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8-13-12 Agenda KF,M CW ATHRYN IGLEYAYOR ITY OF OODBURN DP,CW1 ICK UGHOUNCILOR ARD J.MS,CWII EL CHMIDTOUNCILOR ARD CCA PMC,CWIII ITYOUNCILGENDA ETER CALLUMOUNCILOR ARD JC,CWIV AMES OXOUNCILOR ARD FL,CWV RANK ONERGANOUNCILOR ARD A13,2012–7:00.. UGUSTPM EM,CWVI RIC ORRISOUNCILOR ARD CHCC–270MS ITY ALL OUNCIL HAMBERS ONTGOMERY TREET 1.CALL TO ORDER AND FLAG SALUTE 2.ROLL CALL 3.ANNOUNCEMENTS AND APPOINTMENTS Announcements: A.Please join us for an evening of fun at the Woodburn Proud Community BBQ at 5:30 PM on Thursday, August 23 at Centennial Park.The event features a delicious BBQ, games, & a great time spent with friends. Help us recognize and support the local Police, Fire and Ambulance community. Dinner is only $3 per person. To volunteer or donate to the event, contact Kelly Howard503-951-0321 or woodburnproud@gmail.com. B.The City Council meeting scheduled for August 27, 2012 has been cancelled. The next Council meeting will take place September 10, 2012. Appointments: None 4.COMMUNITY/GOVERNMENT ORGANIZATIONS A.Chamber of Commerce B.Woodburn School District 5.PROCLAMATIONS/PRESENTATIONS Proclamations: A.Fill-the-Boot1 Presentations: B.2012Mary Tennant Award For Excellence in Public Service **Habrá intérpretes disponibles para aquéllas personas que no hablan Inglés, previo acuerdo. Comuníquese al (503) 980-2485.** August 13, 2012Council Agenda Page i 6.COMMUNICATIONS None. – This allows the public to introduce items for 7.BUSINESS FROM THE PUBLIC 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 July 9, 20122 Recommended Action: Approve the minutes. B.Woodburn City CouncilExecutive Sessionminutes of July 9, 6 2012 Recommended Action: Approve the minutes. C.Woodburn Planning Commission minutes of June 21, 20127 Recommended Action: Accept the minutes. D.Woodburn Planning Commission minutes of July 12, 20129 Recommended Action:Accept the minutes. E.Woodburn Library Board minutes of July 11, 201211 Recommended Action:Accept the minutes. F.Crime Statistics through June 201213 Recommended Action: Receive 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 BillNo.2893-An Ordinance Establishing a Public Art 17 Mural Program; Creating the Woodburn Public Art Mural August 13, 2012Council Agenda Page ii Committee and Providing for a Process for the City’s Consideration of Public Art Murals Recommended Action: 1.Amend Ordinance 2487, the proposed Public Art Mural Ordinance, to include the changes made by staff in response to the City Council discussion at the June 25, 2012 meeting. 2.Adopt Ordinance 2487, the Public Art Mural Ordinance. B.Council Bill No. 2897-An Ordinance Approving Comprehensive62 Plan Map Amendment 2012-01, Zone Change 2012-01, And Conditional Use 2012-01 for Property Located at 2285 and 2333 N. Pacific Highway; Imposing Conditions of Approval; Approving Findings and Conclusions; and Declaring an Emergency Recommended Action:Adopt the ordinance. C.Council Bill No.2898-A Resolution Granting Consent of the City 79 ofWoodburn to a Change of Control Transaction Involving Wave Division VII, LLC Recommended Action: Adopt the resolution. D.Council Bill No.2899-A Resolution Designating the Director of92 Economicand Development Services as the CDBGProject Certifying Officer and Environmental Certifying Officer Recommended Action: (a) Authorize the Mayor to execute the Community Development Block Grant contract with the State of Oregon through the Business Oregon-Infrastructure Finance Authority, Award #H12004, in the amount of $400,000 for the Woodburn Housing Rehabilitation Program. (b)Authorize the Mayor to sign the Signature Card, designating authorized individuals to request and receive grant payments. (c)Adopt the attached Resolution designating a Certifying Officer and Environmental Certifying Officer. E.Acceptance of a Public Utility Easement along the Frontage of 112 1542 Mount Hood Avenue (Tax Lot 051W08DB01400) Recommended Action:That Council accepts a 10 foot Public Utility Easement Granted by Woodburn Associates, Property August 13, 2012Council Agenda Page iii Owners of 1542 Mount Hood Avenue in Woodburn, Oregon. F.Acceptance of a Public Right-of-Way Dedication along118 Frontage of 1542 Mount Hood Avenue (Tax Lot 051W08DB01400) Recommended Action:That Council accepts a 5 foot Public Right-of-Way dedication granted by Woodburn Associates, property owners of 1542 Mount Hood Avenue in Woodburn, Oregon. G.Acceptance of a Public Utility Easement within Property of the 124 Jehovah Witness Assembly Hall (Tax Lot 051W08DB00300) Recommended Action: That Council accepts a 10 foot Public Utility Easement for City water facilities granted by Woodburn Oregon Jehovah Witness Assembly Hall, property owner of 1510 N. Pacific Hwy, Woodburn, OR 97071 (Tax Lot 051W08DB00300). H.Acceptance of a Public Utility Easement within St. Luke Catholic 129 Church Property Located at 417 Harrison Street Recommended Action: That Council accepts a 16 foot Public UtilityEasement (PUE) for City storm sewer facilities granted by St. Luke Catholic Church, property owner of Parcel 1 as described in recorded Partition Plat No. 2012-24, Woodburn, OR 97071. – 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. None. 13.CITY ADMINISTRATOR’S REPORT 14.MAYOR AND COUNCIL REPORTS 15.ADJOURNMENT August 13, 2012Council Agenda Page iv PROCLAMATION “Fill-the-Boot” September 15, 2012 Muscular Dystrophy refers to a group of more than 40 neuromuscular diseases WHEREAS, that cause generalized weakness and muscle wasting. Two of the most common neuromuscular diseases include Duchenne muscular dystrophy, a disease found in children that progresses slowly, with survival rare beyond their late twenties, and Amyotrophic Lateral Sclerosis (Lou Gehrig’s Disease) a disorder that progresses rapidly in adult clients; and the Muscular Dystrophy Association is a dedicated partnership of scientists WHEREAS, and citizens aimed at conquering neuromuscular diseases. MDA is one of the world’s leading national health agencies, supporting research, patient care and education; and Woodburn Fire Department has been working with the Muscular Dystrophy WHEREAS, Association in their fight against neuromuscular disease; and , “Fill-the-Boot” is an opportunity for Oregon fire fighters to ask community WHEREAS members to drop donations into their fire boots to help local families served by MDA in the state; and , this year marks the 58 anniversary of the partnership between firefighters WHEREAS th and MDA in the fight against muscle wasting diseases; and Woodburn Fire Department has spent many hours collecting money on the WHEREAS, streets for this campaign; and , firefighters, locally and nationally, are the largest contributors to the MDA. WHEREAS Woodburn Firefighters collected $6,867 in 2011 to help in the fight against 43 different types of neuromuscular diseases. , by virtue of the authority vested in me as the NOW, THEREFORE, I, Kathy Figley Mayor of the City of Woodburn, do hereby proclaim, September 15 as: Woodburn Fire District “Fill-the-Boot” Day for the City of Woodburn , I have hereunto set my hand and caused the seal of the City of IN WITNESS WHEREOF Woodburn to be affixed this 8 day of August 2012. th Kathryn Figley, Mayor City of Woodburn 1 COUNCIL MEETING MINUTES JULY 9, 2012 DATECOUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY 0:00 OF MARION, STATE OF OREGON, JULY 9, 2012. CONVENED The meeting convened at 7:01 p.m.with Mayor Figley presiding. Mayor Figley asked for a moment of silence in memory of Richard Jennings. ROLL CALL 0:01 Mayor Figley Present Councilor Cox Present Councilor Lonergan Present Councilor McCallum Present Councilor Morris Present Councilor Pugh Present Councilor Schmidt Present Staff Present: City Administrator Derickson, City Attorney Shields, Public Works Director Brown, Economic & Community Development Director Hendryx, Police Chief Russell, Human Resources Director Hereford, Acting Finance DirectorShearer, Assistant Recorder Pierson. COMMUNITY/GOVERNMENT REPORTS 0:01 A. Woodburn School District – Superintendent Bautista provided an update on the maintenance report for construction on the high school. He also informed the Council of an International Baccalaureate program for students looking for college credit. CONSENT AGENDA 0:05 A. Woodburn City Council minutes of May 14, 2012 B. Woodburn City Council minutes of June 11, 2012 C. Woodburn City Council minutes of June 25, 2012 D. Woodburn Planning Commission minutes of June 14, 2012 McCallum /Lonergan … approve the consent agenda as presented. Motion passed unanimously. PUBLIC HEARING 0:06 A Public Hearing to Consider the Comprehensive Plan Map Amendment 2012-01, Zone Change 2012-01 and Conditional Use 2012-01 for property located at 2285 and 2333 N. Pacific Highway. Mayor Figley declared the hearing open at 7:06 pm for the purpose of hearing public input on the Comprehensive Plan Map Amendment 2012-01, Zone Change 2012-01 and Conditional Use 2012-01 for property located at 2285 and 2333 N. Pacific Highway. Economic & Community Development Director Hendryx provided a staff report. Councilor Lonergan asked if there were any issues or complaints from other businesses or neighbors and Director Hendryx answered no. The applicant, Ken Cooper of Molalla, Page 1 - Council Meeting Minutes, July 9, 2012 2 COUNCIL MEETING MINUTES JULY 9, 2012 explained that with approval they will be more centrally located and will help keep that area of Woodburn vibrant. Councilor Lonergan asked what will happen to the old building and was told that the owner of that building is going to sell it. No members of the public wished to speak in either support or opposition of the application. Mayor Figley declared the hearing closed at 7:17 pm. Councilor Cox stated that he is in favor of this application. Cox/Lonergan … Councilor Lonergan and Councilor Schmidt concurred. direct staff to prepare and submit the documents necessary to grant the Comprehensive Plan Map Amendment 2012-01, Zone Change 2012-01 and Conditional Use 2012-01 for property located at 2285 and 2333 N. Pacific Highway. The motion passed unanimously. A Public Hearing to Consider the Comprehensive Plan Map Amendment 2012-02 and 0:20 Legislative Amendment 2012-01, the Highway 99E Corridor Plan. Mayor Figley declared the hearing open at 7:20 pm for the purpose of hearing public input on the Comprehensive Plan Map Amendment 2012-02 and Legislative Amendment 2012-01, the Highway 99E Corridor Plan. Economic & Community Development Director Hendryx provided a staff report. Director Hendryx mentioned that members of the Citizen Advisory Committee, Rob Carney, Bruce Crane, and Sharon Corning from the Planning Commission were in attendance as well as Naomi Zwerdling from ODOT and John Bosket of DKS and Associates if Council had any questions for them.An e-mail Director Hendryx received from Bert Gottsacker of Woodburn was presented to Council, stating he believes there was a violation of Measure 56 when the Woodburn Development Ordinance was adopted and that it may affect the corridor plan. Councilor Cox asked the City Attorney if the measure 56 notice was adequate and City Attorney Shields stated that he doesn’t have any concerns with it at this time and that he will take another look at it and let Council know if he sees a problem with it. Councilor Schmidt asked about Silverton Road and what plans are in place for that intersection. Public Works Director Brown answered that ODOT is currently working on a project to do interim improvements to the Young Street intersection to pull back the corners and broaden the radius for trucks and making improvements for pedestrian traffic and stated it is hard to say how it will tie in to the final 99E widening right now. Councilor Schmidt asked what trucks will do if they are going in and out of Long Bros. if they close off Silverton Road and Director Brown answered that there are no plans to close any roads and that the road closures that Director Hendryx references in the long range plans areif that area were to be redeveloped.Don Kelly, a lawyer who represents BrucePac, thanked staff and complimented the Citizen Advisory Committee. He stated that there is concern with having high density residential and industrial too close together as there could be conflicts. Councilor cox asked how far from BrucePac residential development should not be encouraged and Mr. Kelly answered that whatis in the planning commission proposal is what they recommend you adopt. No members of the public wished to speak in opposition of the Highway 99E Corridor Plan. Mayor Figley declared the hearing closed at 8:00 pm. Councilor Cox stated that he is in favor of the plan. Councilor McCallum stated that he thinks this is a tremendous vision and he supports it. Councilor Lonergan concurred with Cox and McCallum and added that he appreciates the hard work that went in to this. Councilor Schmidt stated that he also appreciates the hard work that went in to this, however Page 2 - Council Meeting Minutes, July 9, 2012 3 COUNCIL MEETING MINUTES JULY 9, 2012 he has a hard time with the intersection at the Young Street and 99 area and if it wasn’t for that he would vote yes on it but as long as it is that way he will vote nay. Mayor Figley thanked those that worked on the plan and stated that she wasin support of it. Cox/McCallum … approve the recommendation of staff and the Planning Commission and direct staff to present the necessary changes and new ordinances that will be required to implement it. After a roll call vote the motion passed 5-1 with Councilor Schmidt voting Nay. CITY ADMINISTRATOR’S REPORT 1:06 The City Administrator had nothing to report MAYOR AND COUNCIL REPORTS 1:06 Councilor Schmidt stated that it would be nice if somebody could spend a half a day cleaning out the flower beds on Front Street. EXECUTIVE SESSION 1:07 Mayor Figley entertained a motion to adjourn into executive session under the authority of Pugh/Lonergan … to ORS 192.660(2)(d). adjourn to executive session under the statutory authority cited by the Mayor. The motion passed unanimously The Council adjourned to executive session at 8:07 pm and reconvened at 8:42 pm. Mayor Figley stated that no action was taken by the Council while in executive session. ADJOURNMENT 1:42 Before adjournment of the meeting Councilor Pugh wanted to bring it to the attention of other Council members that houses owned by banks have a problem with overgrown grass and they need to have the banks obey the law. Councilor McCallum stated that was one of the legislative goals last year, unfortunately the legislator did not take action. Councilor Cox stated that we have a right to enforce our ordinance and take care of it then file a lien against the property which is a lot of work. Chief Russell stated that there is a new game in town, where no one owns the property. Code enforcement contacts the County Assessor’s office to find the owner and that owner is gone and the bank of record says they don’t own it. Chief Russell states that they try to mow the most egregious properties but if they tried to mow all of them they could easily wipe out the discretionary budget. Councilor Pugh says that the banks aren’t taking care of the homes that are under foreclosure. Councilor Cox McCallum/Cox added that they are deteriorating on the inside as well as the outside. meeting be adjourned. The motion passed unanimously. The meeting adjourned at 8:50 p.m. APPROVED KATHRYN FIGLEY, MAYOR Page 3 - Council Meeting Minutes, July 9, 2012 4 COUNCIL MEETING MINUTES JULY 9, 2012 ATTEST Heather Pierson,Assistant CityRecorder City of Woodburn, Oregon Page 4 - Council Meeting Minutes, July 9, 2012 5 EXECUTIVE SESSION COUNCIL MEETING MINUTES JULY 9, 2012 DATE. CONFERENCE ROOM, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, JULY 9, 2012 . CONVENED. The Council met in executive session at 8:08 p.m. with Mayor Figley presiding. ROLL CALL. Mayor Figley Present Councilor Cox Present Councilor Lonergan Present Councilor McCallumPresent Councilor MorrisPresent Councilor PughPresent Councilor Schmidt Present Staff Present: City Administrator Derickson, City Attorney Shields, Interim Finance Director Shearer, Human Resources Director Hereford, Assistant City Recorder Pierson Media Present: None. Mayor Figley reminded the Councilors, media and staff that information discussed in executive session is not to be discussed with the public. The executive session was called to: To conduct deliberations with persons designated by the governing body to carry on labor negotiations pursuant to ORS 192.660(2)(d). ADJOURNMENT. The executive session adjourned at 8:41 p.m. APPROVED_______________________________ KATHRYN FIGLEY, MAYOR ATTEST_______________________________ Heather Pierson,Assistant CityRecorder City of Woodburn, Oregon Page1 – Executive Session, Council Meeting Minutes, July 9, 2012 6 7 8 9 10 11 12 13 14 15 16 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council FROM:N. Robert Shields, City Attorney Jim Hendryx, Economic & Development Services Director SUBJECT: RevisedPublic Art Mural Ordinance : RECOMMENDATION 1.Amend Ordinance 2487, the proposed Public Art Mural Ordinance, to include the changes made by staff in response to the City Council discussion at the June 25, 2012 meeting. 2.Adopt Ordinance 2487,the Public Art Mural Ordinance. : BACKGROUND At the November 14, 2011 City Council meeting, the Economic and Community Development Director made an informational presentation on murals. Interested members of the public appeared and addressed the Council. The Council then directed the City Attorney to prepare a legal opinion thatitcould use as a guide to further assess this topic. On January 30, 2012 the City Attorney issued Memorandum Opinion No. 2012-01 (attached) regarding the legal restrictions on the City permitting and displaying murals. At the February 27, 2012City Council meeting, the establishment of a mural program was again discussed. Two options were presented.The first option involved issuance of permits for privately held murals. The second option involved the creation of a public art mural program. After discussion, the Council referred the issue back to staff for a more extensive evaluation of the second option. Staff was further directed to return to the Council with a proposed public mural program. On June 25, 2012, the City Council discussed Ordinance 2487,the PublicArt Mural Ordinance, and heard testimony from interested parties. Based upon the Council discussion, staff was directed to make certain modifications to the Agenda Item Review:City Administrator __x____City Attorney __x____Finance __x___ 17 Honorable Mayor and City Council August 13, 2012 Page 2 proposed ordinance, circulate a draft to interested parties, and present the revised ordinance ata future council meeting. : DISCUSSION In response to the City Council’s direction, staff made certain changes to the Public Art Mural Ordinance. They are summarized as follows: The third “whereas”clausewas added to explain that the ordinance will not limit “speech” but will instead provide a vehicle for “government speech” through the display of public art murals. Section 3 (C) is amended, as directed by the City Council, to allow the two “expert” committee members to reside outside of the Woodburn City limits. This was based on the concern that it could be difficult to find committee members with specialized art expertise who reside within the City. Section 5 (E) was amended to state that meetings of the committee be convened by its Chair or the Economic and Development Services Director. Section 7 (A) (10) is amended to change the term “accessible” to “visible.” This modification was suggested in the public testimony and agreed to in Council discussion. Section 9 was amended to change the application fee from $1,148 to $500. The fee was reduced based upon the City Council consensus that it was too high. The fee may be adjusted in the future as part of adoption of the Master Fee Schedule. Section 10 was added to allow for the automatic renewal of the public art mural easement in seven year increments unless one of the parties wants to terminate the easement at the end of a seven year period. This change was made in response to the City Council discussion and public testimony. Section 11 was added so that, with the City’s written consent, the building owner may terminate the public art mural easement for certain specified reasons. 18 Honorable Mayor and City Council August 13, 2012 Page 3 Section 12 was added to clarifythat the City has the right to terminate the Public Art Mural Easement Agreement for any material violation of the Public Art Mural Easement Agreement. Section 13 was modified to simplify the newspaper notice requirement for the public art mural application hearing. The requirement to publish a “preliminary sketch” was eliminated. Instead, interested parties are advisedthat a copy of the application is available for review at city hall. This change will significantly reduce the expense of the public notice. In addition to the ordinance, a draft of a Public Art Mural Easement Agreement is included for your review. This document will be used to implement the ordinance once it is adopted by the City Council. : FINANCIAL IMPACT None. 19 MEMORANDUM OPINION NO. 2012-01 TO: Honorable Mayor and City Council Scott C. Derickson, City Administrator James N.P. Hendryx, Economic and Development Services Director FROM: N. Robert Shields, City Attorney DATE: January 30, 2012 RE: Permitting and Displaying Murals Background During the November 14, 2011 City Council meeting, my office was asked to provide an opinion regarding the legal restrictions on permitting and displaying murals within the City. The following opinion was generated in response to this request. It is intended to provide general legal parameters as the City Council approaches this topic. It is anticipated that additional legal questions will arise as planning staff and the City Council more specifically consider the involved policy choices. Question #1 Can the City regulate or display murals? Answer #1 Yes, subject to the discussion below. Question #2 In what manner can the City regulate or display murals and can the City control content? Answer #2 A.The City (acting as a “regulator”) may issue permits for privately owned murals but may only regulate the time, place, and manner of installation and may not control or restrict content. B.The City (acting as a “patron of the arts”) may display public murals in spaces that it either already owns or acquires. The City, as owner of the artwork, may control the 1 20 content of public murals based upon predetermined selection criteria established by the City. Discussion Preliminarily, it should be stated that it is clear that the City’s ability to regulate murals is subject to Oregon State Constitutional requirements. Some observers have cited Toppenish, Washington as a jurisdiction whose approach to murals should be emulated by Woodburn. This is not legally possible because Toppenish is not subject to the same Oregon constitutional restrictions that Woodburn must comply with. Toppenish is subject to Washington legal requirements, which are significantly different in this context than what is required by Oregon law. A.The City (acting as a “regulator”) may issue permits for privately owned murals but may only regulate the time, place, and manner of installation and may not control or restrict content. Article I, Section 8 of the Oregon Constitution provides broad protection for the free speech rights of all Oregonians. In Outdoor Media Dimension Inc. v. ODOT, 340 Or 275 (2006), the Oregon Supreme Court ruled that signs may not be regulated based upon content. Murals are types of signs. Specifically, the Woodburn Development Ordinance (“the WDO”) defines “signs” as: Materials placed or constructed, or light projected, that (1) conveys a message or image and (2) is used to inform or attract the attention of the public. Some examples of signs are materials or lights meeting this definition are commonly murals referred to as signs, placards, A-frame signs, posters, billboards, , diagrams, banners, flags, or projected slides, images or holograms. The scope of the term “sign” does not depend on the content of the message or image (emphasis added) conveyed. **** WDO 3.110.04 Legally, the WDO cannot regulate any signs based upon their content. All WDO requirements address the time, place, and manner of establishing a sign within the City. Generally, these regulations focus on size, number, and location of signs on a property. Oregon courts have found reasonable time, place, and manner restrictions on signs to be valid under the Oregon Constitution. See Clear Channel Outdoor, Inc. v. City of Portland, 243 Or.App. 133, 151–56 (2011). Such restrictions must be “content-neutral”. In other words, the restrictions must apply regardless of what the sign conveys. Some examples of likely valid content-neutral restrictions on murals are: limits on size and location, construction materials, mandatory display time, and public notice requirements. For instance, the City of Portland (see Attachment 1) has a program where it issues permits for privately owned “Original Art Murals” that meet certain regulations. These regulations are content-neutral but limit the size of murals (30 feet in height), how materials are applied (must be hand-produced), type of materials included (no mechanical or electrical components), and the 2 21 display time (must remain in place for 5 years). Also, a neighborhood meeting is required to notify nearby property owners. If a property owner meets these requirements, then a mural permit must be issued. The Portland program encourages murals containing original art. Under the Oregon Constitution, however, the City cannot control the content of the mural and there is always a risk that a mural will contain content (i.e., graphic content or a written message) that would be objectionable to the surrounding community. Also, since the Oregon Constitution protects commercial and non-commercial speech equally, there is another risk that a mural will contain advertising. Even though, in Oregon, these risks are present with any type of sign, murals are usually larger, more permanent, and more visible than other types of signs. B.The City (acting as a “patron of the arts”) may display public murals in spaces that it either already owns or acquires. The City, as owner of the artwork, may control the content of public murals based upon predetermined selection criteria established by the City. Constitutionally, when the City changes its legal role to act as a “patron of the arts” by displaying publicly owned murals, the City, as the owner of the artwork, can exercise control over content. Recently, in Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), the United States Supreme Court held that a municipality could reject a Seven Aphorisms of Summum public monument and instead display a Ten Commandments public monument in a public park. government speech What must be emphasized is that the Pleasant Grove City case involved and government regulation ( noti.e., the City deciding what type of publicly owned art to display v. the City regulating privately owned art). In regard to publicly owned murals, some Oregon cities have programs for the purchase or financial support of public art. For instance, the City of Salem (see Attachment 2) has such a program. In Salem, the City Council dedicated one-half of one percent of the total cost of improvement projects to fund a Public Art Trust Fund. The Salem Public Art Commission was then established and given authority to administer this fund. The acquisition of public artwork (including public murals) is based on predetermined selection criteria established by the City. However, even in the “government speech” context, the United States Supreme Court has stated that a government entity can still be sued for “direct viewpoint discrimination” where public funding is allocated and established general standards are not followed.National Endowment for the Arts v. Finley, 524 US 569 (1998). Summary The City (acting as a “regulator”) may issue permits for privately owned murals but may only regulate the time, place, and manner of installation and may not control or restrict content. If the City Council decides to pursue this course, this would involve: Amendment to the Woodburn Development Ordinance 3 22 Recognition that the City cannot regulate content (i.e., the subject matter or message of the mural) The City (acting as a “patron of the arts”) may display public murals in spaces that it either already owns or acquires. The City, as owner of the artwork, may control the content of public murals. If the City Council decides to pursue this course, this would involve: A funding source to establish a trust fund Establishment of a process for the acquisition of public murals based upon predetermined selection criteria Passage of a Public Murals Ordinance Attachments 1. Portland Original Art Mural Program 2. Salem Public Art Program 4 23 24 A.Information Sheet 25 26 27 B. Code Language 28 29 30 31 32 33 34 35 36 37 C.Administrative Rule 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 COUNCIL BILL NO. 2893 ORDINANCE NO. 2487 AN ORDINANCE ESTABLISHING A PUBLIC ART MURAL PROGRAM; CREATING THE WOODBURN PUBLIC ART MURAL COMMITTEE AND PROVIDING FOR A PROCESS FOR THE CITY’S CONSIDERATION OF PUBLIC ART MURALS intent and purpose of this Ordinance is to encourage the WHEREAS, production of public art murals for acquisition by the City of Woodburn; and the City of Woodburn, acting as a “patron of the arts” may WHEREAS, display public art murals in spaces that it either already owns or acquires as a form of government speech; and the passage of this Ordinance will not limit, in any way, speech WHEREAS, (whether murals or signs) which is currently allowable but will instead provide a vehicle for the City to sponsor public art murals that will be owned by the City on behalf of the public; public art murals serve the public interest by enhancing the WHEREAS, aesthetics of the City, providing avenues for original artistic expression, and allowing access to original worksof public art; and public art murals can increase community identity and foster a WHEREAS, sense of place if they are located at heights and scales visible to pedestrians, are retained for longer periods of time and include a neighborhood involvement process; and the City Council recognizes that visual arts contribute to and WHEREAS, provide experiences that enrich and better the social and physical environment of the community, and desires to foster an advancement of the visual arts; and such recognition can be implemented through the creation WHEREAS, and implementation of a public art murals program; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: No person Section 1. Approval by Woodburn Public Art Mural Committee. shall commence creation of any public mural without first obtaining approval from the Woodburn Public Art Mural Committee and agreeing to donate the mural to the City of Woodburn as provided in this Ordinance. Murals that are created or exist without approval from the Woodburn Public Art Mural Committee or are inconsistent with the conditions of approval from the Page1–Council Bill No. 2893 Ordinance No. 2487 56 Woodburn Public Art Mural Committee are not public art murals and are subject to the regulations contained in the Woodburn Development Ordinance and other applicable ordinances. The Section 2. Creation of Woodburn Public Art Mural Committee. Woodburn Public Art Mural Committee (“the Committee”) is hereby created by the Woodburn City Council and is delegated power and authority pursuant to this Ordinance. Section 3. Composition of Woodburn Public Art Mural Committee. A. The Woodburn Public Art Mural Committee shall consist of five members appointed by the Mayor to a full or unexpired term, and confirmed by the City Council. Any vacancy in the Committee shall be filled by appointment by the Mayor with the consent of the City Council for the unexpired portion of the term. B. The Woodburn Public Art Mural Committee shall consist of two City Councilors, two members who have experience, training or expertise in the visual arts, art history, art criticism, or art education; and one at-large member. C. All members of the Committee shall be legal residents of the City of Woodburn.Except that the two members who have experience, training or expertise inthe visual arts, art history, art criticism, or art educationmay reside outside the Woodburn city limits. Section 4. Terms of Office. A. The terms of office of each Committee member shall be three years, or until a successor is appointed and qualified. The terms of Committee members shall be staggered so that the term of office of not more than two members will expire in the same year. The terms of office shall expire at midnight on December 31. B. Members of the Committee shall receive no compensation for their services. Section 5. Organization of the Committee. A. The Committee shall elect a Chair and a Vice Chair. B. The Economic and Development Services Director shall serve as Secretary to the Committee. The Secretary, supported by other city staff, shall provide notice of public meetings and public hearings, and keep minutes of all proceedings of the Committee in accordance with state law and city ordinances. Page2–Council Bill No. 2893 Ordinance No. 2487 57 C. Three members of the Committee shall constitute a quorum. D. Theregular meeting place of the Committee shall be at Woodburn City Hall. E. Meetings of the Committee shall be convened by the Chair of the Committee or by the Economic and Development Services Director. The Woodburn Public Section 6. Functions and Duties of the Committee. Art Mural Committee is delegated the authority pursuant to this Ordinance to select, acquire, receive, document and register public art murals on behalf of the City of Woodburn. Section 7. Public Art Mural Selection Criteria. A. The Woodburn Public Art Mural Committee shall consider and apply the following selection criteria in selecting and acquiring public art murals: 1. Strength of artist's concept for, and originality of, proposed public art mural, 2. Demonstratedcraftsmanship of artist, 3. Appropriateness of scale of the public art mural to the wall on which the proposedpublic art mural will be painted/attached, 4. Appropriateness of the scale of the public art mural to the surrounding neighborhood, 5. Architectural, geographical, socio-cultural and/or historical relevance of the public artmural to the site, 6. General support/advocacy for the public art mural from the building owner/user, surrounding neighborhood, adjacent businesses, and arts community, 7. Ability to complete the proposed public art mural, 8. The proposed public art mural will not be located on a single family dwelling, duplex, or multi-family dwelling, as used in this subsection, single family dwellings, duplexes, or multifamily dwellings does not include mixed-use buildings which contain a single family dwelling, duplex, or multi-family dwellings. Page3–Council Bill No. 2893 Ordinance No. 2487 58 9. The proposed public art mural will not contain electrical components, three dimensional structural elements; employ electrical lights as part of the image, moving structural elements, flashing or sequential lighting, interior lightingelements, any automated method that causes movement, or any method thatcauses periodic changes in the appearance of the public mural or changes themural image or message, 10. The proposed public art mural will be located in a manner that is visible to the public. An application for the proposed Section 8. Public Art Mural Application. public art muralwill be submittedon a form prepared by the Economic and Development Services Director. The application will include the location, materials, size/dimensions, written description of the mural, and an explanation of how the mural meets the selection criteria specified in this Ordinance. In addition, an Easement Agreement shall be submitted that includes: a legal description of the property upon which the mural will be placed,a sketch of the Public Art Mural as it will be placed on the property,proof of ownership of the property (i.e. a copy of the deed), and proof of identity of the person who has the authority to sign the easement. Theapplication fee for a Section 9. Public Art Mural Application Fee. proposed public art mural is initially set by the City Council at $500. This fee may be adjusted as by the City Council as appropriate as part of the Master Fee Schedule. The approval and Section 10.Easement Automatic Renewal. acceptance of each public art mural shall be contingent upon the conveyance of a public mural easement to the City from the owner of the building upon which the public mural will be located. The easement shall befor a period of seven years and shall automatically renew and continue for successive seven year terms unless it is terminatedby either party within thirty days after the expiration of any seven year term. . The easement Section 11. Termination of Easement by Building Owner may be terminated by the Building Owner at any time with the City’s written consent upon the Building Owner’s showing of any of the following: (i) that the property is to be sold and the buyer requires removal of the easement as a condition of the purchase and sale; or (ii) that the property is to be refinanced and the lender requires removal of the easement as a condition of the refinancing; or (iii) that the property is to be substantially remodeled or altered in a way that precludes continued maintenance of the Public Art Mural; or (iv) that circumstances have materially changed and the continued existence of the easement or maintenance of the Public Art Mural substantially impedes the Page4–Council Bill No. 2893 Ordinance No. 2487 59 Building Owner’s reasonable use and enjoyment of the property. The City shall not unreasonably withhold consent to termination upon the Building Owner’s satisfactory demonstration of any of the foregoing conditions of termination. The City may terminate the Section 12. Termination of Easement by City. easement at any time at its sole discretion upon thirty days written notice should the Building Owner fail to substantially perform its obligations under the Public Art Mural Easement Agreement. The Committee shall hold a public Section 13. Notice of Public Hearing. hearing on the proposed public art mural. Written notice of a public hearing shall be published once in a newspaper of general circulation and shall be posted on the building where the public mural will be placed. Public notice shall be given no later than thirty days before the public hearing. The notice shall explain the purpose of the hearing, and state that the public mural application is available for inspection at the office of the Economic and Development Services Director. .At the public hearing, any interested person Section 14Public Hearing. shall be afforded the opportunity to speak or to present written evidence to the Committee. After the conclusion of the public hearing, the Section 15.Final Decision. Committee shall deliberate and make a final decision of the proposed public art mural. The final decision by the Committee shall be in written form and shall contain findings and conclusions explaining how the public art mural selection criteria were applied to the application. The Committee shall provide notice Section 16. Notice of Final Decision. of its final decision to the applicant andall persons who presented testimony or submitted written evidence at the public hearing. The final decision of the Section 17.Judicial Review of Final Decision. Committee is not a land use decision and is reviewable exclusively by Writ of Review filed in the Marion County Circuit Court as provided in ORS 34.010 to ORS 34.102. Approved as to form: City AttorneyDate Approved: Kathryn Figley, Mayor Page5–Council Bill No. 2893 Ordinance No. 2487 60 Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, Assistant City Recorder City of Woodburn, Oregon Page6–Council Bill No. 2893 Ordinance No. 2487 61 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council through City Administrator FROM: Jim Hendryx, Directorof Economic & Development Services SUBJECT: City Council approval of Comprehensive Plan Map Amendment CPA 2012-01, Zone Change ZC 2012-01 and Conditional Use CU 2012-01 for property located at 2285 and 2333 N. Pacific Highway RECOMMENDATION: Adopt the ordinance. BACKGROUND: At your last meeting a public hearing was held and staff was directed to prepare and submit to the City Council the documents necessary to grant Comprehensive Plan Map Amendment 2012-01, Zone Change 2012-01 and Conditional Use 2012-01 for the property located at 2285 and 2333 N. Pacific Highway. Staff drafted the necessary ordinance and it is submitted for your consideration. An emergency clause was added because it is a time-sensitive land use matter. DISCUSSION: The applicant wishes to establishan automobile repair facility in an existing vacant building.Automobile repair is not an allowed use in the Industrial Park (IP) zone, but is allowed through the Conditional Use process in the General Commercial (CG) zone. Accordingly, the repair facility can only be established if the Comprehensive Plan Map and Zoning Map are amended, and a Conditional Use is approved. On June 14, 2012, the Planning Commission helda public hearing and unanimously approved the application.On July 9, 2012, the Council held a de public hearing and directed staff to grant Comprehensive Plan Map novo Amendment (CPA2012-01)to change the designation of certain property from Industrial to Commercial, and Zone Change (ZC 2012-01)to change the zoning Agenda Item Review:City Administrator __x____City Attorney ___x___Finance __x___ 62 Honorable Mayor and City Council August 13, 2012 Page 2 from Industrial Park (IP) to General Commercial (CG) and Conditional Use (CU 2012-01) to establish an automobile repair facility. FINANCIAL IMPACT: None ATTACHMENTS: Ordinance 63 COUNCIL BILL NO. 2897 ORDINANCE NO. 2490 AN ORDINANCE APPROVING COMPREHENSIVE PLAN MAP AMENDMENT 2012-01, ZONE CHANGE 2012-01, AND CONDITIONAL USE 2012-01 FOR PROPERTY LOCATED AT 2285 AND2333 N. PACIFIC HIGHWAY; IMPOSING CONDITIONS OF APPROVAL; APPROVING FINDINGS AND CONCLUSIONS; AND DECLARING AN EMERGENCY , aland use application wasfiled by Ken’s Autobody and WHEREAS Service Center, Inc. for a Comprehensive Plan Map Amendment to change the designation from Industrial to Commercial(CPA 2012-01),a Zone Change from Industrial Park (IP) to General Commercial (CG)(ZC 2012-01), and a Conditional Use for an automobile repair facility(CU2012-01); and , the Planning Commission conducted a public hearing on June WHEREAS 14, 2012 andunanimously recommended approval of the application; and , the City Councilconducted a public hearing on July 9, 2012; WHEREAS and , the City Councilconsidered the written and oral testimony WHEREAS presented at the hearingregarding the application; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: The real property located at 2285 N. Pacific Highway is Marion Section 1. County Tax Lot 051W08A01600. The real property located at 2333 N. Pacific Highway is Marion County Tax Lot 051W08A01500. Both properties are the subject of the land use application and shall be referenced as “the Subject Property”. The Comprehensive Plan Map designation of the Subject Section 2. Property described is changed from Industrial to Commercial. . The zoning designation of the Subject Property is changed from Section 3 Industrial Park (IP) to General Commercial (CG) and the Official Zoning Map is amended to reflect this change. Page 1Council Bill No. 2897 Ordinance No. 2490 64 TheConditional Use of the Subject Property for use asan auto Section 4. repair facility is granted. The Comprehensive Plan Map Amendment (CPA 2012-01) Section 5. Zone Change (ZC 2012-01) and Conditional Use (CU 2012-01) for theSubject Property is based upon the Findings and Conclusions affixed as Attachment A and by this reference incorporated herein. The Comprehensive Plan Map Amendment (CPA 2012-01) Section 6. Zone Change (ZC 2012-01) and Conditional Use (CU 2012-01) for the Subject Property is subject to the Conditions of Approval affixed as Attachment B, which the City Council finds to be reasonable. This ordinance being necessary for the immediate preservation Section 7. of the public peace, health and safety, an emergency is declared to exist because this is a time sensitive land use matter and this ordinance shall take effect immediatelyupon passage by the Council and approval bythe Mayor. Approved as to form: City AttorneyDate Approved: Kathryn Figley, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, Assistant City Recorder City of Woodburn, Oregon Page 2Council Bill No. 2897 Ordinance No. 2490 65 ATTACHMENT A FINDINGS AND CONCLUSIONS CPA 2012-01, ZC 2012-01, CU 2012-01 General Provisions Findings: Per Section 5.104, Comprehensive Plan amendments and zone changes are Type IV decisions. Per Section 5.103, conditional usesare Type III decisions. Section 4.101.07 provides that “Under a consolidated review, all applications shall be processed following the procedures applicable for the highest type decision requested. It is the express policy of the City that development review not be segmented into discrete parts in a manner that precludes a comprehensive review of the entire development and its cumulative impacts.” Conclusions: The proposed conditional useis considered under a consolidated Type IV review. The City Council will bethe City’s decision-maker for the Comprehensive Plan amendment, zone change, and conditional use. 5.104.02Comprehensive Plan Map Change, Owner Initiated Findings: Section 5.104.02.B.1 provides that the applicant shall demonstrate that the current Comprehensive Plan Map is in error, if applicable. The applicant does not allege that the map is in error. Conclusion: Section 5.104.02.B.1 does not apply to the proposed Comprehensive Plan amendment. Findings: Section 5.104.02.B.2 provides that the applicant shall demonstrate how changes in the community warrant the proposed change in the pattern and allocation of land use designations. Conclusion: The proposed Comprehensive Plan amendment complies with Section 5.104.02.B.2. Findings: Section 5.104.02.B.3 provides that the applicant shall demonstrate how the proposed change in the land use designation complies with Statewide Planning Goals and Oregon Administrative Rules, Comprehensive Plan goals and policies, and sustains the balance of needed land uses within the Woodburn Urban Growth Boundary. Applicable Statewide Planning Goals include Goal 1 (Citizen Involvement), Goal 2 (Land Use Planning), and Goal 9 (Economic Development.) Conclusion: The proposed Comprehensive Plan amendment complies with Section 5.104.02.B.3. Page 1 of 7 66 Findings: Section 5.104.02.B.4 provides that “Amendments to the comprehensive plan and land use standards which significantly affect a transportation facility shall ensure that allowed land uses are consistent with the function, capacity, and level of service of the facility identified in the Transportation System Plan.” The traffic generated by the former Goodwill was approximately th 53-58 average daily trips (Trip Generation, 7 Edition, published by the Institute of Transportation Engineers.) The traffic generated by the proposed development is approximately 41-55 average daily trips. The proposed development is not anticipated to significantly affect the abutting Major Arterial, N. Pacific Highway. Conclusion: The proposed Comprehensive Plan amendment complies with Section 5.104.02.B.4. 5.104.04Zoning Map Change, Owner Initiated Findings: Section 5.104.04.B.1 provides that the applicant shall demonstrate a need for the proposed use and the other permitted uses within the proposed zoning designation. Conclusion: The proposed zone change complies with Section 5.104.04.B.1. Findings: Section 5.104.04.B.2 provides that the applicant shall demonstrate that the subject property best meets the need relative to other properties in the existing developable land inventory already designated with the same zone considering size, location, configuration, visibility and other significant attributes of the subject property. Conclusion: The proposed zone change complies with Section 5.104.04.B.2. Findings: Section 5.104.04.B.3 provides that the applicant shall demonstrate that amendments which significantly affect transportation facilities ensure that allowed land uses are consistent with the function, capacity, and level of service of the facility identified in the Transportation System Plan. The proposed development is not anticipated to significantly affect the abutting Major Arterial, N. Pacific Highway. Conclusion: Section 5.104.04.B.3 does not apply to the proposed zone change. WDO 2.106 Commercial General (CG) district standards Finding: Section 2.106.03.G.1lists automotive maintenance as a conditional use in the Commercial General (CG) zone. Conclusion: The proposed facility is allowed by conditional use in the CG zone. Findings:Table 2.1.10 provides that the lot area for a non-residential use shall be adequate to contain all structures within the required setbacks, with no minimum width or depth. The existingstructure is 13,780 square feet in area. The lot area shown in the property tax records is 49,827 square feet. Page 2 of 7 67 Conclusions:The lot is adequate to contain all structures within the required setbacks, and would be conforming in the CG zone. Findings:Section 2.106.05.C.1.a.1 provides that “The minimum setback abutting a street shall be 15feet plus any Special Setback.” The structureislocated approximately 120feet from the front lot line. Conclusion:The proposed development meets the required front setback. Findings:Side and rear setbacks are set by Table 2.1.11: TABLE 2.1.11Interior Yard and Buffer Standards for CG Zones Abutting PropertyInterior Setback CO, CG, DDC, NNC, P/SP, IP, Alternative A: 5 ft. SWIR or IL zoneAlternative B: Zero setback abutting a building wall. The building is at least 10 feet from the side lot lines. The building appears to encroach approximately 8 feet onto the abutting property to the west. Survey 32990 was performed to adjust the western lot line an additional 30 feet to the west, but a survey does not convey ownership. The deeds submitted with the application do not reflect the 30 foot property line adjustment. The additional 30 feet was not apparently transferred by deed. Conclusions: The proposed use meets the required side setback, but not the rear setback. This could be cured by recording a deed consistent with Survey 32990. WDO 3.104 Access Findings:Section 3.104.01.B.1 provides that “A City permit shall be required for any new or modified vehicular access to a street that is under City jurisdiction.”The project does not include a new vehicular access or modifications to the existing access points.Pacific Highway is an ODOT facility and is not under City jurisdiction. Conclusion:An access permit from the City is not required. WDO 3.105 Off-Street Parking and Loading Findings: Section 3.105.01.B provides that any additional parking and/or loading necessary to accommodate a change ofuse that shall conform all (for a Type III Design Review) or a proportion (for a Type II Design Review) of parking, loading and landscaping for the subject use to the standards of the WDO. The proposed development does not, at this point, expand the building. Section 5.101.02.B.2.e provides that establishment of a use in a building vacant for 6 months or more is a Type I Design Review. Conclusions: The proposed development is not an expansion of an existing use ora new building, and is not subject to Type II or III Design Review. The standards of Section 3.105 do not apply to the existing parking lot. Page 3 of 7 68 Findings:Table 3.1.2 gives the requiredoff-street parking ratio. Property tax records indicate that the existing building has 13,780 square feet of gross floor area. A total of 62 parking spaces are provided.The applicant reports that he intends to establish 15 service bays, but no pump islands or retail area. TABLE 3.1.2Off Street Parking Ratio Standards UseParking Ratio -spaces per activity unit or square feet of gross floor area (sfgfa) 13Motor vehicle service …1.0/ 200 retail sfgfa + 3.0/ service bay + B Automotive repair & maintenance1.0/ pump island Conclusions:The proposed development requires 45off-street parking spaces. The proposed development meets the standard of Table 3.1.2. Findings: Section 3.105.02.E.2 provides that off-street vehicle parking shall not exceed 2.0 times the amount required in Table 3.1.2. The proposed development requires 45 off-street parking spaces. The maximum parking that could be provided is 90 spaces. A total of 62 parking spaces is provided. Conclusions: The proposed development complies with Section 3.105.02.E.2. Findings: Section 3.105.02.E.3 provides that “The number of disabled person vehicle parking spaces shall be provided to the standards of the state Building Code and applicable federal standards.” The state requirements are codified in ORS 447.233. The number of accessible parking spaces shall be: Total Parking inRequired Minimum Number Required Minimum Number of Van Lotof Accessible SpacesAccessible Spaces 51 to 7531 [ORS 447.233(2)(a)] A total of 62 parking spaces are provided, including 1 van- and two car-accessible spaces. Conclusions:The proposed development meets the requirements of ORS 447.233(2)(a). Findings:Section 3.105.02.F provides that a maximum of 20 percent of the required vehicle parking spaces may be satisfied by compact vehicle parking spaces.The site plan shows no compact vehicle parking spaces. Conclusion: The proposed development complies with Section 3.105.02.F. Page 4 of 7 69 Findings:Table 3.1.3 sets the minimum requirements for loading spaces. Property tax records indicate that the existing building has 13,780square feet of gross floor area.Site Plan Review SPR 1993-02 shows 2 exterior loading berths. TABLE 3.1.3Loading Space Requirements Minimum Size of Space Minimum Use No. of Spaces WidthLengthHeight For all uses other than residential orentirely office use 10,000-41,999square feet of gross floor area212 feet30feet14feet Conclusion:The development complies with Table 3.1.3. Findings: Table 3.1.4 sets the minimum dimensions for parking spaces and drive aisles. Section 3.105.02.H.5 provides that “Off-street parking and maneuvering areas shall have directional markings and signs to control vehicle movement.” Section 3.105.02.H.6 provides that “Off street parking spaces shall be delineated by double parallel lines on each side of a space.” Section 3.105.02.H.10 provides that “All uses required to provide 10 or more off street parking spaces shall provide a bicycle rack within 50 feet of the main entrance.” Conclusions:The existing parking area meets the current WDO requirements for the number of off-street parking and loading spaces. The proposed change of use does not increase the required parking. The applicant is not required to change the layout of the parking area with this application. WDO 3.106 Landscaping Standards Findings:A landscaping plan was approved under Site Plan Review SPR 1993-02. It is apparent that the plant density provided under that plan does not meet the current requirements of the WDO. Section 1.104.02, Change or Expansion of an Existing Use with Nonconforming Parking, Loading and/or Landscaping, provides that “Any additional parking, loading, landscaping, wall or refuse facility required by the WDO to accommodate a change in use, or expansion of an existing use shall be subject to the following: … B.For applications where the change or expansion increases the required area for parking, loading, or landscaping by less than 25 percent, the parking, loading, landscaping, buffer walls and refuse facilities required for the expansion shall conform to the standards of the WDO. The property owner is encouraged, but not required, to bring more of the site into conformity.” The current proposal does not expand the building. Conclusions:The landscaping plan approved in SPR 1993-02 remains in force, and is governed as a nonconformity by Section 1.104.02. Note: The applicant indicates that the building will be expanded in the future. Landscaping “required for the expansion” will be reviewed as part of the future Design Review. Page 5 of 7 70 WDO 3.107 Architectural Design Guidelines and Standards Finding:The current proposal does not expand or modify the existing building. Conclusions:The proposed development is not subject to the architectural design guidelines and standards of Section 3.107. The proposed expansion will be subject to a future Design Review. WDO 3.110 Signs Findings: A site visit found two existing pole signs on the Highway 99E frontage. Pole signs are allowed in the CG zone (Table 3.110.10B.) Section 3.110.11.B provides that “Nonconforming permanent signs shall comply with the provisions of Section 3.110 when one or more of the following occurs: … 4.A Conditional Use or Type III Design Review land use application is approved for the premises upon which the sign is located.” The present case includes a Conditional Use. Conclusions:The property owner must remove one of the existing pole signs, in accordance with Section 3.110.11. One pole sign may be established on the property, pursuant to Table 3.110.10B. This may be addressed as a condition of approval, prior to building occupancy. WDO 5.103.01 Conditional Use Findings:Section 5.103.01.C.1 requires that the use be listed as a Conditional Use in the zoning district. Section 2.106.03.G.1 lists automotive maintenance as a conditional use in the Commercial General (CG) zone. Conclusion: The proposed use of the property is allowed by conditional use. Findings:Section 5.103.01.C.2 requires that the use comply with the development standards of the zoning district. Compliance with the Commercial General (CG) zoning regulations is discussed in detail above. Conclusions: The proposed use meets the requirements of Section 5.103.01.C.2, with the exception of the rear setback. As noted above, that issue could be resolved by recording a deed consistent with Survey 32990. Findings:Section 5.103.01.C.2 requires that the use be compatible with the surrounding properties, and provides that relevant factors to be considered in determining whether the proposed use is compatible include: a.The suitability of the size, shape, location and topography of the site for the proposed use; Findings: The subject property is of adequate size, is rectangular in shape, is located on a major arterial street, and is relatively flat. Page 6 of 7 71 b.The capacity of public water, sewerage, drainage, street and pedestrian facilities serving the proposed use; Findings: The subject property is currently served by public water, sewerage, and drainage facilities. Street access is from a state highway. Sidewalks are provided. The business is auto-oriented, not pedestrian-oriented. c.The impact of the proposed useon the quality of the living environment: 1)Noise; 2)Illumination; 3)Hours of operation; 4)Air quality; 5)Aesthetics; and 6)Vehicular traffic. Findings: The proposed use of the property is automotive maintenance. The nearest residential property is approximately 1,200 feet away. The proposed development is surrounded by commercial and industrial property. d.The conformance of the proposed use with applicable Comprehensive Plan policies; Findings: Comprehensive Plan policy F-1.1 provides that: “The City should at all times have sufficient land to accommodate the retail needs of the City and the surrounding market area, while encouraging commercial infill and redevelopment. The City presently has five major commercial areas: 99E, 1-5 Interchange, the downtown area, the Parr Road Nodal Commercial area, and the 214/211/99E four corners intersection area. No new areas should be established.” The proposal expands the existing 214/211/99E four corners commercial area, and does not create a new commercialarea. e.The suitability of proposed conditions of approval to insure compatibility of the proposed use with other uses in the vicinity. Findings: The proposed conditions of approval minimize the effects of the proposed use on adjacent property. Conclusion: The proposed development meets the criteria of WDO 5.103.01.C.3 regarding compatibility with the surrounding properties. Page 7 of 7 72 ATTACHMENT B CONDITIONS OF APPROVAL CPA 2012-01, ZC 2012-01, CU 2012-01 The City Council approvescases CPA 2012-01, ZC 2012-01, and CU 2012-01, subject to the following conditions of approval: 1.The property owner shall execute an acceptance of these conditions of approval. 2.The property shall be developed in substantial conformity to Exhibits A, B and C attached hereto and incorporated. 3. Prior to occupancy of the building, the property owner shall record a deed consistent with Survey 32990 and shall provide a copy to the Planning Division. 4.Prior to occupancy of the building, the property owner shall verify that permanent signs comply with Table 3.110.10B with the Planning Division. EXHIBITS Exhibit “A” Site Plan, dated March 29, 2012 Exhibit “B” Site Map Details, dated March 29, 2012 Exhibit “C” Building plan (Site Design Plan),received March 30, 2012 73 74 75 76 77 78 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council FROM:Christina Shearer, Interim Finance Director N. Robert Shields, City Attorney SUBJECT: Resolution Consenting to “Change of Control” Transaction Involving Cable Television Franchisee Wave Broadband : RECOMMENDATION Adopt the resolution. : BACKGROUND WaveDivision VII, LLC, doing business as Wave Broadband, currentlyholds a cable television franchise granted by the City. Section 3.5 of the franchise agreement requires that Wave Broadband request the City’s consent to any proposed “change ofcontrol”. The franchise also specifically states that the City’s consent shall not be unreasonably withheld. Federal law requires that FCC Form 394 be filed with the Cityand the FCC.The City Council must act within 120 days of the filing of this form or the “change of control” is automatically approved. Wave Broadband’s parent company is WaveDivision Holdings, LLC. In the proposed business transaction, the ownership of WaveDivision Holdings will change. Sandler Capital Management willturn over control of WaveDivision Holdings to Oak HillCapital Partners, GI Partners, CEO Steve Weed and other members of WaveDivision Holding’s management team. Representatives of the interested parties will be in attendance at the City Council meeting to answer any specific questionsyou have about the business transaction. : DISCUSSION Several hundred pages of documents were filed withFCC Form 394. These included the proposed agreements, financial statements, and auditsand are Agenda Item Review:City Administrator ___x___City Attorney ___x___Finance __x___ 79 Honorable Mayor and City Council August 13, 2012 Page 2 available through the City Recorder’s office. The documents were reviewed by the Interim Finance Director and City Attorney and found to be in order. Since there is no reasonable basis to deny the change of control request, staff recommends adoptionof the resolutionconsenting to the change of control. : FINANCIAL IMPACT None. Attachments June 8, 2012 Letter from Wave Division Holdings FCC Form 394 (without supporting documents) Organizational Charts 80 81 82 83 84 85 86 87 88 89 COUNCIL BILL NO. 2898 RESOLUTION NO. 2015 A RESOLUTION GRANTING CONSENT OF THE CITY OF WOODBURN TO A CHANGE OF CONTROL TRANSACTION INVOLVING WAVE DIVISION VII, LLC WaveDivision VII, LLC, a Washington limited liability company WHEREAS, d/b/a Wave Broadband (“Franchisee”) currently holds a franchise (the “Franchise”) granted by the City of Woodburn, (the “City”) to own and operate a cable system; and Franchisee is a wholly-owned subsidiary of WaveDivision WHEREAS, Holdings, LLC, a Delaware limited liability company (“Wave Parent”); and on May 30, 2012, OH WDH Holdco, LLC, a Delaware limited WHEREAS, liability company affiliated with Oak Hill Capital Partners III, L.P. (“Oak Hill”), in conjunction with WaveDivision Capital, LLC, a Washington limited liability company controlled by Wave Parent’s Chief Executive Officer Steve Weed, entered into a definitive agreement to acquire Wave Parent from its current majority owners, principally three affiliates of Sandler Capital Management (the “Transaction”); and Wave Parent and Oak Hill have filed FCC Form 394 with the City WHEREAS, and represent tothe Citythat they have providedall information regarding the Transaction required by applicable law; and the City has performed its due diligence in reviewing the WHEREAS, information and has decided to consent to the Transaction; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: The City consents to and approves the Transaction to the Section 1. extent required by the terms of the Franchise and applicable law. To the best of the City’s knowledge and belief, there are no Section 2. existing facts or circumstances that with or without the giving of notice or the passage of time, or both, would constitute a default of any term or condition of the Franchise. Effective upon the closing of the Transaction, the Franchisee Section 3. shall remain responsible for any obligations and liabilities under the Franchise. Page 1 Council Bill No. 2898 Resolution No. 2015 90 The granting of the City’s consent shall not alter, affect or otherwise change any of the terms or conditions of the Franchise. This Resolution is adopted and approved in accordance with Section 4. applicablelaw and shall take effect upon passage. Approved as to form: City AttorneyDate Approved: Kathryn Figley, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, Assistant City Recorder City of Woodburn, Oregon Page 2 Council Bill No. 2898 Resolution No. 2015 91 Agenda Item August 13, 2012 To: Honorable Mayor and City Council From:Jim Hendryx, Economic and Development Services Director Subject:Community Development Block Grant (CDBG) Housing Rehabilitation Application RECOMMENDATION: (a) Authorize the Mayor to execute the Community Development Block Grant contract with the State of Oregon through the Business Oregon- Infrastructure Finance Authority, Award #H12004, in the amount of $400,000 for the Woodburn Housing Rehabilitation Program. (b)Authorizethe Mayor to sign the Signature Card, designating authorized individuals to request and receive grant payments. (c)Adopt the attached Resolution designating a Certifying Officer and Environmental Certifying Officer. BACKGROUND: The City of Woodburn was awarded CDBG HousingRehabilitation grants in the mid 80’s and again in the mid 90’sfor lending to area homeowners eligible for the program. Over the years, through repayment of loans, the Housing Rehabilitation Program accumulated approximately $420,000 available for lending. The majority of the funds were againloaned outin 2009-10. The last round of loans createdconsiderable interest in the Housing Rehabilitation Program. More than 90City residents applied for funding, with29 receiving loans. The City’s documented need, through formal pre-application screening, enabled the City to qualify for another CDBG applicationfor housing funds.In September, Council authorized the City Administrator, with assistance from the Mid-Willamette Council of Governments (COG) to apply for a Housing Rehabilitation Block Grant. The initial application was denied for technical Agenda Item Review:City Administrator ___x___City Attorney __x____Finance __x___ 92 Honorable Mayor and City Council August 13, 2012 Page 2 reasons and the City resubmitted the application in March, 2012tothe Infrastructure Finance Authority (IFA). They were informed in May, 2012 that the City had been awarded$400,000. : DISCUSSION New program rules require local governments who wish to apply for these funds to enter into Intergovernmental Agreements (IGA’s) with a minimumof two other local governments. With Council’s approval, the City did so this past September with theCity of Stayton and Marion County,withWoodburn serving as the lead applicant/administrator.The IGAspecifies that 25% of the grant funds could be used by Stayton to assist in addressing their wait list. Additional program rules require that the lead applicant transfer the responsibility formanaging the program to an appropriate non-profit organization, such as Valley Development Initiatives(VDI), through a sub- VDI is staffed by the COG, who also manages housing recipient agreement. rehabilitation programs for the cities of Aumsville, Aurora, Gervais, Hubbard, Jefferson, Scotts Mills, Stayton, the Santiam Canyon, Turner and Marion County. The will be presented to Council at a future date, as sub-recipient agreement the City cannot obligate any project funds until an environmental exemption is approved by IFA. After accounting for administrative costs, one hundred percent of the funds must benefit owner-occupied households with incomes below the federal low and moderate income limit (80% of the median family income as adjusted by family size).Income limits range from approximately $33,600 for a one person house hold to $48,000for a household of 4 persons. : FINANCIAL IMPACT The application limit for CDBG Housing Rehabilitation is $400,000. The three IGA partners wereable to document need in their communities to support submission of an application for the limit. Of thegrant amount, IFA allows up to $105,000 be allocated to the subrecipientfor management and administration of the program. VDI has proposed a contract amount of $90,000 for grant administration, program management, and environmental review. This would leave $310,000 in CDBG funds for lending ($232,500 in loan funds will be used by the City of Woodburn and $77,500will be used by the City of Stayton). 93 Honorable Mayor and City Council August 13, 2012 Page 3 In order to make theirapplication as competitive as possible, the City of Woodburn set aside $15,000of their previous CDBG fund award as a match. One hundred percent of the City of Woodburn match fundswillbe used for lending to homeownersin the City of Woodburn, so the City will have approximately $247,500in loan funds availableonce the grant award money is received. While the program requires the lead applicant to transfer responsibility for managing the program to an appropriate non-profit organization, the lead applicant remains responsible for the oversight of the program until the close-out of the grant (two years from award), which will require City staff support similar to that provided under the existing contract with VDI for administration of the previous CDBG Housing Rehabilitation Program. Attachments Award letter CDBG Grant Contract Signature Card Resolution 94 95 SO TATE OF REGON CDBGP OMMUNITY EVELOPMENT LOCK RANT ROGRAM RGC EGIONAL HOUSING REHABILITATION RANT ONTRACT “Woodburn Housing Rehabilitation Program” This contract, project number H12004,dated as of the date of its last signature, is made by the State of Oregon, acting by and through its Oregon Infrastructure Finance Authority of the Business Development Department (“IFA”), and the City of Woodburn, Oregon (“Recipient”). This contract becomes effective on the date (“Effective Date”) when fully signed and approved as required by applicable law. This contract includes the following parts, listed in descending order of precedence for purposes of resolving any conflict between two or more of the parts: 1.this contract without any Exhibits; 2.Special Conditions of Award for Housing Rehabilitation Grants, attached as Exhibit A; 3.Recipient’s Certification of Compliance with State and Federal Laws and Regulations attached as Exhibit B, and Certification Regarding Lobbying, attached as Exhibit C;and 4.the approved Project budget showing breakdown of sources of funds, attached as ExhibitD. S1–G ECTION RANT A.Grant. In reliance upon Recipient’s application dated March 30, 2012(“Application”),and certifications in the form of Exhibit B and Exhibit C, IFAagrees to provide Recipient Community $400,000 Development Block Grant (“CDBG”) funds in the amount of , the use of which is limited to the project as defined in Sections2.A.and 2.B.(“Project”). The use of these funds is also subject to the Project budget in ExhibitD and the Special Conditions of Award in Exhibit A. B.Disbursement. IFAshall disburse the grant funds to Recipient on an expense reimbursement or costs-incurred basis.Recipient must requestdisbursements of grant funds on anIFA-provided or IFA-approved disbursement request form.All expenses and incurred costs are subject to approval by IFA. C.Appropriations. All disbursements are subject to the condition that IFA,in the reasonable exercise of itsadministrative discretion, has sufficient funding, appropriations, limitations, allotments and other expenditure authority to make the disbursement. S2–PA ECTION ROJECT CTIVITIES A.Recipientagrees to perform the Project activities in accordance with the Project activities described in Recipient’s Application accepted by IFA, and this Section 2.Any changes to the Project activities must receive prior written approval byIFA. B.Recipientshallestablish loan policies that Recipient must submit to IFAfor approval prior to making loans. Recipient shall, in accordance with those loan policies,provide loans to low-and moderate-income (as defined in the CDBGProgram Guidelines) homeowners to upgrade their homes and eliminate safety and health hazards. Homes with identified substandard conditions will be the primary target for rehabilitation funds. For each project, Recipientshallensure that a housing construction inspector reviews all work performed and inspects the property to assure compliance with CDBG program standards. Recipientshallensure homeowners employonly licensed and bonded contractors to have the repair work done. Page 1of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 96 C.All Project activities must be completed, and all disbursement requests (except disbursement requests for audit costs, if applicable) must be submitted to IFA,within 24 monthsfrom the Effective Date (“Project Completion Deadline”). D.Recipientshall provide marketing of the CDBG program to ensure that interested and eligible homeowners are aware of the program and how to apply for assistance. Recipient must submit all such materials to IFAfor prior review and approval. E.Recipientshall cause all repayments of rehabilitation loans to be processed through Valley Development Initiatives,an Oregon non-profit corporation, and be deposited into the Housing Rehabilitation Revolving LoanFundand be dedicated to fund additional housing rehabilitation projects. F.Unless exempt by Office of Management andBudget (“OMB”)Circular A-133, 24 C.F.R. §§45.1- 45.5 (1997), the audit for the final fiscal year of the Project must be submitted to IFAas soon as possible after it is received by Recipient, but in any event no later than December31 after the Project Completion Deadline. G.Determination. IFAhas made the determination that Recipient is a subrecipient, in accordance with OMB Circular A-133 and Section .102 of Oregon Accounting Manual 30.40.00.P0 (effective April2, 2007). Recipient agrees to monitor any local government or non-profit organization subrecipient to whom it may pass funds. S3–CL ECTION OMPLIANCE WITH AWS Recipientagrees to comply, and cause its agents, contractors and subrecipients to comply, with all applicable state and federal laws, regulationsandpoliciesapplicabletothe use, administration, distribution and expenditure of the funds provided under this contract, including but not limited to the following: 1.Title I of the Housing and Community Development Act of 1974, 42 U.S.C. §§5301-5321 (1994) (the “Act”)and with all applicable laws, rules and regulations, including but not limited to Sections109 and 110 of the Act. 2.Section 104(d) of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. §5304 (1994), and the regulations promulgated pursuantthereto, and 12 U.S.C. §1735b (1994). 3.Section 3 of the Housing and Urban Development Act of 1968, 12 U.S.C. §1701u (1994) (employment opportunities to lower income people in connection with assistedprojects), and the regulations promulgated pursuantthereto, 24 C.F.R. §135.38 (1997). Recipientshall cause the Section 3 clause in 24 C.F.R. §135.38 (1997) to be inserted in full in all contracts and subcontracts exceeding $100,000 for any single construction contractor, construction activity or any non-construction activity that leads to construction (such as engineering, architectural, program management). 4.Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000a-2000e (1994), and its regulationsat 24 C.F.R. §§1.1-1.10 (1997). The Recipientwill immediately take any measures necessaryto effectuate this assurance. Page 2of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 97 5.Title VIII of the Civil Rights Act of 1968, as amended, popularly known as the Fair Housing Act, 42 U.S.C. §§3601-3631 (1994), as amended byPub. L. 104-76, §§1-3 109 Stat. 787 (1995); Pub. L. 104-66, Title I, §1071(e), 109 Stat. 720 (1995); Pub. L. 90-284, Title VIII, §814A, as added Pub. L. 104-208, Div. A, Title II, §2302(b)(1), 110 Stat. 3009-3421 (1996); Pub. L. 104- 294, title VI, §604(b)(15), (27), 110 Stat. 3507, 3508 (1996). Recipient will affirmatively further fair housing. 6.Exec. Order No. 11,063, 46 F.R. 1253 (1962), reprinted as amended in 42 U.S.C. §1982 (1994) and its regulations at24 C.F.R. §§107.10-107.65(1997). 7.Exec. Order No. 11,246, 30 F.R. 12319 (1965), as amended byExec. Order No. 11,375, 32 F.R. 14303 (1967), reprinted in42 U.S.C. §2000e (1994), and its regulations at 41 C.F.R. §§60-1.1 to 60-999.1(1997). 8.The Age Discrimination Act of 1975, 42 U.S.C. §§6101-6107 (1994). 9.Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (1994). 10.Section 302 of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §4822 (1994), and its regulations at24 C.F.R. §§35.1-35.98(1997). 11.The Architectural Barriers Act of 1968, 42 U.S.C. §§4151-4157 (1994). 12.36 C.F.R. §§800.1-800.15 (Protection of Historic Properties) and Exec. Order No. 11,988, 42 Fed. Reg. 26951 (1997), reprinted as amended in42 U.S.C. §4321 note (1994) (Floodplain Management), and Exec. Order No. 11,990, 42 Fed. Reg. 26961 (1997), reprinted as amended in 42 U.S.C. §4321 note (1994) (Protection of Wetlands). 13.The Copeland Anti-Racketeering Act, 18 U.S.C. §1951 (1997). 14.All program and grant administrationrequirements in IFA’s2012Program Guidelines (Method of Distribution) and its CDBGGrant Management Handbook. 15.ORS §656.017 regarding Workers Compensation coverage, unless exempt under ORS §656.126. Recipient shall insure that each of its contractors and subcontractors comply with these requirements. 16.When procuring goods or services to be paid for in whole or in part with Grant funds, Recipient shall comply with the Oregon Public Contracting Code, Chapters 279A, B, and C.The Oregon Model Rules for public bidding and contracting in Oregon Administrative Rules Chapter 137, Divisions 046, 047, 048 and 049 apply if Recipient or its public contract review board has not adoptedits ownrules. If Recipient or its public contract review board has adopted its own rules, those rules apply. 17.Economic benefit data requested by IFAfrom Recipient on the economic development benefits of the Project, from the Effective Date of this Contract until six (6) years after the Project Completion Deadline. Upon such request by IFA, Recipient shall, at Recipient’s expense, prepare and file the requested data within the time specified in the request. Data shall document specific requested information such as any new direct permanent or retained jobs resulting from the Project and other information to evaluate the success and economic impact of the Project. Page 3of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 98 S4–CR ECTION OVENANTS OF ECIPIENT A.Recipientcovenants its Project will meet the following national objective: Activities primarily benefitinglow-and moderate-income persons(24C.F.R.570.483(b)). B.No employee, agent, consultant, officer, or elected or appointed official of Recipient, or any subrecipient receiving CDBG funds who exercises or has exercised any functions or responsibilities with respect to Project activities,or any person who is in a position to participate in a decision- making process or gain inside information with regard to the Project,or those with whom they have family or business ties, during his or her tenure or for oneyear thereafter, may have a financial interest or benefitin,or obtain a financial interest or benefit from any Project activity, or have any interest, direct or indirect, in any contract, subcontract, or agreement with respect to the Project. Recipientshall also establish safeguards to prohibit employees from using their position for a purpose that is or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family,businessor other ties. C.Recipient shall incorporate, or cause to be incorporated, in all purchase orders, contracts or subcontracts regarding the procurement of property or services paid for in whole or in part with CDBG funds any clauses required by federal statutes, executive orders and implementing regulations to be so incorporated. D.Recipient shall, and shall cause all participants in lower tier covered transactions to include in any proposal submitted in connection with such transactions a certification that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation from the covered transaction. E.Recipient shall insert a clause in all documents prepared with the assistance of grant funds acknowledging the participation of federal and state CDBG funding. F.Recipient shall maintain all fiscal records relating to this contract in accordance with generally accepted accounting principles for state and municipal corporations established by the National Committee on Governmental Accounting in a publication entitled “Governmental Accounting, Auditing and Financial Reporting (GAAFR).” In addition, Recipient shall maintain any other records pertinent to this contract in such a manner as to clearly document Recipient’s performance. For fair housing and equal opportunity purposes, and as applicable, Recipient’s records shall include data on the racial, ethnic and gender characteristics of persons who are applicants for, participants in, orbeneficiaries of the program. G.Recipient shall conduct annual audits in accordance with the Single Audit Act of 1984, 31 U.S.C. §§7501-7507 (1994) as amended byPub. L. 104-156, §§1-3, 110 Stat. 1397 (1996) and the regulations promulgated pursuant thereto, 24 C.F.R. §§44.1-44.18 (1997), and the OMB Circular A-133,24 C.F.R. §§45.1-45.5 (1997). H.Recipient shall grant IFAand the Oregon Secretary of State’s Office and the federal government (including but not limited to U.S. Department of Housing and Urban Development (“HUD”), the Inspector General, and the General Accounting Office) and their duly authorized representatives, access to all books, accounts, records, reports, files, and other papers, or property pertaining to the administration, receipt and use of CDBG funds to perform examinations and audits and make excerpts,transcriptsand copies. Recipient shall retain and keep accessible all such books, accounts, records, reports, files, and other papers, or property for a minimum of six (6) years from closeout of the grant hereunder, or such longer period as may be required by applicable law, or until the Page 4of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 99 conclusion of any audit, controversy or litigation arising out of or related to this contract, whichever date is later. I.Recipient shall require and cause its subrecipients to comply with the requirements of Sections 4.F, 4.G. and 4.H. above. J.Recipient shall follow applicable public records law to providecitizens with reasonable access to records regarding the use of the CDBG funds.Consistent with public records law, Recipient shall, and shall cause or require its subrecipients to,protect the confidentiality of all information concerning applicants forand recipients of services funded by this contract. It shall not release or disclose any such information except as necessary for the administration of the program(s), as authorized in writing by the applicant or recipient or as required by law. All records and files shall be appropriately secured to prevent access by unauthorized persons.Recipient shall, and shall cause or require its subrecipients to,ensure that all its officers, employees and agents are aware of and comply with this confidentiality requirement. K.Recipient has adopted and will enforce (1) a policy prohibiting the use of excessive force by law enforcement agencies within its jurisdiction against any individuals engaged in non-violent civil rights demonstrations and (2) a policy of enforcing applicable state and local laws against physically barring entrance to or exit from a facility or location which is the subject of such non-violent civil rights demonstration within its jurisdiction in accordance with Section 104(l) of the Act. L.Recipient shall cause all its first tier contractors or subrecipients receiving subcontracts exceeding $100,000 to execute and file with Recipient the certification set forth in Exhibit C hereof. M.Recipient shall ensure nolead-based paint is used in residential units. N.Monitoring obligations: 1)Recipient shall fully cooperate with IFA’s monitoring activities, including but not limited to the following: Review of single audits, arrange for limited scope audits, on-site visits, reviewing Recipient reports, requiring prior approval, requiring third party evaluations, providing training and technical assistance, making telephone calls and using such othermeans of communication such as e-mail in order to ask or answer questions. 2)Recipient shall monitor the activities of its subrecipients to ensure that awards are used for authorized purposes in compliance with applicable laws, regulations and federal grant agreements. O.Recipient must obtain and maintain supporting documentation for all expenditures and requests for grant funds,including those of subrecipients under their respective contracts with Recipient, with properly executed payroll and time records, invoices, contracts, vouchers, orders, canceled checks and any other accounting documents in accordance with generally accepted accounting principles, Oregon Administrative Rules and applicable federal requirements specified herein. IFAmay require such other information as it deems necessary or appropriate in its sole discretion. P.Indemnity. To the extent authorized by law, Recipient shall defend (subject to ORS chapter 180), indemnify, save and hold harmless IFAand its officers, employees and agents from and against any and all claims, suits, actions, proceedings, losses, damages, liability, costs, expenses, attorneys fees and cost awards resulting from, arising out of or related to any actual or alleged act or omission by Recipient, or its officers, employees, agents, contractors or subrecipients; however, the provisions of this Section are not to be construed as a waiver of any defense or limitation on damages provided for under Chapter 30 of the Oregon Revised Statutes or under the laws of the United States or other laws of the State of Oregon. Page 5of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 100 S5– D;R;T ECTION EFAULTEMEDIESERMINATION A.Defaults.Any of the following constitutes an “Event of Default”: 1)If Recipient, or any of its subrecipient’suse of grant funds,violates the terms and conditions of this contract or applicable law, specifically including but not limited to OAR Chapter 123, Division 80, and that violation continues for a period of thirty (30) calendar days after written notice specifying such violation is given to Recipient by IFA. In such caseand in addition to any other remedy available to IFA,IFAmay, in its sole and absolute discretion, require that Recipient obtain prior IFAapproval for any expenditures that would otherwise be eligible for reimbursement under this contract. 2)If Recipient is unable to commence the Project within four (4) months following the Effective Date of this contract. B.Remedies. Upon any Event of Default, IFAmay pursue any or all remedies in this contract and any other remedies available at law or in equity to collect amounts due or to become due or to enforce the performance of any obligation of Recipient. Remedies may include, but are not limited to: 1)Terminating IFA’s commitment and obligation to make the Grant or disbursements under the contract. 2)Withholding amounts otherwise due to Recipient for application to any amounts due under this contract; however, this provision is not to be construed in away that Recipient’s obligations would constitute debt that violates Section 10, Article XI of the Oregon Constitution. 3)Barring Recipient from applying for future awards. 4)Requiringrepaymentof the Grant and anyinterest earned by Recipient on theGrant. C.Termination.IFAmay terminate this contract immediately if: 1)IFAfails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient, in IFA’s exercise of its reasonable discretion, to fund the Project. 2)Federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the CDBG grant or payments to be made hereunder are prohibitedor IFAis prohibited from paying for the CDBG grant program from the planned funding source(s). In the event of termination under this Section or for any Event of Default, Recipient shall delivertoIFA all unexpended money, property, finished or unfinished documents, data, financial reports, audit reports, program reports, studiesand reports purchased or prepared by Recipient, within sixty (60) calendar days of the date of termination. Termination of this contract shall not impair or invalidate any remedy available to IFAor Recipient hereunder, at law, or otherwise. S6– MP ECTION ISCELLANEOUS ROVISIONS A.No Remedy Exclusive; Waiver; Notice. No remedy available to IFAis intended to be exclusive, and every remedy will be in addition to every other remedy. No delay or omission to exercise any right or remedy will impair or is to be construed as a waiver of such right or remedy. No single or partial exercise of any right,power or privilege under this contract shall preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. The IFAis not required to provide any notice in order to exercise any right or remedy, other thannotice required in Section 5 of this contract. Page 6of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 101 B.Notices. Except as otherwise expressly provided in this contract, any notices to be given hereunder shall be given in writing by personal delivery, email, facsimile, or mailing the same, postage prepaid, or other written instrument, to Recipient or IFAat the address or number set forth in this contract, or to such other address or number as either party may hereafter indicate pursuant to this Section. Any notice so addressed and mailed shall be deemed to be given five (5) days after mailing. Any notice delivered by facsimile or email shall be deemed to be given when receipt of the transmission is generated by the transmitting machine. To be effective against IFA, such facsimile transmission must be confirmed by telephone notice to the Manager, ProgramServicesDivision, Infrastructure Finance Authority. Any notice by personal delivery shall be deemed to be given when actually delivered. C.Third Party Beneficiaries. IFAand Recipient are the only parties to this contract and are the only parties entitled to enforce its terms. Nothing in this contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by nameherein and expressly described as intended beneficiaries of the terms of this contract. D.No Limitations on Actions in Exercise of Governmental Powers. Nothing in this contract is intended, nor shall it be construed, to in any way limit the actions of IFAin the exercise of its governmental powers. It is the express intention of the parties hereto that IFAshall retain the full right and ability to exercise its governmental powers with respect to Recipient, the grant funds, and the transactions contemplated by this contractto the same extent as if it were not a party to this contract, and in no event shall IFAhave any contractual liability arising under this contractby virtue of any exercise of its governmental powers. E.Time of the Essence. Time isof the essence in the performance of any and all obligations under this contract. F.No Construction against Drafter. This contract is to be construed as if the parties drafted it jointly. G.Severability. If any term or condition of this contract is declared by a court of competent jurisdiction as illegal, invalid or unenforceable, that holding will not invalidate or otherwise affect any other provision. H.Amendments, Waivers. This contract may not be amended without the prior written consent of IFA (and when required, the Department of Justice) and Recipient. This contract may not be amended in a manner that is not in compliance with the Act. No waiver or consent is effective unless in writing and signed by the party against whom such waiver or consent is sought to be enforced. Such waiver or consent will be effective only in the specific instance and for the specific purpose given. I.Attorney Fees and Other Expenses. To the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, the prevailing party in any dispute arising from this contract is entitled to recover its reasonable attorney fees and costs at trial and on appeal. Reasonable attorney fees cannot exceed the rate charged toIFAby its attorneys. J.Choice of Law; Designation of Forum; Federal Forum. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this contract, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Any party bringing a legal action or proceeding against any other party arising out of or relating to this contract shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County(unless Oregon law requires that it be brought and conducted in another county). Page 7of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 102 Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum. Notwithstanding the prior paragraph, if a claim must be brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for the District of Oregon. This paragraph applies to a claim brought against the State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon’s sovereign immunity and is not consent by the State of Oregon to be sued in federal court.This paragraph is also not a waiver by the State of Oregon of any form of defense or immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States. K.Integration. This contract andall exhibits, schedules or attachments constitute the entire agreement between the parties on the subject matterhereof. There are no unspecified understandings, agreements or representations, oral or written, regarding this contract. L.Execution in Counterparts. This contract may be signed in several counterparts, each of which is an original and all of which constitute one and the same instrument. Recipient, by its signature below, acknowledges that it has read this contract, understands it, and agrees to be bound by its terms and conditions. SOCW TATE OF REGONITY OF OODBURN acting by and through its Oregon Infrastructure Finance Authority BusinessDevelopmentDepartment 775 Summer Street NE, Suite 200270 Montgomery Street Salem, OR 97301-1280Woodburn, OR 97071 Phone503-986-0123Phone503-980-2445 By:By: James P. Ruef, ManagerThe Honorable Kathryn Figley Program Services DivisionMayor of Woodburn Date:Date: ALSORS291.047: PPROVED AS TO EGAL UFFICIENCY IN ACCORDANCE WITH /s/Lynn T. Nagasakoas per email datedJune 11, 2012 Lynn T. Nagasako, Sr. Assistant Attorney General Exhibit A: Special Conditions of Awardfor Housing Rehabilitation Grant Contracts Exhibit B: Recipient’s Certification of Compliancewith State and Federal Laws and Regulations Exhibit C: Certification Regarding Lobbying Exhibit D: Project Budget Page 8of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 103 Exhibit A –SCA PECIAL ONDITIONS OF WARD HRGC FOR OUSING EHABILITATION RANT ONTRACTS 1.All Project-related contracts must be received by IFAten (10) days prior to execution. This includes all Project-related contracts between Recipientand any person or entity that will be performing grant administration or program management services. This condition does not applyto loans with individual homeowners or to construction contracts by homeowners. 2.Recipienthas adopted and will enforce (1) a policy prohibiting the use of excessive force by law enforcement agencies within its jurisdiction against any individuals engaged in non-violent civil rights demonstrations and (2) a policy of enforcing applicable state and local laws against physically barring entrance to or exit from a facility or location which is the subject of such non- violent civil rights demonstration within its jurisdiction in accordance with Section 104(l) of the Act. 3.Recipient will assume all of the responsibilities for environmental review, decision-making and action pursuant to the National Environmental Policy Act of 1969,42 U.S.C. §4321-4370(d) (1994), and in accordance with Section 104(g) of the Act, 42 U.S.C. §5304(g) (1994). Recipient shall provide such certification as required by the Secretary of HUD. Recipients will perform reviews in accordance with 24 C.F.R. Part 58 (2003) and the other federal authorities listed at 24 C.F.R. §58.5(2003).Recipientshall complete a minimum of the following Environmental Review steps for Housing Rehabilitation projects. Submission of a Determination of Exemption for activities included in 24 CFR 58.34(a) and the Compliance Checklist for the “Other Requirements” in 24 CFR 58.6(Exhibit 3Cof IFA’s CDBG Grant Management Handbook) for grant administration and program management, completion of aMinor Owner Occupied Housing Rehabilitation Program Environmental Review (Exhibit 3Mof the Handbook),publication of a Notice of Intent to Request a Release of Funds Owner Occupied Housing Rehabilitation Program (Exhibit 3Nof the Handbook) along with an affidavit of publication from a newspaper of general circulation in the project area, and a Request for Release of Fundsand Certification (Exhibit 3H of the Handbook).No expenses to be paid with CDBG funds canbe incurredprior toa Release of Funds being issuedby IFA. 4.Recipientshall provide the following prior to the submission of the first draw of grant funds: A.Electronic Transfer Authorization for receiving disbursements. B.Fair Housing Resolution affidavit of publication. Publication must be no more than six months prior to submission of Recipient’s first disbursement request.Attach a copy of the published Fair Housing Resolution. Recipient must also have undertakenat least one additional activity to promote fair housing opportunities in its jurisdiction. C.Documentation that Fair Housing poster(s) and brochures (including other than English if required) were distributed and posted not more than 6 months prior to the first draw for non-construction activities/funds. D.Rehabilitation Act Section 504self-evaluationchecklist. E.Grievance Procedure for Complaints of Alleged Discrimination Based on Disability F.Nondiscrimination on the Basis of Handicap Status affidavit of publication. G.Municipal official or staff person to be responsible for monitoring the housing rehabilitation project to ensure that necessary permits are obtained and required inspections are completed prior to payment authorization. Recipientis responsible for notifying IFAof any changes to this assignment. Page 9of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 104 H.Recipientshall identify a designated“Certifying Officer” for executing site-specific environmental reviews. 5.Recipient shall, or cause its subrecipients or contractors to,take at least one photo of each housing rehabilitation project home prior to construction activities, and take at least one photo after final inspection. Photos will be kept in Recipient’s CDBG files and released to IFAor HUD upon request. 6.Grant administrative costs may be reimbursed for direct costs incurred for grant administration. All direct costs must be supported with source documentation. 7.Program management costs may be reimbursed for the actual costs of delivering the housing rehabilitation program. All charges to the grant must be supported with source documentation. 8.Rehabilitation funds must be contractually committed in loan contracts to eligible property owners 90 days prior to the Project Completion Deadline.Any rehabilitation funds not committed at that time may be subject to recapture. 9.Program management or grant administration funds remaining upon completion of that activity may be transferred to additional rehabilitation or subject to recapture. 10.Recipientshall submit a Project Completion Reportno later than the Project Completion Deadline.Recipient shall dedicate all loan proceeds and any program income to the regional revolving loan fund for housing rehabilitation. Recipientshall return any funds not so dedicated to IFA. 11.Federal rules regarding “program income” at 24 CFR 570.489(e) shall survive and continue to apply after Project completion or closeout and after termination or expiration of this contract. 12.All matching funds must be secured in writing or the contract may be terminated. No CDBG funds may be drawn down unless all Project matching funds are secured. 13.No costs will be charged to this contract which were incurred prior to executionof this contract. No costs of construction or for professional services will be charged to this contract which were incurred prior to execution of the applicable contract between the Recipientand such contractor or service provider, and IFA’sapproval of such contract. Page 10of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 105 Exhibit B –R’CC ECIPIENTS ERTIFICATION OF OMPLIANCE SFLR WITHTATEANDEDERALAWSANDEGULATIONS Funds for the Oregon Community Development Block Grant Program are provided through a grant to IFAfrom the U.S. Department of Housing and Urban Development, under Title I of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. §5301 (1994). These funds are subject to various federal statutes and regulations as well as state laws and administrative rules. Recipient hereby represents, warrants and certifies that: 1.It has complied with all relevant federal and state statutes, regulations, executive orders, policies, guidelines and requirements with respect to the application for and acceptance and use of Oregon Community Development Block Grant funds, including but not limited to the Act. 2.It possesses legal authority to apply for and accept the terms and conditions of the Grant and to carry out the proposed Project. 3.Its governing body has duly authorized the filing of the application, including all understandings and assurances contained therein. 4.The person identified as the official representative of Recipient in the application and this contractis duly authorized to act in connection therewith and to provide such additional information as may be required. Recipient’s official representative has sufficient authority to make all certifications on its behalf. 5.This contract does not and will not violate any provision of any applicable law, rule, regulation or order of any court, regulatory commission, board or administrative agency applicable to Recipient or any provision of Recipient’s organic laws or documents. 6.This contract has been duly executed by Recipient’s highest elected official and delivered by Recipient and will constitute the legal, valid and binding obligations of Recipient, enforceable in accordance with its terms. Recipient further represents, warrants and certifies that it is following a detailed citizen participation plan which: 7.Provides for and encourages citizen participation, with particular emphasis on participation by persons of low and moderate income who are residents of slum and blighted areas and of areas in which funds are proposed to be used; 8.Provides citizens with reasonable and timely access to local meetings, information, and records relating to Recipient’s proposed use of funds, as required by applicable regulations, and relating to the actual use of funds under the Act; 9.Furnishes citizens information concerning the amount of funds available in the current fiscal year and the range of activities that may be undertaken, including the estimated amount proposed to be used for activities that will benefit persons of low and moderate income, and the proposed activities likely to result in displacement and the plans of Recipient for minimizing displacement of persons as a result of activities assisted with such funds and for relocating persons actually displacedas a result of such activities; 10.Provides for technical assistance to groups representative of persons of low and moderate income that request such assistance in developing proposals, with the level and type of assistance to be determined by Recipient; Page 11of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 106 11.Provides for aminimum of two public hearings to obtain citizen views and to respond to proposals and questions at all stages of the community development program, including at least the development of needs, the review of proposed activities, and review of program performance, which hearings shall be held after reasonable notice, at times and locations convenient to potential or actual beneficiaries, and with accommodation for the handicapped; 12.Identifieshow the needs of non-English speaking residents will be met in the case of public hearings where a significant number of non-English speaking residents can be reasonably expected to participate; 13.Provides reasonable advance notice of and opportunity to comment on proposed activities in a grant application to IFA,or as to grants already made,substantial changes to activities from Recipient’s application to IFA; and 14.Provides the address, phone number and times for submitting complaints and grievances and provides for a timely written answer to written complaints and grievances, within 15 working days where practicable. Recipientfurther represents, warrants and certifies that: 15.The officer executing this certification is its chief executive officer (or other designated officer of Recipientwho is qualified under the applicable HUD regulations); 16.Such certifying officer consents to assume the status of a responsible federal official under NEPA and other laws specified by the applicable HUD regulations, 24 C.F.R. §§58.1-58.77 (1997); and 17.Such certifying officer is authorized and consents on behalf of Recipientand himself/herself to accept the jurisdiction of the federal courts for the purpose of enforcement of his/her responsibility as such an official. In addition to the above certifications, for grants exceeding$100,000, the undersigned also makes the certification regarding lobbying set forth in Exhibit C attached to this contract. Signed Title Date RecipientCity of Woodburn Page 12of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 107 Exhibit C –CRL ERTIFICATION EGARDING OBBYING (Grants exceeding$100,000) The undersigned certifies, to the best of his or her knowledge and belief, that: (1)No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan or cooperative agreement. (2)If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. (3)The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Signed Title Date RecipientCity of Woodburn Page 13of 14 Infrastructure Finance Authority/H12004 Woodburn Contract.docx 108 Exhibit D Page 14 of 14 110 COUNCIL BILL NO. 2899 RESOLUTION NO. 2016 A RESOLUTION DESIGNATING THE DIRECTOR OF ECONOMIC AND DEVELOPMENT SERVICES AS THE CDBG PROJECT CERTIFYING OFFICERANDENVIRONMENTAL CERTIFYING OFFICER the City received CommunityDevelopment Block Grant WHEREAS, #H12004 (“the Grant”) fromthe State of Oregon through theBusiness Oregon Infrastructure Finance Authority; and the City is required to designate a Project Certifying Officer for WHEREAS, signing required documents under the Grant; and the City is also required to designate an Environmental WHEREAS, Certifying Officer for signing required environmental documents under the Grant; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: James N. P. Hendryx, Director of Economic and Development Section 1. Services, is designated asProject Certifying Officer and as Environmental Certifying Officer and delegated the authority to sign required documents under the Grant. Approved as to form: City AttorneyDate Approved: Kathryn Figley, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Heather Pierson, Assistant City Recorder City of Woodburn, Oregon Page 1 – Council Bill No. 2899 Resolution No. 2016 111 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council through City Administrator FROM:Dan Brown,Publics Works Director SUBJECT: Acceptance of a Public Utility Easement along the Frontage of 1542 Mount Hood Avenue (Tax Lot 051W08DB01400) RECOMMENDATION: That Council acceptsa10foot Public Utility Easementgranted by Woodburn Associates, property owners of1542 Mount Hood Avenuein Woodburn, Oregon. BACKGROUND: As a condition of Building Permit B12-113, the property owner is required to provide a 10 foot Public Utility Easement. To satisfy this building permit condition, the owners of the subject property have providedatenfoot Public Utility Easement along the frontage of 1542 Mount Hood Avenue (Tax Lot 051W08DB01400). DISCUSSION: The Public Utility Easementis a stripof land measuring 10.0 feet wide by 220.14 feet long, and is located on the southside of Mount Hood Avenuealong the northerlyproperty boundary at 1542 Mount Hood Avenue. The Public Utility Easement will allow the right to construct, reconstruct, operate, and maintain public utilities. FINANCIAL IMPACT: There is no cost to the City for this Public Utility Easementsince it was donated by the property owner. ATTACHMENTS ACopy of the signed Public Utility Easement document is attached. Agenda Item Review:City Administrator ___x___City Attorney __x___Finance __x___ 112 113 114 115 116 117 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council through City Administrator FROM:Dan Brown,Publics Works Director SUBJECT: ACCEPTANCE OF A PUBLIC RIGHT-OF-WAY DEDICATION ALONG FRONTAGE OF 1542 MOUNT HOOD AVENUE (TAX LOT 051W08DB01400) RECOMMENDATION: That Council acceptsa5 foot Public Right-of-Way Dedicationgranted by Woodburn Associates, property owners of1542 Mount Hood Avenue in Woodburn, Oregon. BACKGROUND: As a condition of Building Permit B12-113, the property owner is required to provide a 5 foot public Right-of-Way dedication in conformancewith the required street cross-section depicted in the current Woodburn Transportation System Plan. To satisfy this building permit condition,the owners of the subject property have providedafive foot Right-of-Way Dedicationalong the frontage of 1542 Mount Hood Avenue (Tax Lot 051W08DB01400). DISCUSSION: The Right-of-Way Dedicationis a stripof land measuring 5.0 feet wide by 220.14 feet long, and is located on the southside of Mount Hood Avenuealong the entire northerly property boundary at 1542 Mount Hood Avenue. The Right-of- Way dedication will allow the construction of any future improvements to meet the requirements of the current transportation system plan. FINANCIAL IMPACT: There is no cost to the City for this Right-of-Way Dedicationsince it was donated by the property owner. Agenda Item Review:City Administrator ___x___City Attorney __x____Finance __x___ 118 Mayor and City Council August 13, 2012 Page 2 ATTACHMENTS ACopy of the signed Right-of-Way Dedication document is attached. 119 120 121 122 123 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council through City Administrator FROM:Dan Brown,Publics Works Director SUBJECT: ACCEPTANCE OF A PUBLIC UTILITY EASEMENT WITHIN PROPERTY OF THE JEHOVAH WITNESS ASSEMBLY HALL (TAX LOT 051W08DB00300) RECOMMENDATION: That Council accepts a 10 foot Public Utility Easement for City water facilities granted byWoodburn Oregon Jehovah Witness Assembly Hall, property owner of 1510 N. Pacific Hwy, Woodburn, OR 97071(Tax Lot 051W08DB00300). BACKGROUND: A permanent water line easement is required due to on-site construction activities at 1510N. Pacific Hwywhich requires the relocation of an existing fire hydrant. This easement will allow the City’s existing water main to extend to the southside of the current main line in order to encompass the new extended water line and relocated fire hydrant. DISCUSSION: The Public Utility Easement is a 10.0 feetwide by30.0 feet long Waterline Easement that is located within 1510N. Pacific Hwy. It provides a permanent easement and right-of-way to construct, reconstruct, operate, and maintain Water Mains, Service Lines and Appurtenances. FINANCIAL IMPACT: There is no cost to the City for this Public Utility Easement since it was donated by the property owner. ATTACHMENTS ACopy of the properly signed public utility easement document is attached. Agenda Item Review:City Administrator __x____City Attorney __x____Finance __x___ 124 125 126 127 128 Agenda Item August 13, 2012 TO:Honorable Mayor and City Council through City Administrator FROM:Dan Brown,Publics Works Director SUBJECT: ACCEPTANCE OF A PUBLIC UTILITY EASEMENT WITHIN ST. LUKE CATHOLIC CHURCH PROPERTY LOCATED AT 417 HARRISON STREET RECOMMENDATION: That Council accepts a 16 foot Public Utility Easement (PUE) for City storm sewer facilities granted bySt. Luke Catholic Church, property owner of Parcel 1 as described in recorded Partition Plat No. 2012-24, Woodburn, OR 97071. BACKGROUND: A City owned sewer storm main line is located within the St. Luke Catholic Church propertywith no easement on record. All seven lots owned by St Luke Street and 3Street were Catholic Church between Harrison Street, 5 thrd consolidated into onelot, as per Marion County recorded Partition Plat No. 2012-24. Marion County will designate a new tax lot number to the consolidated property in October of 2012. In order to obtain a storm sewer easement across St. Luke’s property, the City of Woodburn agreed to pay for all costs associated with the completion of the lot- line consolidation and storm utility easementdemarcation, including engineering, surveying and recording expenses. The Partition Plat No. 2012-24 was completed by a AKS Engineering & Forestry under a contract with the City. DISCUSSION: The Public Utility Easement is a 16.0 feetwide by406.52feet long Storm Sewer Pipe Easement thatis located within Parcel 1 as described in recorded Partition Plat No. 2012-24. It provides a permanent easementand right-of-way to construct, reconstruct, operate, and maintain citystorm sewer facilities. Agenda Item Review:City Administrator ___x___City Attorney ___x___Finance __x___ 129 Mayor and City Council August 13, 2012 Page 2 FINANCIAL IMPACT: Theestimated cost to the City for this easement is $11,500, which includes staff time, professional services of aProfessional Land Surveyor, and Marion County recorded fees for the easement and Partition Plat No. 2012-24. Funding for this project was provided under the Street/Storm Capital Improvement Fund 363. ATTACHMENTS ACopy of the properly signed public utility easement document is attached. 130 AFTER RECORDING RETURN TO: Woodburn City Recorder City of Woodburn 270 Montgomery Street Woodburn, OR 97071 CITY OF WOODBURN, OREGON PUBLIC UTILITY EASEMENTS (Temporary and Permanent) ST. LUKE CATHOLIC CHURCH, WOODBURN OREGONGRANTOR,grants to the CITY OF WOODBURN, OREGON, hereinafter called CITY, a permanent easement and right-of-way, including the permanent right to construct, reconstruct, operate, and maintain STORM SEWER FACILITIESon the following described land: See attached Exhibit “A” Legal Description of Permanent Easement and attached Exhibit “B” Sketch for Legal Description of Permanent Easement which are by this reference incorporated herein GRANTOR reserves the right to use the surface of the land for any purpose that will not be inconsistent or interfere with the use of the easement by CITY. No building or utility shall be placed upon, under, or within the property subject to the foregoing easement during the term thereof, however, without the written permission of CITY. Upon completion of the construction, CITYshall restore the surface of the property to its original condition and shall indemnify and hold GRANTOR harmless against any and all loss, cost, or damage arising out of the exercise of the rights granted herein. The true consideration of this conveyance isZero Dollars($0.00), and other valuable consideration, the receipt of which is acknowledged by GRANTOR. GRANTOR covenants to CITY that GRANTORis lawfully seized in fee simple of the above-granted premises, free from all encumbrances and that GRANTORand their heirs Public Utility Easements (Temporary and Permanent) Page 1 of 6 131 132 133 134 135 136