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Agenda - 11/23/2009 KF,M CW ATHRYN IGLEYAYOR ITY OF OODBURN DP,CW1 ICK UGHOUNCILOR ARD J.MS,CWII EL CHMIDTOUNCILOR ARD ÝÝß PMC,CWIII ×ÌÇÑËÒÝ×ÔÙÛÒÜß ETER CALLUMOUNCILOR ARD JC,CWIV AMES OXOUNCILOR ARD FL,CWV RANK ONERGANOUNCILOR ARD N23,2009–7:00.. OVEMBER PM EM,CWVI RIC ORRISOUNCILOR ARD CHCC–270MS ITYALL OUNCIL HAMBERSONTGOMERY TREET 1. CALL TO ORDER AND FLAG SALUTE 2. ROLL CALL 3. ANNOUNCEMENTS AND APPOINTMENTS Announcements: A. The Library will be closed on Thanksgiving, but open regular hours Friday through Sunday and the Aquatic Center will be closed on Thanksgiving Day, open from 1:00-5:00 PM on Friday, and open regular hours on Saturday and Sunday. B. The Mayor’s Tree Lighting event will take place at 6:00 PM on December 6, at the Downtown Plaza. Please join us for caroling, hot chocolate, and a visit from Santa. Appointments: None 4. PROCLAMATIONS/PRESENTATIONS Proclamations: None Presentations: A. I-5 Interchange and Transit Facility - ODOT 5. COMMITTEE REPORTS None 6. COMMUNICATIONS None. ööØ¿¾®? ·²¬7®°®»¬» ¼·°±²·¾´» °¿®¿ ¿¯«7´´¿ °»®±²¿ ¯«» ²± ¸¿¾´¿² ×²¹´7ô °®»ª·± ¿½«»®¼±ò Ý±³«²3¯«»» ¿´ øëðí÷ çèðóîìèëòöö November 23, 2009 Council AgendaPage i – This allows the public to introduce items 7. BUSINESS FROM THE PUBLIC for Council consideration not already scheduled on the agenda. – Items listed on the consent agenda are considered 8. CONSENT AGENDA routine and may be adopted by one motion. Any item may be removed for discussion at the request of a Council member. A.Woodburn City Council minutes of October 26, 20091 Recommended Action: Approve the minutes. B.Woodburn City Council minutes of November 9, 200912 Recommended Action: Approve the minutes. C. Woodburn City Council executive minutes of November 9, 2009 20 Recommended Action: Approve the minutes. D.Woodburn Park and Recreation Board minutes of November 10, 21 2009 Recommended Action: Approve the minutes. E.Crime Statistics for October 2009 25 Recommended Action: Accept the report. 9. TABLED BUSINESS None. 10. PUBLIC HEARINGS None – Members of the public wishing to comment on items of 11. GENERAL BUSINESS general business must complete and submit a speaker’s card to the City Recorder prior to commencing this portion of the Council’s agenda. Comment time may be limited by Mayoral prerogative. A.Council Bill No. 2804 - Solid Waste Franchise Ordinance 30 Recommended Action: An Ordinance regulating solid waste management including, without limitation, granting an exclusive solid waste franchise to United Disposal Service, Inc., an Oregon Corporation, dba Allied Waste Services of Marion November 23, 2009 Council AgendaPage ii County – Woodburn; establishing service standards and establishing public responsibility; repealing Ordinance 1641; prescribing penalties; and stating an effective date. B. Award of Construction Contract for the Centennial Park Phase III 65 Project Recommended Action: It is recommended that the City Council award a construction contract for the Centennial Park Phase III Project to 2KG Contractors, Inc. in the amount of $921,000. – These 12. PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS are Planning Commission or Administrative Land Use actions that may be called up by the City Council. A.Approval of land use cases PAR 2009-01 and EXCP 2009-02, 70 located at 1409 Hardcastle Avenue 13. CITY ADMINISTRATOR’S REPORT 14. MAYOR AND COUNCIL REPORTS 15. ADJOURNMENT November 23, 2009 Council AgendaPage iii COUNCIL MEETING MINUTES October 26, 2009 TAPE READING DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, 0001 COUNTY OF MARION, STATE OF OREGON, OCTOBER 26, 2009. CONVENED. The meeting convened at 7:06 p.m. with Mayor Figley presiding. ROLL CALL. 0015 Mayor Figley Present Councilor Cox Present Councilor Lonergan Present Councilor McCallum Present Councilor Pugh Present Councilor Schmidt Present Ward VI Council position vacant Staff Present: City Attorney Shields, Acting Chief Blevins, Economic & Development Services Director Hendryx, Assistant City Engineer Liljequist, Community Services Director Row, Water Resource Division Manager Scott, Assistant Wastewater Superintendent Stultz, Mike Ferguson, HR Assistant Sprauer, City Recorder Tennant APPOINTMENT: WARD VI COUNCIL POSITION. 0040 Mayor Figley announced her decision to appoint Eric Morris, current Park Board and School Board member, to expired Ward VI seat with the consent of Council. MCCALLUM/LONERGAN … approve the appointment of Eric Morris to vacant Ward VI Council seat, with a term to expire December 2012. Councilor Schmidt feels that the waiting three years for an election of this position is lengthy and believes Council should consider a vote during the next regular election. Councilor Cox explained that a vote would require a change in the Charter and would be costly to the City. He suggested that a vote would be more appropriate during the next general election. Councilor McCallum stated that it is most important that Ward VI have a representative. Councilor Pugh does not feel that an election is necessary and agrees with the current procedure. Councilor Schmidt would like a vote during the next general election. Councilor Lonergan expressed his appreciation for the Mayor in her difficult decision as Mr. Sowa is another very qualified individual for the position. Mayor Figley stated that her decision for the Ward VI appointment was one of the most difficult decisions that she has had to make throughout her tenure in office. The motion passed unanimously. Page 1 - Council Meeting Minutes, October 26, 2009 ï COUNCIL MEETING MINUTES October 26, 2009 TAPE READING PRESENTATION: NATURAL HAZARDS MITIGATION PLAN. 0296 Economic & Development Services Director Hendryx presented an overview of the City’s Natural Hazards Mitigation Plan. The federal government’s Disaster Mitigation Act of 2000 set up program to reduce the loss of life and property, human suffering, economic disruption, and disaster assistance costs resulting from natural disasters and provides funding to assist state and local governments in implementing effective hazard mitigation measures. The Federal Emergency Management Agency (FEMA) has grant opportunities for jurisdictions to identify hazards and develop mitigation actions and the University of Oregon’s Partnership for Disaster Resilience assists planning efforts and provides information. FEMA has already awarded grants to several local jurisdictions including the City of Woodburn and in October 2008 Council authorized the City to participate. Woodburn’s plan will be an addendum to Marion County’s approved hazard mitigation plan. The risk assessment and action items developed by Public Works and Economic & Development Services include: geography and climate; population and demographics; employment and economics; housing; land use and development; transportation; critical facilities and infrastructure; historic and cultural resources; government structure; existing plans and policies; and community organizations and programs. The risk assessment includes not only hazards that occur within the city but also those that occur outside that have regional effects, like drought, volcanic eruption, and wildfire, it prioritizes spending for mitigation efforts, and identifies concerns that may be relatively inexpensive to address in the design of future capital projects. The plan lists various hazards and categorizes their probability and vulnerability. Economic & Development Services Director Hendryx provided Council copies of the draft plan and explained the process to become eligible for FEMA mitigation grants. He explained that the department has already advertised the plan and once they receive public comment and comments from Council, the comments will be incorporated into the plan and sent to FEMA for review. Once FEMA grants preliminary approval, City Council can adopt the plan by resolution, and become eligible for grants. Councilor McCallum inquired of the timeline for the plan. Economic & Development Services Director Hendryx asked Council to provide comment within the next thirty days. Councilor Cox asked whether the City’s package would be submitted separately from the other jurisdictions sharing the grant. Economic & Development Services Director Hendryx explained that the City will submit its plan separately to FEMA and recapped the process. Councilor McCallum questioned whether FEMA has a timeline for review. It is an important document and he does not want the project to be held up by FEMA. Economic & Development Services Director Hendryx stated that FEMA does not have a timeline for review although he does not believe the review will be timely. Page 2 - Council Meeting Minutes, October 26, 2009 î COUNCIL MEETING MINUTES October 26, 2009 TAPE READING PRESENTATION: WOODBURN DEVELOPMENT ORDINANCE (WDO) AND 0713 SIGN FOCUS GROUP UPDATE. Economic & Development Services Director Hendryx presented an update on the Sign Focus Group and Woodburn Development Ordinance (WDO) Focus Group. On February 9, 2009, the Mayor appointed ten members to the Sign Standards Focus Group: Cliff Zauner, Dan Dinges, Elizabeth Vega, Ellen Bandelow, Jake Jacobsen, Kelly Long, Mellissa Hayden, Mike Sumner, Pete McCallum, and Teri Sunderland. The group was charged with evaluating sign standards and simplifying the City ordinance, and making them more user friendly. Early in the process, the group completed a sign survey and created a work program that covers various topics, including wall signs, monument signs, pole signs, non-conforming signs, education and enforcement programs, electronic signs, flags, signs within the public right-of-way, landscaping requirements regarding signs, and a tracking system. Staff has also given presentations to civic groups for input and would like to not address the topics mentioned above, but also include A-frame, temporary, and exempt signs. The group meets monthly and has a thorough understanding of the City’s sign standards. Throughout the process, the group has used jurisdictional comparison including a model ordinance provided by the sign industry, as an evaluating tool to determine the “reasonableness standard” of the City’s requirements. In regards to wall signs, the group would like to simplify the standard by having only one size standard and prevent excessive setbacks. The focus group would like to simplify the standards for monument signs by allowing the consolidation of signage and having only one height standard. They are currently reviewing pole signs, and would like to restrict pole signs to the I-5/Hwy 214 intersection and allow the consolidation of signage on larger sites. The group would also like to implement an incentive program for upgrading non-conforming signs, maintain the current flag limit, allow signs in the public right-of-way in the R1S zone, and continue to look at education and enforcement, and a tracking system. The next topics of discussion will include electronic message signs and pole signs. The focus group will take a tour the city on November 12, 2009, have an open house in November, and hold public hearings in December 2009 and January 2010. Councilor Pugh questioned the time length spent on the project. Economic & Development Services Director Hendryx explained that the City’s sign standards are complicated, and it has been a long and difficult project. Councilor McCallum stated that as a member of the focus group, he has learned a lot. Simplifying the process is timely but will produce a better ordinance. 1287Councilor Cox asked if a member of the sign industry was on the focus group and explained that the new revisions should protect business owners and put the burden of compliance onto the sign companies. Councilor Cox would like Council to address real estate signs and feels the City can make a decision sooner, rather than waiting for the entire ordinance to be updated. He explained that allowing signs in the public right-of-way is not a sign code issue but is an Page 3 - Council Meeting Minutes, October 26, 2009 í COUNCIL MEETING MINUTES October 26, 2009 TAPE READING issue of whether or not the City would be willing to allow temporary signs that do not have vision impacts on traffic, in the public right-of-way. He explained that this issue is a problem in Senior Estates and Council told several realtors that this problem would be addressed. Councilor Pugh stated that the issue with the signs in Senior Estates was unreasonable and is sympathetic towards the two realtors that expressed their concerns to Council last year. He believes the City was unfair but acknowledged the potential consequences of allowing signs in the public right-of-way. Councilor McCallum stated that the signs should be reviewed in a total context and the focus group should have the opportunity to review the sign code and bring their recommendations to the Planning Commission and Council. Councilor Cox explained that this particular sign issue does not affect current definitions of temporary signs, size limitations, or length of sign placement but is a matter of changing what is allowed in the public right-of-way. Changing the policy decision of what is allowed in the public right-of-way has nothing to due with the overall purpose and function of the sign standards focus group. The decision of what is allowed in the public right-of-way in Senior Estates should not be postponed. Economic & Development Services Director Hendryx explained that the changes Councilor Cox suggested would require an amendment to the Woodburn Development Ordinance (WDO), which requires following a state procedure. Councilor Cox asked whether the WDO states that the no signs can be placed in the public right-of-way. Economic & Development Services Director Hendryx stated that the WDO states that no signs can be placed in the public right-of-way. Councilor Cox agreed with Economic & Development Services Director Hendryx in that the changes must go through the Planning Commission but believes that the decision should not be delayed. Economic & Development Services Director Hendryx stated that he believed the focus group would have completed their review three months previous. The pole and monument sign discussion was timely but the recommendations are well thought out. Councilor Cox thanked Economic & Development Services Director Hendryx and the focus group for their work but believes the recommendations will not reach Council for a public hearing within six months. Councilor Pugh stated that there is no particular reason why Council cannot address signs in the public right-of-way as an individual item. Councilor Lonergan explained that signs in the public right-of-way would not only include real estate signs but also include political, garage sale, and any other type of temporary sign. This is a big issue and he would like to see the recommendations from the focus group before making a decision. Councilor Schmidt stated that the two realtors that expressed their concerns to Council in Page 4 - Council Meeting Minutes, October 26, 2009 ì COUNCIL MEETING MINUTES October 26, 2009 TAPE READING November 2008. Councilor Lonergan recognized the difficulty in developing standards for pole and monument signs and asked whether all other signs that do not fit within the new standards would become non-conforming. Economic & Development Services Director Hendryx explained that many of the recommended changes to the sign standards would be relaxed. The focus group will make a recommendation to change the standards for non-conforming signs. Under the current code, all of the signs on a site must be brought into conformance when a modification is made to one non-conforming sign. The focus group will make a recommendation to allow remodels and small additions, up to 1000 square feet, without triggering the wholesale removal and replacement of all signs. The recommendations should lessen the number of non-conforming signs. There was discussion amongst the Council in regards to the process for separating signs in the public right-of-way from the entirety of the sign standards package. Economic & Development Services Director Hendryx stated that the focus group has worked through signs in the public right-of-way and reached a recommendation. Having an open house with the business community before the public hearing may be beneficial. COX/PUGH … staff be instructed to request the recommendation of the focus group on the temporary signs in the public right-of-way to be separate from the main report and to begin the process through the Planning Commission and Council as soon as feasible. Councilor Lonergan questioned the purpose and urgency of having one portion of the sign standards removed and processed separately. He believes Council is giving a select group preferential treatment. Councilor Cox explained that this particular issue is a public right-of-way issue. The sign standards could state that temporary signs may be permitted in the public right-of- way if they otherwise comply with all requirements of the sign ordinance. Councilor Pugh inquired of the focus group’s recommendation of temporary signs in the public right-of-way. Economic & Development Services Director Hendryx explained that the focus group made a minor change to allow signs in the public right-of-way in the RS1 or 1S zone, which includes Senior Estates. The focus group does not feel comfortable allowing temporary signs in the public right-of-way citywide because of potential ramifications. Councilor McCallum believes the sign standards should come to the Planning Commission and Council as a total package. Councilor Lonergan inquired of the end date for review. Economic & Development Services Director Hendryx stated that the group has one additional meeting, at minimum, on November 17th. There was discussion in regards to the time length necessary to move this project to a public hearing. The motion passed 3-2 with Councilors Lonergan and McCallum voting nay. Page 5 - Council Meeting Minutes, October 26, 2009 ë COUNCIL MEETING MINUTES October 26, 2009 TAPE READING Mayor Figley stated that she feels signs in the public right-of-way should be considered part of the sign standards package. 2525 Economic & Development Services Director Hendryx presented an update on the WDO Focus Group. In May 2009, the Mayor appointed nine members to the WDO Focus Group: Dave Christoff, Durrell Crays, Gene Wellman, Ken Triplett, Tom Flomer, Jim Swee, John E. Baker, Kristy Olson, Jim Cox, and Richard Jennings. The group identified weaknesses and areas in the code that need specific work, which include organization, clarity, ease of use, reasonableness, land uses, buffering, architectural design, flexibility of regulations, options for compliance, appropriate uses, landscaping, setbacks, parking, and environmental protection. The group’s guiding principles include bringing ease of use, clarity, and flexibility to the ordinance. On a monthly basis, the group has worked through the ordinance section by section to understand what the current code allows. Landscape standards have been simplified and reduced, a sliding scale has been created to determine buffering standards, and a street trees list has been standardized. Design standards have also become more flexible and include historic overlay requirements for all sides of a home. Over the following months, the group will continue to review the WDO, perform community outreach, and host an open house before coming to the Planning Commission and Council with recommendations. Councilor Pugh asked whether the code will limit the types of trees allowed in the city. Economic & Development Services Director Hendryx explained that the group has not reviewed trees in general, only street trees. However, there is a regulation on significant trees, which include any tree as determined by its size. Mayor Figley thanked Economic & Development Services Director Hendryx for the work of staff and the committee members. CONSENT AGENDA. 3115 A) approve the Council minutes of October 12, 2009; B) accept the Community Services Department statistics for September 2009; and C) accept the Crime Statistics report for January 2009 through September 30, 2009. SCHMIDT/MCCALLUM …adopt the consent agenda as presented with the change in the crime statistics report. The motion passed unanimously. PUBLIC HEARING: PROPOSED WASTEWATER FACILITY PLAN AND RATE 3190 STUDY. Mayor Figley declared the public hearing open at 7:58 p.m.. Randy Scott, Public Works Water Resources Division Manager, announced the project team and gave a brief presentation on the Proposed Wastewater Facilities Plan and Rate Study. Slides included pictorials of the existing water treatment plant facility located at 2015 Molalla Hwy, graphs, and charts. The Wastewater Facility Plan is a comprehensive Page 6 - Council Meeting Minutes, October 26, 2009 ê COUNCIL MEETING MINUTES October 26, 2009 TAPE READING document that examines the entire wastewater collections, treatment, and disposal system. It identifies the current and future potential operation and performance issues, and projects future wastewater loads and evaluates and recommends alternatives for reliably meeting discharge permit requirements for the next twenty years. The Wastewater Facility Plan is needed for many reasons. The plan serves as an education and business plan for the public, decision makers, state and federal funding, and regulatory agencies; demonstrates how the proposed improvement alternatives are cost effective and environmentally sound for the collection, treatment and disposal of the city’s wastewater; provides the cost of the required facility improvements, maintenance and operations; examines current user rates and system development charges for adequacy to fund the required operational, maintenance and growth related facility improvements; and develops a financial model which identifies when and the amount of revenue needed for the improvements scheduled during the next twenty year period. The current Wastewater Facilities Plan was completed in 1995 and was developed in a two phased approach. Phase one of the plan’s improvements were completed and placed on line in 2001 for a cost of $38 million. Phase two, due to regulatory changes, increased flows and loads and required additional planning to meet the regulatory discharge limits. The current National Pollution Discharge Elimination (NPDES) permit was issued in 2004 with compliance limits for winter time ammonia and compliance schedule for excess thermal loading limit. Due to difficulty meeting regulatory limits and the compliance schedule, the City entered into a Mutual Agreement Order (MAO) with the Department of Environmental Quality (DEQ) in May 2007. The MAO relaxed the winter time ammonia limits and extended the compliance schedule for meeting excess thermal load limits. The MAO based the compliance schedule for winter time ammonia limits and excess thermal loading limits upon DEQ adoption of the Water Quality Management Plan (WQMP) for the Molalla-Pudding River Sub Basin, which was issued in December 2008. The approved WQMP develops more stringent limits for winter time ammonia and puts the compliance schedule in motion for excess thermal loading limits. The City must be in compliance by approximately 2013. Our current NPDES permit expires November 2009 with a renewal application submitted June 2009. The Wastewater Citizen Advisory Committee (WCAC), the consultant CH2M Hill, and City staff have been working on the plan since April of 2008. There have been two open houses, presentations with various service groups, and briefs to Council. On September 29, 2009, the WCAC voted unanimously to forward the Wastewater Facility Plan to Council for approval and adoption. The twenty year plan has a Capital Improvement expenditure of approximately $94 million, with approximately $50 million in Collection System Improvements, $28 million in Liquid Treatment System Improvements, and $16 million in Natural Treatment Systems Improvements. The Wastewater Facility Plan proposes a new ten acre wetland in an existing lagoon, an fourteen acre wetland in the floodplain area, thirty-eight acres of poplar units, and identifies fifty-one acres of additional property. One environmental Page 7 - Council Meeting Minutes, October 26, 2009 é COUNCIL MEETING MINUTES October 26, 2009 TAPE READING issue of concern is the new outflow to the Pudding River. The Capital Plan mostly consists of capacity driven improvements, and includes the Brown Street area, the Front Street pipeline, the Young Street pipeline, the Mill Creek pump station and interceptor, the Progress Way pipeline, the West Hayes Street interceptor, the I-5 pump station and force main, and the Steven Street pump station. The Wastewater Facility Plan has projected the following system wide rate increases: 12% increase in fiscal year (FY) 2010/11; 9.5% increase from FY 2011/12 through FY 2014/15; 0% change from FY 2015/16 through FY 2016/17; 3.5% increase from FY 2017/18 through FY 2019/20; and a 0-3.2% increase for subsequent years. The System Development Charge (SDC) consists of reimbursement SDC per Equivalent Dwelling Unit (EDU), the available capacity in the existing system, and Improvement SDC per EDU, the future capacity required in the system. The combined SDC per EDU calculates to $5,671. The City is also permitted to charge a compliance cost of $150 per EDU, to total $5,821. Estimated flow for nonresidential will be based on a gallons per day estimate. Councilor Lonergan questioned the larger difference between residential and commercial rate increases and asked whether a commercial comparison had been completed. Water Resources Division Manager Scott stated that residential use accounts for approximately 90% of the city’s flow and commercial use accounts for approximately 7%. A service cost analysis comparison for BOD & TSS has not been completed. Councilor Lonergan asked if the City monitors the amount of wastewater generated from commercial and industrial properties. Water Resources Division Manager Scott stated that the City measures the amount of wastewater generated from monitored industrial properties. Councilor Lonergan inquired of the City’s access to State Revolving funds. Water Resources Division Manager Scott explained that they City had to provide a twenty year plan to be eligible for State Revolving funds. The City has followed DEQ guidelines to ensure eligibility. Councilor Lonergan questioned the amount of pipes that are over fifty-five years old. Water Resources Division Manager Scott stated that the Capital Plan budgets the funds to replace all lines over seventy-five years old. Councilor Schmidt inquired of the rate structure and questioned why the rate increases were not more consistent. Water Resources Division Manager Scott explained that many of the improvements are up-front and the revenue needs to be collected within the first ten years of the plan. Many of the improvement from FY 2020 through FY 2030 are SDC oriented and capacity driven. 5114Richard Jennings, Filbert Street, questioned how the public hearing notice was publicized and asked why multi-family dwellings pay less than single family dwellings. John Reinhardt, Chair of the WCAC, stated the committee was concerned about the payment plan for the project and explained how important it was to not front-load costs. Page 8 - Council Meeting Minutes, October 26, 2009 è COUNCIL MEETING MINUTES October 26, 2009 TAPE READING The proposed plan was created by citizens and unanimously brought to Council. Mayor Figley asked for the logic behind charging multi-family less than single-family. Water Resources Division Manager Scott explained that multi-family dwellings are billed at the same rate as single-family dwellings; however, rates also depend on usage. Duplexes, for example, would be charged as two units. Councilor Cox questioned whether costs could be reduced since some aspects of the plan have been changed in order to be eligible for grants. Water Resources Division Manager Scott stated that costs could be adjusted but reducing the costs may affect the interest rates on the loans. Councilor Schmidt stated that the public hearing notice was posted on October 14th in the legal section of the City website although there was no mention of the hearing on the first two pages of the Woodburn Independent. Councilor Lonergan agreed that more notice should be posted. Councilor Cox stated that there was a recent story in the newspaper on the potential increases but could not recall whether it stated a date for the hearing. Mr. Jennings stated that as member of Planning Commission, he was in process of providing Economic & Development Services Director Hendryx with a mailing list of all contacts for neighborhood watch, neighborhood association, and community clubs for additional notice. Councilor McCallum stated that staff should determine proper notice guidelines that go beyond legal notice requirements. The City needs to establish standards especially for something that involves a substantial amount of money. Closed 8:40 p.m.. COUNCIL BILL NO. 2803 – RESOLUTION APPROVING THE FINAL DRAFT 6428 OF THE WASTEWATER FACILITIES PLAN AND RATE STUDY AND AUTHORIZING THE CITY ADMINISTRATOR TO SUBMIT IT TO THE OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY FOR FINAL REVIEW AND APPROVAL. Councilor McCallum introduced Council Bill No. 2803. Recorder Tennant read the bill by title only since there were no objections from the Council. Councilor Cox stated that he is not happy about this plan but believes it is necessary. Councilor Lonergan agreed with Councilor Cox and questioned whether the recommended actions that were included in the staff report would be approved with the approval of Council Bill 2803. Water Resources Division Manager Scott stated that the recommended actions would be part of the plan. Councilor McCallum explained that this plan needs to be approved but hopes that there will be grants and lower interest rates to lessen the rates for the utility users. Page 9 - Council Meeting Minutes, October 26, 2009 ç COUNCIL MEETING MINUTES October 26, 2009 TAPE READING Mayor Figley expressed thanks to the committee members for their work on this plan. Councilor Schmidt agreed will the Councilors and Mayor. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill No. 2803 duly passed. TAXICAB REGULATIONS. 6827 Mayor Figley stated that the topic of taxicab regulations was on table for Council consideration. Councilor Cox feels the staff report took a negative tone but feels that the City should not back down from the issue. There should be some regulation of the taxicab industry especially since the high number of taxicabs within the city. Councilor Pugh explained that taxicab customers have an expectation that there is minimum level of insurance coverage and agrees that staff should pursue this issue. Councilor McCallum stated that he had talked to staff about this issue a few years ago and explained that the city had a medical transport service that was regulated by the State, although the taxicab was ill kept. Acting Chief Blevins stated that although there has been an increase in the number of taxicab drivers, the Police Department is unaware of any issues with public regarding a taxicab driver. Police cannot stop vehicle to verify possession of a business license but can visit their place of business, although this process would be timely and strain the department. Councilor McCallum stated that he had previously been concerned about the reorganization of Police Department and the reduction of Code Enforcement Officers, and now questions whether they will be able to keep up with the current call load. He agreed with the Councilors that staff should look into what can be done on this issue since the public is being transported by these unregulated companies. There was discussion amongst the Council in regards to providing a minimum level of regulation to the taxicab industry in the city. Acting Chief Blevins would like to provide options to Council as to what can be done. 8630Mayor Figley expressed a consensus among the Council to explore this issue and have staff return to Council within the next several meetings to provide options. OREGON HWY. 214: FRONT STREET RAMP TO PROGRESS WAY 8788 SIDEWALK PROJECT. Assistant City Engineer Liljequist stated that ODOT had provided the City with an amendment to Agreement 23358 which will enable the City to receive up to $30,000.00 in additional funds for the construction of the Park Avenue / Highway 214 pedestrian activated signal and crosswalk, which has been added to this project and should be completed spring 2010. Page 10 - Council Meeting Minutes, October 26, 2009 ïð COUNCIL MEETING MINUTES October 26, 2009 TAPE READING COX/SCHMIDT … authorize the City Administrator to sign Amendment #2 to Local Agency Agreement No. 23358 for the OR 214: Front Street Ramp / Progress Way Sidewalk Project. The motion passed unanimously. Councilor Schmidt thanked Richard Jennings for initiating the project. Tape 2 MAYOR AND COUNCIL REPORTS. 0100 No comments from the Mayor or Council. ADJOURNMENT. 0135 PUGH/MCCALLUM... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 9:08 p.m.. APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 11 - Council Meeting Minutes, October 26, 2009 ïï COUNCIL MEETING MINUTES November 9, 2009 TAPE READING DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, 0001 COUNTY OF MARION, STATE OF OREGON, NOVEMBER 9, 2009. CONVENED. The meeting convened at 7:05 p.m. with Mayor Figley presiding. OATH OF OFFICE – Ward VI Councilor. City Recorder Tennant administered the Oath of Office to Eric Morris, Ward VI Councilor. ROLL CALL. 117 Mayor Figley Present Councilor Cox Present (7:08 pm) Councilor Lonergan Present Councilor McCallum Present Councilor Morris Present Councilor Pugh Present Councilor Schmidt Present Staff Present: City Administrator Derickson, City Attorney Shields, Police Captain Alexander, Economic & Community Development Director Hendryx, Assistant City Engineer Liljequist, Community Services Director Row, HR Assistant Sprauer, City Recorder Tennant ANNOUNCEMENTS. 140 A) City offices and the Library will be closed on Wednesday, November 11, 2009, for observance of Veteran’s Day. The Aquatic Center will be opened during normal business hours and veterans will be admitted free all day. Mayor Figley expressed her appreciation to all who are serving and have served in armed forces, as well as to their family and friends. APPOINTMENTS. 242 A)Finance Director: City Administrator Derickson appointed Ignacio Palacios as Finance Director effective November 30, 2009. Mayor Figley gave a brief overview of experience. PUGH/LONERGAN …made a motion to approve the appointment of Ignacio Palacios as Finance Director. The motion passed unanimously. B) City Recorder: Page 1 - Council Meeting Minutes, November 9, 2009 ïî COUNCIL MEETING MINUTES November 9, 2009 TAPE READING City Administrator Derickson appointed Christina Shearer as Acting City Recorder effective December 1, 2009 and will assume the role of City Recorder effective January 1, 2010. PUGH/MCCALLUM …made a motion to approve the appointment of Christina Shearer as City Recorder. The motion passed unanimously. CHAMBER OF COMMERCE REPORT. 0400 Don Judson, Executive Director, informed Council of the following Chamber events: (1) First Friday Shop Local will be held the first Friday of each month. Chamber members are encouraged to shop locally to support small business owners and will meet for lunch afterwards. (2) New Chamber Board members: Rick Puente, Bob Rhoads, Mike Sumner, and Richard Jennings. th (3) Joint Economic Task Force meeting will be held November 10 from 3:00 to 5:00 p.m.. th (4) Forum Lunch will be held on Wednesday, November 11 at noon at Wellsprings. There will be a panel discussion on Drug Free Workplace with speakers from Woodburn Fertilizer, Specialty Polymers, and Wolfer’s Heating. thth (5) The 8 Annual Crystal Apple awards will be held on Thursday, November 12. There were sixty-two nominees and twenty-one award winners. The guest speaker for the evening will be Rick Puente. th (6) Chambers Reception on Tuesday, November 24 from 9:00 a.m. to 3:00 p.m. to th celebrate seventy years incorporated. The Chamber was incorporated on November 24 in 1939. (7) Woodburn Downtown Association meeting will be held on Wednesday, November th 25 at the Corner Brick Loft. Discussion will address how businesses can work with the City to address downtown crime. th (8) Greeters will be held Friday, November 13 at Curves. WOODBURN SCHOOL DISTRICT REPORT. 0700Walt Blomberg, Superintendent, stated that the Academy of International Studies collected over 1,050 pounds of food during their food drive. The Woodburn boys’ soccer team is in the second round of playoffs with their next game scheduled against Ashland. He extended an invitation to the Crystal Apple Awards and explained that it is a community event that encompasses all of the school districts in the area. Mr. Blomberg will be participating in the high school musical Joseph and the Amazing Technicolor Dreamcoat and invited everyone to the show, which stars the first two weekends in December. Councilor Pughexpressed admiration for the letter to the editor that Superintendent Blomberg wrote in the most recent issue of the Woodburn Independent. Page 2 - Council Meeting Minutes, November 9, 2009 ïí COUNCIL MEETING MINUTES November 9, 2009 TAPE READING Mr. Blomberg reiterated that the School district has very good kids. Councilor Morris asked those with concerns of the school district to participate in meetings and research facts before writing to the editor. 1162 Dick Jennings, Filbert Street, congratulated Councilor Morris on his appointment and complimented the City for the street lights on Front Street. CONSENT AGENDA. 1210 A) approve the Planning Commission minutes of July 23, 2009; B) approve the Planning Commission minutes of September 10, 2009; C) approve the Planning Commission minutes of September 24, 2009; and D) approve the Library Board minutes of October 28, 2009. SCHMIDT/MCCALLUM…. adopt the Consent Agenda as presented. The motion passed unanimously. PROFESSIONAL SERVICES CONTRACT AWARD: MURRAY SMITH & 1240 ASSOCIATES FOR PUBLIC OUTREACH SERVICES, FEASIBILITY STUDY, AND PRELIMINARY DESIGN FOR FIFTH STREET IMPROVEMENTS. Public Works Director Brown stated that this study will provide technical assistance in reviewing the Fifth Street Improvements, provide preliminary engineering, and allow input from the public. The study will take the project to approximately 30% design, in which he will return to Council to give the opportunity to reassess the project’s feasibility. Public Works Director Brown felt that he has not been able to provide the public with information on this project although he has received numerous calls from the public expressing a belief that the project is unwarranted. City Administrator Derickson stated that it is important to obtain the public input which this contract allows, and also informed the Council that there would be a series of neighborhood meetings to allow citizens participation. Public Works Director Brown stated that he will be requesting a Citizen’s Advisory Committee that can work through the project to provide consistency and alternatives, address community concern, and issues of parking, pedestrian safety, and air quality. Councilor Cox confirmed that this project would be funded through Traffic SDC’s which have already been collected. Councilor McCallum raised concern in regards to a traffic light that would be located at the Highway 214 / Fifth Street / Meridian Way intersection. Public Works Director Brown stated that based on traffic count analysis and pedestrian movement across Highway 214, if Fifth Street is opened a traffic signal is warranted with almost absolute certainty. A fully signalized intersection is the safest way for pedestrian and vehicle movement. The intersection would provide connectivity between areas of Page 3 - Council Meeting Minutes, November 9, 2009 ïì COUNCIL MEETING MINUTES November 9, 2009 TAPE READING new development north of Highway 214 and the downtown area which will be a huge benefit to our community. He also stated that Highway 214 is probably the second most dysfunctional facility in the State as far as congestion and accidents, so being able to remove some of the local traffic is advantageous and is the reason why ODOT is supportive of the City to move forward with this project. The estimated cost to bring the project to full design is approximately $586,000. Councilor Schmidt asked for a traffic reduction estimate on Settlemier Avenue once the intersection is opened. Public Works Director Brown estimated a 30% reduction in traffic on Settlemier Avenue Settlemier Avenue is currently at approximately 50% of design capacity. Councilor Cox commented that Fifth Street has been included the transportation plan and budgeted for many years. A decision should be made to determine whether the City should move forward with the opening of the Fifth Street. Councilor Pugh agreed with Councilor Cox and added that SDC funds are available and to make an intelligent decision the City should move forward with the study. Councilor McCallum requested history on this project to understand the time-line. Public Works Director Brown believes that capturing citizen participation and ensuring Council understands important components is necessary. Council’s ability to verify or respond to accusations will put the City in a better position to understand whether the merits of this project are deserving of full funding. Director Brown also stated that many of the issues he has been confronted with are due to misunderstandings of the project’s intentions. Peppi Kowokoski, Harrison Street, stated that she read the staff report and believes it was informative; however, as a member of the community, she is opposed to opening of Fifth Street. PUGH/MCCALLUM … City Council, acting in its capacity as the City Contract Review Board, award the professional services contract for executing the public involvement phase, feasibility analysis and preliminary design of the Fifth Street Improvement Project to the firm of Murray Smith & Associates. The motion passed unanimously. SENIOR CENTER PROGRAM. 2330 City Administrator Derickson stated that he has discussed the possibility of a Senior Center with the Senior Program and believes the best chance for funding would be through a Community Development Block Grant (CDBG), in which Senior Program is requesting the City pursue. Tonight’s intent is to have a conversation with Council on the proposal and receive direction. Bev Koutney, Senior Center Director, stated that the city needs a center to provide the growing number of seniors a place to socialize and have some of their basic needs met. The center should be located in a central place and could include a salt group, foot clinic, health insurance counseling, computer aid, conversational English, Medicare shoe and Page 4 - Council Meeting Minutes, November 9, 2009 ïë COUNCIL MEETING MINUTES November 9, 2009 TAPE READING diabetes meter program, and noon meals. The volunteer group currently feeds between twenty-five and thirty people daily in their meeting place and serves over sixty hot lunches throughout the community. If the group was provided a transportation system they could serve those meals at the center and if they were provided a space they could provide additional services. Ms. Koutney expressed appreciation in working with City Administrator Derickson and presented an additional option to build a center on public land for $1.5 million that would be adjacent and/or a part of a future Community Center, which was not provided in the staff report. Councilor McCallum questioned the budget and the levels of support the senior center would have from other smaller communities surrounding Woodburn. Bev Koutney stated that the group would like the center to be regional rather than just Woodburn. Currently the group must pay $400 for facility rental, $650 per year for liability insurance, and $60 in state fees. All other expenses come through donations. Robert Rummer, Senior Estates resident, stated that there was an alternative location in which they have received a $40,000 grant from the Ford Foundation. They are willing to pursue grants to build a facility but need direction from the City. City Administrator Derickson thanked Ms. Koutney and Mr. Rummer for their work and dedication to the project and stated that the community is lucky to have these dedicated volunteers. He explained that he is familiar with CDBG grants and has reviewed options for the City to consider, which are listed in the staff report. He expressed concern over the financial obligations required of the City and explained that if Council decides to pursue this issue, the first step would be to develop a feasibility analysis. Councilor Schmidt feels that the City needs a center and should be exploring options. Councilor McCallum has been embarrassed that City does not have a center but is concerned over budgetary obligations and questioned if the City could afford a center. He does not want to close the door on the issue but has deep concerns. Perhaps a community center that can be used by any would be a better option. Councilor Pugh rejects moving forward until financial conditions change and the City can afford to provide financial support. In a healthy economic environment where proper planning can be done, his decision would be different. Councilor Cox stated that he has been aware of the program since the group has moved and admires their energy and dream in providing this service. He stated that the group had previously mentioned that they needed a grant to build a facility and although he endorses their efforts, does not necessarily endorse building a facility. It is not the right time financially. Voters have said no to a center twice before in better economic times and he does not want to place a financial responsibility onto the city at this time. Councilor Morris believes a multi-age community center is a good idea and concept, and appreciates the group’s work but also feels that it is not a good time financially. Councilor Lonergan stated that he believes the group requested a feasibility study and feels that it would not be expensive. There is a lot of information that the City needs and Page 5 - Council Meeting Minutes, November 9, 2009 ïê COUNCIL MEETING MINUTES November 9, 2009 TAPE READING agrees that this is not the time to borrow, build, or put the City in debt, but believes that it is the time to do a study. 4412City Administrator Derickson explained the steps involved in opening this project and explained that the project leads towards future grant submittal. Grants are fairly sophisticated undertakings and will require an expenditure of resources. He is confident that the City could meet the criteria but would require a lot of work. The expense and cost come with more sophistication in grant writing and in the architectural analysis of the site based, which would take time. To be competitive for the grant, it will cost the City approximately $40,000 to get the data and expertise required to submit the application. With data and clarification, the City could articulate both to City Council and the State justification of need for the project. Although we know there is a justification and need for the project, proving that with the statistical analytical data through a grant is difficult. City Administrator Derickson further explained that in addition to the initial approximate $40,000 cost, the City would also need to dedicate a piece of property that would remain in public ownership, and in addition, would have to guarantee total construction costs. The City would be required to demonstrate that it has any additional funds to bring the project to completion. The project must be fully funded at the time of bid. In Silverton, the city was able to raise that money through foundations, and Woodburn would try to do the same. However, the City would be required to ensure that all federal construction rules have been complied with and volunteers would be unable to participate in the construction because everyone under the CDBG would be subject to Davis Beacon Prevailing Wage. Once completed, the City would be obligated to fund and operate the facility under the proposed program for a minimum of five years before the City could turn it over to any other entity to operate. He explained that although he is concerned about the City’s budget and construction, those two components will probably not be the hardest issues in this project. It is the operating liability that the City would have to incur for a period of years that troubles him. Community Services Director Row states that Oregon City runs a good senior program and a nice facility built from CDBG’s. Three years ago, the program had an expenditure budget of about $600,000 annually and brought in about $200,000 in revenues, which included federal funding. Mayor Figley stated she finds difficulty in making a commitment that the City may not be able to afford. She would rather support local efforts than committing to something that that cannot be maintained. Councilor Pugh inquired whether the senior center could work together with Senior Estates management to expand their program. They may be able to negotiate a reasonable monthly fee per person to use Senior Estate facilities. Bev Koutney explained that Senior Estates is at capacity. 5720City Administrator Derickson encouraged the senior center to pursue the development of Page 6 - Council Meeting Minutes, November 9, 2009 ïé COUNCIL MEETING MINUTES November 9, 2009 TAPE READING data, regardless of Council’s decision. He acknowledged that developing data is a daunting task but explained that the program would need to due so to become competitive for a block grant or other funding. He will continue to work with the senior program. CITY ADMINISTRATOR’S REPORT. 6195 None. MAYOR AND COUNCIL REPORTS. 6200 Councilor Morris thanked the Mayor, Council, and the public for the warm welcome. EXECUTIVE SESSION. 6261 Mayor Figley entertained a motion to adjourn into executive session under the authority of ORS 192.660(2)(i) to review and evaluate, pursuant to standards, criteria and policy directives adopted by the governing body, the employment-related performance of the chief executive officer of any public body, a public officer, employee or staff member unless the person whose performance is being reviewed and evaluated requests an open hearing. LONERGAN/PUGH …. adjourn into executive session under the statutory authority cited by the Mayor. City Administrator waived his right to an open hearing. The motion passed unanimously. The meeting adjourned to executive session at 8:36 p.m. and reconvened at 9:23 p.m. Mayor Figley stated that no action was taken by the Council while in executive session. Councilor Schmidt left on personal business. COX/MCCALLUM …grant City Administrator renewal of contract for another year with no changes except that the severance package be extended from six months to nine months. The motion passed unanimously. ADJOURNMENT. 6425 /MCCALLUM.... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 9:25 p.m. Page 7 - Council Meeting Minutes, November 9, 2009 ïè COUNCIL MEETING MINUTES November 9, 2009 TAPE READING APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 8 - Council Meeting Minutes, November 9, 2009 ïç Executive Session COUNCIL MEETING MINUTES November 9, 2009 DATE. CONFERENCE ROOM, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, November 9, 2009. CONVENED. The Council met in executive session at 8:50 p.m. with Mayor Figley presiding. ROLL CALL. Mayor Figley Present Councilor Cox Present Councilor Lonergan Present Councilor McCallum Present Councilor Morris Present Councilor Pugh Present Councilor Schmidt Absent Staff Present: City Recorder Tennant; City Administrator Derickson (9:10 pm – 9:20 pm) Mayor Figley stated that she had excused Councilor Schmidt from attending this executive session. She also reminded the Councilors and staff that information discussed in executive session is not to be discussed with the public. The executive session was called to review and evaluate, pursuant to standards, criteria and policy directives adopted by the governing body, the employment-related performance of the chief executive officer of any public body, a public officer, employee or staff member unless the person whose performance is being reviewed and evaluated requests an open hearing pursuant to ORS 192.660 (2)(i). ADJOURNMENT. The executive session adjourned at 9:20 p.m.. APPROVED_______________________________ KATHRYN FIGLEY, MAYOR ATTEST_______________________________ Mary Tennant, Recorder City of Woodburn, Oregon Page1 – Executive Session, Council Meeting Minutes, November 9, 2009 îð Minutes Woodburn Recreation and Parks Board Tuesday, November 10, 2009 7:00 p.m. Call to Order 1. The meeting and was called to order at 7:00 p.m. Roll Call 2. Board Chair Rosetta Wangerin Present Board Secretary Vacant Member Joseph Nicoletti Absent Member Judy Wesemann Present Member Cheryl Shepherd Present Member Charlene Williams Present Member Alexa Morris Present Staff present: Jim Row, Community Services Director; Stu Spence, Recreation Services Manager; Debbie Wadleigh, Aquatic Manager; Paulette Zastoupil, A.A. Approval of Minutes from September 9, 2009 Judy Wesemann/Charlene Williams - Motion to accept the minutes as written. The motion passed unanimously. Business from the Audience 4. None OLD BUSINESS 5. Mill Creek Greenway Trail Project Jim updated the Board on the Mill Creek Greenway project. Invitation to Bid was advertised in September and 13 bids were opened on October 1st. A contract was awarded to Canby Excavating in October. Jim showed the Board pictures of the work that has begun and then discussed the challenges due to rainy weather. The contractor would like to finish all concrete and asphalt work by February. Jim stated that it will take 2-3 months to receive the Wetland Permits and that he will likely request another extension from the State of Oregon’s Local Government Grant Program. Centennial Park Phase III Project Jim updated the Board on the Centennial Park Phase III project. Invitation to Bid was advertised in October and 10 bids were opened on October 29th. The contract award will be on the November 23 City Council agenda. The bids included a base bid scope of work and five alternates. Bids were so favorable, that we were able to add the following two alternates: Alternate #2 - Re-grading Field #1, install associated utilities, adjust irrigation, re-seed, stockpile and re-install infield mix. Alternate #3 – Demolition of existing maintenance building, installation of new maintenance building, associated asphalt entry and parking, electric utilities, and fencing. The funding for this project is from Park SDC’s, Oregon State Park Local Government Grant, and a grant from the Burlingham Trust. Page 1 îï Minutes Woodburn Recreation and Parks Board Tuesday, November 10, 2009 7:00 p.m. NEW BUSINESS 6. Election of Board Secretary Judy Weseman nominated Joseph Nicoletti for Board Secretary, Alexa Morris second the motion. The motion passed unanimously. Rosetta took this opportunity to ask about the playground equipment replacement program. Jim stated that Wyffels Park was next on the list and he needed to sit down with neighborhood representatives and talk about a funding plan. Discussion took place on possible funding sources such as KaBOOM! and various grants. Business from the Department 7. Aquatics – Debbie Wadleigh High School Water Polo - The current season ended October 31, but Coach Will Adrian has asked me about the possibility for spring water polo session. th High School Swim Team – The season began on November 9 with only two high school teams, Woodburn and North Marion. Wilsonville was able to get into the Tualatin pool after all. Love Santa Inc - We are collecting at the Aquatic Center for the Love Santa Inc program. We are using the theme of the Civil War Challenge (Oregon/Oregon State) to make it fun. Which container has more donations, Ducks or the Beavers? Toys, new coats and non-perishable food items can be donated at the Aquatic Center as well checks made out to Love Santa Inc. Woodburn Barracuda’s - The year round youth swim team that practices at the center is hosting a swim meet on Saturday and Sunday, November 21 & 22. The center will be closed for this event. Debbie encouraged citizens to come down and watch the youth of our community swim against teams from around the state. She reported 350 participants have registered with this Friday as the deadline. Veteran’s Day the Aquatic Center - We will be honoring our service men and women, past and present with free admission throughout the day. Thanksgiving – The Aquatic Center is closed, but will be open the Friday, November 27th from 1 – 5 pm and family rates will apply. Fourth Grade Swim Lessons – The fourth grade lesson program continued in October reaching 68 kids. We are reaching around 100 this month with four classrooms from Heritage coming for this special swimming lesson program. I encourage all parents to come and watch this program in action and to allow their children to participate in the free six lesson opportunity in learning to swim. The classes meet at Monday thru Thursday at 12:45 pm and 1:15 pm. Debbie also reported that on Thursday, November 19 Woodburn is hosting the state here for two meetings. First, will be the Portland Area Aquatic Council which will be followed by the Oregon Recreation and Parks Association’s Aquatic Section meeting. Also, Jim Row and she met with JP Moss, Aquatic Center Analyst that will bring some suggestions to improve the current programs. Page 2 îî Minutes Woodburn Recreation and Parks Board Tuesday, November 10, 2009 7:00 p.m. In October we had 5, 041 instances of participation. This is an increase of 660 instances of participation from October 2008. Recreation – Stu Spence Adult Sports – Men’s Basketball League is underway with 21 teams this fall which is up 7 teams from last fall. Youth Sports – Youth soccer concluded with 275 participants. Active Adult – Trip participation is down, primarily due to transportation cost. Teen Program – Routine activities Boys and Girls Club & After School Club – Steering Committee looks to be complete and is actively meeting. Chief Russell and Mayor Figley are co-chairs on the committee. After School Club – Routine activities Youth Advisory Board – The Youth Advisory Boards attendance has been outstanding with over 20 members present at the last meeting. Current projects include leading a Christmas craft project at Cascade Park Christmas craft, volunteering for Love Santa Inc. and Souls Harbor Church Thanksgiving Dinner. Woodburn Reads – The Fall into Books, book drive has concluded with over 1300 books donated. Donation book bins were placed at City Hall, the library, Bi- Mart, Banana Republic and both West Coast Bank locations. These books will be re-distributed throughout the community to children and families in need. Skate Competition – There were 28 skaters this year participating in the competition and approximately 100 spectators. Stu showed a slide show of the competition. Mexican Independence Day – This event went well, but it rained on Saturday so turnout was relatively light, but Sunday turnout was good. Halloween Downtown Trick or Treating– Banana Republic volunteered at this event where 100 kids enjoyed face painting, pumpkin bowling, piñata and other activities. iLead– Stu will be participating in a Youth Summit for all Woodburn High st School students on November 21. This event is sponsored by the Marion County Health and the Community Action Drug Prevention Network. Other – Stu developed a partnership with Hands-On Willamette Valley Program of United Way. They have an online volunteer recruitment tool that we are trying to utilize. Kate is also connecting with RSVP and Chemeketa to promote volunteerism in our department in a variety of different capacities. th Mayor’s Tree Lighting – This event is December 6 featuring caroling, Dance, Dance, Dance, visit from Santa and candy canes for all. Look for more information in the Woodburn Independent. . Future Board Business 8 None. Board Comments 9. None. Adjournment 10.8:00 p.m. Page 3 îí Minutes Woodburn Recreation and Parks Board Tuesday, November 10, 2009 7:00 p.m. ______________________________ _________________________________ Joseph Nicoletti, Board Secretary Paulette Zastoupil, Recording Secretary Date_________________ Date___________________ Page 4 îì ß¹»²¼¿ ×¬»³ November 23, 2009 TO: Honorable Mayor and City Council FROM: N. Robert Shields, City Attorney SUBJECT: Solid Waste Franchise Ordinance COUNCIL GOAL: Refine City Policies. Complete long-range financial plan; create clear municipal regulations and codes for greater understanding and eliminate unnecessary over-regulation. RECOMMENDATION: Adopt the attached Solid Waste Franchise ordinance. BACKGROUND During the last few years, with the assistance of City departments and at the direction of the City Council, my office has updated most major ordinances. The Animal Control Ordinance, Traffic Ordinance, Noise Ordinance, Nuisance Ordinance, Public Contracting Ordinance, Transportation SDC Ordinance, Library Exclusion Ordinance, Newsrack Ordinance, Graffiti Ordinance, and Housing Code Ordinance have all been completely redrafted. Additionally, we are in the process of assisting various City departments with major revisions of the Sign Ordinance and Woodburn Development Ordinance. Finally, we are preparing for City Council discussion various options for consideration of a Taxi Ordinance. Before you for consideration tonight is the new Solid Waste Franchise Ordinance. It will replace one of the City’s oldest existing major ordinances with a modern streamlined document. Since it is a franchise, it could not be modified unilaterally, and required numerous negotiations between the City and the Franchisee. These negotiations began with former City Administrator John Brown and were unfinished when he left the City. During the last year, the City Administrator and I met numerous times with United Disposal company Agenda Item Review: City Administrator __X___ City Attorney __X___ Finance _X___ íð Honorable Mayor and City Council November 23, 2009 Page 2 representative Robin Murbach. After many productive sessions, a new franchise was negotiated that we believe is good for the City and is much better than the presently existing one. On October 26, 2009, the City Council discussed the final draft of the franchise in a workshop session. Certain minor modifications were suggested and these changes were incorporated into the document. On November 10, 2009, the revised document was e-mailed to the City Council. DISCUSSION: Some of the important points concerning the Solid Waste Franchise Ordinance are as follows: Since United Disposal Service, Inc. doing business as Allied Waste Services of Marion County – Woodburn is the name of the corporate entity, the franchise must be granted to United Disposal. However, an extremely broad Transfer of Ownership or Control clause (Section 8) was added that provides that “the franchise shall not be sold, assigned, transferred, leased or disposed of either in whole or in part, in any manner” without the City Council having the right to again review the franchise. Globally, numerous undefined terms were defined. The Term (Section 2.3) is still seven years, on a revolving basis, instead of a fixed term. However, an important change for the City is that the City Council will now decide on an annual basis whether it will add an additional year (totaling seven years) to the term of the franchise or, after a public hearing, not add the additional year (converting it to a fixed term). Section 3.1.16 requires the Franchisee to accept as payment “cash, personal checks, cashier’s checks, money orders, bank drafts, and credit cards.” Historically, this was an issue when at one time the franchisee experimented with only accepting credit cards and many residents complained. The Interruption of Service provision (Section 3.2) was broadened to give the City additional authority in emergency situations. As to reporting requirements, an Annual Customer Service Report (Section 3.16) and a Financial Report (Section 3.17) are required. íï Honorable Mayor and City Council November 23, 2009 Page 3 Rates (Section 4) are addressed under the new franchise: “Franchisee shall have the right to charge and collect reasonable compensation from those whom it furnishes franchised services. The term “reasonable compensation” shall be defined at the discretion of the City after a study and consideration of rates for similar service under similar conditions in other areas, and as affected by local conditions in the local area.” Section 5.1 contains a 5 percent per annum of gross revenues requirement. This is fairly typical in Oregon. Section 5.2, (Insurance), Section 5.3, (Hold Harmless) and Section 5.4 (Damages) have been carefully reviewed, protect the interests of the City, and are legally reasonable and appropriate. There is an informal customer dispute resolution process contained in Section 6.1, which is a reasonable way to initially deal with disputes. Section 6.2 (Penalties and Procedures) allows the City Administrator to levy penalties against the franchisee, which are appealable to the City Council. Section 6.4 (City’s Right to Revoke) allows the City to revoke the franchise for material breaches. A public hearing is required and any finding would have to be documented by findings of fact. Presumably, the finding would be appealable to Marion County Circuit Court on Writ of Review. As previously referenced, Section 8.1 (Transfer of Ownership or Control) was drafted in a broad manner to protect the City. FINANCIAL IMPACT: None. íî TABLE OF CONTENTS Section Page Section 1. Introduction 1 1.1 Short Title 1 1.2 Purpose and Policy 1 1.3 Solid Waste Management Goals 1 1.4 Definitions 2 Section 2. Grant of Authority and General Provisions 5 2.1 Franchise 5 2.2 Exceptions 6 2.3 Term 7 2.4 Ownership of Waste 7 2.5 Infectious Waste 7 2.6 Hazardous Waste 7 2.7 Separation of Waste 7 2.8 City Authority 8 Section 3. Community Standards for Collection and Disposal of Solid Waste And Recyclable Materials 8 3.1 Collection Standards 8 3.2 Preventing Interruption of Service 10 3.3 Recycling Standards 10 3.4 Public Education 12 3.5 Resource Recovery Service 13 3.6 County Wasteshed 13 3.7 Additional Recycling Requirements 13 3.8 Community Service Standards 14 3.9 Additional Services 14 3.10 Special Service 15 3.11 Sub-Contract 15 3.12 Equipment and Facility Standards 15 3.13 Safety Standards 16 3.14 Right-of-Way Standards 17 3.15 Customer Service Standards 17 3.16 Annual Customer Service Reporting Standards 18 3.17 Annual Financial Reporting Standards 18 Section 4. Rates 19 4.1 Rate Structure 19 Section 5. Financial 20 5.1 Compensation 20 5.2 Insurance 21 5.3 Hold Harmless 22 íí Section 6. Administration and Enforcement 23 6.1 Customer Dispute Resolution Process 23 6.2 Penalties and Procedures 23 6.3 Procedure for Imposition of Penalties 23 6.4 City’s Right to Revoke 24 6.5 Enforcement 25 6.6 Non-enforcement by the City 25 6.7 Written Notice 25 Section 7. Public Responsibility 26 7.1 Hazardous Waste 26 7.2 Accumulation of Waste 26 7.3 Approved Receptacles 26 7.4 Safe Loading Requirements 26 7.5 Access to Receptacle 26 7.6 Safe Access 26 7.7 Can/Cart Placement 26 7.8 Clean Cans/Carts and Surrounding Area 26 7.9 Removal of Solid Waste Prohibited 26 7.10 Collection of Solid Waste Prohibited 27 7.11 Disposal of Unauthorized Solid Waste Prohibited 27 7.12 Stationary Compactor 27 7.13 Train System 27 7.14 Penalties 27 Section 8. Miscellaneous 27 8.1 Transfer of Ownership or Control 27 8.2 Performance Bond 28 8.3 Change of Law; Amendment of Franchise Agreement 28 8.4 Severability and Constitutionality 29 8.5 Continuity of Service Mandatory 29 8.6 Rules of Construction 29 8.7 Calculation of Time 29 8.8 Repeal; Effective Date 30 Signatures by City 30 Acceptance by Franchisee 30 Council Bill No. Ordinance No. Page 2 íì COUNCIL BILL NO. ORDINANCE NO. AN ORDINANCE REGULATING SOLID WASTE MANAGEMENT INCLUDING, WITHOUT LIMITATION, GRANTING AN EXCLUSIVE SOLID WASTE FRANCHISE TO UNITED DISPOSAL SERVICE, INC., AN OREGON CORPORATION, dba ALLIED WASTE SERVICES OF MARION COUNTY – WOODBURN”; ESTABLISHING SERVICE STANDARDS AND ESTABLISHING PUBLIC RESPONSIBILITY; REPEALING ORDINANCE 1641; PRESCRIBING PENALTIES; AND STATING AN EFFECTIVE DATE. THE CITY OF WOODBURN ORDAINS AS FOLLOWS : Section 1 - Introduction 1.1Short Title. This ordinance shall be known as the “Solid Waste Management Ordinance,” and may be cited herein as “this Ordinance.” 1.2Purpose and Policy. In order to protect the health, safety and welfare of the people of the City of Woodburn, it is the public policy of the City of Woodburn to regulate and to provide a solid waste management program. 1.3Solid Waste Management Goals. 1.3.1 Ensure the safe and sanitary accumulation, storage, collection, transportation and disposal or resource recovery of solid wastes. Ensure proper handling of household hazardous waste, ensure that the community has an ongoing resource recovery and disposal service, and ensure that waste shed recycling goals are met. 1.3.2 Promote technologically and economically feasible resource recovery including source separation, recycling and reuse, and separation by and through the collector. Research, develop and promote waste reduction strategies. 1.3.3 Ensure efficient, economical and comprehensive solid waste service. Maximize collection services to reduce the adverse environmental impacts of individual collection and disposal efforts. Minimize duplication of service or routes to conserve energy and material resources, to reduce air pollution and truck traffic, and to increase efficiency, thereby minimizing consumer cost, street wear, and public inconvenience. 1.3.4 Protect and enhance the public health and the environment. 1.3.5 Protect against improper and dangerous handling of hazardous and infectious wastes. 1.3.6 Ensure service rates and charges that are just and reasonable and Council Bill No. Ordinance No. Page 1 íë adequate to provide necessary public services. 1.3.7 Provide for charges to the users of solid waste services that are reasonable, equitable, and adequate to provide necessary service to the public, justify investment in solid waste management systems, and provide for equipment and systems modernization to meet environmental and community service requirements. 1.3.8 Prohibit discrimination on the basis of race, color, creed, religion, sex, age, and national origin, source of income, political affiliation, disability, sexual orientation, or marital status. 1.3.9 Work in cooperation with the City of Woodburn, Marion County, and local industries to reduce the quantity of waste produced, increase recycling, generate efficiencies, and conserve resources. 1.3.10 Demonstrate a responsive, customer-service oriented business philosophy. 1.4Definitions. For the purpose of the ordinance, the following terms shall have the following meaning: “Bin” means receptacle provided by Franchisee, used by customers for the containment and disposal of recyclable material. “Can” means receptacle owned by a customer, used for the containment and disposal of solid waste. The customer’s use of a can requires manual collection. “Cart” means receptacle provided by Franchisee, used by a customer for the containment and disposal of solid waste or recyclable material. The customer’s use of a cart requires automated collection service. “City” means the City of Woodburn, Oregon, and the area within its boundaries including its boundaries as extended in the future and all property owned by the City, outside City limits. “City Administrator” means the City Administrator or his/her designee. “City Council” means the legislative body of the City. Compact and Compaction” “ means the process of, or to engage in the shredding of material, or the manual or mechanical compression of material. “Compensation” means consideration of any kind paid for solid waste management services, including but not limited to, the direct payment of money, including the proceeds from resource recovery or the provision of solid waste services to customers. Council Bill No. Ordinance No. Page 2 íê “Container” means a receptacle one cubic yard or larger in size, used to store solid waste or wastes or recyclable material, but not a drop box or compactor. “Dispose or Disposal” means the accumulation, storage, discarding, collection, removal, transportation, recycling or resource recovery of solid waste. “Drop Box” means a single receptacle designed for storage and collection of large volumes of solid waste or wastes or recyclable materials, which is usually ten cubic yards or larger in size, and provides for transportation of large volumes of solid waste or recyclable materials and is transported to a disposal or processing site for transfer, landfilling, recycling, materials recovery or utilization and then emptied and returned to either its original location or to some other location. “Excluded Waste” means hazardous waste; household hazardous waste; infectious waste; toxic substances, wastes or pollutants; contaminants; pollutants; or radioactive wastes. “Franchisee”UNITED DISPOSAL SERVICE, INC., AN OREGON means CORPORATION, dba ALLIED WASTE SERVICES OF MARION COUNTY – WOODBURN” granted a franchise pursuant to Section 2 of this Ordinance or a subsequent ordinance. “Generator” means the person who produces solid waste or recyclable material to be placed, or that is placed for collection and disposal.As used in this Ordinance, “generator” does not include any person who manages an intermediate function resulting in the alteration or compaction of the solid waste or recyclable material after it has been produced by the generator and placed for collection. “Hazardous Waste” means any hazardous wastes as defined by ORS 466.005. “Holidays” means legal holidays observed by the City of Woodburn. “Household Hazardous Waste” means any discarded or unwanted chemical, material, substance or product that is or may be hazardous or toxic to the public or the environment, is commonly used around households and is generated by the household. “Infectious Waste” means biological waste, cultures and stocks, pathological waste, and sharps, or as infectious waste is defined in ORS 459.386. “Mixed Recycling” means the process where two or more types of recyclable materials are collected together (i.e., not separated) in a combination allowed by the City Administrator, and as approved by the Oregon Department of Environmental Quality. Council Bill No. Ordinance No. Page 3 íé “Persons” means any individual, partnership, business, association, corporation, cooperative, trust, firm, estate, joint venture or other private entity or any public agency. “Pilot Program” means a program which allows Franchisee to offer services on a trial basis for six months or less and to determine rates for such services outside the approved rate structure. City Council approval is required prior to implementation of a pilot program. “Placed for Collection” means to put solid waste, recyclable material or yard debris out for collection by Franchisee, as provided by this Ordinance. “Public Place” means any City-owned park, place, facility or grounds within the City that is open to the public, but does not include a street or bridge. “Public Rights-of-Way” means, without limitation, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, park strips and all other public ways or areas, including subsurface and air space over these areas. “Putrescible Material” means organic materials that can decompose, which may create foul-smelling, offensive odors or products. “Rate” means the amount approved by the City Council as a charge for service rendered and charged by Franchisee, including the franchise fee, to users of the . service “Receptacle” means cans, carts, bins, containers, drop boxes, or other vessel used for the disposal of solid waste, recyclable material or yard waste that has been approved by the City Administrator and into which solid waste, recyclable material or yard debris may be placed for collection. “Recyclable Material” means any material or group of materials that can be collected and sold for recycling at a net cost equal to or less than the cost of collection and disposal of the same material and excludes excluded waste. “Recycling” means any process by which solid waste is transformed into new or different products in such a manner that the original products may lose their original identity. As used in this Ordinance, recycling includes the collection, transportation and storage of solid waste, done in order to place the solid waste in the stream of commerce for recycling; or for resource recovery. “Resource Recovery” means the process of obtaining useful material or energy resources from solid waste, including reuse, recycling, and other material recovery or energy recovery of or from solid wastes. “Service” means the collection, transportation, storage, transfer, or disposal of or resource recovery from solid waste by Franchisee. It also includes, without Council Bill No. Ordinance No. Page 4 íè limitation, collection or source separated materials for compensation. “Service” includes the providing of “Special Service” as defined below. “Solid waste” means all useless or discarded putrescible and non-putrescible materials, including but not limited to garbage, rubbish, refuse, ashes, paper, cardboard, sewage sludge, septic tank and cesspool pumpings, or other sludge, useless or discarded commercial, industrial, demolition, and construction materials, discarded or abandoned vehicles or parts thereof, discarded home and industrial appliances, manure, vegetable or animal solid and semi-solid wastes, dead animals and infectious waste as defined in ORS 459.386. Solid waste does not include excluded waste. “Solid Waste Management” means the business of collection, transportation, storage, treatment, utilization, processing, disposal, recycling and resource recovery of solid waste. “Source Separation” means the separation of waste materials by the generator in preparation for recovery by recycling or reuse. “Special Service” means collection of bulky waste, including furniture, appliances and large quantities of waste. “Total Source Separation” means the complete separation by the source generator or producer of the waste by type or kind of waste from all other types or kinds of waste. “Train System” means a group of small receptacles (typically 1-2 cubic yard capacity) placed in various locations around a customer’s property, by the customer and once full, either linked together or placed upon a trailer for transport and disposal to a larger receptacle or compactor on the premises. “Waste” means any material that is no longer wanted by or is no longer usable by the generator, producer or source of the material, which material is to be disposed of or to be resource-recovered by another person. Even though materials which would otherwise come within the definition of “waste” may from time to time have value and thus be resource-recovered does not remove them from this definition. Source-separated wastes are “wastes” within this definition. “Yard Debris” means grass clippings, leaves, tree and shrub prunings of no greater than four inches in diameter, or similar yard and garden vegetation. Yard Debris does not include dirt, sod, stumps, logs or tree/shrub prunings larger than four inches in diameter. Section 2 - Grant of Authority and General Provisions 2.1Franchise. Subject to the conditions and reservations contained in this Council Bill No. Ordinance No. Page 5 íç UNITED DISPOSAL SERVICE, INC. , AN ordinance, the City Council hereby grants to OREGON CORPORATION, dba ALLIED WASTE SERVICES OF MARION COUNTY – WOODBURN” ,” the exclusive right, privilege, and franchise to collect, dispose, sell and transport solid waste and recyclable material generated as of the effective date of this ordinance within the corporate limits of the City of Woodburn and in any area that may thereafter be annexed to the City. 2.2Exceptions. Unless accepted by subsections below, or granted an exclusive franchise pursuant to this Ordinance, no person shall solicit customers for service, or advertise the providing of service, or provide service in the City. Nothing in this ordinance requires a franchise for the following: 2.2.1 The collection, transportation and reuse of repairable or cleanable discards by a private charitable organization regularly engaged in such activity. 2.2.2 The collection, transportation, and reuse or recycling of totally source- separated materials or operation of a collection center for totally source-separated materials by a religious, charitable, benevolent or fraternal organization, provided the organization is using the activity for fund raising. Organizations engaged in these activities shall make periodic reports in a form as the City Administrator may reasonably require. 2.2.3 The collection, transportation or redemption of returnable beverage containers under ORS Chapter 459A and that portion commonly known as the “Bottle Bill.” 2.2.4 The generator or producer who transports and disposes of waste created as an incidental part of regularly carrying on the business of auto wrecking to the extent licensed by the state of Oregon; janitorial service; septic tank pumping, sludge collection or disposal service; or gardening or landscape maintenance. “Janitorial service” does not include primarily collecting wastes generated by a property owner or occupant. 2.2.5 The transportation of solid waste by an individual, produced by such individual or the individual’s household, to a disposal site or resource recovery site. In the case of non-owner-occupied property, the waste is produced and owned by the tenant and not by the landlord, property owner or agent. 2.2.6 A contractor registered under ORS Chapter 701 for hauling waste created in connection with the demolition, construction, or remodeling of a building structure or in connection with land clearing and development. Such waste shall be generated by the contractor in connection with the contractor’s construction site and hauled in equipment owned by the contractor and operated by the contractor’s employees. 2.2.7 Government employees providing solid waste and recycling collection services to City operations and facilities. Council Bill No. Ordinance No. Page 6 ìð 2.3 Term. (a)This franchise ordinance and the rights and privileges granted herein shall take effect upon written acceptance by Franchisee and remain in effect for a term of seven (7) years. (b)Upon an affirmative finding based on its annual review of the material submitted pursuant to Sections 3.16 and 3.17, et. seq. of this agreement, at the end of the franchise term, the Council may add an additional year to the term of the franchise. (c)The City Council may choose to not extend a franchise after seven (7) years under this section for any reason. If the City Council chooses not to extend a franchise, at least sixty days before the date that the franchise would otherwise expire, the City Council shall provide Franchisee with written notice of the City Council’s intent not to extend the franchise. Franchisee shall have thirty days from the date of the notice to request a public hearing. If, following the public hearing, the City Council reaffirms the decision not to extend the franchise term, the franchise shall expire at the end of its existing term, and shall not automatically be extended as provided in this section. Nothing in this subsection shall prevent a Franchisee from applying for a new franchise. (d)Prior to the issuance or extension of a franchise, the City Council shall provide notice and opportunity for public comment. (e) If the City Administrator determines service standards are not being met, the City Administrator may re-open this franchise for renegotiation. UNITED (f) The terms of the franchise must be unconditionally accepted by DISPOSAL SERVICE, INC. , AN OREGON CORPORATION, d/b/a ALLIED WASTE SERVICES OF MARION COUNTY – WOODBURN” in writing, and signed by an officer of the corporation within 30 days after the date this UNITED DISPOSAL SERVICE, INC. , AN ordinance is passed by the City. If OREGON CORPORATION, d/b/a ALLIED WASTE SERVICES OF MARION COUNTY – WOODBURN” fails to do so, this ordinance shall be void. 2.4 Ownership of Waste. Unless otherwise stated, solid waste properly placed out for collection is the property of the Franchisee. 2.5Infectious Waste. Franchisee is not required to store, collect, transport, dispose of or resource infectious waste. 2.6Hazardous Waste. Except as otherwise provided in this ordinance, Franchisee is not required to store, collect, transport, dispose of or resource recover hazardous waste or excluded waste. 2.7Separation of Waste. The City Council reserves the right to require the Council Bill No. Ordinance No. Page 7 ìï separation of component parts or materials in or from solid wastes, and to require the deposit thereof in receptacles or places and to prescribe the method of disposal or resource recovery. 2.8 City Authority. The City reserves the right to determine the services authorized by this franchise agreement. Section 3 - Community Standards for Collection and Disposal of Solid Waste and Recyclable Materials 3.1 Collection Standards. Collection of solid waste and recyclable material shall be performed in such a way as to comply with all Federal, State and local environmental regulations. In addition Franchisee shall: 3.1.1 Provide solid waste and recycling collection services to all persons living within or conducting business within the City limits of the City. 3.1.2 Collect putrescible material at least once each week. 3.1.3 Provide collection of infectious waste as defined in ORS 459.387,. Collection shall be provided in a manner consistent with the requirements of all applicable laws and regulations. 3.1.4 Perform collections twice weekly in the business districts of the City, except Sundays and holidays. Downtown business district collection hours are 4:30 am to 6:30 am. Collection hours shall be scheduled to minimize noise and disruption to residents in or near the downtown business district. 3.1.5 Perform curbside collections of solid waste at least once weekly in residential districts or as often as required by ORS 459 and ORS 459.A. Collection hours shall be between the hours of 6:00 am and 5:30 pm, Monday through Friday. All collections shall be made as safely, efficiently and quietly as possible. 3.1.6 Perform curbside collections of recyclable materials at least bi-weekly or as often as required by ORS 459 and ORS 459.A.Collection of recyclable materials shall be made subject to the same requirements and within the same hours as those made for solid waste. 3.1.7 Provide collection of residential solid waste carts or cans, recyclable materials, and yard debris carts on the same day of the week. Franchisee shall not go into garages or other buildings to make pick-ups at residences, nor shall Franchisee go into closed areas, through enclosed gates, or up or down stairs to make pick-ups., unless defined as a special service. 3.1.8 Provide will-call service for container service for residential and commercial Council Bill No. Ordinance No. Page 8 ìî customers within 48 hours of initial request for service. 3.1.9 Use due care to prevent solid waste from being spilled or scattered during collection. If any solid waste or recyclable material is spilled during collection, Franchisee shall promptly clean up all spilled materials. All can/cart and container lids must be replaced after contents are emptied and the can/cart or container shall be returned to its original position so as to not jeopardize the safety of motorist, pedestrians or bicyclists. Franchisee shall also collect any solid waste or recyclable materials that may have been spilled or scattered prior to collection, in the immediate area of cans and carts. 3.1.10 Use reasonable care in handling all collection receptacles and enclosures. Damage caused by the negligence of Franchisee’s employees to private property, including landscaping, is the responsibility of Franchisee and shall be promptly adjusted with the owner. 3.1.11 Ensure that all solid waste and recycling collection operations shall be conducted as quietly as possible and shall conform to applicable Federal, State, County and City noise emission standards. Unnecessarily noisy trucks or equipment are prohibited. The City Administrator may conduct random checks of noise emission levels to ensure such compliance. 3.1.12 Determine, with approval of the City Administrator, the maximum allowable capacity of cans, carts or containers. If Franchisee refuses to service an overweight can, cart or container, a notice describing the problem must be provided. The notice shall include the name of Franchisee, employee, alternative solutions to resolve the problem and a local phone number for additional information. Franchisee must provide double the customer’s subscribed service level at no additional charge on the customer’s next scheduled collection day, if a special pick-up has not been requested in the meanwhile. If a special pick-up has been requested, Franchisee may charge the normal will-call rate. 3.1.13 Refuse specific residential collections, if access to a can, cart or container, is blocked by a vehicle. For purposed of this section, “blocked” shall be defined as parked immediately in front of, or at the curb within ten feet to either side of such containers. If Franchisee refuses to service a can, cart or container for this reason, a notice describing the problem must be provided. The notice shall include the name of Franchisee, employee, reason for collection refusal, solution for resolving the problem and a local phone number for additional information. Franchisee must provide double the customer’s subscribed service level at no additional charge on the customer’s next scheduled collection day, if a special pick-up has not been requested in the meanwhile. If a special pick-up has been requested, Franchisee may charge the normal will-call rate. 3.1.14 Offer unlimited vacation credits to customers who temporarily discontinue service in a calendar year for any period of two (2) weeks or more. The customer must request the discontinuance no later than noon on the business day, excluding Council Bill No. Ordinance No. Page 9 ìí weekends, prior to the date of discontinuance. 3.1.15 Notify, in the event of changes to the collection schedule, all affected customers within fourteen (14) calendar days of any change. Franchisee shall not permit any customer to go more than seven (7) calendar days without service in connection with a collection schedule change. 3.1.16 Have the option to limit acceptable methods of payment. Franchise must, however, at a minimum, accept cash, personal checks, cashiers checks, money orders, and bank drafts, and provide for online payment with a credit card. 3.1.17 Have the option to refuse collection service upon non-payment of a billing or portion of a billing after account becomes 45 days past due, or upon refusal to pay required advance payments, delinquent charges, or charges associated with starting a new service. Franchisee may withhold collection services, providing at least a ten (10) day notice is given to subscriber. 3.1.18 Continue collection services except in cases of street or road blockage, excessive weather conditions, natural or man-made disasters, or customer violations of public responsibilities beyond Franchisee’s control. Adverse labor relations issues such as strikes or walk-outs shall be considered to be within the control of the franchisee and shall not prevent collection and disposal services as required by this ordinance. 3.1.19 Franchisee shall dispose of solid waste in the nearest disposal site permitted by the Oregon Department of Environmental Quality unless extraordinary circumstances apply. City Council reserves the right to approve any disposal site used by Franchisee. 3.2.Preventing Interruption of Service . In the event of an immediate and serious danger to the public creating a health hazard or serious public nuisance, the City Administrator may, after a minimum of 24 hours notice to Franchisee, authorize another person to temporarily provide emergency service under this ordinance or the City may elect to provide such service. Upon request of Franchisee, a public hearing shall be provided before the City Council and the decision to provide temporary service shall be reconsidered. Franchisee agrees as a condition to this franchise that any equipment used for the services provided under this franchise may be used to provide such emergency service. The City shall return any such property of Franchisee upon abatement of the health or nuisance hazards created by the general interruption of service. In the event the power under this section is exercised, the usual charges for service shall prevail and Franchisee shall be entitled to collect for such usual services, but shall reimburse the City for its actual costs, as determined by the City. 3.3Recycling Standards. Recycling services shall include the following: 3.3.1 For residential customers with regular weekly solid waste service, provide Council Bill No. Ordinance No. Page 10 ìì on-route residential recycling service including one 65-gallon (1) roll cart, one (1) recycle bin and one (1) yard debris cart or composter at no additional charge. Customers may, at their option, upgrade to a 95 gallon roll cart at no additional cost. Additional carts and bins for recycling shall be provided upon request at a cost not greater than the actual cost incurred by Franchisee. 3.3.2 For customers in single-family households, the following material at a minimum shall be picked up curbside once every other week on a designated collection day: newspapers, corrugated cardboard, brown paper bags, mixed paper consisting of household mail, paperboard, and magazines, glass bottles and jars, aluminum and tin, plastics, and aerosol cans. Batteries, oil, and latex paint shall also be collected every other week, but shall be segregated from other recyclable materials in a bin provided by the Franchisee for that purpose. 3.3.3 For apartments and other multi-family households and units requesting such service, the following material at a minimum shall be collected once each week on a designated collection day: newspapers, corrugated cardboard, brown paper bags, mixed paper consisting of household mail, paperboard, and magazines; and glass bottles and jars, aluminum and tin, plastics, and aerosol cans. Batteries, oil and latex paint shall also be collected weekly, but shall be segregated from other recyclable materials in a bin provided by the Franchisee for that purpose. . Materials shall be collected curbside or in a designated collection center in cooperation with the building owner or manager. 3.3.4 Yard debris carts for residential customers shall be picked up weekly on the same day as solid waste collection. Yard debris must be disposed at a compost/mulch facility registered with the Oregon Department of Environmental Quality. 3.3.5 Recycling-only customers shall be offered 65 gallon Carts and be provided bi-weekly recycling service at a rate established by the City Council. 3.3.6 Commercial recycling service includes carts, recycle bins, and cardboard recycling containers and shall be provided at no additional charge. 3.3.7 For commercial customers, the following recyclable material, at a minimum, shall be collected once each week on a designated collection day: office paper and mail, corrugated cardboard, newspapers, paperboard, magazines, brown paper bags, wood, glass bottles and jars, aluminum and tin, plastic, and aerosol cans. Batteries, oil, and latex paint shall also be collected weekly, but shall be segregated from other recyclable materials in a bin provided by the Franchisee for that purpose. 3.3.8 For large quantities of cardboard, the frequency of pickup-service shall be determined by agreement between the generator and the collector. Agreements shall give due consideration to the volume of the material, storage capacity of generator, and generator’s location. 3.3.9 Franchisee must provide notice to customer if recyclable material placed at Council Bill No. Ordinance No. Page 11 ìë curbside is not collected due to improper preparation. Notice must include adequate explanation of refusal for collection, name of employee and local phone number for additional information. Employee shall leave notice securely attached to the customer’s bin or the customer’s front door. Employee shall collect any properly prepared material that is accessible. The purpose of the notice is to educate residents and increase program participation, and shall be written in such a manner as to accomplish this purpose. 3.3.10 Operate and maintain at least one (1) collection center within the City limits that permits residents to deliver recyclables to the site. Collection center shall be open to the public between the hours of 8 am to 5 pm Monday through Friday, and 8 am to Noon on Saturdays. Said site shall accommodate at a minimum all recyclable materials collected at curbside, as well as scrap metal and other types of glass and plastic. Materials such as Styrofoam, textiles, and electronics shall be recycled when it is technologically or economically feasible to do so. 3.3.11 Facilitate a reuse program referring useable items to local thrift shops, resale shops, non-profit groups or others who may have a legitimate use for the item. Maintain a list of businesses and groups that submit requests for needed items, and provide this information to others as requested. 3.3.12 Research and develop improved recycling and reuse systems. 3.4Public Education. Franchisee shall provide the following public education and promotion of activities for waste reduction, recycling, reuse, and source separation, and cooperate with other persons, companies, or local governments providing similar services. Franchisee shall: 3.4.1 Provide a recycling information center within City limits, with local telephone access and information concerning collection schedules, recycling locations, recyclable material preparation, conservation measures, reuse programs, waste reduction strategies and on-site demonstration projects. Recycling information booths at appropriate community events shall also be provided by Franchisee to promote and increase recycling awareness and participation. 3.4.2 Provide recycling notification and educational packets for all new residential, commercial, and industrial collection service customers specifying the collection schedule, materials collected, proper material preparation, reuse programs, waste reduction strategies and recycling benefits. 3.4.3 Provide semi-annual informational/promotional pamphlets to residences and businesses in the City that include the materials collected and the schedule for collection. Information about waste reduction, reuse opportunities, proper handling and disposal of special wastes (household hazardous wastes) and the reduction of junk mail shall be included on a regular basis. Special community solid waste events, and the holiday tree removal program shall also be promoted when appropriate. Informational/promotional pamphlets shall be distributed to all mailing addresses within Council Bill No. Ordinance No. Page 12 ìê the City. 3.4.4 Develop by December 31, 2009 and then maintain an Internet web site that includes a listing of all franchised solid waste and recycling services and applicable rates charged for such services. 3.4.5 Perform waste audits for those commercial and industrial customers requesting one, and conduct, at least annually, workshops on waste reduction strategies and reuse opportunities. 3.4.6 Coordinate with the Woodburn School district and local private schools to assist in promoting awareness of recycling and waste reduction strategies to children, and to cooperate with the district in their recycling efforts and programs. 3.4.7 Promote solid waste reduction and recycling education through local widespread media, such as radio or newspapers, no less than 18 times each year. Promotional information shall focus on recycling, reuse and waste reduction strategies. 3.4.8 Provide the City Administrator with sufficient copies of all promotional fliers and other related information as requested. 3.4.9 Conduct a bi-annual survey to evaluate customer participation in recycling programs and customer opinion of solid waste and recycling services offered by Franchisee. Statistics shall be used to enhance existing recycling educational materials and increase program participation. Significant statistical changes in the survey shall afford the City Administrator the option to renegotiate Section 3 of this agreement. 3.5Resource Recovery Services. 3.5.1 Aggressively seek markets for reusable, recyclable, and recoverable materials and purchase such materials from others. 3.5.2 Develop strategies to promote the reduction of solid waste generated by residential, commercial and industrial customers. Promote programs preventing or reducing at the source those materials which would otherwise constitute solid waste. 3.6County Wasteshed. Coordinate recycling efforts with other solid waste collection efforts in the Marion County Wasteshed to further enhance recycling and recovery, efforts, and to meet wasteshed recovery goals as mandated by the state. 3.7Additional Recycling Requirements. 3.7.1 The City Administrator reserves the right to require specific materials to be separated, collected and recycled. 3.7.2 Franchisee shall provide other recycling services as required by Oregon Revised Statute 459.A, City Council, ordinance, or municipal code. Council Bill No. Ordinance No. Page 13 ìé 3.7.3 Franchisee shall recycle additional materials when economically feasible and provide for an on-site collection center for household hazardous waste. 3.8 Community Service Standards. 3.8.1 Franchisee shall provide for storm debris collection of tree limbs, leaves, etc., on an as needed basis. Franchisee may charge a fee for such service. 3.8.2 Franchisee shall provide an annual residential cleanup, collecting scrap and recyclable material, yard debris and appliances, at no additional charge; however, Franchisee may charge, as a pass-through cost, the CFC evacuation fee on appliances. 3.8.3 Franchisee shall provide collection and recycling of holiday trees placed at th curbside for a period of three (3) weeks, beginning December 26 of each year, at no additional charge. 3.8.4 Franchisee shall provide twice weekly solid waste collection and disposal service of public litter receptacles, in the central business district of the City, including the Woodburn Downtown Plaza, except weekends and holidays. 3.8.5 Franchisee shall provide once weekly solid waste collection and disposal service at the following facilities at no charge to the City: a. City Hall b. Woodburn Public Library c. Woodburn Memorial Aquatic Center d. Woodburn Police Facility e. Woodburn Public Works Annex f. Public Works Corporation Yard 3.9Additional Services. Where a new service or a substantial expansion of an existing service is proposed by the City Administrator, another person or Franchisee, the following shall apply: 3.9.1 If service is proposed by the City Administrator, Franchisee shall receive prior written notice of the proposed service and justification by the City Administrator. If service is proposed by Franchisee or another person, the City Administrator must be notified in writing prior to any consideration by the City. 3.9.2 The City may hold a public hearing on the proposed service and justification. 3.9.3 In determining whether the service is needed, the City shall consider the public need for the service, the effect on rates for service and the impact on other services being provided or planned, the impact on any city, county or regional solid waste management plan, and compliance with any applicable statutes, ordinances or Council Bill No. Ordinance No. Page 14 ìè regulations. 3.9.4 If the City determines the service is needed, Franchisee shall have the option to provide the service on a temporary basis through a pilot program to determine if the service is functional on a permanent basis or Franchisee may agree to provide the service on a permanent basis within a specified time. 3.9.5 If Franchisee rejects the service, the City may issue a franchise or permit to another person to provide only that service. The provider of the limited service shall comply with all applicable provisions of this ordinance. 3.10Special Service. 3.10.1 If a customer requires an unusual service requiring added or specialized equipment solely to provide that service, Franchisee may require a contract with the customer to finance and assure amortization of such equipment. The purpose of this subsection is to assure that such excess or specialized equipment does not become a charge against other ratepayers. 3.11Sub-Contract. Franchisee may sub-contract with other persons to provide specialized or temporary service covered by this franchise, but shall remain totally responsible for compliance with this agreement. Franchisee shall provide written notice of intent to sub-contract services prior to entering into agreements. If sub-contracting involves a material portion of the franchised service, Franchisee shall seek the approval of the City. 3.12Equipment and Facility Standards. 3.12.1 All equipment shall be kept well painted, and properly maintained in good condition. Vehicles and containers used to transport solid waste shall be kept clean to ensure no contamination to the environment or the City’s storm water system. 3.12.2 All vehicles and other equipment shall be stored in a safe and secure facility in accordance with applicable zoning and environmental regulations. 3.12.3 Trucks shall be equipped with a leak proof metal body of the compactor type including front, rear, or automatic loading capabilities. 3.12.4 Pick-up trucks, open bed trucks or specially designed, motorized local collection vehicles used for the transporting of solid waste must have a leak proof metal body and an adequate cover over the container portion to prevent scattering of the load. 3.12.5 All fuel, oil, or vehicle fluid leaks or spills which result from Franchisee’s vehicles must be cleaned up immediately. All vehicles must carry an acceptable absorbent material for use in the event of leaks or spills.Damages caused by fuel, oil, or other vehicle fluid leaks or spills from Franchisee’s vehicles or equipment shall be at Franchisee’s expense. Council Bill No. Ordinance No. Page 15 ìç 3.12.6 All vehicles used by Franchisee in providing solid waste and recycling collection services shall be registered with the Oregon Department of Motor Vehicles and shall meet or exceed all legal operating standards. In addition, the name of Franchisee, local telephone number and vehicle identification number shall be prominently displayed on all vehicles. 3.12.7 All collection vehicles shall not exceed safe loading requirements or maximum load limits as determined by the Oregon Department of Transportation. Franchisee shall endeavor to purchase and operate equipment that minimizes damage to City streets. 3.12.8 Franchisee shall provide and maintain equipment that meets all applicable laws, ordinances, municipal codes, and regulations or as directed by the City Administrator. 3.12.9 Franchisee shall provide and replace as necessary, garbage collection carts, yard debris carts, and recycle bins at no charge to the public. Cart sizes offered for solid waste disposal include 20, 32, 64, and 90 gallon capacity. Yard debris carts shall be 65 gallon capacity. Recycle carts may be either 65 or 95 gallon capacity, depending on customer choice. Solid waste, yard debris, and recycling carts shall be leak-proof, rigid, fireproof, and of rodent proof construction and not subject to cracking or splitting. The City Administrator has the right to approve all receptacles provided by Franchisee for use in the City and may require additional or alternative receptacle sizes. Customers may, at their election, change their cart size once each calendar year at no cost. For each subsequent change within the same calendar year, Franchisee may charge a fee, to recover the administrative costs of such change, as approved by the City Council. 3.12.10 Franchisee shall clean containers used by commercial customers once annually if requested by customer for no additional charge. If Franchisee determines such containers are becoming a health hazard, requiring more frequent cleaning, such service shall be an additional maintenance charge to the waste producer or generator. 3.12.11 In cooperation with the Woodburn Police Department, Franchisee shall remove graffiti from all containers or facilities within of the time Franchisee is notified of such need. Notification may be verbal, or in writing. 3.12.12 All surface areas around Franchisee’s site facilities including vehicle and equipment storage areas, service shops, wash stations, transfer sites, collection centers, and administrative offices must be kept clean to eliminate direct site run-off into the City’s storm water and open drainage system. 3.13Safety Standards. Franchisee shall operate within guidelines of the Oregon Refuse and Recycling Association, Oregon Department of Transportation, Oregon Public Utility Commission, Oregon Occupational Health and Safety Administration, Department of Environmental Quality, Woodburn Municipal Code and all Council Bill No. Ordinance No. Page 16 ëð other rules and regulations as they apply. 3.13.1 Franchisee shall provide suitable operational and safety training for all of its employees who maintain, use, or operate vehicles, equipment, or facilities for collection of waste or who are otherwise directly involved in such collection. Employees involved in collection services shall be trained to identify, and not to collect, excluded waste. Employees who do handle such excluded waste shall be properly trained. 3.14Right-of-Way Standards. Franchisee shall ensure proper and safe use of public right-of-ways and provide compensation to the City in consideration of the grant of authority to operate a solid waste collection and disposal system in the City of Woodburn as directed in this franchise agreement. 3.15Customer Service Standards. Franchisee shall: 3.15.1 Provide sufficient collection vehicles, carts, bins, containers, drop boxes, facilities, personnel and finances to provide the services set forth in this franchise agreement. 3.15.2 Sufficiently staff, operate and maintain a business office and operations facility within the City. 3.15.3 Establish minimum office hours of 8:00 am through 5:00 pm, Monday through Friday, not including holidays. 3.15.4 Ensure a responsive, customer service oriented business. Provide customers with a local telephone number, listed in a local directory, to a local business office. Adequately staff operations to provide prompt response to customer service requests or inquiries and respond promptly and effectively to any complaint regarding service. Calls received by 1:00 pm by office staff shall be returned the same business day as call received, and by noon of the following business day if call is received after 1:00 pm. Franchisee shall promptly respond to all written complaints about service or rates. 3.15.5 Train collection crews prior to their beginning solid waste and recycling collection, and office staff prior to having public contact. The scope of the training shall include, but is not limited to, acceptable safety practices, acceptable standards of service to the public, courteous customer service, and accuracy and completeness of information 3.15.6 Require all employees of Franchisee and all employees of persons under contract with Franchisee under this franchise agreement to present a neat appearance and conduct themselves in a courteous manner. Franchisee shall require its drivers and all other employees who come into contact with the public, to wear suitable and acceptable attire that identifies Franchisee. 3.15.7 Designate at least one (1) qualified employee as supervisor of field Council Bill No. Ordinance No. Page 17 ëï operations. The supervisor shall devote an adequate portion of his/her workday in the field checking on collection operations, including responding to issues. 3.16Annual Customer ServiceReporting Standards. Franchisee shall provide annual reports to the City Administrator by March 31st of each year during the term of the franchise. 3.16.1 Reports shall include a written log of all oral and written complaints or service issues registered with Franchisee from customers within the City. Franchisee shall record the name and address of complainant, date and time of issue, nature of issue, and nature and date of resolution. The City Administrator may require more immediate reports documenting complaints and resolutions. 3.16.2 Provide a summary of educational and promotional activities as required in Sub-section 3.4. 3.17 Annual Financial Reporting Standards. Franchisee shall keep current, accurate records of account. The City may inspect the Records any time during business hours and may audit the Records from time to time. If an audit of the Records is required, the cost of an independent audit, reasonably satisfactory to the City, shall be the responsibility of franchisee. Franchisee shall submit to the City Administrator a st report annually, no later than March 31 of each year, documenting the activities and achievements of all programs undertaken pursuant to this franchise for the previous year. The City Administrator shall evaluate the effectiveness of the programs in terms of the amount, level, and quality of the services provided by Franchisee. The report shall include the following specified information: 3.17.1 Total franchise payments remitted and basis for calculations; 3.17.2 Year-end financial statements of Franchisee for service within the City limits only, including: Summary of financial highlights Statement of income and retained earnings Balance sheet Statement of changes in financial position Schedule of expenses 3.17.3 Annual recycling data form as submitted to the Marion County Environmental Services Division. 3.17.4 Current and previous year total of residential, commercial and industrial customers within City limits, including tons of solid waste generated. Number of recycling customers within City limits and percentage of materials recycled. 3.17.5 A summary of the customer survey as required in Sub-section 3.4.9 and a summary of the annual customer service reports as required in Sub-section 3.16. Council Bill No. Ordinance No. Page 18 ëî . 3.17.6 Document industry trends and direction of Franchisee over the next seven years. 3.17.7 Provide a summary of Community Involvement activities as required in Section 3. 3.17.8 Other information pertaining to performance standards specified in the franchise agreement. Section 4 - Rates 4.1Rate Structure. The City Council reserves the right to examine the rate structure of Franchisee, and to require specific services and approve rate changes which, in the discretion of the City Council, are reasonably required in view of the following considerations: 4.1.1 Franchisee shall have the right to charge and collect reasonable compensation from those whom it furnishes franchised services. The term “reasonable compensation” shall be defined at the discretion of the City after a study and consideration of rates for similar service under similar conditions in other areas, and as affected by local conditions in the local area. However, nothing in this section prohibits Franchisee from volunteering services at a reduced cost for a civic, community, benevolent or charitable program. Cash or in-kind contributions to such organizations shall be the sole responsibility of Franchisee and shall not be a factor in determining rates or increase the total amounts paid by ratepayers for which Franchisee serves under this agreement and shall not reduce the total amount of revenue paid to the City. Contributions shall not be taken into consideration in the rate approval process. 4.1.2 Franchisee shall provide to the City Administrator a copy of the published rate schedule which shall contain the rates and charges made for all its operations. The rate schedule shall be kept current. Franchisee shall file with the City Administrator, at least 90 days prior to any contemplated change, a complete, new and revised rate schedule which shall be examined by Council in a public hearing, subject to applicable notice requirements and affording due process. Franchisee shall also provide documented evidence of actual or projected increased operating costs within City limits which may justify proposed increases. Council may approve or deny any request based on criteria consisting of, but not limited to: increases in operating or capital costs, increases in City population; extension of City boundaries; increase of intensive residential, commercial or industrial development within the City; changes in solid waste or recycling technology; changes in regulatory requirements; inability of Franchisee to adequately handle increased needs for said service; the rates in other cities for similar services; and the public interest by assuring reasonable rates to enable Franchisee to provide efficient and beneficial service to users of the service. The request shall be considered denied unless approved by Council prior to 30 days before the effective date. In the event of denial, the current rate schedule remains in effect and Franchisee may file with the Council further information to justify the rate schedule changes. Council Bill No. Ordinance No. Page 19 ëí 4.1.2.1 Rates established by Council are fixed rates and Franchisee shall not charge more or less than the fixed rate unless changed pursuant to Section 4. Franchisee shall not charge rates not in the rate schedule. 4.1.2.2 Rates for a given service must be established under the provisions of these guidelines before such service can be provided to customers unless services are being offered under a pilot program. If the City Administrator determines Franchisee is providing services for a fee without following these guidelines, the City Administrator may require Franchisee to continue providing such services at no charge to the customer until such time as the rates are approved as described under Section 4. If rates are not subsequently approved, Franchisee may discontinue service and shall take full responsibility in explaining to customers as to why the service is no longer being provided. 4.1.3 Franchisee may not give any rate preference to any person, locality, or type of solid waste collected, transported, stored, disposed of or resource recovered. This section shall not prohibit uniform classes of rates based on length of haul, time of haul, type or quantity of solid waste handled, and location of customers, so long as such rates are reasonably based on the cost of service and approved by City Council in the same manner as other rates. 4.1.4 The rates shall be subject to review and change only one (1) time in a calendar year, beginning January 1 and ending December 31; provided: 4.1.4.1 The City Council may at its sole discretion and with appropriate documentation submitted by Franchisee, grant an interim or emergency rate for changes in service, including pilot programs. 4.1.4.2 An additional application for a rate adjustment may be made when the cost of collection is increased by governmental regulations, or there is a single large increase in cost not anticipated at the last rate adjustment. 4.1.5 The approved rate schedule (Exhibit 1), as of the effective date of this ordinance, shall be deemed to be in effect. Section 5 - Financial 5.1Compensation. In consideration of the rights and privileges granted by this ordinance, Franchisee shall pay to the City of Woodburn, five percent (5%) per annum of its gross revenues derived from all services within the City and from the sale of recyclable material collected within the City. Franchisee shall also pay five percent (5%) per annum of the gross revenues derived from franchised services within the City, as defined in this ordinance, earned by subcontractors of Franchisee within the City for services rendered pursuant to this franchise agreement. Council Bill No. Ordinance No. Page 20 ëì 5.1.1 Gross revenue of Franchisee shall mean revenues derived by Contractor within the City pursuant to this franchise agreement. 5.1.2 No expenses, encumbrances, or expenditures shall be deducted from the gross revenue in determining the total gross revenue subject to the franchise fee, except net uncollectables. 5.1.3 The compensation required in this section shall be due quarterly, on or before the 30th day of the month following last business day of every quarter. Franchisee shall furnish with each payment a notarized statement, executed by the General Manager, showing the amount of gross revenue of Franchisee within the City for the period covered by the payment computed on the basis as determined by Sub- section 5.1, Compensation. If Franchisee fails to pay the entire amount of compensation due to the City through error or otherwise within the time allotted for, the unpaid balance shall be subject to a late penalty of an additional ten percent (10%), plus interest of two percent (2%) per month on the amount of fee due and unpaid from the date due until it is paid together with the late penalty. 5.1.4 If Franchisee is prohibited by state or federal law from paying a fee based on gross revenues or the City is prohibited by state or federal law from collecting such a fee, or if any legislation reduces the actual or projected amount of compensation collected in any given year, the City Administrator may renegotiate the compensation section of this franchise agreement. 5.1.5 Franchisee shall not separately identify its franchise fee on billing statements to customers unless it separately identifies all costs which constitute five percent (5%) or more of the costs paid by the revenues received from customers. 5.1.6 Nothing contained in this franchise shall give Franchisee any credit against any ad valorem property tax levied against real or personal property within the City, or against any local improvement assessment or any business tax imposed on Franchisee, or against any charges imposed upon Franchisee including permit and inspections fees or reimbursement or indemnity paid to the City. 5.2Insurance. Franchisee shall pay, save harmless, protect, defend and indemnify the City from any loss or claim against the City on account of, or in connection with, any activity of Franchisee in the operation or maintenance of its facilities and services except those that arise out of the sole negligence of the City. Franchisee shall, for the purposes of carrying out the provisions of this agreement, have in full force and effect, and file evidence with the City Administrator the following requirements: 5.2.1 Workers’ Compensation insurance as required by Oregon Law, including Employers Liability Coverage. 5.2.2 Commercial General Liability insurance as broad as Insurance Services Council Bill No. Ordinance No. Page 21 ëë Office (ISO) form CG 00 01, providing Bodily Injury, Property Damage and Personal Injury on an occurrence basis with the following as minimum acceptable limits: Bodily Injury and Property Damage - Each Occurrence $2,000,000 Personal Injury - Each Occurrence $2,000,000 Products & Completed Operations - Aggregate $3,000,000 General Aggregate $3,000,000 5.2.3 Business Automobile Liability as broad as Insurance Services Office (ISO) form CA 00 01, providing bodily injury and property damage coverage for all owned, non-owned and hired vehicles, with the following as minimum acceptable limits: Bodily Injury and Property Damage - Each Occurrence $1,000,000 5.2.4 Franchisee shall furnish the City Administrator with Certificates of Insurance and with original endorsements for each insurance policy (if needed). All certificates and endorsements are to be received and approved by the City Administrator before the effective date of this ordinance. The Commercial General Liability Certificate shall name the City of Woodburn, its officers, officials, employees and agents as Additional Insureds as respects to operations performed under this franchise agreement.; Franchisee shall be financially responsible for all pertinent deductibles, self-insured retentions and/or self insurance. All such deductibles, retentions, or self-insurance must be declared to and approved by the City Administrator. 5.2.5 Any Certificate shall state, “Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the certificate holder named to the left.” Any “will endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives.” shall be omitted. 5.3 Hold Harmless. The Franchisee agrees to indemnify, defend and hold harmless the City, its officers, employees, volunteers and agents from any and all claims, demands, action, or suits arising out of or in connection with the City Council’s grant of this franchise. Franchisee shall be responsible to defend any suit or action brought by any person challenging the lawfulness of this franchise or seeking damages as a result of or arising in connection with its grant; and shall likewise be responsible for full satisfaction of any judgment or settlement entered against the City in any such action. The City shall tender the defense to the Franchisee , and Franchisee shall accept the tender whereupon the City shall assign to Franchisee, complete responsibility of litigation including choice of attorneys, strategy and any settlement. 5.3.1 Franchisee’s costs incurred in satisfying its obligations as defined in 5.3 above, shall not decrease the total amount of compensation paid to the City and shall not increase the total amounts paid by the ratepayers for which Franchisee serves under the authority of the franchise agreement. All such expenses shall be the sole responsibility and burden of Franchisee. Council Bill No. Ordinance No. Page 22 ëê 5.3.2Damages. Damages and penalties under this Section 5.3 include, but shall not be limited to, damages arising out of personal injury, property damage, copyright infringement, defamation, theft, and fire Franchisee. Section 6 - Administration and Enforcement 6.1 Customer Dispute Resolution Process. 6.1.1 Any citizen of Woodburn who is aggrieved or adversely affected by any application of the franchise or policy of Franchisee shall first attempt to settle the dispute by notifying Franchisee of the nature of the dispute and affording Franchisee the opportunity to resolve the dispute. 6.1.2 If the dispute is unresolved, the citizen may contact the City Administrator. The City Administrator may require a written description of the dispute from either party, and shall attempt to mediate and resolve the grievance with the citizen and Franchisee. 6.1.3 If the dispute is still unresolved, the citizen or Franchisee may appeal to the City Council who shall hear the dispute. The decision of the City Council shall be final and binding. 6.2Penalties and Procedures. Subject to the requirement of prior notice as set forth in Section 6.3 below, for violations of this ordinance occurring without just cause, the City Administrator may assess penalties against Franchisee as follows: 6.2.1 For failure to adhere to material provisions of this franchise, as defined in Section 6.4.1, Two Hundred Fifty Dollars ($250.00) per day for each provision not fulfilled. 6.2.2 For failure to comply with Oregon Occupational Safety and Health Administration and Oregon Department of Transportation safety requirements or Oregon Department of Environmental Quality rules and regulations, the penalty shall be Two Hundred Fifty Dollars ($250.00) per day, per occurrence. 6.2.3 For failure to comply with any provision of this franchise, for which a penalty is not otherwise specifically provided, the penalty shall be One Hundred Twenty Five Dollars ($125.00) per day, per occurrence. 6.2.4 For failure to comply with reasonable requests of the City Administrator related to service, the penalty shall be One hundred Dollars ($100.00) per day per request. 6.3Procedure for Imposition of Penalties. 6.3.1 Whenever the City Administrator finds that Franchisee has violated one (1) Council Bill No. Ordinance No. Page 23 ëé or more terms, conditions or provisions of this franchise, a written notice, or a verbal notice followed by a written notice, shall be given to Franchisee informing it of such violation or liability. If the violation concerns requirements mandated by the Oregon Occupational Health and Safety Administration or the Oregon Department of Environmental Quality, a verbal notice followed by a written notice may be given. For these safety or public health violations, Franchisee shall have 24 hours from notification to correct the violation. For all other violations and liabilities the written notice shall describe in reasonable detail the specific violation so as to afford Franchisee an opportunity to remedy the violation. Franchisee shall have ten (10) days subsequent to receipt of the notice in which to correct the violation. Franchisee may, within five (5) days of receipt of notice, notify the City Administrator that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Franchisee to the City Administrator shall specify with particularity the matters disputed by Franchisee. 6.3.2 The City Council shall hear Franchisee’s dispute at its next regularly or specially scheduled meeting. The Council shall supplement its decision with written findings of fact. 6.3.3 If after hearing the dispute the claim is upheld by the Council, Franchisee shall have ten (10) days from such a determination to remedy the violation or failure. Penalties shall accrue from time of initial notification until such time as the violation or failure is resolved to the satisfaction of the City Administrator. 6.3.4 Franchisee shall be liable for full payment of all penalties imposed under this section. 6.4City’s Right to Revoke. In addition to all other rights which the City has pursuant to law or equity, the Council reserves the right to revoke, terminate, or cancel this franchise, and all rights and privileges pertaining thereto, in the event that: 6.4.1 Franchisee violates any of the following provisions of this franchise which are deemed to be material to the performance of the franchise, and fails to cure such violation in accordance with Section 6.3: Standards for Collection and Disposal of Solid Waste and Recyclable Materials (Section 3) Compensation (Section 4 ) Insurance (Section 5) Assignment or Sale of Franchise (Section 8) 6.4.2 Franchisee practices any fraud upon the City or customer. 6.4.3 Franchisee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt. 6.4.4 Franchisee misrepresents a material fact in the negotiation of, or renegotiation of, or renewal of, the franchise. Council Bill No. Ordinance No. Page 24 ëè 6.4.5 After conducting a public hearing and documenting in findings of fact that it is in the best interest of the public to do so. 6.5Enforcement. 6.5.1 The City Administrator shall have the right to observe and inspect all aspects of collection operations, facilities, services, and records which are subject to the provisions of this franchise, to insure compliance. 6.5.2 If Franchisee at any time fails to promptly and fully comply with any obligation of this agreement after receiving a written notice and a reasonable opportunity to comply, the City Administrator may elect to perform the obligation at the expense of Franchisee. 6.5.3 If Franchisee defaults in any of the terms required to be performed by it under the terms of this franchise, and the default continues for ten (10) days after written notification by the City Administrator, this franchise may, at the option of the Council, become null and void. 6.5.4 The City Administrator reserves the right to make such further regulations as may be deemed necessary to protect the interests, safety, welfare and property of the public and carry out purposes stated in Section 3 of this franchise agreement. The City Administrator or Franchisee may propose amendments to this franchise. Proposals shall be in writing and shall be afforded an adequate review process.After review of the proposed amendments to the franchise, the Council may adopt the amendments. 6.5.5 All remedies and penalties under this franchise agreement, including termination, are cumulative, and the recovery or enforcement of one is not a waiver or a bar to the recovery or enforcement or any other recovery, remedy or penalty. In addition, the remedies and penalties set out in this ordinance are not exclusive, and the City reserves the right to enforce the penal provisions of any other ordinance, statute or regulation, and to avail itself of any all remedies available at law or in equity. Failure to avail itself of any remedy shall not be construed as a waiver of that remedy. Specific waiver of any right by the City for a particular breach shall not constitute a general waiver of the City’s right to seek remedies for any other breach, including a repetition of the waived breach. 6.6 Non-enforcement by the City. Franchisee shall not be relieved of its obligation to comply with any of the provisions of this franchise by reason of any failure of the City Administrator to enforce prompt compliance. 6.7Written Notice. All notices, reports, or demands required to be given in writing under this franchise shall be deemed to be given when a registered or certified mail receipt is returned indicating delivery as follows: If to the City: City of Woodburn Council Bill No. Ordinance No. Page 25 ëç 270 Montgomery Street Woodburn, Oregon 97071 Attn: Mary Tennant, City Recorder If to Franchisee: United Disposal Service, Inc P.O. Box 608 Woodburn, Oregon 97071 Attn: Robin Murbach, General Manager Such addresses may be changed by either party upon written notice to the other party given as provided in this section. Section 7 - Public Responsibilities 7.1Excluded Waste. No person shall place hazardous wastes or excluded waste for collection or disposal by Franchisee at the curbside. Hazardous waste and excluded waste shall only be disposed at collection events for this specific purpose. 7.2Accumulation of Waste. No person shall accumulate or store waste that is unsightly or in violation of the City’s nuisance ordinance, or in violation of regulations of the Oregon Environmental Quality Commission. 7.3Approved Receptacles. No customer shall use any waste collection receptacle unless it is supplied by or approved by Franchisee. 7.4Safe Loading Requirements. No stationary compactor, can, cart or container for residential, commercial or industrial use shall exceed the safe loading requirements designated by Franchisee. 7.5Access to Receptacle. No receptacle shall be located behind any locked or latched gate or inside of any building or structure unless authorized by Franchisee. No person shall block the access to a receptacle. 7.6Safe Access. Each customer shall provide safe access to the solid waste or solid waste receptacle without hazard or risk to Franchisee. 7.7 Can/Cart Placement. Placement of cans/carts must be within three (3) feet of curb but shall not restrict access to bicycle lanes or sidewalks and shall not be blocked by vehicles or other items. Items not for collection must be at least three (3) feet from cans/carts. Placement of cans/carts is limited to a time period of 24 hours prior to pick-up and 24 hours after pick-up. Cans/carts within alleys shall be placed to accommodate collection vehicles. 7.8 Clean Cans/Carts and Surrounding Areas. Generators or producers of waste shall clean cans/carts and shall keep the area around cans/carts and containers free of accumulated wastes. Council Bill No. Ordinance No. Page 26 êð 7.9Removal of Solid Waste Prohibited. No person, other than the person producing the materials contained therein, or an officer, employee or permittee of the City, or an employee of the Franchisee shall interfere with any solid waste receptacle, compact the contents of a receptacle, or remove any such receptacle or its contents from the location where the same has been placed by the person so producing the contents of said container. This subsection does not apply to the purchase of materials for fair market value as exempted by Section 2, 2.6 of this ordinance. 7.10Collection of Solid Waste Prohibited. No person shall remove the lid , from any solid waste receptacle, nor enter into such solid waste receptaclenor shall any person collect, molest, compact or scatter solid waste placed out for collection and resource recovery, except the person so producing the materials contained therein, or an officer, employee or permittee of the City, or an employee of the Franchisee. 7.11Disposal of Unauthorized Solid Waste Prohibited. No unauthorized person shall remove the lid from or interfere with any solid waste receptacle to deposit solid waste into such receptacle. 7.12 Stationary Compactor. No person shall install a stationary compacting device for handling of solid wastes unless it complies with all applicable federal, state, and local laws and regulations. Franchisee shall not service any such device unless these requirements are adhered to at all times. 7.13 Train System. No person shall install or operate a “train system” for the purpose of solid waste collection under this franchise agreement. 7.14Penalties. In addition to, and not in lieu of any other available legal remedies, a violation of sections 7.1, 7.2, 7.6, 7.8, 7.9, 7.10, 7.11, or 7.12 of this Ordinance constitutes a Class 2 Civil Infraction, which shall be processed according to the procedures contained in the Woodburn Infraction Ordinance. Each day of continued violation is a separate offense and is separately punishable, but may be joined in a single prosecution. Section 8 – Miscellaneous 8.1 Transfer of Ownership or Control 8.1.1 This franchise shall not be sold, assigned, transferred, leased or disposed of either in whole or in part, in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person or entity without the prior written consent of the City Council, which consent shall not be unreasonably withheld. 8.1.2 Franchisee shall promptly notify the City of any actual or proposed change in or transfer of, or acquisition by any other party of control of the Franchisee. The word Council Bill No. Ordinance No. Page 27 êï “control” as used herein is not limited to majority stockholders, but includes actual working control in whatever manner exercised. Every change, transfer or acquisition of control of the Franchisee shall make this Franchise subject to cancellation unless and until the City Council has consented thereto. 8.1.3 The parties to the sale or transfer of this franchise agreement shall make a written request to the City Council for its approval and furnish all information reasonably required for City Council consideration. 8.1.4 The City Council’s approval shall be based upon the financial responsibility of the party whom the franchise is proposing for sale, assignment or transfer. In reviewing a request for sale or transfer, the City Council may inquire into tthe financial capability, technical ability, legal qualifications, demonstrated ability, and experience of the prospective controlling party or transferee to comply with the terms of the franchise as determined by the City, and must agree to comply with all provisions of the franchise agreement. 8.1.5 The City shall be deemed to have approved the proposed transfer or assignment in the event that its decision is not communicated in writing to the franchisee within 90 days following receipt of written notice of the proposed transfer. 8.1.6 Within thirty (30) days of any transfer or sale, if approved or deemed granted by the City Council, Franchisee shall file with the City a copy of the deed, Agreement, lease, bill of sale, stock power or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by the Franchisee and the transferee. 8.2Performance Bond . As part of any assignment or transfer of franchise, as provided in Subsection 8.1, Franchisee shall provide a performance bound in the a form acceptable to the City, in the amount of $1,000,000 with a surety licensed to do business in the State of Oregon conditioned upon the full and faithful performance of this franchise agreement and franchise and this chapter. 8.3Change of Law; Amendment of Franchise Agreement . 8.3.1 . It is the intent of the parties that this Agreement may be amended from time to time to conform to any changes in the controlling federal or state law or other changes material to this agreement. Each party agrees to bargain in good faith with the other party concerning such proposed amendments. 8.3.2 This Agreement may be amended or terminated by the mutual consent of the parties and their successors-in interest. 8.3.3 To the extent any lawful City rule, ordinance or regulation is adopted on a jurisdiction-wide basis and is generally imposed on similarly situated persons or entities, the rule, ordinance or regulation shall apply without need for amendment of this Council Bill No. Ordinance No. Page 28 êî Agreement. City shall provide Franchisee notice of any such change in law prior to its adoption. 8.4 Severability and Constitutionality. If any portion or phrase of this ordinance is for any reason held invalid or declared unconstitutional by any court, such portion shall be deemed a separate and independent provision; and such holding shall not affect the constitutionality of the remaining portion hereof. The council hereby declares that it would have passed this ordinance and each portion and phrase hereof, irrespective of the fact that any one (1) or more portions or phrases be declared illegal, invalid or unconstitutional. If, for any reason, the franchise fee under Section 5 of this ordinance is invalidated or amended by the act of any court or governmental agency, the City Administrator may either renegotiate the compensation section of this agreement or adopt the highest reasonable franchise fee allowed by such court or other governmental agency as the franchise fee charged by this ordinance. 8.5Continuity of Service Mandatory. Upon expiration or the termination of this franchise, the City Administrator may require Franchisee to continue to operate the system for an extended period of time, not to exceed twelve (12) months. Franchisee shall, as trustee for its successor in interest, continue to operate under the terms and conditions of this franchise. In the event Franchisee does not so operate, the City Administrator may take such steps as deemed necessary to assure continued service to subscribers. Costs associated with such actions shall be the sole responsibility of Franchisee. 8.6Rules of Construction. This ordinance shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this ordinance, the following provisions shall govern its interpretation and construction: 8.6.1 The singular may include the plural number, and the plural may include the singular number. 8.6.2 “May” is permissive and “shall” is mandatory. 8.7Calculation of Time. Time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time unless stipulated otherwise in this agreement. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation. Council Bill No. Ordinance No. Page 29 êí 8.8Repeal; Effective Date. This ordinance shall repeal Ordinance 1641. If this ordinance is void for any reason, Ordinance 1641 shall remain repealed in its entirety. This ordinance shall be in full force and effect as of the date indicated below, but this ordinance shall be void unless Franchisee files with the City Recorder, within 30 days, Franchisee’s unconditional written acceptance of the terms, conditions, and obligations to be complied with or performed by it under this ordinance. Approved as to form:__________________________ City Attorney Date APPROVED:_____________________ Mayor Passed by the Council: ________________ Submitted to the Mayor: ________________ Approved by the Mayor: ________________ Filed in the Office of the Recorder: ________________ ATTEST____________________________ Recorder City of Woodburn ACCEPTED BY FRANCHISEE this ______day of ___________, 2009: By____________________________________ United Disposal Service, Inc. dba Allied Waste Services of Marion County-Woodburn Council Bill No. Ordinance No. Page 30 êì ß¹»²¼¿ ×¬»³ November 23, 2009 TO: Honorable Mayor and City Council through City Administrator FROM: Jim Row, Community Services Director SUBJECT: Award of Construction Contract for theCentennial Park Phase III Project RECOMMENDATION: It is recommended that the City Council Award a construction contract for the Centennial Park Phase III Project to 2KG Contractors, Inc. in the amount of $921,000. BACKGROUND: This contract is for the construction of improvements to Centennial Park, including completion of the final baseball field, concessions/ restroom building, asphalt and wood chip pathways, concrete basketball court, dog park, picnic shelter, landscaping and irrigation, and ADA ramps for the existing playground. The project was advertised to include a base bid scope of work, as well as five bid alternates. Since the bids we received were favorable, we have chosen to include two bid alternates in our recommended construction contract. Those alternates will correct grading and drainage problems with existing baseball field #1, and replace an old storage structure with a new maintenance building in the unimproved area west of the water treatment plant. The City received ten sealed bids for the project. They were publicly opened and read on October 29, 2009, then tabulated to include the two bid alternates. The results are as follows: No.NameAmount 1. Triplett Wellman $877,000 (offer withdrawn) 2. 2KG Contractors, Inc. $921,000 3. Bernhardt Golf $930,000 4. Nomarco $965,800 Agenda Item Review: City Administrator __X___ City Attorney ___X___ Finance __X__ êë Honorable Mayor and City Council November 23, 2009 Page 2 5. Paul Brothers Inc. $1,033,635 6. K & E Excavating $1,050,202 7. Canby Excavating $1,112,000 8. Parsons Excavating $1,115,000 9. First Cascade Corp. $1,137,627 10. Brown Contracting $1,201,000 The Engineer’s Estimate for the project, including alternates #2 and #3 was $1,467,258. After tabulating the results to include alternates #2 and #3, the City determined that Triplett Wellman was the low bidder and issued an “Intent to Award” notification on October 30, 2009. On November 4, 2009, Triplett Wellman submitted in writing, a request that they be permitted to withdraw their offer on the grounds that they prepared their bid with the mistaken assumption that the City would provide, at its own expense, the concession building, picnic shelter, and maintenance building, and that they would only be responsible for installing the structures. The City evaluated their request, determined that it met the requirements of OAR 137-049-350, and permitted the withdrawal of their offer. On November 4, 2009, the City issued a revised “Intent to Award” notification to 2KG Contractors, Inc. DISCUSSION: The City Council previously listed the completion of Centennial Park as an adopted 2007-2009 goal. The Recreation and Park Board considers completing Centennial Park to be a high priority park development project. Additionally, the recently adopted Parks and Recreation Master Plan describes completion of this project as a 2009-2012 departmental goal. The Council authorized the City Administrator to execute a grant agreement with Oregon State Parks on August 10, 2009. The contract award is in conformance with Oregon’s Public Contracting Statute (ORS 279C) and the City of Woodburn’s Public Contracting Ordinance, therefore, staff recommends that the City Council award the contract. FINANCIAL IMPACT: êê Honorable Mayor and City Council November 23, 2009 Page 3 The project is funded by a $500,000 grant from Oregon State Parks, a $25,000 grant from the Burlingham Trust, and Parks SDCs. êé êè November 4, 2009 Nick Wellman Triplett Wellman, Inc. PO Box 160 Woodburn, OR 97071 Mr. Wellman: I am in receipt of your November 4, 2009 letter requesting that Triplett Wellman, Inc. be permitted to withdraw their offer to construct the City of Woodburn’s Centennial Park Phase III Project – Bid # 2010- 03. The City has reviewed your request and understands that your bid contained a significant error, and one that would be to the great detriment of your business if you were not permitted to withdraw from the project. Pursuant to the requirements of OAR 137-049-350, the City will permit you to withdraw your offer. As a result, you are no longer the low bidder for the project. The City does not intend to pursue remedies through your bid bond. Sincerely, Jim Row Community Services Director êç ß¹»²¼¿ ×¬»³ November 23, 2009 TO: Honorable Mayor and City Council through City Administrator FROM: Jim Hendryx, Director of Economic and Development Services SUBJECT: Approval of land use cases PAR 2009-01 and EXCP 2009-02, located at 1409 Hardcastle Avenue RECOMMENDATION: No action is recommended. This item is placed before the Council for information purposes in compliance with the Woodburn Development Ordinance. The Council may call up this item for review if it desires. BACKGROUND: The applicant, Alliks Cam, requested a Type II Partition to divide one lot into three parcels. The applicant also requested a Type II Exception to Street Right- of-Way and Improvements for Hardcastle Avenue. The Director of Economic and Development Services approved both applications subject to conditions. The decision did not require specific public street improvements at this time but did require the owner to sign a non-remonstrance document for participation in future street improvements. DISCUSSION: None. FINANCIAL IMPACT: This decision is anticipated to have no public sector financial impact. Agenda Item Review: City Administrator __X___ City Attorney ___X__ Finance _X___ éð Honorable Mayor and City Council November 23, 2009 Page 2 Note: The applicant has indicated his intent to subsequently partition Parcel 2 into two parcels. Preliminary Site Plan Zoning map éï