LEGAL COUNSEL that are directly pertinent to this Agreement for the purpose of making audits, examinations, excerpts and transcripts. 15. CITY ATTORNEY BAR MEMBERSHIP/OCAA MEMBERSHIP REQUIREMENTS: LEGAL COUNSEL is responsible for maintaining LEGAL COUNSEL's professional standing as a member of the Oregon State Bar Association and the Oregon City Attorney's Association. 16. NON-WAIVER: The failure of CITY to insist upon or enforce strict performance by LEGAL COUNSEL of any of the terms of this Agreement or to exercise any rights hereunder, should not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights on any future occasion. 17. ATTORNEYS' FEES: In case suit or action is instituted to enforce the provisions of this contract, the parties agree that the losing parry shall pay such sum as the court may adjudge reasonable attorney fees and court costs, including attorney's fees and court costs on appeal. 18 GOVERNING LAW: The provisions of this Agreement shall be construed in accordance with the provisions of the laws of the State of Oregon. Any action or suits involving any question arising under this Agreement must be brought in the appropriate court of the State of Oregon. Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 9 !1 19, COMPLIANCE WITH APPLICABLE LAW: LEGAL COUNSEL shall comply with all federal, state and local laws and ordinances, applicable public contracts, and to the work to be done under this contract. 20 CONFLICT BETWEEN TERMS: It is further expressly agreed by and between the parties hereto that should there by any conflict between the terms of this instrument in the proposal of the contract, this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 21. AUDIT: LEGAL COUNSEL shall maintain records to assure conformance with the terms and conditions of this Agreement, and to assure adequate performance and accurate expenditures within the contract period. LEGAL COUNSEL agrees to permit CITY, the State of Oregon, the federal government, or their duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds. 22. SEVERABILITY: In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected or invalidated thereby. 23. COMPLETE AGREEMENT: This Agreement and attached exhibits constitutes the entire Agreement between the parties. No waiver, consent, modification, or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. LEGAL COUNSEL, by the signature of its authorized representative, hereby acknowledges that he has read this Agreement, understands it and agrees to be bound by its terms and conditions. IN WITNESS WHEREOF, CITY has caused this Agreement to be executed by its duly authorized undersigned officer and LEGAL COUNSEL has executed this Agreement on the date hereinabove first written. CITY OF TIGARD LEGAL COUNSEL By: By: Mayor Timothy V. Ramis Date: Date: By: City Manager Date: Legal Services Contract - Rmnis, Crew, Corrigan and Bachrach, LLP Page 10 EXHIBIT "A" SCOPE OF SERVICES A. LEGAL COUNSEL will be responsible for CITY legal representation as authorized by the City Council and/or City Manager. Authorization to perform specific tasks will come from the Mayor, City Council, City Manager or other persons directly authorized by the Mayor, City Council or the City Manager. Timothy V. Ramis will act as lead attorney. Timothy V. Ramis is referred to herein as the "City Attorney". As lead attorney, Timothy V. Ramis will attend City Council meetings. If Mr. Ramis is not available for a meeting, Stephen F. Crew will attend if possible. Legal Counsel will advise the City Manager if neither Mr. Ramis nor Mr. Crew is available for a City Council meeting. B. Unless otherwise specified by the Mayor, City Council or the City Manager, LEGAL COUNSEL will be responsible for: i. Legal aspects of general administration of CITY business, including preparing and providing legal opinions, assist with establishment of correct procedures, drafting and reviewing ordinances, resolutions, contracts, orders, agreements, and other legal documents, and related tasks needed to support CITY personnel, the Council and Commissions. ii. Training of nonlegal personnel in the performance of legally related tasks in order to reduce legal expenses. iii. Regular attendance at City Council meetings and attendance at other municipal meetings on request. iv. Municipal Court prosecution. V. Review City Council packets and provide advice prior to meetings. Review Planning Commission packets when requested and provide timely advice prior to meetings. vi. Notify CITY of changes in state and federal laws that require changes in city codes, ordinances, regulations or policy. Work with city staff to provide appropriate amendments to city codes, ordinance, regulations or policies to remain in compliance with applicable laws. C. Legal activities such as complex litigation and special project assignments which fall outside of the above categories, and which would include costs exceeding the projections of the City's budget for legal services, must be authorized by the City Council. City Attorney and the City Manager will regularly review the level of expenditures on legal services and will prioritize projects in order to stay within the budgeted amounts. Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page I 1 D. The City Attorney will coordinate with the City Manager and department heads, but within the chain of command shall report directly to the City Council. In this regard, in the event a conflict develops between the Council and City Manager, the City Attorney will represent the Council but will notify the City Manager at first knowledge of a conflict. E. The City reserves the right in appropriate situations to retain separate outside counsel. It is recognized that the City presently utilizes other law firms to provide representation in personnel issues, labor relations, and water-related matters (i.e., water rights, water supply). Lm:/H:\DOCS\CONTRACT\City Attorney Contract 2001-2005.doc Legal Services Contract - Ramis, Crew, Corrigan and Bachrach, LLP Page 12 101 no IIEII 111111 AGENDA ITEM # FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Anngintrnents to the Planning Commission PREPARED BY: Susan_ Ko=12inp DEPT HEAD Od4l-V? CITY MGR OK ISSUE BEFORE THE COUNCIL Appointments to the Planning Commission. a MEND-AT Adopt the attached resolution reappointing Glenn Mores, and appointing Judy Munro and Scot Sutton to the Planning Commission. INFORMATION SUMMARY On December 4th and 5', 2000, the Mayor's Appointment Advisory Committee interviewed candidates for openings on the Planning Commission. Attached is a resolution which, if adopted, would approve the appointments recommended by the Mayor's Appointment Advisory Committee. OTHER ALTERNATIVES CONSIDERED Delay action on the appointments. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Goal: City will maximize the effectiveness of the volunteer spirit to accomplish the greatest good for our community. e - FISCAL NOTES none 7 I:\ADM\SUSANK\TASKFOIkC\PCSUM 12'00.DOC 3.~ AGENDA ITEM # FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Award Contract for Aquifer Storage and Recove Feasibili Stud PREPARED BY: Mike Miller DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL Shall the Local Contract Review Board award the contract for Aquifer Storage and Recovery feasibility study. STAFF RECOMMENDATION Award the contract to the consultant team of Montgomery Watson and Golder Associates. INFORMATION SUMMARY As a result of the voter approved City Charter amendment in the fall of 1999, the City has been re-evaluating long- term water supply options. Currently the City is exploring three options: Clackamas River supply through a consortium of water providers including South Fork Water Board; Joint Water Commission and the City of Portland. A final decision on which option will be our ulimate supply source is still several months to a year away. Even if a decision was made today and we were able to become a partner in a supply source, that option will not be able to fully provide all of our summer supply needs for at least five to seven years. Aquifer Storage and Recovery (ASR), if found feasibile, will bridge that gap. With ASR, we would inject water during the winter into the underground aquifer creating a large "reservoir" which we would then extract during the peak season to supplement our existing supply capacity. The City of Beaverton has a ASR program that has been very successful. In fact, Beaverton's program has been so successful that they currently have two ASR wells on line and will be constructing (drilling) a new ASR well early 2001. Due to Beaverton's success and that their wells are in the same geologic formation as our wells, we have decided to investigate whether ASR is a feasible option for the Tigard Water System. In November 2000, we advertised a Request For Proposal for a ASR feasibility study. We received a total of three proposals. All of which are very qualified consulting teams and any of the firms will perform very satisfactorily. A selection committee consisting of Mr. Joe Thompson, Director of Water Utilities with the City of Hillsboro; Mr. Mike Stone, PE, City Engineer for Wilsonville; and Mike Miller, Utility Manager for Tigard, reviewed and evaluated the proposals. The proposals were evaluated based on the following criteria: Qualifications and experience; understanding and approach to the project; quality and responsiveness of the work plan to address the RFP; knowledge of issues relating to the water distribution system; project team, credentials and experience; and cost. Based on the evaluation criteria, the selection committee has recommended that the consultant team of Montgomery Watson and Golder Associates be selected for this project. OTHER ALTERNATIVES CONSIDERED Do not complete the ASR Feasibility Study Award the contract to the consultant team of Murray Smith and Associates and CH2M Hill. Award the contract to the consultant team of Economic and Engineering Services, Inc. and Kennedy/Jenks Corporation. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Urban and Public Services, Water, Goal #1: "Actively participate in regional development of water sources and adequate, innovative funding mechanisms to develop those sources for Tigard users while exploring local options for water reuse and groundwater". ATTACHMENT LIST None FISCAL NOTES The RFP from Montgomery Watson and Golder Associates is for $90,000 for the first phase which is the feasibility study. The second phase, which if the project is found to be feasible, will consist of an ASR pilot test that will begin fiscal 2001-02 for $210,500. The third phase, which is fiill scale ASR, would begin in fiscal 2002-03 and is estimated to cost $50,000. Funding for this program will come from the water supply capital reserve account 550-6270-755.000. AGENDA ITEM # FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Receive GFOA Certificate of Achievement for Financial Renortina PREPARED BY:_ Craig Prosser DEPT HEAD OK 'L_ CITY MGR OK ISSUE BEFORE THE COUNCIL Receive Certificate of Achievement for Financial Reporting from the Government Finance Officers' Association of the US and Canada. STAFF RECOMMENDATION Accept Certificate INFORMATION SUMMARY The Government Financers' Association of the US and Canada (GFOA) is an international professional organization for public finance officers. GFOA offers a variety of programs to promote and enhance public financial management. One of those programs is the Certificate of Achievement in Financial Reporting. This Certificate recognizes adherence to the highest level of professional standards for accounting and financial reporting in the City's Consolidated Annual Financial Report (CAFR). All cities, counties, states, provinces, school districts, and special districts in the United States are eligible to apply for this award: only 2% receive the award. This is the 17th year that the City of Tigard has won this award. The award will be presented by a GFOA representative. Tigard's Financial Operations Manager, Tom Imdieke, and Senior Accountant, Roger Dawes, will be present to be recognized for their work on Tigard's CAFR. The City's other Accounting staff, (Nancy Larson, Budget and Finance Analyst; Phyllis Hams, Accounts Payable Clerk; Terry Muralt, Buyer/Fixed Assets Clerk; and Kathy Gende, Payroll Clerk) should also be acknowledged for their good work. OTHER ALTERNATIVES CONSIDERED NA VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY NA ATTACHMENT LIST None FISCAL NOTES None I 1 W AGENDA ITEM # FOR AGENDA OF 12/19/00 CI T Y OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Public Hearing - 1999 Law Enforcement Block Grant PREPARED BY: Ronald D. Goodlaster DEPT HEAD OK CITY MGR OK 1 AA ISSUE BEFORE THE COUNCIL The issue before the Council is to hold a hearing regarding this grant, to then accept the grant and to approve the spending of the funds. STAFF RECOMMENDATION Staff recommends accepting the grant and authorizing the spending of the funds. INFORMATION SUMMARY This is the fourth Department of Justice Law Enforcement Grant that the Police Department has received. The grant amount is $22,821, which requires a 10 percent match, or $2536, to bring the total value of the grant to $25,357. The requirements of the grant are that the funds be spent to reduce crime and improve public safety. There are 7 categories in which the funds can be spent. The category these funds will be used for is "Supporting Law Enforcement". The grant requires that a citizen advisory committee made up of representatives from the local police, local prosecuter's office, local court system, local school system, and a community representative active in crime prevention have recommendation rights to the Police Department in regards to how the funds are spent. The recommendation before you is the one that is approved by this citizen advisory committee. These funds cannot be used to supplant any existing funds or pending purchases. Before the City actually receives the funds and can spend them, the City is required to hold a public hearing regarding the proposed use of the funds, which is the purpose for the agenda item this evening. The funds from this grant are going to be spent for the following items: $4,183 will be used to purchase a new radar gun and reader board which is used in our Neighborhood Speed Watch. The existing radar gun and speed board were taken into the program several years ago and have been used but now are unreliable and constantly broken down and need to be replaced. $1,500 will be given to the Community Partners for Affordable Housing for their summer camp program that runs from June to September. The direct benefits of this program are the kids that reside at the Villa La Paz and Metzger Manor. $7,674 of the funds will be used for our DARE summer camp program. This has been an extremely successful program in the past funded primarily through this grant. This coming summer, we anticipate four 1-week sessions with the campers and 2 sessions with the high school mentors and counselors. $12,000 to purchase a roof-mounted infrared night sight that will allow the officers to see in the dark. We frequently get calls of prowlers, burglars, loiterers, or suspicious people at night, and it is extremely difficult to find them because of the darkness. This will also be a tremendous assistance in accident scene tire measurements, because the night sight will see skid marks that the eye can't and will also assist us in finding cars that have been driven at night that we're looking for in parking lots. This is equipment that is used by a variety of police departments in Oregon and around the country. This will put a total of three night sights in the field. Two others were approved through the budget process. This brings the total expenditure to $25,357. The City match of 10 percent, or $2536, is available in our existing budget. Your approval of this will allow us to immediately draw down the funds from the federal govemmeiit and then spend them for the above listed items. OTHER ALTERNATIVES CONSIDERED None. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY These expenditures would address the Tigard Beyond Tomorrow transportation and traffic in regards to improving traffic safety. Also the public safety goal on enhancing the community public safety. ATTACHMENT LIST There are three pages of information attached regarding the Infrared Night Sight. FISCAL NOTES The $2536 is available in this fiscal year budget. rroaucts: r4igmbigm rroteal K 4uuuts - the Next t nerm Imaging o u Ion age or I -ME W I'm 1-xwm~ Home ; Contact I Search i Support Products: NightSi ht Featured Reference Related ~p ~y summary SpeCifiwtlo.RS ~ How To ~uY Pr®te IR 4®®®B Features Options & How T aUse Related links 9" Image Gallery How To Use Brochures (PDF) The Next Thermal Imaging Solution 0 FAGS o Can be Mounted on a Vehicle or Building Remote Control Pan-and-tilt Platform k- Video Monitor ajir Displays Infrared Image Digital Image Processing Designed to Withstand . Improved Contrast i.- . Better Feature Definition Rigors of Mobile Operation Sharper, Clearer Pictures 0 1 " 1" 1W and Outdoor Environments Sharper, Clearer Pictures. Better Feature Definition. Another Powerful Solution. Meeting the challenge that darkness presents for law enforcement, marine, and security applications is the Nightsight ProtectI R 40008. The ProtectIR 40008 combines an infrared camera with a remotely controlled pan..-and-tilt platform. The system is designed to withstand the rigors of mobile operation and outdoor environments, and can be mounted on a vehicle, building, or other structure. The infrared image is displayed on a video monitor that is mounted, along with the remote control unit, out of the elements inside the vehicle or building. The camera utilizes image processing to create thermal images with improved contrast, resulting in better feature definition, and sharper, clearer thermal pictures. The Nightsight ProtectIlt 40008. Another powerful thermal imaging solution from Raytheon. W?Ck to Pr94U_Cts_Menu Switch__to_Oash http://www.raytheoninfrared.cam/htmYprod2c/si. wz..~.h"-n 12/612404 Looking Through IR Page 1 of 2 Home Contact I Search I Support • Technology: Looking 'T'hrough an IR Carnpartrg Technolog c5 Wha6 is Cnaled vs. Uncanled Hcw IR Camera, Work Camera Histnry of IR 8enefics of IR The World in Infrared Look,ng Through IR Ir The underlying structure of this house is visible in infrared (Visible light and infrared pictures taken at the same time) II 1 , , Y.~ Infrared allows you to see through thick smoke (Visible light and infrared pictures taken at the same time, at slightly different perspectives) ~ i t II~ li See hazards easily while driving at night (Visible light and infrared pictures taken at the same time) htip://www.raytheoninfrared.com/html/tech/looking.htm 12/6/00 Looking Through IR Page 2 of 2 P Infrared lets you see through the glare of oncoming headlights (Visible light and infrared pictures taken at the same time) Infrared provides dramatic contrast in a dark forest (Visible light and infrared pictures taken at the same timcl i ~I i i People in the water are clearly visible in infrared (Visible light and infrared pictures taken at the same time) 6-~ k to Technolo Menu Switch to Flash si htt4p--://www.raytheoninf:ared.com/htnl/tech/looking.htm 12/5/00 AGENDA ITEM # FOR AGENDA OF 12/19/00 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE _ Public Hearing - 2000 Law Enforcement Community Development Block Grant PREPARED BY: Ronald D. Goodpaster DEPT HEAD OK ~ CITY MGR OK ISSUE BEFORE THE COUNCIL The issue before the Council is to hold a hearing regarding this grant, to then accept the grant and to approve the spending of the funds. STAFF RECOMMENDATION Staff recommends accepting the grant and authorizing the spending of the funds. INFORMATION SUMMARY This is the fifth Department of Justice Law Enforcement Community Development Block Grant that the Police Department has received. The grant is for $23,981, which requires a 10 percent, or $2665, match to bring the total value of the grant to $26,646. The requirements of the grant are that the funds be spent to reduce crime and improve public safety. There are 7 categories the funds can be spent in. The category these funds will be spent in is the one titled "Supporting Law Enforcement". The grant requires that a citizen advisory committee made up of representatives from the local police, local prosecuter's office, local court system, local school system, and a community representative active in crime prevention have recommendation rights to the Police Department in regards to how the funds are spent. The recommendation before you is the one that is approved by this citizen advisory committee. These funds cannot be used to supplant any existing funds or pending purchases. Before the City actually receives the funds and can spend them, the City is required to hold a public hearing regarding the proposed use of the funds, which is the purpose for the agenda item this evening. The funds from this grant are going to be spent for the following items: $9,646 of the grant will be used to help fund the Police Department summer DARE camp. The camp needs approximately $20,000 to operate, with four 1-week sessions with the campers and two overnight sessions for counselors and mentors. This has been an extremely popular program in the past and serves the community extremely well. $4,000 would be spent to purchase police officer trading cards. These look similar to the sports trading cards;. however, they have an officer's picture on the front. On the back of the card is a brief bio of the officer and a message from the officer. These are popular with the youth in the community and is another tool we can use to work closely with them and encourage communication and contact. These trading cards are used by numerous police departments in Oregon and around the country. $12,000 will be used for a roof-mounted infrared night sight that will allow the officers to see in the dark. We frequently get calls of prowlers, burglars, loiterers, or suspicious people at night, and it is extremely difficult to find them because of the darkness. This will also be a tremendous assistance in accident scene tire measurements, because the infrared night sight will see skid marks that the eye can't and will also assist us in finding cars that have been driven at night that we're looking for in parking lots. This is equipment that is used by a variety of police departments in Oregon and around the country. This will put a total of four units in the field. Two others were approved through the budget process, and the 1999 block grant will purchase one. $1,000 to fund certificates of recognition and fast food coupons for the "Do the Right Thing" Program for students at Twality and Fowler Middle Schools. In this program school staff recognize students that make good choices. The certificates will be signed by the Tigard Police Chief and the school principal. This brings the total expenditure to $26,646. Your approval of this will allow us to immediately draw down the funds from the federal government and then spend them for the above listed items. OTHER ALTERNATIVES CONSIDERED None. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY These expenditures would address the Tigard Beyond Tomorrow transportation and traffic in regards to improving traffic safety. Also the public safety goal on enhancing the community public safety. ATTACHMENT LIST There are three pages of information attached regarding the Infrared Night Sight. A police trading card example and a copy of the certificate to be used by Twality Middle School are also attached for your review. FISCAL NOTES The matching funds $2665 is available in this fiscal year budget. For Information on Raytheon NightSight ProtectIR 40006 Thermal Imaging See Agenda Item #5 Joe ~-max l r y T„ J ~ 1 J r r sin R,C" GANG ENFORCEMENT I h h i 1174 SAft J DFf IC[ 11 MARK G. HYDE 1 ! - o 44 z "'b"~? WT Hit I~~V I~I ji i .7 ill E C P01-1 W 1 ;97 A Gang enforcement detectives Tom Walker GANGS Officer Macho is a 16-year veteran and is currently a canine handler. His prior and Larry Foulke have caught gang mem- What you do with your life now will affect assignments include detective positions in Robbery/Homicide, Sexual Assaults, hers spray painting graffiti. The Gresham your entire future. How do you want peo- Police Department has a graffiti paint pro- and Juvenile Officer. Officer Macho is also a sniper on the SWAT team and an pie to think of you 5 to 10 years front gram. Upon conviction, these people will now? Earn respect today by saying i FTO. He was the department's first DARE Officer and was Officer of the Year in no be required to paint over their graffiti. g no to 1986. He enjoys softball and gardening. Cimbo is a 5-year-old German alcohol and other drug use and gangs. Shepherd, and has been credited with many arrests in his 2 years of service. Your future depends on it. PERSONAL MESSAGE: When biking, wear your helmet! 1994 1997 'WE DARE BECAUSE WE CARE' This card is a public service of the Newark (CA) Police Department. NEWARK POLICE DEPARTMENT This card comes to you as a gift from your friends at the Gresham Police Department. 37101 Newark Blvd. • Newark, CA 94560 + (510) 793.1400 D.A.R.E. Unit 669.2578 Produced by: MCO69 Product-s. Inc. Produced by MCOeq Productaru, Inc. P.O. Box 80926, Baton Rage, to 70696 P.O. B.. 80826, Baton Rouge. U 70998 dc, °2 zap 2 V _2 f~, a " ~ fe W le FH q Z' 03c o '°aTe~aBn, _ d~~ v ° m n° -no Q w °-o°+ Cr a) 3 g~g 6 N ~ O n R a i y 6 b cL S N N ~mbN_71SC oo...y=~.g p€' n cn a w iv co 1n ~ ° = G' to ~ ~ ~ Ie. is a o ~ ~ o i'S° rn 5-Fs 2q N~w Or_ 5 N 0 Irn V N T !o d 4tOi .,,t d ,p a r, CL N j 6/ g rid nS n ' ~1J1 O a i ~o- w° n o a o f t'n J1r coo~on. I 0 0 ~ I a, o . - ------------3 i -I i I{ S I t` III r ~ I. j~~r 'I i ~ I II fI I Patrol Officer Ron Yeager has been a police officer School Resource Officer Craig Renning has been a for twenty-eight years. He has been with the Lake police officer since 1988 and the SRO for the last Oswego Police Department since 1982. Officer i two years. In the elementary and junior high Yeager enjoys getting out of his police car and schools, school resource officers liaison between meeting members of the community. You will see ' the police, youth, and school officials. Officer Craig Officer Yeager frequently at community events. I teaches safety to the children in a variety of ways. Stranger Danger, Drug Recognition and Bike Safety are just some of his presentations. -Drugs and alcohol will hinder your ability to think clearly and they slow your reflexes. Never ride In a vehicle wish someone who has been drinking of is high an drugs." "Part of growing up is teaming to make the right choic- es. One of the most Important choices you can make is to say 'No, to alcohol and drugs[" Lake Oswego Police Department 380'N Avenue OR 0 97034 l lake Osw 80 PoliceDepartment Lake(Oswego. i j f Lake Oswego, OR 97034 (503) 635-0250 0199 1 6M-M-2277'M 0199 a7 9zti7 G9J r ME= t y sctAOOL T ■ d 1 certificate re cognizes This - ~ the Right Thing r et" and ~ going for being "Right On Tabecause of Chief - - Tigard Police pate lily of ? ~T.u T ~ X .T.TritS~TYI.~! ~ + I ICI ~ ! 1 -q _z GANG ENFORCEMENT w,. r 1:7• t •.ro r J _ r ~ r ~ r or,y.oar, I. 1 1 nNl t...N ~y 64 iG f Vi. OFFICER MARK G. HYDE pOUty<~ ~ 1 IRON .Cis I~J, IVA r J ~ !I I ~ I I~ 9 1 0 ~ e ~ O ~ • f ~ Ills I .~i. w ry `GANG ENFORCEMENT li SAIF 1 1 M\i10i 'i1 1 I ~pM B-re I 1 1 I OFF.= am OFFICER MARK G. HYDE 1 I I II ~M1 B wa , 1.--.J. •jy ael, r, rT q~ Lt; NtG~ y I 1e ~ ! II 11 ii CE I L P r~l '1 5~ 1 • o ~ e® i o . o ~ i 'I I, ~ iii ~ a~ ` f 1 U ~ J" r ~ r AGENDA ITEM # FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Adoption of Unified Sewerage Agency's proposed model contract PREPARED BY: Mike Miller M DEPT HEAD OK 6 CITY MGR OK ISSUE BEFORE THE COUNCIL Shall the City Council adopt the proposed Unified Sewerage Agency's model contract. STAFF RECOMMENDATION Staff recommends the Council approve the proposed Unified Sewerage Agency's model contract and sign a letter of intent. INFORMATION SUMMARY Early in 1998 Unified Sewerage Agency, USA, initiated a sanitary and storm conveyance system maintenance study which was completed in November 1998. The reasons for initiating the study included: Increased regulatory requirements; current sanitary and storm maintenace programs were in need of review; and funding methodology was no longer justifiable. From the study a set of "Best Management Pratices" were developed for sanitary and storm system maintenance; regionalization of services; due to annexations a stabilization of maintenance boundaries for economies of scale; and review of the existing 1970 agreements. During the review of the existing agreements, they were found to be incomplete and did not reflect the current operating conditions or even the new regulatory requirements placed upon USA and Tigard by EPA and DEQ. It is important to point out that the new agreement not only addresses providing service to the areas outside the City limits, but also addresses compliance of storm and sanitary permits for the system within our City boundary and a those areas agreed to in the proposed agreement. i Council met with representatives from USA at the November 21, 2000, Council Workshop session. At this meeting Council was given the latest draft agreement and had the opportunity to ask questions regarding the a language cliang es. Some of the key issues discussed were the length and terms of the agreement, additional language changes, funding and whether the City could give programs back to USA if funding was not available. 3 As discussed at the November 21 Council Workshop, the term length of the proposed agreement is twenty years a and is renewable every five years. Since this meeting, USA has incorporated new language clarifying that the City can turn over any portion of the storm or sanitary program to USA if the funding is not acceptable to Tigard. Although this is an intergovernmental agreement setting up area of responsibilities and maintenance practices, it does not address funding. USA asserts that the provision for the division of revenue does not change in the new agreement. Under the current agreement, the Washington County Board of Commissioners sets the division of revenue and that this provision does not change in the new agreement. Therefore it can be argued that the change to the new method of providing funds to the City based on size of the workload can take place under the existing agreement. In reality, the City is not "giving up" anything relative to the division of revenue by adopting the new agreement. City staff, however, is in agreement with the Council that discussions on funding needs to take place in order to ensure that Tigard is kept whole while performing work, not only inside our current service area, but also within the contract service area. OTHER ALTERNATIVES CONSIDERED Do not sign the letter of intent or the intergovernmental agreement until after funding issues have been resolved. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Although not directly stated as a Visioning Task Force Goal, this agreement would provide economies of scale in services for the ratepayers. ATTACHMENT LIST 1. Sections 2, 3, 5 and 7 of the USA agreement with color coded changes 2. Complete USA proposed contract agreement. 3. Letter of Intent. FISCAL NOTES All costs for maintenance that the City is responsible for would be reimbursed by USA for both within the City limits and the proposed expanded service area. Section 2. Determination of Programs, Rules, Policies and Standards A. City agrees to follow and enforce the Orders, Standards, specifications, work programs, and performance criteria promulgated by the Agency, subject, however, to program funding and to the extent that City may be lawfully authorized to act. The City shall not be responsible for any failure to act or defect in performance caused by lack of adequate program funding from the Agency, inadequacies in the Work Program and Performance Standards as adopted by the Agency, or lack of lawful authority to act. Lack of adequate funding from the Agency and compliance with the Work Program and Performance Standards as adopted by the Agency shall be absolute defenses to any claim against the City under this Agreement. City further agrees to notify Agency of apparent violations thereof, of which it has knowledge, which may require Agency legal action. Section 3. Division of Responsibilities B. Procedure for Modifying the Division of Responsibilities 1. Responsibilities defined in this Section and Appendix A may be modified from time to time with approval in writing by the City Manager or designee and the Agency General Manager or designee. 2. Responsibilities defined in this Section and Appendix A may be modified by the Agency Board after receiving input from the City and determining the change is necessary to comply with State or Federal permits, laws or regulations. The Agency Board shall not reduce the total scope of City responsibilities without consent of the City unless there is a change in the program or funding requiring the reduction, or unless the Board determines the City did not perform to the level of the adopted standards. 3. Upon reasonable notice from City to Agency, may request dt "e Agency shall assume responsibility for any portion of the program defined in this Section and Appendix A. upon rReasonable notice, such notice in no event t shall be less t-h at least 6 months unless agreed to in writing by the Agency. Corresponding adjustments to the revenue allocation shall be made to reflect the change in responsibility upon implementation of such changes. City shall be responsible for correcting or paying to have corrected any deficiencies in the system resulting from non-performance of the programs under its responsibility, subject however to funding availability. Section 5. Administrative and Operating Provisions F. City and Agency shall each be responsible for the negligent or wrongful acts of its officers, employees, agents, and volunteers, while performing work related to this agreement. Each party shall be solely responsible for defense, costs or payments arising from legal challenge alleging improper use by that party of funds derived from this agreement, or otherwise held by that party. Each party shall be responsible for any liability arising out of its ownership of real property and interests therein, for acting or failing to act within its Area Of Responsibility, activities governed by an NPDES permit or other air or water discharge permit issued by competent authority to that party, and any conduct of that party subject to direct regulation by state or federal authority. Each party shall fully defend, indemnify, and hold harmless the other from any expense, costs, damages, claims, fines, penalties, or liability incurred by or threatened against the other due to or resulting in whole or in part from the negligent acts or omissions or willful misconduct of the indemnifying party (including its officers, agents, or employees) under or in connection with or arising from any work, authority, jurisdiction, or responsibilities delegated to that party by this Agreement. Inability to perform an activity or to properly perform because of insufficient funding from the Agency is not a negligent act or omission or willful misconduct of the party charged with the activity but shall be the responsibility of the entity that fails to provide adequate funds. Performance of any activity in compliance with the Work Program and Performance Standards as adopted by the Agency is not a negligent act or omission or willful misconduct. G. Agency and City acknowledge that Agency may receive notices of violation or fines from state or federal agencies for violations of state or federal rules. As the permittee and the entity that establishes standards and controls payment, Agency shall be responsible for responding to notices of violations and for payment of all fines. Agency wi44nve ve shall invite the City to participate in any discussions with State and Federal agencies regarding notices of violation involving City actions or responsibility. City will cooperate with Agency in the investigation and response to any notice of violation involving actions relating to actions or responsibilities of the City. If a fine is imposed, City shall reimburse Agency to the extent that the fine results from non-performance of adopted programs or non-compliance with Agency, State, or Federal rules or policies by the City and those acting on behalf of the City. If possible, the City shall reimburse the Agency prior to the date due for payment of the fine. The City shall not be responsible for reimbursement if the City's non- performance or non-compliance was caused by lack of adequate funding by Agency. If more than one party is responsible, the City's responsibility for reimbursement payment will be allocated based on the degree of responsibility and degree of fault of the City. Disputes over the amount of reimbursement shall be resolved by the dispute resolution process set out in Section 6 of this Agreement. To the extent that the City is required to perform any work to correct a violation, Agency shall provide adequate funding for the work to be performed, unless the violation was caused by the City's omission or mis-conduct. Section 7. Effect of this Agreement This Agreement shall supersede all prior agreements and amendments including the "City Committee Agreement" between the parties with respect to sanitary sewerage and service, storm and surface water management; provided that, except as expressly modified herein, all rights, liabilities, and obligations of such prior agreements shall continue. This agreement shall be effective upon its execution by both parties hereto, and shall continue in effect for four renewable terms of five years each. This Agreement shall be deemed automatically renewed for a succeeding five year term up to a limit of 20 years, unless either party gives the other written notice not less than one year prior to the nominal expiration of term of its intent not to renew this agreement. If Agency enters into an intergovernmental agreement with any other city in its territory covering the same subject as this Agreement and if any of the provisions of the other agreement differ from this Agreement, the City may elect to replace any provision of this Agreement with the parallel provision from the other agreement, with the exception of Appendix A and Exhibit A. The replacement shall be effective on receipt by Agency of written notice from the City. This Agreement may not otherwise be modified except by written amendment or as otherwise specified in this Agreement. USA-CITY AGREEMENT THIS AGREEMENT is made and entered into as of the - day of , 2000, between the City of Tigard a municipal corporation of the State of Oregon, hereinafter referred to as "City," and the Unified Sewerage Agency of Washington County, a municipal corporation and county service district, hereinafter referred to as the "Agency." WHEREAS, the Agency was duly formed and organized under ORS Chapter 451, has the authority to provide sanitary sewerage treatment facilities, and to provide for storm and surface water management within its boundaries; and City is within the Agency by action of its Council pursuant to an election duly conducted within the boundaries of the Agency; and WHEREAS, City and Agency have the authority to enter into contracts for the cooperative operation of service facilities under ORS 451.560 and ORS Chapter 190; and WHEREAS, the Agency and Cities have established and will continue to maintain an effective partnership for sanitary sewerage and surface water management services which this agreement is designed to support, enhance, and clarify; and WHEREAS, City and Agency previously entered into an Agreement for the cooperative operation of sanitary sewer and surface water facilities, and said Agreement is in need of amendment. NOW, THEREFORE, in consideration of the covenants and agreements to be kept and performed by the parties hereto, it is agreed as follows: Section 1. Definition of Terms Wherever the following terms are used in this agreement they shall have the following meaning unless otherwise specifically indicated by the context in which they appear: 4 A. Area of Geographic Responsibility means the area set forth in the map n attached as Exhibit A as may be amended. N Lq B. Board means the Board of Directors of the Agency, its governing body. C. Chief Executive Officer means the City official responsible for managing the day-to-day business affairs of City. D. Council means the City Council, governing body of City. Page 1 of 13 - Agreement with City of k Ell E. Industrial Waste means any liquid, gaseous, radioactive or solid waste substance or a combination thereof resulting from any process of industrial or manufacturing business, or from the development or recovery of natural resources. For the purposes of this agreement, Industrial Waste shall also include any substance regulated under 33 USC Sec 1317, together with regulations adopted thereunder. F. Operation and Maintenance means the regular performance of work required to assure continued functioning of the storm and surface water system and the sanitary sewerage system and corrective measures taken to repair facilities to keep them in operating condition, and in compliance with the requirements of applicable laws, regulations, and permits. G. Order means Resolutions, Orders and Directives of the Agency prescribing general standards and conditions for construction or use of the storm and surface water facilities and the sanitary sewerage facilities, and Rates and Charges. H Person means the state of Oregon, any individual, public or private corporation, political subdivision, governmental agency, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever. 1. Program Funding means the revenues made available to City through Section 4.A.3. of this agreement to follow the adopted work programs and performance standards. J. Rates and Charges are defined in the Agency's "Rates and Charges" Resolution and Order (R&O) No. 98-22, or as may be amended. The following terms when used in this agreement shall be as defined in that R&O: I. Dwelling Unit Equivalent (DUE) 2. Equivalent Service Unit (ESU) i 3. Impervious Surface Area 4. Permit Application and Inspection i 5. Sanitary Sewer Service Charge 6. Sanitary System Development Charge (SDC; Connection Charge) a 7. Stonn and Surface Water Service Charge 8. Stone and Surface Water System Development Charge 3 K. Sanitary Sewerage System means any combination of sewer treatment plant, pumping or lift facilities, sewer pipe, force mains, laterals, manholes, side sewers, laboratory facilities and equipment, and any other facilities for the collection, conveyance, treatment and disposal of sanitary sewage comprising the total publicly-owned Sanitary Sewerage System Page 2 of 13 - Agreement with City of - =~7 within Agency jurisdiction, to which storm, surface and ground waters are not intentionally admitted. L. Standards means the standards and conditions of use of the storm and surface water system and the sanitary sewer system as specified and adopted by the Agency. Standards also shall mean applicable statutes and rules of the United States and the State of Oregon. M. Storm and Surface Water System means any combination of publicly owned storm and surface water quality treatment facilities, pumping or lift facilities, storm drain pipes and culverts, open channels, creeks and rivers, force mains, laterals, manholes, catch basins and inlets, grates and covers, detention and retention facilities, laboratory facilities and equipment, and any other publicly owned facilities for the collection, conveyance, treatment and disposal of storm and surface water comprising the total publicly owned Storm and Surface Water System within Agency's jurisdiction, to which sanitary sewage flows are not intentionally admitted. N. Work Program and Performance Standards are adopted by the Agency after considering input from the cities to define the activities required to operate and maintain the sanitary sewer and storm and surface water systems. Section 2. Determination of Pro rg ams, Rules, Policies and Standards The Agency is responsible for the management and operation of the sanitary sewer and storm and surface water systems within its boundary, and is the designated permittee who shall obtain and enforce timely compliance with relevant Federal and delegated State Clean Water Act permits for treatment plants and stormwater. The Agency, after considering input from the cities, shall adopt orders, Standards, specifications, work programs, and performance criteria for the proper and effective operation of the sanitary sewer and storm and surface water systems and to comply with State and Federal permits, laws and regulations. In addition, the Agency, after considering input from the cities, shall have the authority to make changes to its orders, work programs and performance Standards. Any such changes to work programs and performance standards that the 4 Board determines are required by state and/or federal permits or regulations will become n effective 90 days from the date of notice to City by Agency or as mutually agreed to. Any changes to work programs and performance standards, not required by state and/or federal permits and regulations, shall be mutually agreed to by the Agency and City before they become effective. Proposed changes not required by state and/or federal 15 permits and regulations should be communicated between the Agency and the City in or 4 before December of the year before they are to be implemented to allow Agency and City to budget appropriately for the following year. A. City agrees to follow and enforce the Orders, Standards, specifications, work programs, and performance criteria promulgated by the Agency, subject, Page 3 of 13 - Agreement with City of however, to program funding and to the extent that City may be lawfully authorized to act. The City shall not be responsible for any failure to act or defect in performance caused by lack of adequate program funding from the Agency, inadequacies in the Work Program and Performance Standards as adopted by the Agency, or lack of lawful authority to act. Lack of adequate funding from the Agency and compliance with the Work Program and Performance Standards as adopted by the Agency shall be absolute defenses to any claim against the City under this Agreement. City further agrees to notify Agency of apparent violations thereof, of which it has knowledge, which may require Agency legal action. Section 3. Division of Responsibilities A. Division of Responsibilities 1. The purpose of this agreement is to delegate to and contract with the City to do specific functions. The responsibilities of the Agency and City are defined in this Section and Appendix A. Exhibit A is a map showing boundaries of responsibility between the Agency and City and is hereby made a part of Appendix A and incorporated into this agreement. 2. All functions relating to the subject matter of this Agreement not specifically listed in this Section or Appendix A as being the responsibility of City shall remain the responsibility of the Agency. B. Procedure for Modifying the Division of Responsibilities 1. Responsibilities defined in this Section and Appendix A may be modified from time to time with approval in writing by the City Manager or designee and the Agency General Manager or designee. 2. Responsibilities defined in this Section and Appendix A may be modified by the Agency Board after receiving input from the City and determining the change is necessary to comply with State or Federal permits, laws or regulations. The Agency Board shall not reduce the total scope of City responsibilities without consent of the City unless there is a change in the program or funding requiring the reduction, or unless the Board determines the City did not perform to the level of the adopted standards. 3. Upon reasonable notice from City to Agency, Agency shall assume responsibility for any portion of the program defined in this Section and Appendix A. Reasonable notice shall be at least 6 months unless agreed to in writing by the Agency. Corresponding adjustments to the revenue allocation shall be made to reflect the change in responsibility upon implementation of such changes. City shall be responsible for correcting or paying to have corrected any deficiencies in the system resulting from Page 4 of 13 - Agreement with City of non-performance of the programs under its responsibility, subject however to funding availability. 4. City boundaries may change through annexation. For City annexation of territory currently in the Agency's boundary, the responsibilities defined in Appendix A shall apply to the new City boundary. The responsibility boundaries defined in Exhibit A are not changed due to City annexations of territory currently inside the Agency's boundary. For annexations of territory not currently within the Agency's boundary, the Agency will amend Appendix A and Exhibit A to define the responsibilities for the new area in cooperation with adjacent cities. C. Additional City Responsibilities 1. Refer Persons who may desire to connect a non-residential use to the sanitary sewerage system to the Agency. City shall not issue any sanitary sewer permit to non-residential customers without verification that the Agency has issued an Industrial Waste discharge permit, or the Agency has determined that none is required. 2. Refer persons who are proposing 'development', as defined in the Agency's Design and Cot;struction Standards Resolution and Order, to the Agency to obtain a Service Provider Letter and a stormwater connection permit. Agency will not issue a stormwater connection permit until City indicates that development is in conformance with City standards. City shall not issue a stormwater construction permit without verification from the Agency that the development conforms to adopted Agency standards, orders, and master plans. City will collect all connection, permit, and development fees. 3. Provide notice to and obtain Agency review and approval as the Agency may require for any addition, modification, construction, or reconstruction (other than repairs) of the publicly-owned sanitary sewerage system and storm and surface water system, or for all development, as defined by the Agency (such as land division, grading, paving, clearing, etc.), prior to undertaking work or approving such action to ensure conformance to adopted Agency Standards, Orders, and master plans. 4. Obtain Agency review and approval prior to entering into any agreement for the use of the Storm and Surface Water System or the Sanitary Sewerage System. 5. Inform the Agency in writing not less than 30 days prior to initiating or entering into any agreement for the financing or incurring of indebtedness relating to the storm and surface water system or the Page 5 of 13 - Agreement with City of sanitary sewerage system. Revenues allocated by the Agency to the City for the performance of functions identified in Appendix A are considered restricted, and may only be used to perform those functions (including reasonable administration) delegated to the City for such things as operation and maintenance of the sanitary or storm and surface water system. System Development Charge (SDC) revenues allocated by the Agency to the City may only be expended for the uses identified in the Agency's SDC methodology, and may not be obligated by the City for payment of non-Agency bonded debt. City shall not obligate any assets or facilities of the Agency's sanitary or storm and surface water system for any debt. 6. Allow the Agency access at any reasonable time upon reasonable notice to inspect and test storm and surface water facilities and sewerage facilities within City. 7. Grant the Agency permits from time to time as may be necessary for the installation of storm and surface water facilities and sewerage facilities in the public streets and ways of City without imposing permit issuance fees, provided that the Agency shall adhere to any conditions required pursuant to ORS 451.550(6). 8. To issue no new permit for the construction within, or modification to, a wetland, floodway, or floodplain without first receiving the written approval by the Agency to do so. This paragraph shall not apply to permits issued by City pursuant to a current permit under 33 USC Section 1344(e) (a section 404 general permit), and within the scope of such permit. This section does not apply to actions related to City flood insurance program. 9. To pursue, when City deems feasible and appropriate, the conversion of storm and surface water facilities from private to public ownership, through the acquisition of easements and other property rights as necessary, for those privately owned storm and surface water facilities which are identified as being necessary or appropriately a part of the public system. D. City Responsibilities Outside of its City Limits 1. City is not obligated by this agreement to accept responsibility for any programs or work activities outside of its City limits. 2. To the extent City has agreed to responsibilities both inside and outside of its City limits, for activities which are the responsibility of City, City shall perform the work to meet the minimum requirements specified in the Agency's adopted Work Programs and Performance Standards. Page 6 of 13 - Agreement with City of When the same type of service is being performed by City both inside and outside City, the service shall be prioritized and performed in a like manner in each area, including the response to storms and other emergencies. The exception shall be if City provides a higher degree of service inside City due to its own supplemental funding. Section 4. Determination and Division of Revenue, Operating Procedures and Rules Relating to Revenue A. The Agency Board shall determine and certify annually for both the sanitary sewerage system and for the storm and surface water system the monthly service charge and system development charge. The City agrees to impose these charges as a minimum. The City may impose additional charges as allowed in Section 4.13.4. B. The Agency Board shall determine and certify annually for both the sanitary sewerage system and for the storm and surface water system the portion of the monthly service charge and system development charge to be retained by the City for performance of the functions defined in this Agreement. Certification of revenues to be retained by the City will be dependent upon the standard costs for functions performed by the City and the overall level of revenue available for allocation. C. The division of revenue may be adjusted annually by the Agency to recognize changes in responsibilities after coordination and communication with the Cities. Changes in the division of revenue will be done as a part of the normal Fiscal Year budget process, except as defined below. If there is a mid-year change in responsibilities, which the Agency determines to be significant, the Agency Board may, upon 60 days notice to City, adjust the division of revenue at any time. Any such mid-year changes in the division of revenue initiated by the Agency Board shall only be done when the Board determines such a change is necessary to comply with State or Federal permits, laws or regulations. D. Operating Procedures Relating to Revenue 1. City shall remit to the Agency the portion of sanitary sewer service charges and systems development charges collected, and storm and surface water service charges and systems development charges collected, as identified in Section 4.B. 2. Payments shall be remitted on a monthly basis, with a report on Agency designated forms. Page 7 of 13 - Agreement with City of N 11MIN mill Elm 3. Payments to the Agency of revenue collected by the billing party shall be due within 20 days following the end of each month, unless the payment has been appealed by the billing party. 4. City may charge and collect a service charge or system development charge at a higher rate per DUE and ESU than that set by the Agency when the City determines it is needed for the local City system. The City shall retain 100% of these additional revenues collected. Such additional charge shall be consistent with the services provided by City and with applicable federal rules in order to preserve eligibility for grants and other funding programs. 5. For permit and inspection fees for private development construction of public storm and surface water facilities and sanitary sewer facilities, and for erosion control permit fees, City shall remit to the Agency the fee set forth in Agency's Rates and Charges to compensate the Agency for its costs for services performed relative to these fees, as prescribed by Agency Order or agreement with City. 6. For Industrial Waste fees, Agency shall remit to City a percentage of system development charges, volume, and monthly service charges collected equal to the percentages of non-industrial fees defined in Section 4.13. Agency shall retain one-hundred percent (100%) of the annual permit fee, and any penalty fees, COD, SS (as those terns are defined in the Rates and Charges) and other fees that may be assessed. 7. City will institute administrative procedures to diligently maintain regular billings and collection of fees, adjust complaints thereto, and pursue delinquency follow-ups and take reasonable steps for collection thereof. 8. City and Agency shall each establish separate accounts for the storm and surface water program and sanitary sewerage program for the purpose of accounting for service charges and systems development charges collected and received pursuant to this agreement. 9. Agency or City may at any reasonable time upon reasonable notice inspect and audit the books and records of the other with respect to matters within the purview of this Agreement. 10. City and Agency shall each prepare and submit to each other a performance report of the storm and surface water functions, and the sanitary sewer functions for which each is responsible. Agency will specify the requirements, frequency, and content of the performance report. Page 8 of 13 - Agreement with City of em~mae - 11. The City and Agency may, each at its own cost, install permanent and temporary volume and quality monitoring stations to determine the effectiveness of City and Agency programs. 12. Interest shall accrue on late payments at a rate of 1.25 times the monthly Local Government Investment Pool (LGIP) earnings rate as posted for the previous month, and will be applied each month to the unpaid balance. Section 5. Administrative and Operating Provisions A. The Agency will not extend sewer service to areas outside the City except with prior approval of the City where such areas are included in tre Urban Planning Area Agreement between the City and the appropriate county or counties and any of the following exists: a. A new or existing single family property desires sewer service and needs to directly connect to a sewer line within the city. b. A new development desires sewer service and needs to directly connect a lateral or mainline public sewer directly to a sewer line within the city. B. City and the Agency will each obtain such insurance contracts as necessary to cover the liabilities of City and the Agency respectively for the risks and liabilities arising from activities and operations under this agreement. Each party hereto shall cause the other to be named as an additional insured on its policy or policies as to the obligations under the terms of this agreement. In the event that either party chooses to be self insured, that party shall maintain and furnish proof of separately identified and unencumbered reserves for the maximum liability allowed under state law. C. Agency will not establish local assessment districts within City, without first obtaining City approval. D. Agency will process applications from City pursuant to Section 3.C.7 for Wetland, Floodplain, and Floodway modifications. Timely review of the application shall be provided by the Agency. Upon review and approval by USA, and upon request by City, the Agency shall act as a facilitator and liaison.for State and Federal review and permit processes. E. The City shall report all sanitary sewer overflows that it becomes aware of to the Agency within 24 hours of learning of the overflow. The City shall require all permittees of the City to report sanitary sewer overflows to the City. City agrees to reimburse Agency for any expense, costs, damages, Page 9 of 13 - Agreement with City of claims, fines, or penalties incurred by Agency that result from or are related to City's failure to so timely and adequately report. F. City and Agency shall each be responsible for the negligent or wrongful acts of its officers, employees, agents, and volunteers, while performing work related to this agreement. Each party shall be solely responsible for defense, costs or payments arising from legal challenge alleging improper use by that party of funds derived from this agreement, or otherwise held by that party. Each party shall be responsible for any liability arising out of its ownership of real property and interests therein, for acting or failing to act within its Area Of Responsibility, activities governed by an NPDES pen-nit or other air or water discharge permit issued by competent authority to that party, and any conduct of that party subject to direct regulation by state or federal authority. Each party shall fully defend, indemnify, and hold harmless the other from any expense, costs, damages, claims, fines, penalties, or liability incurred by or threatened against the other due to or resulting in whole or in part from the negligent acts or omissions or willful misconduct of the indemnifying party (including its officers, agents, or employees) under or in connection with or arising from any work, authority, jurisdiction, or responsibilities delegated to that party by this Agreement. Inability to perform an activity or to properly perform because of insufficient funding from the Agency is not a negligent act or omission or willful misconduct of the party charged with the activity but shall be the responsibility of the entity that fails to provide adequate funds. Performance of any activity in compliance with the Work Program and Performance Standards as adopted by the Agency is not a negligent act or omission or willful misconduct. G. Agency and City acknowledge that Agency may receive notices of violation or fines from state or federal agencies for violations of state or federal rules. As the permittee and the entity that establishes standards and controls payment, Agency shall be responsible for responding to notices of violations and for payment of all fines. Agency shall invite the City to participate in any discussions with State and Federal agencies regarding notices of violation involving City actions or responsibility. City will cooperate with Agency in the investigation and response to any notice of violation involving actions relating to actions or responsibilities of the City. If a fine is imposed, City shall reimburse Agency to the extent that the fine results from non-performance of adopted programs or non- compliance with Agency, State, or Federal rules or policies by the City and those acting on behalf of the City. If possible, the City shall reimburse the Agency prior to the date due for payment of the fine. The City shall not be responsible for reimbursement if the City's non- performance or non-compliance was caused by lack of adequate funding by Agency. If more than one party is responsible, the City's responsibility for reimbursement payment will be allocated based on the degree of Page 10 of 13 - Agreement with City of responsibility and degree of fault of the City. Disputes over the amount of reimbursement shall be resolved by the dispute resolution process set out in Section 6 of this Agreement. To the extent that the City is required to perfonm any work to correct a violation, Agency shall provide adequate funding for the work to be performed, unless the violation was caused by the City's omission or mis-conduct. H. Nothing in this Agreement shall be construed as a limitation upon or delegation of the statutory and home rule powers of City, nor as a delegation or limitation of the statutory powers of Agency. This Agreement shall not limit any right or remedy available to City or Agency against third parties arising from illegal acts of such third parties. 1. Where this Agreement calls for review or approval of a fee or charge, Agency shall perform such review in a timely manner, shall not unreasonably withhold approval, and shall provide its decision to City in writing. If, within 30 days of written request by City for approval by Agency, the Agency has failed to provide a written response, the request shall be deemed approved. J. To the extent that it is so required by law or regulation, City shall comply with Oregon Administrative Rules (OAR) Chapter 340, Division 49, "Regulations Pertaining to Certification of Wastewater System Operator Personnel," including the obligation that City shall have its wastewater collection system supervised by one or more operators certified at a grade level equal to or higher than the system classification shown on page 1 of Agency's NPDES permit, issued by the State. Section 6. Dispute Resolution; Remedies A. In the event of a dispute between the parties regarding their respective rights and obligations pursuant to this Agreement, the parties shall first attempt to resolve the dispute by negotiation. If a dispute is not resolved by negotiation, the exclusive dispute resolution process to be utilized by a the parties shall be as follows: i 1. Step 1. Upon failure of those individuals designated by each party to negotiate on its behalf to reach an agreement or resolve a dispute, the nature of the dispute shall be put in writing and submitted to City's Chief Executive Officer and Agency's General s Manager, who shall meet and attempt to resolve the issue. If the a ! issue in dispute is resolved at this step, there shall be a written determination of such resolution, signed by City's Chief Executive Officer and Agency's General Manager, which determination shall Page I 1 of 13 - Agreement with City of be binding on the parties. Resolution of an issue at this step requires concurrence of both parties' representatives. 2. Step 2. In the event a dispute cannot be resolved at Step 1, the matters remaining in dispute after Step 1 shall be reduced to writing and forwarded to the Mayor and the Chairman of the Board of Directors. Upon receipt of the written issue statement, the Mayor and Chairman shall meet and attempt to resolve the issue. If the issue is resolved at this step, a written determination of such resolution shall be signed by the Mayor and Chairman. Resolution of an issue at this step requires concurrence of both the Mayor and the Chairman. 3. Step 3. In the event a dispute cannot be resolved at Step 2, the parties shall submit the matter to mediation. The parties shall attempt to agree on a mediator. In the event they cannot agree, the parties shall request a list of five (5) mediators from the American Arbitration Association, or such other entity or firm providing mediation services to which the parties may further agree. Unless the parties can mutually agree to a mediator from the list provided, each party shall strike a name in turn, until only one name remains. The order of striking names shall be determined by lot. Any common costs of mediation shall be borne equally by the parties, who shall each bear their own costs and fees therefor. If the issue is resolved at this step, a written determination of such resolution shall be signed by both parties. Resolution of an issue at this step requires concurrence by both parties. In the event a dispute is not resolved by mediation, the aggrieved party may pursue any remedy available to it under applicable law. B. Neither party may bring a legal action against the other party to interpret or enforce any term of this Agreement in any court unless the party has first attempted to resolve the matter by means of the dispute resolution of subsection A above. This shall not apply to disputes arising from a cause other than interpretation or enforcement of this Agreement. Section 7. Effect of this Agreement This Agreement shall supersede all prior agreements and amendments including the "City Committee Agreement" between the parties with respect to sanitary sewerage and service, storm and surface water management; provided that, except as expressly modified herein, all rights, liabilities, and obligations of such prior agreements shall continue. This agreement shall be effective upon its execution by both parties hereto, and shall continue in effect for four renewable terms of five years each. This Agreement shall be deemed automatically renewed for a succeeding five year term up to a limit of 20 years, unless either party gives the other written notice not less than one year prior to the Page 12 of 13 - Agreement with City of nominal expiration of term of its intent not to renew this agreement. If Agency enters into an intergovernmental agreement with any other city in its territory covering the same subject as this Agreement and if any of the provisions of the other agreement differ from this Agreement, the City may elect to replace any provision of this Agreement with the parallel provision from the other agreement, with the exception of Appendix A and Exhibit A. The replacement shall be effective on receipt by Agency of written notice from the City. This Agreement may not otherwise be modified except by written amendment or as otherwise specified in this Agreement. Section 8. Severability In the event a court of competent jurisdiction shall deem any portion or part of this agreement to be unlawful or invalid, only that portion or part of the agreement shall be considered unenforceable. The remainder of this agreement shall continue to be valid. IN WITNESS WHEREOF, this instrument has been executed in duplicate by authority of lawful actions by the Council and Agency Board of Directors. UNIFIED SEWERAGE AGENCY CITY OF , OREGON OF WASHINGTON COUNTY, OREGON By By - Chairman, Board of Directors Mayor Attest: Approved as to Form: City Recorder Attorney for Agency City Attorney Page 13 of 13 - Agreement with City of December 19, 2000 CITY OF TIGARD OREGON Gerald P. Linder Unified Sewerage Agency 155 North First Avenue, Suite 270 Hillsboro, OR 97124 Re: Intergovernmental Agreement between City of Tigard and USA Dear Gerry: Attached is a copy of the draft form of the intergovernmental agreement between the City of Tigard and the Unified Sewerage Agency. The City Council has approved the intergovernmental agreement as to form, but has not yet authorized execution of the agreement. Council will consider approval when agreement is reached regarding the financial aspects of this partnership. If the attached draft agreement is acceptable to USA staff and it will be presented to USA's governing body when an agreement on costs is reached, please sign below. Thank you for your cooperation thoughout the negotiation process. We look forward to continuing our cooperative approach to providing services. Sincerely, r~ James E. Griffi Mayor Gerald P. Linder Unified Sewerage Agency 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 Section 2 Determination of Programs Rules Policies and Standards A. City agrees to follow and enforce the Orders, Standards, specifications, work programs, and performance criteria promulgated by the Agency, subject, however, to program funding and to the extent that City may be lawfully authorized to act. The City shall not be responsible for any failure to act or defect in performance caused by lack of adequate program funding from the Agency, inadequacies in the Work Program and Performance Standards as adopted by the Agency, or lack of lawful authority to act. Lack of adequate funding from the Agency and compliance with the Work Program and Performance Standards as adopted by the Agency shall be absolute defenses to any claim against the City under this Agreement. City further agrees to notify Agency of apparent violations thereof, of which it has knowledge, which may require Agency legal action. Section 3. Division of Responsibilities B. Procedure for Modifying the Division of Responsibilities 1. Responsibilities defined in this Section and Appendix A may be modified from time to time with approval in writing by the City Manager or designee and the Agency General Manager or designee. 2. Responsibilities defined in this Section and Appendix A may be modified by the Agency Board after receiving input from the City and determining the change is necessary to comply with State or Federal permits, laws or regulations. The Agency Board shall not reduce the total scope of City responsibilities without consent of the City unless there is a change in the program or funding requiring the reduction, or unless the Board determines the City did not perform to the level of the adopted standards. 3. Upon reasonable notice from City to Agency, ° 'hat the Agency shall assume responsibility for any portion of the program defined in this Section and Appendix . A. upen rReasonable notice-, shall be less t at least 6 months unless agreed to in writing by the Agency. Corresponding adjustments to the revenue allocation shall be made to reflect the change in responsibility upon implementation of such changes. City shall be responsible for correcting or paying to have corrected any deficiencies in the system resulting from non-performance of the programs under its responsibility, subject however to funding availability. Section S Administrative and Operating Provisions F. City and Agency shall each be responsible for the negligent or wrongful acts of its officers, employees, agents, and volunteers, while performing work related to this agreement. Each party shall be solely responsible for defense, costs or payments arising from legal challenge alleging improper use by that party of funds derived from Mimi this agreement, or otherwise held by that party. Each party shall be responsible for any liability arising out of its ownership of real property anti interests therein, for acting or failing to act within its Area Of Responsibility, activities governed by an NPDES permit or other air or water discharge permit issued by competent authority to that party, and any conduct of that party subject to direct regulation by state or federal authority. Each party shall fully defend, indemnify, and hold harmless the other from any expense, costs, damages, claims, fines, penalties, or liability incurred by or threatened against the other due to or resulting in whole or in part from the negligent acts or omissions or willful misconduct of the indemnifying party (including its officers, agents, or employees) under or in connection with or arising from any work, authority, jurisdiction, or responsibilities delegated to that party by this Agreement. Inability to perform an activity or to properly perform because of insufficient funding from the Agency is not a negligent act or omission or willful misconduct of the party charged with the activity but shall be the responsibility of the entity that fails to provide adequate funds. Performance of any activity in compliance with the Work Program and Performance Standards as adopted by the Agency is not a negligent act or omission or willful misconduct. G. Agency and City acknowledge that Agency may receive notices of violation or fines from state or federal agencies for violations of state or federal rules. As the permittee and the entity that establishes standards and controls payment, Agency shall be responsible for responding to notices of violations and for payment of all fines. Agency wimll4nvelve shall invite the City to participate in any discussions with State and Federal agencies regarding notices of violation involving City actions or responsibility. City will cooperate with Agency in the investigation and response to any notice of violation involving actions relating to actions or responsibilities of the City. If a fine is imposed, City shall reimburse Agency to the extent that the fine results from non-performance of adopted programs or non-compliance with Agency, State, or Federal rules or policies by the City and those acting on behalf of the City. If possible, the City shall reimburse the Agency prior to the date due for payment of the fine. The City shall not be responsible for reimbursement if the City's non- performance or non-compliance was caused by lack of adequate funding by Agency. If more than one party is responsible, the City's responsibility for reimbursement payment will be allocated based on the degree of responsibility and degree of fault of the City. Disputes over the amount of reimbursement shall be resolved by the dispute resolution process set out in Section 6 of this Agreement. To the extent that the City is required to perform any work to correct a violation, Agency shall provide adequate funding for the work to be performed, unless the violation was caused by the City's omission or mis-conduct. Section 7. Erect of this Agreement This Agreement shall supersede all prior agreements and amendments including the "City Committee Agreement" between the parties with respect to sanitary sewerage and service, storm and surface water management; provided that, except as expressly modified herein, all rights, liabilities, and obligations of such prior agreements shall continue. This agreement shall be effective upon its execution by both parties hereto, and shall continue in effect for four renewable terms of five years each. This Agreement shall be deemed automatically renewed for a succeeding five year term up to a limit of 20 years, unless either party gives the other written notice not less than one year prior to the nominal expiration of term of its intent not to renew this agreement. If Agency enters into an intergovernmental agreement with any other city in its territory covering the same subject as this Agreement and if any of the provisions of the other agreement differ from this Agreement, the City may elect to replace any provision of this Agreement with the parallel provision from the other agreement, with the exception of Appendix A and Exhibit A. The replacement shall be effective on receipt by Agency of written notice from the City. This Agreement may not otherwise be modified except by written amendment or as otherwise specified in this Agreement. AGENDA ITEM # FOR AGENDA OF Dec. 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE AN ORDINANCE AMENDING THE TIGARD MUNICIPAL CODE BY ADOPTING A NEW CHAPTER 5.14 TELECOMMUNICATIONS FRANCHISES. PREPARED BY: Craig Prosser DEPT HEAD OK a CITY MGR OK ISSUE BEFORE THE COUNCIL Should the City Council adopt a new section to be added to the Tigard City Code setting forth standards and policies governing the granting and administration of City of Tigard Telecommunications franchises? STAFF RECOMMENDATION Adopt the ordinance setting forth new telecommunications franchise standards. INFORMATION SUMMARY Staff presented this issue to the Council in a workshop session on November 21, 2000. That presentation covered the background leading up to the development of this proposed ordinance and factors that govern its development. Minutes of that meeting are attached to this summary. At the November 21 workshop, the Council directed the staff to proceed with the development of the ordinance and to circulate a draft of the proposed ordinance to existing and potential telecommunications franchisees for comment. As of December 5, 2000, one company has submitted written comments. Those comments are attached to this summary. Any additional comments received prior to December 13 will be included in the December 15 Council newsletter. In addition, staff has continued to refine the proposed ordinance. The following changes from the November 21 draft have been included within the draft presented to Council for consideration on December 19: 1. Proposed Code sections were reorganized to group related sections and to improve readability and flow of the document. 2. References to the City Finance Director were changed to the City Manager to preserve the Manager's flexibility to assign franchise responsibility as appropriate. 3. Section 5.14.080(b) (2). The linear foot charge for lines passing through Tigard with no local connections was set at $2.90 per foot, to be adjusted annually according to CPI. Other jurisdictions charge from $1.00 (Salem) to $2.90 (Portland effective Jan. 1). Most of those charging less than $2.90 reported that they will be adjusting the charge to snatch Portland within the next several months. DAN 4. Section 5.14.080(e). The franchise fee payment schedule was set to March 15 and September 15 (the City's current schedule) unless specified otherwise in the resolution granting the franchise. 5. Section 5.14.100(f) was modified to delete the requirement that the business plan show an intent to provide services within a specified number of months. Plans will vary from applicant to applicant. The new language merely requires submittal of a business plan. This change allows staff to consider different circumstances as appropriate. 6. Section 5.14.280 was modified in response to a comment submitted from a potential franchisee. Previous language required that whenever any other utility (electric, cable, or telecommunications) was located underground in a given area, the new franchisee would also have to locate underground. The new language says that under such circumstance, the City MAY require the new franchisee to locate underground. This change allows flexibility to consider the particular circumstances of each instance. 7. Section 5.14.530. Violation of this ordinance will be a Class 1 civil infraction. OTHER ALTERNATIVES CONSIDERED 1. Council could choose not to adopt this ordinance and to retain the current system based on a non-mandated, standard franchise agreement. Staff has recommended moving away from this system because of the difficulty in maintaining uniform requirements. The current system also does not provide as effective tools as the new ordinance does to manage issues of concern to the City, such as coordination of construction and restoration of the rights of way. 2. Council may choose to modify particular provisions of the ordinance. The impact will vary, depending upon which provisions would be modified. If Council chooses to explore this alternative, they are encouraged to discuss possible modifications with staff and the City Attorney. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A ATTACHMENT LIST 1. Minutes of the November 21, 2000 Council workshop in which this ordinance was first discussed. 2. November 29, 2000 letter from Peter Saari of Cole, Raywid, & Braverman LLP, Re: Adelphia Business Solutions' Comments on Proposed T elecommunications Franchise Ordinance for Tigard, Oregon (4 pages) FISCAL NOTES This ordinance creates no additional cost for the City. It does, however, allow the City to recover some of its costs in processing telecommunications franchise applications and telelcommunications franchise construction supervision. Attachment 1 DRAFT TIGARD CITY COUNCIL MEETING MINUTES - NOVEMBER 21, 2000 Item 3 Only 3. BRIEFING ON POTENTIAL NEW CITY CODE SECTION GOVERNING TELECOMMUNICATIONS FRANCHISES Finance Director Prosser reviewed proposed amendments to the Tigard City Code to add a new section governing telecommunications franchises. Given the number of telecommunication companies seeking franchises from the City of Tigard, and the need to treat all franchises on a "competitively neutral" basis, Finance Director Prosser and City Attorney Ramis reviewed elements of a proposed new section to the Tigard Municipal Code. This new section would create an overall framework for telecommunications activity within Tigard, codify minimum requirements, add requirements to address problem areas, and provide consistency among City franchises. A memorandum from Gary Firestone of the City Attorney's office dated November IS, 2000, along with a draft Telecommunications Franchise Ordinance is on file with the Council meeting packet materials. Also, a copy of Finance Director Prosser's PowerPoint presentation is on file with the City Recorder. Finance Director Prosser noted that cities in the area have been meeting to discuss agreements concerning telecommunications franchises. The proposed ordinance would allow the City to better manage franchises by setting out standards for denial and coordination of construction. In addition, this would also help weed out requests for franchises that are speculative. City Attorney Ramis discussed with Councilor Patton the fact that the proposed ordinance provided that the City could deiii a franc3..,e. She questioned where an applicant would appeal this decision? City , .ttomey Ramis referred to the Judicial Review Act and that an appeal would be a legislative determination. Councilor Patton recommended that language be added in the standards for determination to read, "for existing franchises" (granted under this Code). City Attorney Ramis and Finance Director Prosser explained that the public liability insurance amount was developed after discussion with other jurisdictions. In response to Councilor-elect Dirksen's question whether $3 million for public liability would impose an undo impact on smaller companies, Finance Director Prosser noted that this industry is rapidly changing and the insurance provisions could be considered at the next review. City Attorney Ramis agreed that this ordinance would be revisited regularly. Consensus of the City Council was to direct staff to place an ordinance on the December 19, 2000, City Council agenda for consideration. ,,DIFL'~I DEC; U 5 2000 COLE, RAYWID & BRAVERMAN, L.L.P. Attachment 2 ATTORNEYS AT LAW 1919 PENNSYLVANIA AVENUE, N.W.. SUITE 200 PETER SAARI LOS ANGELES OFFICE DIRECT DIAL WASHINGTON, D.C. 20006-3458 2381 RosecR Ns AveNue. SUITE 110 EL 202-559-9750 ExT 235 TELEPHONE (202) 659-9750 SeOUNDO , CALIFORNIA 5433.799 .799 4zflO TCLCPMONE (310) (3101 89 PSAARI@CRBLAW.com FAX (202) 452-0067 F" (310) 643-7997 WWW.CRBLAW.COM ADMITTED IN MARYLAND ONLY November 219. 2000 FIRST CLASS MAIL AND ELECTRONIC MAIL Craig Prosser, Finance Director City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Re: Adelphia Business Solutions' Comments on Proposed Telecommunications Franchise Ordinance for Tigard, Oregon Dear Mr. Prosser: On behalf of Adelphia Business Solutions, a competitive local exchange carrier seeking a franchise to construct telecommunications facilities in the City of Tigard, Oregon ("City"), we appreciate the opportunity to provide the following comments on the proposed Telecommunications Franchise Ordinance ("Ordinance") sent to us on November 27, 2000. 1. y 5.14.060(b) Franchise Fec The City proposes to impose an annual franchise fee of the greater of $7,500 or five percent of gross revenues generated within the City, including rental of facilities and any other services. However, existing franchisees are only required to pay five percent of "gross revenues derived from exchange access services" pursuant to their franchises. In addition, only one franchisee (Portland General Broadband) is subject to the minimum fee of $7,500. Under proposed § 5.14.430, the new franchise fee requirements will not apply to existing franchisees. As a general matter, ABS objects to the imposition of this fee as a condition of its use of the public rights-of-way. While federal law allows a municipality to collect reasonable fees to cover their costs of managing the right-of-way, unreasonably high fees have an anti-competitive effect that may constitute a barrier to entry under Section 253. Fees that are not based on the direct costs of managing the right-of-way limit the ability of a new entrant to provide local telecommunication services. See PECO Energy Co. v. Township of Haverford, No. 99-4766, 1293961 lwraer~s Mal COLE, RAYWb S BRAVERMAN, L.L.P. Craig Prosser November 29, 2000 Page 2 1999 U.S. Dist. LEXIS 19409 (E.D. Pa. Dec. 20, 1999) (ruling that any fee must be directly related to the company's use of the right-of-way). The City's imposition of a fee based on a percentage of gross revenue does not appear to have any direct relationship to the cost of managing the rights-of-way. Furthermore, ABS expects to be subjected to the same regulations and right-of-way use requirements as other providers. To the extent that the City imposes a franchise fee requirement on one carrier, it may not impose greater requirements on ABS. Section 253 of the 1996 federal Telecommunications Act clearly provides that to the extent that a municipality imposes any obligation on telecommunications providers, it must do so on a `'competitively neutral and nondiscriminatory basis." 47 U.S.C. § 253. The Federal Communications Commission and the Tenth Circuit Court of Appeals have held that imposing right-of-way management regulations only on new entrants violates Section 253. RT Communications, Inc. v. FCC, 2000 U.S. App. LEXIS 430 (10t1i Cir. 2000); Silver Star Tel. Co., 12 F.C.C.R. 15,639 (1997), recon. denied, 13 F.C.C.R. 16,356 (1998). For the foregoing reasons, ABS requests that the City either eliminate franchise fees altogether, or at a minimum, impose franchise fees on all telecommunications carrier on a competitively neutral and nondiscriminatory basis. 2. § 5.14.060(e) Payment of Franchise Fee The franchise fee payment section is blank, with suggested payment periods of "annually, quarterly or monthly." ABS requests that franchise fees, if any, should be payable on an annual basis, within 90 days after the end of the year. As ABS previously indicated in its letter to the City of August 22, 2000, ABS seeks to maintain annual payments throughout the country. To request a revision of ABS internal business administration is unreasonably burdensome and is not related to the City's management of ABS' physical occupation of the public rights-of-way. Alternatively, in accordance with the City's duty to apply obligations on a "competitively neutral and nondiscriminatory basis" (47 U.S.C:. § 253), at a minimum, ABS requests that the City impose semi-annual payments, as currently required of all existing franchisees. 3. § 5.14.156 Service to the City This proposed section requires ABS to provide a most favorable rate to the City if the ABS ever contracts with similar users in Oregon for the use of ABS facilities, services, installation or maintenance. In the TC1 Cablevision case, the FCC explicitly stated that MFN clauses are unrelated to the physical impact on the public rights-of-way, and are unlawful under Section 253(c). See In the Matter of TCI Cablevision of Oakland County, Inc., Memorandum Opinion and Order, 12 FCC Rcd. 21396, 21441 at ¶ 105 (rel. Sept. 19, 1997). Therefore, ABS requests that this section be deleted from the proposed Ordinance. 1293961 COLE, RAYWID & BRAVERMAN, L.L.P. Craig Prosser November 29, 2000 Page 3 4. § 5.14.160 Insurance This section requires that ABS maintain an unreasonably high level of public liability insurance coverage ($3 million). While the City may reasonably require franchisees to carry insurance as part of managing its rights-of-way, the amounts set forth in the proposed Ordinance exceed what is reasonable, customary and necessary for the protection and safety of the public. A municipality may not enact requirements that are in excess of that which is reasonable and necessary to manage the rights-of-way. Such requirements are, in effect, barriers to entry, prohibited by 47 U.S.C. § 253(a). We believe that ABS' current insurance levels ($1 million) are sufficient to protect the City's interests, and most other municipalities have found them to be sufficient as well. Furthermore, ABS expects to be subject to the same regulations and right-of-way use obligations as other providers. No existing franchise agreement with the City has an insurance provision, except for the agreement with Portland General Broadband, which requires only $1 million of insurance. As discussed above with regard to franchise fees, to the extent that the City imposes an obligation on one carrier, it may not impose greater requirements on ABS. Section 253 of the 1996 federal Telecommunications Act clearly provides that to the extent that a municipality imposes any obligation on telecommunications providers, it must do so on a "competitively neutral and nondiscriminatory basis." 47 U.S.C. § 253. 5. § 5.14.300 Location of Facilities ABS requests the City change the word "or" to "and" in subsections (a) and (b) such that they read as follows: (a) Whenever all existing electric utilities, cable facilities eland telecommunications facilities are located underground within a public right of way of the City, a franchisee with permission to occupy the same public right of way must also locate its telecommunications facilities underground. (b) Whenever all new or existing electric utilities, cable facilities ei~7and telecommunications facilities are located or relocated underground within a public right of way of the City, a franchisee that currently occupies the same public right of way shall relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right of way, absent extraordinary circumstances or undue hardship as determined by the City and consistent with applicable state and federal law. This modification will ensure that all users of the public right-of-way are treated in a non- discriminatory manner in accordance with § 253. 1293961 COLE, RAYWID & BRAVERMAN, L.L.P. e Craig Prosser November 29, 2000 Page 4 6. § 5.14.430(b) Application to Existing Agreements The City is seeking to apply the proposed Ordinance only to new entrants. ABS strongly objects to this provision. As discussed above, in accordance with the City's duty to apply franchise requirements on a "competitively neutral and nondiscriminatory basis" (47 U.S.C. § 253), to the extent that the City imposes an obligation on one carrier, it may not impose greater requirements on others. To do so would put ABS at a competitive disadvantage with respect to currently franchised carriers. Any proposed ordinance should apply to all telecommunications carriers using the public right-of-way. On behalf of ABS, we thank you for the opportunity to provide comments on this matter. Please feel free to contact us if you have any questions. Sincerely, Peter Saari on behalf of Adelphia Business Solutions, Inc. cc: Ms. Joelle Sinclair Adelphia Business Solutions Manager of Legal & Regulatory Affairs 1293961 __aa ~ ..1.~ "4 1...'~~ra • ~•1 tom; 5 k` -71 t e i~/• ~MI . '1r ac. i a *t r w/i j a+rr, t i 1 ~ ~ ~ r S C rr~kix^~' • ' low "I'll" OA till f r St'~t ~ elyl i r~~/ J ill AM T` RM, is. ~r o ~ r T ons urdinanGe CAI ol T~gard~cafi e~eco'~mun pecember 19, 2000 obl ecVv _ ::~K.~t►ng the or lac'tons tors Identi~ "aJ en\Aron~ment unica telecomm ernin9 grants a or leg ao Standards 90\1 ~ ~de~a~nch►slof fr ~hise changes to cUCrent fran or 1 Ident'll ma~ 'ess 2 Pr°C tio~~ T ~ironme ~ReCOm'~unica • ations ACt °j ~ 996. ~ Telec~m►~un~c ~ Changes in technology am~unications j,,n~~~ses ~Xplosion of telec 3 ~ l risr l.yl l x Ot s J7 a to e t4o"bafriei a ~ OMge tAust r . 4 Komi WOMEN to vocess or ges IU that goj\e(over ail cfeate a Code section ications franchises telec e ork) frar~eWOfk fra►~ lthi~ that 'ran chises ordinance) rove new cil not ~ bhre on outside 01 this created ordinance S piny Ifanc ~ will require a City 5 framew Ago Fees fracture ior ,ct1lses ~ KeePs Current fee ~fihin Tl9ard providing services ~ through for tranchise1w passing ~ adds a neW lee foot Tigard --$2.90 p er linear OfI p~ppl,c maps and ans, Specifications, a w ~n9~neeCin9 p~ ap proVof ~)Uc ?fool cit to pl-0,Me Se~~~es ?fool of ca'Pa y ~ Nbu- '.0.6on fee ' ~ Requiremunts F ran~hise s for underp~►ym~n~ informon & penalte e rates ~,udlt most ia\jorabl ccess City use at for ,A Increased insuranCe coverage ~ncr ~~al of ja6ies ~ gedOfmance bond to ensure rem a ~~nstru~Tio" lees ~t~on permits an 'P Constru ~on in t'oe ri9~ts °f may ~egula~e Construct 1 AS_guilt drawings way ~~Onstruct~on ton 01 the rights °f gest0fa bond) construction on Ol 9 Goordin T ,MlvlatuAlm and I y low- 9 E$tabVisheS standards for denial of application Sons a firanchise Mal be ~ ldentliies rea termenated be Considered a standards it anch►se to ~ F stablishes oj the qosslOe termination ~ Mak~S violation of rdi►~anCe a civil infraction 10 woo Fran ee. _ r ~Xtstang j with ply to IranGWIsee~ P eement ~ Most p~do g~of a ftancWlse on renewal a valid . eX~s~ing franchisees ~p ~ Will ~psfer of the franchise or trap 11 co.;%Oflc de'Jeloped o~,tio►~ r6manG~ s ~s~d ® ~~i prop teloc®mm d to changes in the Respo" r~t e~~ironmo ~C~l I~~v oe with ~~d ` re c®mplean u~,lio's ~ ~,~su manage tho ~ to . bility 1 te h I.Provo hts of way 12 r►g ` Agenda Item No.~ Meeting of MEMORANDUM TO: Bill Monahan, City Manager FROM: Craig ProsseAFinance Director RE: Comments Received on Proposed Master Telecommunications Ordinance DATE: December 15, 2000 At the November 21, 2000 workshop on the proposed Telecommunications Ordinance, Council instructed staff to send the draft ordinance to all existing and potential telecommunications franchisees and to invite their comments. We sent the draft ordinance to the 14 existing franchise holders and to two companies which have indicated an interest in receiving franchises. We have received comments from two of the existing franchisees and from both of the potential franchisees. I have attached all comments we received by December 14, 2000 to this memo. The attachments include: A. Adelphia Business Systems (potential franchisee) B. RCN Telecommunications System (existing franchisee) C. Metricom (Ricochet) (potential franchisee) D. Portland General Distribution, doing business as Portland General Broadband (existing franchisee) Please note that after we sent the draft ordinance out for comment, the City Attorney and I reorganized the sections of the ordinance to improve the flow and readability of the document. References in these comments to section numbers are to the original draft. I have annotated the attached comments with the new section number references. In addition, I have also attached two tables showing the original section numbers crosswalked to the new section numbers, and the new section numbers crosswalked back to the original section numbers (attachment E). I have shared all of these comments with the City Attorney, and we have discussed them. Based on these discussions, the City Attorney and I are suggesting several amendments to the proposed ordinance to address concerns raised in these comments. I will transmit those amendments to you in a separate memo. cc: Tim Ramis, City Attorney Gary Firestone, City Attorney Attachment A Comments from Adelphia Business Solutions Letter from Peter Saari of Cole, Raywid & Braverman LLP, dated November 29, 2000 Letter from Craig Prosser to Peter Saari, dated December 15, 2000 Cale, Raywid & Braverman, L.L.P. ATTORNEYS AT LAW 1919 PENNSYLVANIA AVENUE, N.W., SUITE 200 Peter Saari WASHINGTON, D.C. 20006 3458 Los Anoeles Office Direct Dial 2381 Rosecrans Avenue. Suite 110 202-659-9750 Ext 236 Telephone 202 659-9750 El Segundo, California 902454290 Telephone (310) 643.7999 psaad@CRBLaw.com Fax (202) 452-0067 Fax (310) 6437997 www.crblaw.com Admitted in Maryland Only November 29, 2000 FIRST CLASS MAIL AND ELECTRONIC MAIL Craig Prosser, Finance Director City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Re: Adelphia Business Solutions' Comments on Proposed Telecommunications Franchise Ordinance for Tigard, Oregon Dear Mr. Prosser: On behalf of Adelphia Business Solutions, a competitive local exchange carrier seeking a franchise to construct telecommunications facilities in the City of Tigard, Oregon ("City"), we appreciate the opportunity to provide the following comments on the proposed Telecommunications Franchise Ordinance ("Ordinance") sent to us on November 27, 2000. 1. § 5.14.050(b) Franchise Fee mow 0.14.0$00.) The City proposes to impose an annual franchise fee of the greater of $7,500 or five percent of gross revenues generated within the City, including rental of facilities and any other services. However, existing franchisees are only required to pay five percent of "gross revenues derived from exchange access services" pursuant to their franchises. In addition, only one franchisee (Portland General Broadband) is subject to the minimum fee of $7,500. Under 1 proposed §5.14.430, the new franchise fee requirements will not apply to existing franchisees. As a general matter, ABS objects to the imposition of this fee as a condition of its use of the public rights-of-way. While federal law allows a municipality to collect reasonable fees to cover their costs of managing the right-of-way, unreasonably high fees have an anti-competitive effect that may constitute a barrier to entry under Section 253. Fees that are not based on the direct costs of managing the right-of-way limit the ability of a new entrant to provide local ADS - Tigard. OR Comments on Proposed Ordinance.DOC Cole, Raywid & Braverman, L.L.P. Craig Prosser November 29, 2000 Page 2 telecommunication services. See PECO Energy Co. v. Township of Haverford, No. 99-4766, 1999 U.S. Dist. LEXIS 19409 (E.D. Pa. Dec. 20, 1999) (riling that any fee must be directly related to the company's use of the right-of-way). The City's imposition of a fee based on a percentage of gross revenue does not appear to have any direct relationship to the cost of managing the rights-of-way. Furthermore, ABS expects to be subjected to the same regulations and right-of-way use requirements as other providers. To the extent that the City imposes a franchise fee requirement on one carrier, it may not impose greater requirements on ABS. Section 253 of the 1996 federal Telecommunications Act clearly provides that to the extent that a municipality imposes any obligation on telecommunications providers, it must do so on a "competitively neutral and nondiscriminatory basis." 47 U.S.C. § 253. The Federal Communications Commission and the Tenth Circuit Court of Appeals have held that imposing right-of-way management regulations only on new entrants violates Section 253. RT Communications, Inc. v. FCC, 2000 U.S. App. LEXIS 430 (10`h Cir. 2000); Silver Star Tel. Co., 12 F.C.C.R. 15,639 (1997), recon. denied, 13 F.C.C.R. 16,356 (1998). For the foregoing reasons, ABS requests that the City either eliminate franchise fees altogether, or at a minimum, impose franchise fees on all telecommunications carrier on a competitively neutral and nondiscriminatory basis. 2. § 5.14.060(e) Payment of Franchise Fee Plow S.1y.080 W The franchise fee payment section is blank, with suggested payment periods of "annually, quarterly or monthly." ABS requests that franchise fees, if any, should be payable on an annual basis, within 90 days after the end of the year. As ABS previously indicated in its letter to the City of August 22, 2000, ABS seeks to maintain annual payments throughout the country. To request a revision of ABS internal business administration is unreasonably burdensome and is not related to the City's management of ABS' physical occupation of the public rights-of-way. Alternatively, in accordance with the City's duty to apply obligations on a "competitively neutral and nondiscriminatory basis" (47 U.S.C. § 253), at a minimum, ABS requests that the City impose semi-annual payments, as currently required of all existing franchisees. 3. § 5.14.156 Service to the City i N4%" .9.14.230 { This proposed section requires ABS to provide a most favorable rate to the City if the ABS ever contracts with similar users in Oregon for the use of ABS facilities, services, installation or maintenance. In the TCI Cablevision case, the FCC explicitly stated that MFN clauses are unrelated to the physical impact on the public rights-of-way, and are unlawful under Section 253(c). See In the Matter of TCI Cablevision of Oakland County, Inc., Memorandum Opinion and Order, 12 FCC Rcd. 21396, 21441 at 1 105 (rel. Sept. 19, 1997). Therefore, ABS requests that this section be deleted from the proposed Ordinance. ABS -Tigard, OR Comments on Proposed Ordinancc.DOC Cole, Raywid & Braverman, L.L.P. Craig Prosser November 29, 2000 Page 3 4. § 5.14.160 Insurance Novi 5.1q..2q0 This section requires that ABS maintain an unreasonably high level of public liability insurance coverage ($3 million). While the City may reasonably require franchisees to carry insurance as part of managing its rights-of-way, the amounts set forth in the proposed Ordinance exceed what is reasonable, customary and necessary for the protection and safety of the public. A municipality may not enact requirements that are in excess of that which is reasonable and necessary to manage the rights-of-way. Such requirements are, in effect, barriers to entry, prohibited by 47 U.S.C. § 253(a). We believe that ABS' current insurance levels ($1 million) are sufficient to protect the City's interests, and most other municipalities have found them to be sufficient as well. Furthermore, ABS expects to be subject to the same regulations and right-of-way use obligations as otl-°r providers. No existing franchise agreement with the City has an insurance provision, except for the agreement with Portland General Broadband, which requires only $1 million of insurance. As discussed above with regard to franchise fees, to the extent that the City imposes an obligation on one carrier, it may not impose greater requirements on ABS. Section 253 of the 1996 federal Telecommunications Act clearly provides that to the extent that a municipality imposes any obligation on telecommunications providers, it must do so on a "competitively neutral and nondiscriminatory basis." 47 U.S.C. § 253. 5. § 5.14.300 Location of Facilities IVvw S.W. ago ABS requests the City change the word `or" to "and" in subsections (a) and (b) such that they read as follows: (a) Whenever all existing electric utilities, cable facilities ~;ttd telecommunications facilities are located underground within a public right of way of the City, a franchisee with permission to occupy the same public right of way must also locate its telecommunications facilities underground. (b) Whenever all new or existing electric utilities, cable facilities ,:-and telecommunications facilities are located or relocated underground within a public right ci ay of the City, a franchisee that currently occupies the same public right of way shall relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right of way, absent extraordinary circumstances or undue hardship as determined by the City and consistent with applicable state and federal law. i This modification will ensure that all users of the public right-of-way are treated in a non- discriminatory manner in accordance with § 253. I~ I ADS - Tigard. OR Comments on Proposed Ordinance.DOC Cole, Raywid & Braverman, L.L.P. Craig Prosser November 29, 2000 Page 4 6. § 5.14.430(b) Application to Existing Agreements Now S. t4. wo The City is seeking to apply the proposed Ordinance only to new entrants. ABS strongly objects to this provision. As discussed above, in accordance with the City's duty to apply franchise requirements on a "competitively neutral and nondiscriminatory basis" (47 U.S.C. § 253), to the extent that the City imposes an obligation on one carrier, it may not impose greater requirements on others. To do so would put ABS at a competitive disadvantage with respect to currently franchised carriers. Any proposed. ordinance should apply to all telecommunications carriers using the public right-of-way. On behalf of ABS, we thank you for the opportunity to provide comments on this matter. Please feel free to contact us if you have any questions. Sincerely, Peter Saari on behalf of Adelphia Business Solutions, Inc. cc: Ms. Joelle Sinclair Adelphia Business Solutions Manager of Legal & Regulatory Affairs ABS - Tigard, OR Comments on Proposed Ordinance.DOC December 15, 2000 Peter Saari Cole, Raywid & Braverman, LLP 1919 Pennsylvania Avenue NW, Suite 200 Washington DC 20006-3458 Re: Adelphia Business Solutions' Comments on Draft Telecommunications Franchise Ordinance Dear Mr. Saari: Thank you for providing comments on Tigard's proposed telecommunications franchise ordinance. We have carefully reviewed your comments, and I write to explain City staff's position on the issues you raised. Franchise Fee The City believes that the franchise fee as proposed is not anti-competitive, is not a barrier to entry, and is set to cover the City's costs and to obtain reasonable compensation for the taxpayers of the City for the use of their property. You note that the franchise fee requirements will not apply to existing franchisees. You are not totally correct, the fees will not apply to existing franchisees to the extent they are inconsistent with the existing franchise agreement. However, they will apply to existing franchisees when their franchise agreements terminate. Furthermore, most existing franchisees are paying at the level stated in the proposed ordinance. The ordinance is intended to codify existing practice. It is not discriminatory and not a barrier to entry. You also argue that using a percentage of revenue is not directly related to use of the right of way. The City believes that this measure of the fee is related to use of the right of way. The revenue could not be generated without use of the right of way. Those who use the right of way most (have the most facilities) are likely to generate the most revenue. Furthermore, the alternative would be to base the fee on the amount of facilities in the right of way. This would be a greater barrier to entry that a revenue-based fee. The revenue based fee is less of a barrier to entry than a per-facility fee because it does not require payment (except of the minimum amount) unless the franchisee has generated revenue. Requiring franchisees to pay based on the number of poles, length of wires and amount of other facilities before they have generated one cent in revenue is a greater barrier to entry. The fee is imposed on a competitively neutral basis. All entities will pay the same. i j You suggest that the franchise fee be abolished altogether. The rights of way of the City are dedicated for public, not private, use. The City administers the rights of way on behalf of the public its taxpayers. Allowing free use of the taxpayers' property would deprive the taxpayers of their property rights. Timing of Payment The draft ordinance has been revised to provide for semi-annual payment (March 15 and September 15 due dates for the lialf-years ending December 31 and June 30), but allows flexibility to amend the payment timing. It is not discriminatory to allow all franchisees to adjust the timing of payment to suit their particular business needs. Service to the City The City's attorney advises me that in In the Matter of TCI Cablevision of Oakland County, Inc., the FCC did not hold that most favorable rate provisions are unlawful, but only stated that those clauses would be subject to scrutiny. The City believes that the most favorable rate provisions will withstand scrutiny. The City, on behalf of its taxpayers, facilitates the provision of private telecommunications services using public property. The City has an obligation to ensure that the public property is used for the greatest public good. Allowing franchisees to charge the City and its taxpayers more than the best competitive rate would result in the public right of way being used to advance private interests over public interests. The most favored rate provision is justified by the need to protect the taxpayers' rights in their property. Insurance The insurance levels that the City is requiring are standard in the region. They are not barriers to entry, but merely prudent requirements assuring the protection of the public. The City will not expose its citizens to the risk of damage from underinsured franchisees. The insurance provisions are non-discriminatory. They apply to all franchisees, to the extent they are not inconsistent with existing franchise agreements. It is not discriminatory to set new or higher standards that will apply to all. Location of Facilities You asked the City to modify the provision (currently Section 5.14.280) requiring facilities to be located underground. We have made changes to the provision that provide that the City may require facilities to be placed underground if other facilities are located underground. The requirement to place facilities underground is no longer mandatory in all cases. We believe that the changes should address your concern. Application to Existing Agreements You state that the City is seeking to apply the proposed ordinance only to new entrants. We disagree. The proposed ordinance will apply to all franchisees, existing and new. However, the City recognizes that constitutional provisions prohibit it from impairing existing agreements. The ordinance merely recognizes the existing contractual rights of franchisees and avoids impairing those rights. All existing franchisees will be required to comply with provisions that are not inconsistent with their existing agreements, and will be required to comply with all provisions of the ordinance on expiration of their existing agreements. Again, thank you for your comments. If you have any further questions or comments, please let me know. Sincerely, Craig Prosser Finance Director WgfATigard\proadellet 121500. wpd Attachment B Comments from RCN Telecommunications E-Mail from David Kerr to Craig Prosser, dated 12/14/00 White Paper, dated November 14, 2000 E-mail from Craig Prosser to David Kerr and Jeff Condit, dated December 15, 2000 Craig Prosser -'Tigard Telecom Ordinance - Propor Amendment 9 ~ From: <David.Kerr@rcn.net> To: <craig@ci.tigard.or.us> Date: 12114/00 9:33AM Subject: Tigard Telecom Ordinance - Proposed Amendment Craig - Thanks for meeting with Jeff and me the other day. As we discussed , RCN would suggest the following amendment to the proposed Tigard Telecom Ordinance. Amend Section 5.14.430 as follows: 5.14.430 - Application to Existing Agreement Now S-14.(0110 This chapter shall be applied to all persons and activities expect that it shall not affect contract rights of existing franchisees. Persons or entities providing cable television and telecommunications services over the same network under a franchise negotiated, approved and recommended by the Metropolitan Area Communications Commission (MACC) and ratified by the City Council will be presumed to have met the application requirements for a telecom franchise issued by the City. The telecom franchise and MACC franchise will be of equal term and the franchisee can rely on the insurance certificates and surety bonds posted pursuant to MACC franchise. This Chapter shall apply to existing franchisees on termination of existing franchises. Thank you for your attention to and consideration of this suggested amendment. If you need additional information, please follow up with Jeff Condit for the most expidient response. Thanks, David P. Kerr RCN Director of Regulatory & Government Affairs (650) 212-8104 v (650) 212-8009 f CC: <David.Hankin@rcn.net>, <condit@millemash.com> White Paper: The Role of Local Government In Managing Use of Rights-of-Way By Competitive Cable & 'T'elecommunications Service Providers Prepared for the City of Tigard, Oregon RCN Telecom Services, Inc. 1400 Fashion Island ]boulevard, Suite 100 San Mateo, CA 94404 (650) 212-8000 November 14, 2000 i I. INTRODUCTION RCN Telecom Services, Inc. ("RCN") is pleased to have the opportunity to work with the City of Tigard, Oregon, on the development of the City's proposed telecommunications franchise ordinance. As a competitive provider of video programming, Internet access, and local and long distance telephone service, RCN is uniquely situated to provide to the City the perspective of a new market entrant providing multiple, bundled, state-of-the-art telecommunications services. RCN supports reasonable management of the public rights-of-way by responsible local authorities, and believes that such management plays a crucial part in securing to consumers the benefits of the competitive telecommunications marketplace fostered by the 1996 Telecommunications -Act. At the same time, as a competitive provider competing against entrenched incumbents, RCN is acutely aware that overburdensome local rights-of-way management requirements can impede robust competition and the introduction of new telecommunications services. RCN has prepared this White Paper in an effort to assist the City of Tigard's decision-makers to understand the pro-competitive legal framework that provides the context within which local rights-of-way management policies must be developed. We hope that you will find this background paper useful, and invite you to call upon us to provide additional information and support to the City, as the process of refining, enacting, and implementing Tigard's rights-of-way management policies continues. H. SECTION 253 OF THE TELECOMMUNICATIONS ACT OF 1996 AND THE REGULATION OF "BUNDLED" CABLE & TELECOMMUNCIATIONS SERVICE PROVIDERS A. Section 253 of the 1996 Telecommunications Act. One of the most important catalysts in the nationwide effort to bring competitive telecommunications services to local consumers is Section 253 of the federal Communications Act' as enacted in the Telecommunications Act of 1996 ("1996 Telecommunications Act"). ' 47 U.S.C. § 253 (2000). 2 Section 253 is intended to facilitate the opening of local and regional telecommunications markets to competition by mandating that competitive providers may access state and municipal rights-of-way on the same basis as incumbent providers. Section 253 also broadly preempts state and local regulations that serve as direct and indirect barriers to competitive entry into the local telecommunications marketplace, and has been interpreted to prohibit local regulations that have the effect of imposing burdensome requirements on telecommunications companies seeking access to local public rights-o£--way. The relevant portions of Section 253 read as follows: Section 253. REMOVAL OF BARRIERS TO ENTRY. (a) In General.--No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. (b) State Regulatory Authority.--Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this section, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. (c) State and Local Government Authority.--Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government. (d) Preemption.--If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. 3 The House and Senate Conference Report on the Telecommunications Act of 1996 states simply that this section, adopted from the Senate bill, "is intended to remove all barriers to entry in the provision of telecommunications services."' This is consistent with the overall goal of the Telecommunications Act of 1996, which - according to Congress - is to "provide for a pro- competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition Legal commentators have described the importance of Section 253 in this way: New Section 253 of the 1934 Act is relatively short but is in many ways the linchpin of the new regulatory scheme. Section 253(a), in particular, ushers in a brave new world of telecommunications competition, sweeping away a decades-old tradition of [local regulators] acting as gate-keepers to the telecommunications market.... This provision, the legislative history makes clear, is intended to remove all barriers to entry for telecommunications providers.' Since the enactment of the 1996 Telecommunications Act, the Federal Communications Commission ("FCC"), the federal agency with primary responsibility for the implementation and enforcement of the Act, has taken the Congressional mandate to eliminate state and local barriers to entry seriously. N. past cases involving treatment that could be viewed as discriminatory to new entrants, the FCC has not hesitated to oppose such requirements! Moreover, the FCC has 2 H.R. Conf. Rep. No. 104-458 at 126 (1996) (emphasis added). ' Id. at 1 (emphasis added). Pike & Fischer Legal Analysis of the Telecommunications Act of 1996 at 10. s See, e.g., Memorandum Opinior and Order, In the Matter of The Petition of the State of Minnesota for a Declaratory Ruling Regarding the Effect of Section 253 on an Agreement to Install Fiber Optic Wholesale Transport Capacity in State Freeway Rights-of-Way, 14 FCC Rcd. 21,697 (1999) (hereinafter "State of Minnesota") (declining to endorse an agreement between the State of Minnesota and a private party which grants to the private party exclusive rights to install fiber optic cable along Minnesota's interstate highways; Memorandum Opinion and Order, In the Matter of the Public Utility Commission of Texas, 13 FCC Rcd. 3460 at 13 (1997) (hereinafter "Texas PUC") (preempting Texas statute that, for example, imposes build-out requirements on certain classes of carriers, because they "restrict the means or facilities through which a party is 4 categorically stated that, in accordance with Congress' intent expressed in Section 253, the "national competition policy for the telecommunications industry [can]not be frustrated by the isolated actions of individual municipal authorities."' State and local actions, as well as statutes or ordinances, that impair market entry are prohibited by Section 253: Congress intended that the phrase, "State or local statue or regulation, or other State or local legal requirement" in section 253(a) be interpreted broadly. The fact that Congress included the term "other legal requirements" within the scope of section 253(a) recognizes that State and local barriers to entry could come from sources other than statutes and regulations. The use of this language also indicates that section 253(a) was meant to capture a broad range of state and local actions that prohibit or have A he effect of prohibiting entities from providing telecommunications services! Although Congress and the FCC have made clear the limits on local authority and the scope of federal preemption of local regulations impeding the deployment of new telecommunications infrastructure, the Act specifically recognizes and preserves the right of municipalities to manage the public rights-of-way. Section 253(b) provides that states (and, by delegation, municipalities) may impose "requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers," provided such permitted to provide service in violation of section 253"); Memorandum Opinion and Order, In the Matter of Classic Telephone, Inc., II FCC Red. 13,082 at 11 (1996) (hereinafter "Classic Telephone P') (preempting two cities' denials of a franchise to a prospective provider of local exchange service); Memorandum Opinion and Order, New England Public Communications Council Petition for Preemption Pursuant to Section 253, 11 FCC Rcd. 19,713 (1996) (hereinafter "New England Public Communications (preempting a state regulation that permitted only iLECs and certified LECs to provide payphone services in the State of Connecticut). G Texas PUC at 114. State of Minnesota at 1118. 5 requirements are exercised `on a competitively neutral basis."' (Emphasis added). And, Section 253(c) preserves local authority over physi~al management of the public rights-of-way.' The FCC described the scope of this authority in the City of Troy case: [S]ection 253(c) preserves the authority of state and local govemments to manage public rights-of-way. Local governments must be allowed to perform the range of vital tasks necessary to preserve the physical integrity of streets and highways, to control the orderly flow of vehicles and pedestrians, to manage gas, water, cable (both electric and cable television), and telephone facilities that crisscross the streets and public rights-of-way [T]he types of activities that fall within the sphere of appropriate rights-of-way management include coordination of construction schedules, determination of insurance, bonding, and indemnity requirements, establishment and enforcement of building codes, and keeping track of the various systems using the rights-of-way to prevent interference between them.10 In Classic Telephone the FCC also gave examples, drawn from the legislative history of the 1996 Telecommunications Act, of the kinds of regulatory authority Congress intended to preserve under municipal control: (1) "regulat[ing] the time or location of excavation to preserve effective traffic flow, prevent hazardous road conditions, or minimize noise impacts;" s On its face, Section 253(b) refers only to state, not local, regulatory authority, but the FCC has concluded that Section 253(b) would apply to municipalities to the extent they have been delegated appropriate regulatory authority by the state government. Classic Telephone I at 91 34. In such cases, the municipality would be subject to the same obligations to ensure that its regulation is "necessary" to the proper goals set forth in Section 253(b) and exercised on a "competitively neutral basis." 9 While Section 253(c) preserves local authority, it does not confer any authority beyond that which a municipality has under state law. Insofar as the City of Gresham lacks express authority under ORS 221.510 and ORS 759.005 to regulate competitive telecommunications providers, the City is limited to such authority as it may have pursuant to its general state law municipal and police powers. 10 Memorandum Opinion and Order, In the Matter of TCI Cablevision of Oakland County, Inc., 12 FCC Rcd. 21,396 at 176 (1997) (hereinafter "City of Troy") at ¶ 103. 6 (2) "requir[ing] a company to place its facilities underground, rattier than overhead, consistent with the requirements imposed on other utility companies;" (3) "requir[ing] a company to pay fees to recover an appropriate share of the increased street repair and paving costs that result from repeated excavations;" (4) "enforc[ing] local zoning regulations;" [and] (5) "requir[ing] a company to indemnify the City against any claims of injury arising from the company's excavation."" Within the areas listed above, the 1996 Telecommunications Act preserves municipal police powers to protect public health, safety and welfare. Local regulation of telecommunications providers beyond the scope described in the Classic Telephone and City of Troy cases, however, is subject to preemption under the Act. B. Local Authority to Regulate Cable Television Providers The scope of local authority to regulate cable providers is broader. Whereas Section 253 of the Telecommunications Act limits local authorities to management of telecommunications providers' use of the public rights-of-way, and precludes localities from regulating telecommunications service," federal cable law specifically empowers localities to govern certain aspects of cable service via local franchise agreements. The " Classic Telephone I at 1 39 (citing 141 Cong. Rec. 58172 (daily ed. June 12, 1995)). 12 The FCC has interpreted Section 253 to prohibit municipal regulation that constitutes an unnecessary "third tier" of regulation, or regulation that duplicates the regulation of telecommunications by the FCC and state government. Specifically, the FCC has frowned upon municipal rights-of-way regulation that is not clearly related to administration of rights-of-way and "`aspires to govern the relationships among telecommunications providers, or the rates, 7 degree to which local governments may regulate cable service under a franchise has evolved over time, but is now essentially controlled by two contemporary federal statutes. The first statute is the Cable Communications Policy Act of 1984 ("1984 Cable Act")." The second statute is the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"). 14 The 1984 Cable Act expressly recognized the authority of local governments to award cable franchises." Accordingly, local governments were given the authority to condition local franchise consent upon fulfillment of certain conditions." In addition, the Cable Acts of 1984 and 1992 together provide cable franchise authorities the ability to require, among other things: it ' . . adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support;" and adequate assurance that the cable operator has the financial, technical, or legal qualifications to provide cable service."" In addition, while under federal cable law "[a]ny franchise shall be construed to authorize the construction of a cable system over public rights-of-way,"" a franchising authority may establish terms and conditions under which telecommunications service is offered to the public."' See Classic Telephone H at 13 4 (quoting City of Troy at 1105); City of Troy at ~j 103-05. " Pub. L. 98-549, 98 Stat. 2779 (1984), codified at 47.U.S.C.A. 521 et seq. 14 Pub. L. 98-549, 98 Stat. 2779 (1984), codified at 47 U.S.C.A. 521 et seq. 1s . 47 U.S.C. § 541 (2000). 16 -rd. 17 Id. 18 Id. 8 MEME=I and enforce via the cable franchise specific requirements for "facilities and equipment."" Moreover, the 1984 Cable Act allowed local governments to require cable operators to pay a franchise fee of up to fve percent of gross annual revenues derived from the provision of local cable service.20 In short, although federal law sets many of the rules governing the terms that a local government may require as a condition for granting a franchise, it is clear that Congress provided local authorities broader powers to directly regulate the activities of cable service providers, as compared to the limitations on local regulation adopted in Section 253 of the Telecommunications Act, discussed in Section II(A) above. Therefore, a cable franchise agreement will typically embody most or all of the kinds of regulation a municipality may impose on a telecommunications provider, with respect to the use of the public rights-of-way for the providers facilities, plus additional, cable-specific terms and conditions. In any event, regardless of whether the municipality grants a franchise for cable services, telecommunications services, or both, it is clear that the provisions in the franchise agreement may not be superseded by newly enacted Ordinances or legislation, except as provided in the agreement itself. This is because of the contractual nature of franchises, and the constitutional protections afforded the terms of the franchise agreement, under the Contract Clause of the U.S. Constitution. Z' 19 47 U.S.C. § 544 (2000). 20 Id. § 542 (b). Z' U.S. Const. Art I, 10, cl. 1; See also Cox Cable San Diego, Inc. v. City of San Diego, 188 Cal. App.3d 952, 233 Cal. Rptr. 735 (Cal. App. 4°i Dist. 1987). 9 C. Franchised Cable Facilities That Also Provide Telecommunications Services Should Not Be Subject To Dual Re ulaticn, When the facilities used by bundled cable & telecommunications service providers are governed by rights-of-way management requirements pursuant to a cable franchise, subjec`ing the same facilities to all aspects of a local telecommunications ordinance - which, under Section 253(c), must be limited in scope to rights-of-way management issues - will often be unnecessary and duplicative. For example, where the municipality already has reviewed the provider's technical, legal, and financial qualifications in the course of granting a cable franchise, the provider should not be required to r=nbmit such information as part of an application and approval process for registration or licensing as a telecommunications provider. Such a requirement would be wasteful of the resources of both the provider and the City. Indeed, even as applied to telecommunications-only providers, federal courts have taken a harsh view of local Ordinances that require an applicant to undergo extensive background reviews and grant local officials wide discretion to grant or deny the franchise request based upon that information." In AT & T Communs., Inc. v. City of Dallas, the court held that: Although the City does have authority under the [Federal Telecommunications Act] to impose a franchise requirement on telecommunications providers, the City does not "have authority to grant or deny that franchise based on its own discretion[;] granting a franchise may only be conditioned on a [providerJ's agreement to comply with the [CJity s reasonable regulations of its rights-of- way and the fees for use of those rights-of-way." The City's form franchise requirement seeks to impose on AT&T conditions that are unrelated to the use of the City's right-of-way for ADL [digital u See DECO Energy Co. v. Township ofHaverford, No. 99-4766,1999 WL 1240941 (E.D. Pa. Dec. 20, 1999). In that case, Court held that, in view of the limited authority preserved to local governments under Section 253(c), the Township's ordinance was over-broad and vague in two respects. First, the ordinance gave total discretion over the granting of franchises to the Township Manager. Second, the fees were not reasonably related to the telecommunications provider's use of the public rights-of-way. Accordingly, the Court found that Haverford's ordinance exceeded the Town's limited authority over matters involving the mere regulation of the public rights-of-way, in violation of Section 253(a), and was not entitled to "safe harbor" protection under Section 253(c) of the Act. 10 telecommunications services] - e.g., disclosure of detailed financial and operational information, dedication of fiberoptic strands and conduits to the City for the City's free and exclusive use, submission to detailed City audits, notification to the City of all communications with the FCC, SEC, and PUC related to services provided in Dallas, and payment of four percent of all AT&T revenue, of whatever source, arising out of AT&T's operations in Dallas.' Thus, where a provider already has submitted extensive information to the municipality for review, and where the provider has agreed in a cable franchise to comply with the municipality's rights-of-way management conditions, including the agreement to pay a franchise fee, duplicative review in connection with those same facilities pursuant to a local telecommunications ordinance arguably presents a barrier to entry prohibited by Section 253. Nor is it permissible under Section 253 for a locality to charge a fee pursuant to a telecommunications ordinance, where the locality already has been compensated for the provider's use of the public rights-of-way pursuant to a cable franchise agreement. While local governments retain the right under Section 253 to require compensation from telecommunications providers for use of the public rights-of-way, Section 253(c) requires that such compensation be "fair and reasonable" and be assessed on a competitively neutral and nondiscriminatory basis." This means, in practical terms, that rights-of-way fees must be determined based on a local authority's actual costs of managing its rights-of way, and that these 23 AT & T Conimuns., Inc. v City of Dallas, 52 F. Supp. 2d 763, 769 (N.D. Tex. 1999) (emphasis added)(quoting AT & T Communs., Inc. v. City of Dallas, 8 F.Supp.2d 582, 592-93). 2" See City of Troy at ¶ 108. I1 expenses must be apportioned to individual providers based on their pro-rata share of those costs. Any greater amounts would exceed the municipality's authority and would be unlawful." III. CONCLUSION In summary, Section 253 of the 1996 Telecommunications Act establishes a national policy promoting competition and market access for telecommunications providers and preempting local regulations that prohibit, or have the effect of prohibiting, market entry. Section 253 requires that municipalities provide telecommunications providers with timely access to public rights-of-way on a non-discriminatory and competitively neutral basis. However, Section 253(c) expressly limits local authority over telecommunications providers, and has been interpreted to mean that access to public rights-of-way may be conditioned only upon: (1) the provider's agreement to comply with the municipality's reasonable regulations for the physical management of public rights-of-way; and (2) payment of fees to compensate the municipality for its rights-of-way management costs. At the same time, Section 253 recognizes and preserves the authority of municipalities to regulate the use of public rights-of-ways to the extent necessary to protect the public health, safety, and welfare. Specific examples of appropriate types of municipal rights-of-way regulation have been articulated by the FCC in the Classic Telephone and City of Troy cases. Local authority to regulate cable providers is broader. Accordingly, a provider subject to a local cable franchise is already regulated by the municipality in greater detail than the law would allow for a telecommunications-only provider. As such, a bundled cable & telecommunications service provider should not be subjected to duplicative application, licensing, registration, or other regulatory requirements in order to provide telecommunications 25 See Bell Atlantic-Maryland, Inc. v. Prince George's County, 49 F. Supp. 2d 805 (D. Md. 1999), vacated and remanded for consideration of state law issues, No. 99-1784 (4th Cir. May 15, 2000); AT&T Communs., Inc. v. City of Dallas, 52 F. Supp. 2d 763, 769 (N.D. Tex. 1999); AT&T Communications of the Southwest v. City of Austin, 40 F. Supp. 2d 852 (W.D. Tex. 1998). 12 services, nor should such a provider be required to pay duplicative rights-of-way use fees for the same multi-purpose facilities. By enacting local telecommunications policies that reduce barriers to entry and facilitate the efficient and timely provision of state-of-the-art telecommunications services - including bundled cable & telecommunications services - the City of Tigard will ensure that the City and its residents reap the substantial benefits Congress had in mind in 1996 when it legislated "a pro- competitive, deregulatory national policy framework designed to accelerate rapid private sector deployment of advanced telecommunications and information technologies and services to all Americans ...."zb 26 H.R.,Conf. Rep. No. 104-458, supra, n.2. 13 Craig Prosser -.Tigard Master Telecom Ordinance Page 1 1 From: Craig Prosser To: Condit@MillerNash.com; David.Kerr@rcn.net Date: 12/15/00 11:23AM Subject: Tigard Master Telecom Ordinance David & Jeff, Thanks for the information you submitted in regard to Tigard's proposed Master Telecom Ordinance. We appreciate your input. We have reviewed your proposed amendment and will be recommending to Council that they include it in the ordinance. We are recommending, however, that it be placed in a new section rather than folding it into the section you selected. I am including two attachments with this e-mail: 'The first attachment is the revised ordinance as filed with Council. After circulating the draft ordinance for review, but prior to filing the ordinance with the Council we made some additional changes to the proposed ordinance. These changes included filling in blanks left in the ordinance (i.e. the per linear foot charge), selecting an option when alternative language was included (i.e. payment schedule), and some other points. The largest change we made was to re-order sections to make the document flow better and to enhance readability. The second attachment is a memo with our suggested amendments (including the one proposed by RCN). I had initially suggested that you needed to be at Council to present your proposed amendment. Given the fact that we now have several other amendments to present, I don't feel as strongly that you need to be there. You are, of course, welcome should you choose to attend. The Council meeting is Tuesday, Dec. 19 at 8 pm. The Council chambers are located in City Hall at 13125 SW Hall Blvd. Thanks for you comments. CC: Bill Monahan; garyf@rccb.com Attachment C Comments from Metricom (Ricochet) Letter from Allan Donnelly, Lead Counsel, Western Region, Ricochet, dated Dec. 13, 2000 Letter from Ross C. Baker, Metricom Government Relations Representative, dated December 13, 2000 Letter from Craig Prosser to Allan Donnelly, dated December 15, 2000 moo. ricochet December 13, 2000 Mayor Jim Griffith Members of the City Council City of Tigard 13125 SW Hail Boulevard Tigard, Oregon 97223 Re: City of Tigard Proposed Telecommunications Franchise Ordinance Honorable Mayor Griffith and Members: On behalf of Metricom, Inc., I have reviewed and analyzed the proposed subject ordinance and make the following request for changes which will better accommodate Metricom's plans to estab- lish our Ricochet@ wireless data network for use by Tigard's residents and businesses: Sax" 5.14.020 Definitions. "Telecommunications system" is defined, however the following terms are not defined in the ordinance: "IAA 5.14.030 (d) "telecommunications" or" telecommunications purposes." S-14. au-) 5.14.156 "telecommunications facilities;" "telecommunications services;" "telecommunications installation or maintenance." S. 14.43.0 5.14.320 "telecommunications facility." 5.14.4ZO 5.14.325 "telecommunications facility." S. lid • 440 5.14.330 "telecommunications facility." 4. 14-1140(A) 5.14.330(a) "telecommunications facility." s,14. OW 5.14.060 Franchise Fee. S.14.006)15.14.060 (b) Metricom is opposed to a minimum annual franchise fee in any amount. We prefer to have the city have a stake in our success and want to pay a percentage of adjusted gross revenue. We think our service is unique and the city's interested can be adequately protected by provisions contained in a negotiated franchise agreement. Accordingly the following language should be added to the beginning of subsection (b): "Unless otherwise provided for in a franchise agreement, " Metricom, Inc., 333 West Julian Street, San lose, California 95110 Telephone: (408)282-3000 Ell City of Tigard Page 2 December 13, 2000 Similarly, subsection (e) should also for contracting flexibility by providing at the beginning, "Unless otherwise provided for in a franchise agree- ment, " 5, ILI. &CO 5.14.080 Grant of Franchise. Metricom believes to obtain maximum benefits, a city must build in flexi- bilty and not mandate that all franchise agreements contain exactly the same language. Different telecommunications or communications services may have difference requirements and although agreements may contain certain common language, using exactly the same language will stile creativity and flexibility to adapt as new technologies arise. Accordingly, we suggest that the following language: "The City Council may grant by resolution a telecommunications franchise to any person providing competitive telecommunications services who has submitted an application, meets the requirements of this Chapter, and agrees to sign the City's standard franchise agreement without modifica- tion. The franchise shall not be effective until the applicant signs the City's standard Telecommunications Franchise Agreement. The City Council shall approve the form of the standard Telecommunications Franchise Agree- ment by resolution. " be stricken and the following language substituted: "The City Council may grant by resolution a telecommunications or com- munications franchise to any person providing competitive telecommuni- cations or communications services who has submitted an application, meets the requirements of this Chapter, and enters into a franchise agreement with the City. The franchise shall not be effective until the ap- plicant signs the franchise agreement. The City Counal shall approve the franchise agreement by resolution. To the extent that there is a conflict between the Tigard Telecommunications Ordinance, as amended from time to time, and the franchise agreement, the provisions of the franchise agreement shall prevail. 5,iY,3ao j. L5.14.202 A 1. Not all types of installations may require an approval by an engineer. Ac- cordingly, we suggest adding to the beginning of the subsection: "If ap- propriate, " City of Tigard Page 3 December 13, 2000 5.14.210 In the "form acceptable to the City" it may or may not be necessary to .S. K 3%0 have scale drawings. Accordingly, strike "drawn to scale. " If necessary, the requirement for scale drawings can be included in the definition of the "form" along with such items as drawing size, method of preparation, number of copies, signatures, and similar administrative details. 5.14.220 Metricom believes that each party should be responsible nor its own ac- 5.14. ;t (00 tions, accordingly, please insert "negligent, "before the word "willful." S.I y.,A-70 5.14.240 Metricom believes this section is in direct conflict with section 5.14.180 Iy.'400 and it should be stricken since an ambiguity is created. The exact amount (or the criteria to necessary to calculate the amount) of the bond should be a matter of negotiation and included in the franchise agreement. Add new sections: 5.14.500 Exemption of De Minimis Facilities. Notwithstanding any provision of this ordinance to the contrary, the requirements of this ordinance shall not be applicable to a telecommunication or communication facility where the use of the public right-of-way is de minimis (i.e., uses only a short distance of street or occupies only a small isolated area of a specific street, or other- wise has a insignificant impact on the public right-of-way). The term "Small Facility(ies)", as used in this ordinance, shall mean a wireless telecommunication or r^mmunication facility it --hich no panel antennas are longer than two ft:--t in length or one foot in ":idth, no multi- dimensional whip antennas are longer than four feet in length, and no ap- purte-nant equipment boxes total more than two feet in width or eighteen inches in depth or two feet in length, exclusive of any required electric meter box or mounting bracket. The following shall be deemed de minimis facilities and exempt from this ordinance: Small Facilities located in the public right-of-way pursuant to a franchise or other written agreement or permit, and which will not require the installation of a new or re-established utility pole or monopole struc- ture. Notwithstanding any provision of the Tigard Municipal Code to the con- trary, Small Facilities may be located in any zoning district, overlay zone, or area designated for a specified use. Such Small Facilities shall be ex- empt from use permits or other zoning approvals which might otherwise City of Tigard Page 4 December 13, 2000 by imposed by the zoning ordinances, provided, however, that an applica- tion fee for Small Facilities of $250 shall be paid by the applicant, and all Small Facilities in a phase or series shall be considered under a single ap- plication, with a single $250 application fee. Our representative, Mr. Ross Baker will address these points at your meeting. Thank you in ad- vance Sincerely, AUa.yv P. IDCvwwV y Allan P. Donnelly Lead Counsel, Western Region Mail Station 5294 adonnelly@metricom.com Direct Voice: (408) 282-3114 FAX: (408) 282-3037 Mobile: (408) 887-6327 December 13, 2000 Mayor Jim Griffith & Tigard City Council c/o Craig Prosser Finance Director 13125 S.W. Hall Blvd. Tigard, OR 97223 RE: Proposed Tigard Telecommunications Franchise Ordinance Dear Mayor Griffith and Councilmembers: This letter is submitted on behalf of Metricom, Inc. and augments the letter being submitted by Metricom's Regional Attorney, Allan Donnelly. Metricom is planning to deploy its Ricochet high speed data network in Tigard and the Portland metropolitan area in early 2001. By mid-year, Metricom plans to begin offering the Ricochet wireless communications service to the citizens of Tigard and the Portland metropolitan area. Metricom submitted franchise application materials to the city in August of this year. Early in the coming year, we hope to obtain a franchise enabling us to place our network's radios on streetlights in Tigard's right-of-way. The discussion below is meant to provide you with further information in connection with our interest in the telecommunications franchise ordinance and in providing our unique service to Tigard. Metricom is a publicly held corporation that is in the process of obtaining franchise, right-of-way, and other necessary agreements throughout the Portland metropolitan area in order to build the Ricochet wireless data network. Ricochet enables subscribers using laptops, other computers, or Personal Digital Assistants to have remote access, without using a telephone line, to other computers, on-line services, the Internet, LAIN applications, telephone modems and peer devices. The network operates at high speed, is low cost and allows wide area access. It is high speed (128 kbps), low cost (at a flat rate) access, including Internet access. Ricochet is a wireless data network that is different from other wireless communications such as cell phones, pagers, or cable TV. In fact, Ricochet requires no cabling or trenching. The network relies on small, shoebox-sized microcell radios (also known as"poletop" radios) whose typical size is 12x7x4 inches. The radios are attached to existing streetlights and utility poles in the city right-of- way. Ricochet customers' wireless modems communicate to these microcell radios in order to Page 2 transfer data from a customer's laptop, desk computer or handheld device. The system provides various benefits to citizens and is revenue neutral or revenue generating for the communities in which it is deployed. For several years, Metricom has offered and operated Ricochet in the Seattle, San Francisco Bay, and Washington D.C. metropolitan areas and several national airports. Metricom recently has added 9 metropolitan areas, with more than 30 metropolitan areas to be added by the end of 2001. Metricom radios currently are located on streetlights and utility poles in more than 1300 local jurisdictions across the United States. Metricom has executed agreements with each of those communities. Our unique system design mitigates planning issues and promotes public and private sector cooperation in providing desired services to the city. Tigard has the unique opportunity to provide additional high technology infrastructure at no cost to taxpayers and without the adverse impacts often associated with similar. projects. I look forward to speaking with you at the upcoming hearing concerning the proposed ordinance. Metricom and I look forward to the adoption of the ordinance, completing a franchise agreement with the city, deploying our radios in the city, and offering the Ricochet wireless data network to the people and businesses of Tigard. Very truly yours, Ross C. Baker Metricom Government Relations Representative Office telephone: 206-343-0250 Email: rosscbaker@harrisandsmith.com Please note that my address is: c/o Harris & Smith Public Affairs 600 Stewart St., Suite 1116 Seattle, WA 98101 I ONCE; December 15, 2000 Allan P. Donnelly Lead Counsel, Western Region Mail Station 5294 Metricom Dear Mr. Donnelly, Thank you for your comments on the City of Tigard's proposed Master Telecommunications Ordinance. We have also received a letter from Ross C. Baker of Laird/Harris Public Affairs giving us more information about Metricom/Ricochet. We appreciate the time and effort both of you have taken to help improve our ordinance. I am forwarding both of these communications to our Council today so that they have time to review them before the Council session on Tuesday the 19tH I wanted to share with you the staff response to your comments so that you will know our position prior to the hearing. I have shared all of the comments we received with the City Attorney. We have jointly reviewed the comments, discussed them, and have prepared a list of amendments to the ordinance to address some of the comments. 5.14.020 Definitions - You have suggested several different definitions be added to the ordinance. We will be submitting an amendment to add a definition of "telecommunications facility". We feel that the other terms you identified are clear due to the existing definitions and the context in which they are used. 5.14.060 Franchise Fee - You have indicated a philosophical disagreement with minimum franchise fees. We adopted a minimum franchise fee because much of the work that they City must do to protect and manage its rights of way occurs in the early period of a franchise. Generally, this is a period during which companies generate little or no gross revenues. The minimum fee provides compensation during this period. Once gross revenues reach sufficient levels, the 5% of gross revenues then kicks in. 5.14.080 Grant of Franchise - You have suggested alternative language for this. section, which gives precedence over the City Code to a franchise agreement to be adopted by resolution. This approach would be completely counter to what we are trying to accomplish with this ordinance. We want to adopt minimum standards to avoid case-by-case development of franchise terms and conditions, which could cause us to inadvertantly violate the "competitively neutral" requirements of the Telecommunications Act of 1996. We also recognize, however, that uniform minimurn standards may not be appropriate in every case. We have, therefore, included a provision in the proposed ordinance that allows Council to adopt a franchise agreement by ordinance with provisions other than what are included in this code section. Under our charter, an ordinance receives a higher level of scrutiny than a resolution and carries greater weight. Adopting an agreement by ordinance (rather than resolution) therefore throws up a flag to staff and council to be very careful about any exceptions to this Master Ordinance. 5.14.202 A 1 Permit Applications (correct reference is to B 1) - You make a valid point. We are submitting an amendment to require verification of the plans by the applicant. The amendment also makes clear, however, that if necessary, the City Engineer may require verification by a registered professional engineer. 5.14.210 As Built Drawings - We have accepted your suggestion to remove the words "drawn to scale" from this section. We recognize, as you have pointed out, that the words, "in a form acceptable to the City" gives the City Engineer to authority to require plans drawn to scale when appropriate. 5.14.220 Damage to Grantee's Facilities - You have suggested adding the word "negligent" before the word "willful". We agree that each party should be accountable for its own actions. We also believe that existing law addresses negligent acts. We do not feel that it is necessary to make the change you have suggested. 5.14.240 Performance and Completion Bond - You feel that this section conflicts with section 5.14.180 and should be daieted. In point of fact, the two sections refer to two different bonds. Subsection 240 refers to a bond to be posted during the period of construction to ensure that all construction and installations are completed according to City standards. Upon satisfactory completion of construction or installation, the bond will be released. Subsection 180 is a performance bond for the life of the franchise. The bond could be drawn upon to ensure payment of any costs incurred by the City to correct any damage to the rights of way or necessary moving of facilities if the franchisee fails to pay these costs. It could also be used to remove facilities from the rights of way in the case of abandonment by the franchisee. It will be sized according to the anticipated cost of removing the facilities, should they be abandoned. New section 5.14.500 Exemption of De Minimis Facilities - You have suggested a broad exemption for facilities with minimal impact on the rights of way. We understand your concern, but for reasons discussed in our response to section 5.14.080, we do not feel it is appropriate to establish broad exemptions at this time. The proposed ordinance allows exemptions as appropriate, but it requires a procedure to ensure a high level of review of those exemptions. After circulating the draft ordinance for review, but prior to filing the ordinance with the Council we made some additional changes to the proposed ordinance. These changes included filling in blanks left in the ordinance (i.e. the per linear foot charge), selecting an option when alternative language was included (i.e. payment schedule), and some other points. The largest change we made was to re-order sections to make the document flow better and to enhance readability. I will attach a copy of the revised NEW Ell ffiw~j ordinance along with the list of amendments that we will take to the hearing on Tuesday night to the e-mail I will use to transmit this letter to you. Once again, thank you for your comments. We appreciate your time and your interest. Please let me know if I can provide any additional information. Sincerely, Craig Prosser Finance director Attachment D Comments from Portland General Distribution, d.b.a. Portland General Broadband Letter from Karen Lee, Portland General Electric, dated December 13, 2000 Letter from Craig Prosser to Karen Lee, dated December 15, 2000 Sent by: 00000 0000; 12/13/00 18:42; Jet,%X //749;Page 1/4 post-W Fax Note 7671 Date 174 l 3 P, ► To`rAw RG5 From Q V P®r@lansl General c4./Depl. i `o. p6 a broadband Plana N Sa-3.~! 39- Sf / 7 "N TD2, X16 N 7 t; 'Y Fax Y s0 3 _ Fax N Memorandum December 13, 2000 Craig Prosser City of Tigard Finance Director 13125 SW flail Blvd. Tigard, Oregon 97223 Dear Craig, Thank you for the ppportunity to comment on the City of Tigard's proposed Telecommunications Master Ordinance- I have submitted these comments on behalf of Portland General Distribution Company, dba Portland General Broadband which currently holds a telecommunications franchise agreement with the City. I could not determine whether there will be a chance to modify your draft, but 1 hope after reviewing the attached comments there is clarification on some sections and possibly modifications on others. I will be happy to email this information if it's more convenient. Sincerely, dx-lo9 Kare Lee Portland General Electric Government Affairs Department 121 SW Salmon Street Portland, OR 97204 Sent by: 00000 0000; 12113/00 16:43; Jetf4x 4749;Page 2/4• Comments on [Draft Telecommunications Master Ordinance-Tigard Submitted by: Portland General Distribution, dba Portland General Broadband Date: December 13, 2000 Contact: Karen Lee, Government Affairs, Portland General Electric 121 SW Salmon St., 1 WTC03 Portland, Oregon 97204 Phone: 503-464-7894 The following are Portland General Broadband's (PGB) comments on specific sections of the proposed master ordinance. PGR's failure to comment on other sections does not indicate agreement or disagreement with the remainder of the proposed ordinance. It simply indicates that PGB chose to concentrate its efforts on the sections which have the greatest consequences for PGB and its customers and will be recurring issues in the City's future negotiations with other telecommunications providers. S. 1q. 0.10 C40 5.13.020 (c.) Please clarify the City's authority to govern the public utility easement as part of the "Rights of way" definition. It is our opinion that in new construction, the utility easement is on private property. The utility easement may or may not be deeded or granted to the City after development is completed. PGB can find no legal justification for City governance on private property. Therefore, PGB requests that all references to public utility easements he removed from the definition on "Rights of way." S. l y. 080 (00) 5.14.060 (h)(3) Typo: For competitive access providers and all other franchisees who are not... 5 iy.080 (6)(3)C00 5.14.060 (b)(3)(e) Assuming that you are being flexible in time of payment and it will be negotiated in the franchise resolution. However, PGB believes twice yearly or quarterly payments are the most desirable from an accounting perspective. .C 1q. loo (1p) S. 14.070 (b) Please remove the last sentence. PGB understand the need to provide drawings of its own facilities but does not have the ability to guarantee that other companies' or utilities' facilities are on PGB's drawings. In new construction the developer who holds the site permit would have that information. In retrofits, that information should be on record with the City and would not be readily available to the telecommunications companies. s: I'l.1ao (F) 5.14.070 (f) Add: A nonnrnprietarv plan showing... 5.14.085 (4) Sent by: 00000 0000; 12/13/00 16:43; ,JetfjX #749;Page 3/4 Please remove this sentence or specify what "public interest" means ...such as stating that the "risk to public health and safety" would be reason to deny the application. It is my understanding that the Telecommunications Act of 1996 specifically invalidates any local requirements that "prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." The broad use of "Public interest" has been used by cities before and it is of concern that your current wording in this section is not specific enough. S.W.,Xlo 5.14.158 Please remove the last sentence. Although the city may have a requirement that "all persons leasing capacity or bandwidth..." should obtain a franchise, the responsibility to "police" that should reside with the City, not the person who owns the facilities. In addition, I read this sentence to include lessees that don't own facilities in the rights of way such as Internet Service Providers (ISPs) and Digital Subscriber Lines (DSLs) which currently do not need to obtain a franchise. So, I don't understand how you could require a franchise from these types of lessees. Since you already require the franchisee to notify you with the naive and address of any lessee, the last sentence seems moot. S. ly.,Zyo 5.14.160 Add: End of 1 st paragraph "...and shall provide for a defense of the City against such claims to the extent of franchisee's written indemnity obligations." Add: End of 2nd sentence in 2'd paragraph "...resulting from the franchisee's activities to the extent of franchisee's written indemnity obligations-" 5-H-320 COW 5.14.202 (B)(1) Please remove this section. Currently in non-structural installations telecomms and utilities are NOT required to comply with a "verification of a registered professional engineer" unless the companies are building a structure and are obtaining a building permit. What would necessitate this additional step and additional costs every time drawings are submitted? City engineers will have already reviewed drawings of what is in a trench or underground and a city inspector has to approve it after the installation. S. 14.260 5.14.220 Add: ...willful, intentionally tortious, negligent or malicious acts by the City. P S. 1 I. q00 ca 5.14.240 ~H It is helpfLl that the City provide a bond form. E4 5.14.330 (h) The presumption of abandonment by the City is unreasonable. It is very common that a W telccommunications company would install facilities and not use it for more than 90 days. a It is costly and administratively time consuming on both sides to require a company to defend its plans for facility use in the time period you have stipulated. I suggest language Sent by: 00000 0000; 12/13/00 16:43; ,few #749;Page 4/4• for this section be taken from DOB's telecommunications franchise or the City adopt language similar to Beaverton's telecommunications ordinance #4044. (1 have attached it in a fax.). s oy. yio f~) 5.14.340 (a) Change: ",,,provide the City with a schedule of own pied construction work for that year in or that may affect the rights of way. IBM Sent by: 00000 0000; 12/13/00 16:44; ,Jett #750;Page 1/1 50:3 52B 2571 -r 00000; Pape 11 08/14/00 WED 14:55 FAX 5;3 528 2571 KAYORS Q011 of the franchisee's failure to act upon demand. 4.20.220 Removal of, Unauthorized or Abandoned Faicil ties. A In addition to any other legal remedies available to City for a violation of this Ordinance, the City may declare telecom utility facilities placed or maintained within public right of way other than sander the terms i of a current, valid City franchise or privilege tax to be a public nuisance that the City may abate by any legal means. Telecom service facilities shall be deemed abandoned If not used for the Intended and authorized purpose for one year following expiration of a franchise or following term(nation for default. B. A franchisee who seeks to discontinue use of a facility lying within public right of way shall apply to the City Engineer for a permit for removal by the same process as for an application to construct, reconstruct or install such facilities. In lieu thereof a franchisee may request that the City permit the facility to be abandoned but to remain In plane, In exchange for such permission the franchisee shall agree that all right, title and interest in the facility so abandoned in place shall revert to City. The City Engineer may condition abandonment of a facility to be left .n place on a showing satisfactory to the Engineer that the facility will not thereby present a risk to the public health, safety or welfare. 4.20.230 Service to City. Upon City's request a franchisee shall offer City telecom facilities or services, installation, or maintenance at its most favorable rate offered at the time of the request to a similar user within Oregon for a similar type and volume of goods or services, subject to any of grantee's tariffs or price lists on file with the OPUC. 4.20-240 Use of Other City Property. The terms by which a franchisee may occupy city property other than public right of way shall be determined by separate and express provision in the franchise. No franchise shall be deemed to grant permission to occupy any property other than public right of way absent such express provision. 4.20.250 Franchise Fees. In partial consideration for a grant of ' franchise and in addition to and not In lieu of the fees payable to City for an application for a franchise and for any permits required to work in the right of way, the grantee shall for the duration of the terra of the franchise pay to City annually the greater of the following amounts: { A minimum franchise fee of $ per annum, due and payable no later than 30 days after the end of the calendar year, or, a sum calculated as follows, due and payable quarterly no later than 30 days after the end of each calendar quarter A. As to teiecorn providers offering local exchange access services, other then those paying a privilege tax under ORS 221.515: (1) Up to seven percent (7%) of local access revenue for the Ordinance No. ` $ Yid Page 10 of 114 . I December 15, 2000 Karen Lee Portland General Electric Government Affairs Department 121 SW Salmon St. Portland, Oregon 97204 Dear Karen, Thank you for your comments on the City of Tigard's proposed Master Telecommunications Ordinance. We appreciate the time and effort you have taken to help improve our ordinance. I am forwarding your comments to our Council today so that they have time to review them before the Council session on Tuesday the 19tH I wanted to share with you the staff response to your comments so that you will know our position prior to the hearing. I have shared all of the comments we received with the City Attorney. We have jointly reviewed the comments, discussed them, and have prepared a list of amendments to the ordinance to address some of the comments. 5.14.020 (c) Definitions - You have requested that we remove public utility easements" from the definition of rights of way. The use of public utility easements is a major concern of jurisdictions granting franchises. Public utility easements frequently are turned over to cities to become public rights of way upon completion of development. Franchisees must also frequently use public rights of way to get to public utility easements. Cities have a legitimate concern about what goes into these easements prior to the time they become dedicated rights of way. We feel it is appropriate to include these easements in the definition of "Right of Way." 5.14.060(b)(3) Franchise Fee - The typo has been corrected. 5.14.060(b)(3) Franchise Fee - The ordinance as filed with Council requires semi- annual payments. 5.14.070(b) Application - You have requested removal of language requiring submission of information on portions of the applicant's system owned by others. I think you may have misread this section. The information to be submitted related to the applicant's proposed system, including portions of that system that may be owned by others or which may already exist in the rights of way. It does not require submittal of information about other equipment (not a part of the proposed system) that may already exist in the rights of way. If the applicant is proposing to use a portion of someone else's equipment, we are assuming that the applicant knows (or can obtain information on) where that equipment is located and where it goes. We need to see the complete proposed system with the application. 5.14.070(f) Application - We understand your concern about the potentially proprietary nature of a business plan. We will be submitting an amendment to the ordinance making clear that the applicant can request confidential treatment of the business plan as proprietary information. 5.14.085(4) Denials - You have requested removal of "public interest" as a reason for denying an application, as being too general in nature, and therefore potentially in conflict with the Telecommunications Act of 1996. We recognize that this is a general term and we are mindful of the need to comply with the Telecommunications Act. Nevertheless, we feel it is appropriate to maintain flexibility to deny applications as appropriate for reasons that may not be clearly identified or articulated today. 5.14.158 leased Capacity - You are concerned that "all persons leasing capacity or bandwidth" is overly broad. You are also concerned that this section creates a responsibility for the owner of a leased line to police the City's franchises. This section creates no presumption that the owner of a line will have to "police" the City's franchises. It will function just as the City's existing franchise with PGD functions: the franchisee will be required to supply the name and address of its lessees. The City will be responsible for any follow-up. As to your concern that the wording "all persons leasing capacity or bandwidth" is overly broad, you know from our conversation yesterday, that this is tough. We have no intention of franchising ISPs or DSLs, but we do feel that telecommunications providers leasing someone else's lines do require a franchise. We have not been able to come up with more precise wording, and so have decided to retain the current language and to address situations as they arise. 5.14.160 Insurance - We.feel that the existing language and law is adequate to address your concerns. 5.14.202 B 1 Permit Applications - You make a valid point. We are submitting an amendmant to require verification of the plans by the applicant. The amendment also makes clear, however, that if necessary, the City Engineer may require verification by a registered professional engineer. 5.14.220 Damage to Grantee's Facilities - You have suggested adding the word "negligent" after the word "tortious". We believe that existing law addresses negligent acts. We do not feel that it is necessary to make the change you have suggested. i 5.14.240 Performance and Completion Bond We will develop a bond form after approval of the ordinance. 3 5.14.330(b) Removal of Abandoned Facilities - You have pointed out that non-use of facilities for periods of 90 days is not uncommon. We will submit an amendment to change the standard to one year. 5.14.340(a) Coordination of Construction - You have suggested substituting the word "known" for "planned". We agree. After circulating the draft ordinance for review, but prior to filing the ordinance with the Council we made some additional changes to the proposed ordinance. These changes included filling in blanks left in the ordinance (i.e. the per linear foot charge), selecting an option when alternative language was included (i.e. payment schedule), and some other points. The largest change we made was to re-order sections to make the document flow better and to enhance readability. I will attach a copy of the revised ordinance along with the list of amendments that we will take to the hearing on Tuesday night to the e-mail I will use to transmit this letter to you. Once again, thank you for your comments. We appreciate your time and your interest. Please let me know if I can provide any additional information. Sincerely, Craig Prosser Finance Director Attachment E Crosswalk Original Master Telecom Section Numbers To Current Master Telecom Ordinance Section Numbers Tigard Telecommunications Ordinance Crosswalk of Section Numbers from Original Draft to Current Draft Original Draft Ordinance Current Ordinance Section Number/Title/Order Section number 5.14.010 Short Title 5.14.010 5.14.020 Definitions 5.14.020 5.14.030 Purpose 5.14.030 5.14.040 Franchise Required 5.14.040 5.14.060 Franchise Fee 5.14.080 5.14.070 Application 5.14.100 5.14.080 Grant of Franchise 5.14.050 5.14.085 Denials 5.14.110 5.14.090 Privilege Granted 5.14.060 5.14.100 Term 5.14.070 5.14.120 Revocation or Termination of a Franchise 5.14.500 5.14.130 Notice and Cure 5.14.520 5.14.140 Standards for Termination 5.14.510 5.14.150 Renewal 5.14.120 5.14.152 Assignment or Transfer of Franchise 5.14.200 5.14.154 Duty to Provide Information, Audit Responsibility 5.14.220 5.14.156 Service to the City 5.14.230 5.14.158 Leased Capacity 5.14.210 5.14.160 Insurance 5.14.240 5.14.170 Indemnification 5.14.250 5.14.180 Performance Surety 5.14.270 5.14.190 Facilities 5.14.310 5.14.200 Construction Permits 5.14.300 5.14.202 Permit Applications 5.14.320 5.14.203 Review by City Engineer 5.14.330 5.14.204 Permit Issuance 5.14.340 5.14.206 Notice of Construction 5.14.360 5.14.208 Compliance with Permit 5.14.350 5.14.209 Construction in Right of Way 5.14. 370 5.14.210 As Built Drawings 5.14.380 5.14.220 Damage to Grantee's Facilities 5.14.260 5.14.230 Restoration of Public Rights of Way and City Property 5.14.390 5.14.240 Performance and Completion Bond 5.14.400 5.14.300 Location of Facilities 5.14.280 5.14.310 Interference with Rights of Way 5.14.290 5.14.320 Relocation or Removal of Facilities 5.14.420 5.14.325 Plan for Discontinuance or Removal 5.14.430 5.14.330 Removal of Abandoned Facilities 5.14.440 5.14.335 Removal by City 5.14.450 5.14.340 Coordination of Construction Facilities 5.14.410 5.14.400 Severability and Preemption 5.14.600 5.14.410 Penalties 5.14.530 5.14.420 Other Remedies 5.14.540 .5.14.430 Application to Existing Agreements 5.14.610 Tigard Telecommunications Ordinance Crosswalk of Section Numbers from Current Draft to Original Draft Current Draft Ordinance Original Ordinance Section Number/Title/Order _ Section Number 5.14.010 Short Title 5.14.010 5.14.020 Definitions 5.14.020 5.14.030 Purpose 5.14.030 5.14.040 Franchise Required 5.14.040 5.14.050 Grant of Franchise 5.14.080 5.14.060 Privilege Granted 5.14.090 5.14.070 Term 5.14.100 5.14.080 Franchise Fee 5.14.060 5.14.100 Application 5.14.070 5.14.110 Denials 5.14.085 5.14.120 Renewal 5.14.150 5.14.200 Assignment or Transfer of Franchise 5.14.152 5.14.210 Leased Capacity 5.14.158 5.14.220 Duty to Provide. Information, Audit Responsibility 5.14.154 5.14.230 Service to the City 5.14.156 5.14.240 Insurance 5.14.160 5.14.250 Indemnification 5.14.170 5.14.260 Damage to Grantee's Facilities 5.14.220 5.14.270 Performance Surety 5.14.180 5.14.280 Location of Facilities 5.14.300 5.14.290 Interference with Rights of Way 5.14.310 5.14.300 Construction Permits 5.14.200 5.14.310 Facilities 5.14.190 5.14.320 Permit Applications 5.14.202 5.14.330 Review by City Engineer 5.14.203 5.14.340 Permit Issuance 5.14.204 5.14.350 Compliance with Permit 5.14.208 5.14.360 Notice of Construction 5.14.206 5.14.370 Construction in Right of Way 5.14.209 5.14.380 As Built Drawings 5.14.210 5.14.390 Restoration of Public Rights of Way and City Property 5.14.230 5.14.400 Performance and Completion Bond 5.14.240 5.14.410 Coordination of Construction Facilities 5.14.340 5.14.420 Relocation or Removal of Facilities 5.14.320 5.14.430 Plan for Discontinuance or Removal 5.14.325 5.14.440 Removal of Abandoned Facilities 5.14.330 5.14.450 Removal by City 5.14.335 5.14.500 Revocation or Termination of a Franchise 5.14.120 5.14.510 Standards for Termination 5.14.140 5.14.520 Notice and Cure 5.14.130 5.14.530 Penalties 5.14.410 5.14.540 Other Remedies 5.14.420 5.14.600 Severability and Preemption 5.14.400 5.14.610 Application to Existing Agreements 5.14.430 ~U AGENDA ITEM # FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Revision of Purchasing Rules AR 60.005 Sumlus Personal Property and word changing throughout the City's Purchasing Rules document from "City Administrator to "City Manager". PREPARED BY: Terry Muralt DEPT HEAD OK_ CITY MGR OK ISSUE BEFORE THE COUNCIL Shall the City Council adopt revision of Purchasing Rules AR 60.005 Surplus Personal Property. Shall the City Council adopt changing of words "City Administrator" to "City Manager" throughout the whole Purchasing Rules document. STAFF RECOMMENDATION Staff recommends adoption of the revision adding a dollar limit that would allow disposal of broken and non- usable items below a $250 limit without prior approval from City Manager. Staff recommends adoption of the word change in the Purchasing Rules document from "City Administrator" to "City Manager". This is the current title for that position. INFORMATION SUMMARY Currently all surplus disposal requires the City Manager's approval. There are instances when a small item i.e., tray organizer, cassette recorder, broken leg on small work table, broken chair etc., will come into surplus that is broken and non-usable. Currently the item is stored until the approval process through the City Manager has taken place. The addition of a "dollar limit" would allow the item to be immediately disposed of instead of having to store a broken non-usable item until the approval process had been completed. This would save storage space, employee time and money. The wording/title "City Administrator" is an old title and has been updated and changed to "City Manager". OTHER ALTERNATIVES CONSIDERED Leave rule 60.006 as is and have the City Manager approve disposal of all broken and non-usable surplus regardless of dollar value. Leave title as "City Administrator". .M VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A FISCAL NOTES No fiscal impact, i:\citywidc\sum.dot AGENDA ITEM FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Taarde Street Improvements - Phase 1 Construction Update PREPARED BY: A.P Duenas DEPT HEAD OKoy CITY MGR OK kAA-' ISSUE BEFORE THE COUNCIL Informational briefing on the status of the construction project to extend Gaarde Street from Quail Hollow-West to Walnut Street. No Council action required. STAFF RECOMMENDATION Informational briefing only. No Council action required. INFORMATION SUMMARY The extension of Gaarde Street (Gaarde Street Improvements-Phase 1) from Quail Hollow-West to Walnut Street began in early August 2000 and is now nearing completion. The storm drainage system and water line installations are both basically completed. The underground utility conduits have been installed, and the utility companies are in the process of installing the lines within these conduits. The first lift of pavement has been installed on both Gaarde Street and on the Walnut Street approaches to the intersection. The intersection is expected to open to traffic as a 3- way stop in mid-December 2000. The traffic signal is 50% complete with the underground work done and the poles, mast arms, signal heads, and controller remaining to be installed. The traffic signal system is expected to be completed by the end of calendar year 2000. However, the signal will not be activated until the utility work is completed, the final lift of pavement has been placed, the existing utility poles have been removed, and the striping of the project is completed. The completion of the entire project is expected by the end of March 2001, assuming the final lift of pavement can be placed during the next two months. Completion of the project will provide a continuous east-west connection through Tigard to Beaverton from Highway 99W to Walnut Street, Barrows Road. and eventually Scholls Ferry Road. The segment of Gaarde Street from Highway 99W to 121st Avenue (Gaarde Street Improvements-Phase 2) is now in the design stage and will be programmed for right-of-way acquisition and construction during the next two fiscal years. Completion of this leg of Gaarde will provide an improved connector from Highway 99W to Walnut Street. The MSTIP 3 Project to improve Walnut Street from 121st Avenue to 135th Avenue, when completed, will provide the final upgraded link along this route. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY This project meets the Tigard Beyond Tomorrow T-ansportation and Traffic Goals of "Improve Traffic Safety" and "Improve Traffic Flow". ATTACHMENT LIST None FISCAL NOTES The street and storm drainage improvements are funded from Traffic Impact Fee funds in the amount of $1,600,000 under the FY 2000-01 Capital Improvement Program. The water system improvements are funded from the Water System Program in the amount of $305,520 in the FY 2000-01 Capital Improvement Program. I:\Citywide\Sum\Gaarde Street Phase I Construction Update Gaarde Street Improvements - Phase 1 Construction Update December 19, 2000 The Project ® Extends Gaarde Street from Quail Hollow-West to Walnut ® Began in early August 2000 ® Funding-Traffic Impact Fee funds with partial reimbursement from MSTIP 3 ® When completed will provide east-west connector from Highway 99W to Barrows and Scholls Ferry Roads 2 0 1 MEN Project Location Gaalde Street Extension Intersection at Walnut and GaaWe 3 Project Layout I 4 2 Current Status ® Project is nearing completion ® Underground utility conduits have been installed ®1st lift of pavement is installed * Intersection opened as a 3-way stop on December 14, 2000 ® Project completion expected by end of March 2001 5 Project Status i 7 6 3 LO project Status _ t 1111 C: project Status 'i - a .1 i S ~a d maser, Remaining Work ® Signal system completion in January 2001 ® Underground utility lines to be installed by mid-January 2001 ® Removal of existing utility poles ® 2nd lift of pavement ® Permanent striping ® Signal system activation by end of March 2001 9 a i f 5 AGENDA ITEM FOR AGENDA OF December 19, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Citywide Sewer Extensions .F23 Y--- via- PREPARED BY: G. Bent' DEPT HEAD OK 6x. P . CITY MGR OK ISSUE BEFORE THE COUNCIL Council discussion of options available to construct sewers in unserved areas. STAFF RECOMMENDATION Council is requested to provide initial direction to staff, especially on the option involving participation in a Unified Sewerage Agency Local Improvement District so that more detailed proposals may be prepared for Council consideration at its January goal setting session. INFORMATION SUMMARY At its November 14, 2000 meeting, Council received a staff report on the results of a survey of owners within the recently annexed Walnut Island area to determine the amount of interest in participating in the City's Neighborhood Sewer Extension Program. This program has been used since it was established in 1996 to provide sewer to developed areas requesting service. Under the program the City of Tigard installs public sewers to properties within a project area. At the time the property owner connects to the sewer, the owner would reimburse the City for a fair share of the total project cost. There is no requirement to connect to the sewer or pay any fee until connection is made. In addition, each owner is required to pay a connection fee of $2,335 ai:. is responsible for disconnecting the existing septic system according to County rules and any plumbing modifications necessary to connect to the public line. To be considered for the program, a neighborhood needs to submit evidence of resident support of a project. To encourage early sewer hookups, City Council established the Neighborhood Sewer Reimbursement District Incentive Program on October 13, 1998. This program limited the amount any owner was required to pay for a share of the public sewer to $8,000 up to a maximum of $15,000 if the connection was completed within one year from when it was first available. The survey results were inconclusive in that many owners did not respond. The responses received indicated insufficient interest in the program for staff to recommend a project. Council therefore directed staff to prepare a report describing other incentives that could be offered to owners to increase interest in the program. The attached table summarizes the available options. Options One and Two, Reimbursement Districts, are currently being used by the City. The chief difference between the two options is that the City initiated Reimbursement Districts do not require a request from the owners within the project area. City initiated Reimbursement Districts are used to install sewers as part of street improvement. These districts could also be used to install sewers on a schedule set by the City rather than a scheduled determined by requests for service from owners. Option Three involves the creation of Local Improvement Districts to install sewers. These have not been used recently because of their high administrative cost (particularly for small projects) and the risk that the district will not be formed because a sufficient number owners remonstrate against the formation of the proposed district. If remonstrations pr:-,,-,it formation of the district, the City is left without a means for recovering the cost of preliminary engineering anr. ministration of the proposed district. Option Four involves participation in the proposed Unified Sewerage Agency Local Improvement District program. This program may eliminate the risk of remonstrations preventing the formation of proposed districts but still offer installment payments. The features of this option, including whether or not it would include the City, are currently being developed. Staff could investigate the feasibility of including the City in this program if Council indicates any interest in participating. Generally, there are three types of incentives available. Installment payments could be provided by a City Local Improvement District through the sale of a bond or through a proposed Unified Sewerage Agency administered Local Improvement District (Options Three and Four). Allowing installment payments would provide an incentive for owners to agree to participate in a sewer extension program. The City could pay a portion of the connection fee, reimbursement fee or LID payment if an owner promptly connects to the sewer. The City could defer payment of any fee until a connection is requested. This provides an incentive for owners to agree to participate in a sewer extension program but does not encourage prompt connections to the sewer. The following are examples of combining the available incentives so that there is aii incentive for owners to agree to participate in a sewer extension program and to promptly connect to the sewer once it is available. Either the Neighborhood Sewer Reimbursement District Incentive Program that currently _pplies to Options One and Two, or the installment payment incentives of Options Three and Four, could be combined with a reduced (perhaps by one-half) connection fee for connections completed within one year from when the sewer was first available. + The first installment payment of Options Three and Four could be eliminated for owners connecting + within one year from when the sewer was first available. + + OTHER ALTERNATIVES CONSIDERED None 7VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Not applicable ATTACHMENT LIST Table: "Sewer Service Options" FISCAL NOTES Sewer extensions are funded through the Neighborhood Sewer Extension Program of the Capital Improvement Program. I:k:Xyr,tle~sum~:,ywMa sewer mdernbn Oec.,9.COe I I 1 I I i SEWER SERVICE OPTIONS OPTION ONE: Continue to offer current Neighborhood Sewer Extension Program FEATURES ADVANTAGES DISADVANTAGES ISSUES • Sewers are installed as requested by owners. • Least cost • No installment payments provided • Lack of interest from owners • Projects prioritized by amount of interest and • Well suited for small projects • City must carry cost for owners who do not willingness to connect within during first year • Provides a means for owners to request service connect Incentive program to encourage owners to connect • Does not provide a plan to provide service to all during first year. areas OPTION TWO: Schedule installation of sewers throughout the City through Reimbursement Districts initiated by the City FEATURES ADVANTAGES DISADVANTAGES ISSUES ® Same as Neighborhood Sewer Extension Program • Least cost (no bond costs involved) • No installment payments provided • How will costs be distributed? (For example, the except that sewers may be installed in areas not • Can be tailored to small or large projects • City must carry cost for owners who do not lower cost areas could be done separately, then the requesting services • Allows the City to systematically plan and install connect remaining areas could be combined so that each sewers Citywide • High initial costs for the City owner paid the same amount.) • Owners may not be motivated to connect OPTION THREE: City Local Improvement District FEATURES ADVANTAGES DISADVANTAGES ISSUES • • Sale of bond requires immediate repayment and a ® Installment payments ® Requires consent of owners What area should be in the district? lien is placed on the owner's property • Provides a means for planning to serve all areas • High administrative costs, particularly for small areas OPTION FOUR: Proposed Unified Sewerage Agency Local Improvement District FEATURES ADVANTAGES DISADVANTAGES ISSUES • Not yet fully determined. USA would provide • Consent of owners not required. • Less City control • USA willingness to include the City is unknown. financing, no bond. USA would provide • Installment payments • How would projects be scheduled? engineering and contract administration. Lien on • Would they compete for priority with other USA property may not be required. projects? • What incentives? Would owners be required to begin payments even if not connected? • Would it be used throughout the City or only where requested b owners? t~a'a~e~,~a x aa~mrroa~n aoc Citywide Sanitary Sewer Extensions December 19, 2000 { Background )City staff surveyed Walnut Island area to determine interest )M►Survey results were inconclusive-many residents did not respond ))M►At November 14, 2000 Council meeting, Council directed staff to examine options for increasing interest in the program )=40.Coun.cil directed that the options be applicable Citywide 2 i Existing Policy 1=00-Sewer service extended through use of reimbursement districts 1-O-Districts can be initiated by City or residents 1%*City looks for at least half of residents to approve in resident-initiated districts )M►Each lot owner pays a fair share of the cost of the extension within each district 1= Current incentive program-City pays for amount above $8,000 up to $15,000 if connection is within the first year 3 What Are the Costs Involved? )M•Fair share of the cost of extension (typically $6,000 to $12,000) )Connection fee of. $2,335 -*Cost of reversing plumbing, connecting to the new lateral, and closing septic system (typically $1,500 to $2,500) )M*Total cost for each lot ranges from $10,000 to $17,000 4 2 What Policy Changes Can Be Made? mo-Continue existing policy with additional incentives m*Initiate Citywide sewer extensions with additional incentives m►Partner with other agencies (such as Unified Sewerage Agency) to fund Citywide sewer extensions 5 What Areas Remain Unsewered? '-,,Walnut Island 232 lots 15,500 L.F. mo-Other City areas 451 lots 37,000 L.F. 1=00-Tigard Triangle 79 lots 6,100 L.F. ~►Other areas District #18 25 lots 1,500 L.F. i 1"o-Rose Vista area 19 lots 970 L.F. i a JM►Total! 806 lots 61,070 L.F. i s a 6 3 low nSew~~~~~ .~ema~n ZJ what areas 13,693 the CiW g06 ,~►Total lots in o of the City unsewered: 6a f otal lots entage 'we-red.. unse „~,perc d ~~ea Istan k r _ 1 fir" ,:5:;'~`~;~f=2~,,;, , ,,,`'~a.' t ~ rac L'' nz~ ..nci ~r ~ 4h ty -b--r L~]:}~ t Y t S'11-` , J J~ . Walnut Island Area Proposed Sewer -;jiTir Pro e f o ti ns Al) Reimbursements DraVrq NO 78 l•.~ U it t f`£r ; 1Y-4 . H, =L^7 . r+'''' Il 1 I. f'C~I .f 1`..l Proposea r "a t Reimbursement District i mfr I Jf =c~' 1- ~.~7 _ f ,L~+~ 1 _I-I F.i~A`~;~`r•.'ri 4zI-I-d-~41,n~4+i. :i`-- Other City Areas ,Ji 11 G. 7 1 ~ I I II - - 5 oil milli i axd Triangle -Dy r -~~yw t1't -f 11 111 ' ding Available C©StS aldFua 232 10ts s1 860,000 10*w alnut Island 440,000 45Hots $4' „v►Other city areas 79 lots $730,000 00,Tigard Triangle ,,*Other areas 25 lots $180,000 ."District #19 19 lots 120,000 „w.Rose Vista area 330,000 8061ots $7' i"*Total Cost: to $7 000,000 „.Funding Available: p 6 What Options Are Available? lm►Option 1: Continuation of existing policy with additional incentives imp-Option 2: City initiated reimbursement districts to extend sewer to all areas ,,..Option 3: City Local Improvement Districts )*Option 4: Proposed Unified Sewerage Agency Local Improvement Districts 13 Option I )=►Continue to offer current Neighborhood Sewer Extension Program with additional incentives im►Features "Sewers are installed as requested by owners -o-Projects piioritized by amount of interest i 1a►Incentive program to encourage owners to connect during first year 3 ^+Additional incentives to encourage early a connection 14 7 MMJ Option 1 JM►Continue to offer current Neighborhood Sewer Extension Program with additional incentives lat-Advantages 1X►Least cost m*Well suited for small projects wo-Response is geared to interest expressed -►Disadvantages ,..Does not provide a plan for providing service to all areas 15 Option 2 lm►Schedule installation of sewers throughout the City through reimbursement districts initiated by the City )®►Features 1°►Same as Option 1, except that sewers may be installed in areas not requesting service )®,Allows the City to plan and systematically provide sewer to all unsewered areas )M►Can be established as a 5-7 year program for completion (Adequate funding is available) lb I 8 Option Z 1=10,Schedule installation of sewers throughout the City through reimbursement districts initiated by the City w*Advantages JMOAllows systematic planning and installation of sewers Citywide 1°►Can be tailored to small or large projects w®'Disadvantages )X*High initial costs for the City m*Owners may not be motivated to connect =*'Payment begins only when lots comlect 17 Option 3 "*City Local Improvement District ]M►Features "►Sale of bond requires immediate repayment )B*Lien is placed on the owner's property )m•Requires approval by the property owners in accordance with City ordinance 9 Option 3 i®*City Local Improvement District (LID) i-*Advantages mI.Installment payments begin immediately )=*Provides a means for planning to serve all areas )Disadvantages 1M*Requires consent of owners -*High administrative costs, particularly for small areas la*Initial preliminary engineering and administrative costs are not recoverable if owners remonstrate against formation of the LID 19 Option 4 )M*Proposed Unified Sewerage Agency Local Improvement District )M►Features ,.,Not yet fully determined ,USA would provide financing .*No bond issue envisioned 1®40-Lien on property may not be required zoo 10 low Option 4 1m•Proposed Unified Sewerage Agency Local Improvement District m*►Advantages )W►Consent of owners not required )-,-Installment payments would begin at some point "Lien on property not required )N*Disadvantages 1°►Less City control )-,-Conditions for participation and implementation unknown at this point 21 Incentive Program mo-Should encourage =$,Participation in the program 1-,-Prompt connection 1M*Could be comEned with any of the options 22 ti What Incentives are Possible? in*-Establishment of a Citywide fair share cost cap for non-subdividable lots (say $7,000) )X*Cap could be offered to residents during the first three years 1m►Could be extended from three to ten years upon proof that septic system is in good working condition )Establishment of installment payment program )Payment of a portion of the connection fee 23 What Next? "Council is requested to provide initial direction on what options to pursue )Council direction is especially important on the possible participation in the USA program "*Package of information on preferred options with possible incentives will be prepared for Council goal setting session in January "*Staff is ready to move forward with any options selected for implementation 24 12 What Options Are Available? --o-Option 1: Continuation of existing policy with additional incentives ln*Option 2: City initiated reimbursement districts to extend sewer to all areas )Option 3: City Local Improvement Districts mo-Option 4: Proposed Unified Sewerage Agency Local Improvement Districts 25 13 DRAFT AGENDA ITEM # FOR AGENDA OF 1-09-01 CITY OF TIGARD, OREGON lr, ' T T TI" TT T1 TT ♦ TTT71 F CST T1 !1 / T1 t UV O-11, A%` MINLJt1 11 LLVL J VLV11Ylti[t I ISSUE/AGENDA TITLE Election of Council President PREPARED BY: Cathy Wheatley DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL Elect the Council President for the next two years (2001 and 2001) STAFF RECOMMENDATION Conduct Council President Election at the January 9, 2001, Council meeting by ballot. INFORMATION SUMMARY The Tigard City Charter states: At its first meeting of each odd-numbered year, the council by ballot shall choose a president from its membership. In the mayor's absence from a council meeting, the president shall perform the duties of the office of mayor and preside over it. Whenever the mayor is physically or mentally unable to perform the functions of office, the president shall act as the mayor pro tem. A ballot is attached. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A ATTACHMENT LIST N/A FISCAL NOTES N/A I:=fJXCATHY%000NCIL%SUMMARY SHEET - COUNCIL PRESDIENT.DOC x 7 t 7 %011 N vig- TiVWv%ftIw ®REG0 Election of Tigard City Council President 47anuary 2001 to December 2002 'mote for One: Councilor Craig airksen Councilor Vrian jWoore Councilor cloyce Patton Councilor Ken Scheckla Signature 1AAM ACATWCOUNCIL\COUNCIL PRESIDENT BALLOT.DOC 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772